Full text of "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"

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

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)

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:

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".

•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.

Captain Cronin, if you don't mind, we're going to welcome the
first panel, and I'm delighted you're going to be here the whole
time of the hearing.

Captain Cronin. Thank you very much.

Mr. Smith. Let me say also that we have just been joined by
Congressman Bill McCollum of Florida, and appreciate his interest
in the subject and his attendance as well. We have to have two
members here, as I mentioned a while ago. So he is now the indis-
pensable person, at least to keep us going here. [Laughter.]

I'm pleased to introduce the first panel. Michael Matheson is
Principal Deputy Legal Adviser at the State Department, and John
H. McNeill is Senior Deputy General Counsel for International Af-
fairs and Intelligence at the Defense Department.

We welcome you and look forward to your testimony. And while
we have a 5-minute limit, you're welcome to use all the time or just
summarize your testimony, whatever suits your purposes.

We'll start with Mr. Matheson.

STATEMENT OF MICHAEL J. MATHESON, PRINCIPAL DEPUTY
LEGAL ADVISER, DEPARTMENT OF STATE

Mr. Matheson. Thank you, Mr, Chairman. I would like to do
what you suggest and submit my prepared testimony in full for the
record and give you a somewhat shorter presentation.

Mr. Smith. Ofc Without objection, your whole testimony will be
made a part of the record.

Mr. Matheson. We are verv pleased to participate today in this
hearing on H.R. 2587. This bill, in our view, would serve important
goals: to help deter war crimes against U.S. nationals and members
of U.S. Armed Forces and to ensure that the United States is able
to comply fully with its international law obligations with respect

to the prosecution of war crimes. The administration fully supports
both of these goals.

As you know, the United States has played a leading role in
international efforts to bring to justice those who have committed
war crimes and other violations of international humanitarian law.
This is one of the reasons why the United States has so strongly
supported the establishment and the work of the U.N. War Crime
Tribunals for Yugoslavia and Rwanda.

The Congress acted in support of this objective earlier this year
by its adoption of legislation that authorized the surrender to these
tribunals of persons found in the United States who had been indi-
cated or convicted for offenses that were within the jurisdiction of
the tribunals. However, we do not believe that the prosecution of
war crimes can be left to international tribunals alone. The man-
date of these tribunals is typically limited to particular conflicts,
and as a practical matter, the tribunals will not have the ability
to deal with most offenders even in those cases.

But even more fundamentally, international law imposes an obli-
gation on individual states to take various measures to prevent and
punish the commission of war crimes. In particular, as we have al-
ready heard, the parties to the 1949 Geneva Conventions are re-
quired to enact any legislation necessary to provide effective penal
sanctions for persons committing any of the grave breaches that
are defined in the Conventions.

At the time of the submission of the Conventions to the Senate
for their advice and consent, the executive branch advised that im-
plementing legislation was not required since offenders could be
prosecuted under Federal and State penal statutes in the case of
crimes within U.S. jurisdiction or the Uniform Code of Military
Justice with respect to crimes committed abroad. However, over the
years U.S. courts have handed down a series of decisions which
cast doubt on the constitutionality of the exercise by military tribu-
nals of criminal jurisdiction over the acts abroad of various cat-
egories of persons who are not in active military service. And there-
fore, it is very useful, in our view, to establish clear jurisdiction in
U.S. courts to try any persons for such offenses if they come within
our jurisdiction.

Now, as currently drafted, H.R. 2587 would create new provi-
sions in title 18 of the U.S. Code that would make it a criminal of-
fense for any person to commit a grave breach of the 1949 Conven-
tions, or any protocol thereto to which the United States is a party,
against a citizen of the United States or a member of the Armed
Forces of the United States. Although, of course, we hope that such
acts are never committed against our nationals or our armed forces
members, experience has taught us otherwise. And the administra-
tion certainly supports the enactment of criminal legislation to deal
with cases where our nationals or Armed Forces personnel are the
victims of such crimes.

However, if we are to achieve fully the objectives to which I re-
ferred, we believe that the bill should be expanded in several im-
portant respects. First, we believe it should be amended to expand
the circumstances under which the commission of the crimes in
question would be subject to the criminal jurisdiction of U.S.
courts. Specifically, we believe that the provision should apply not

only where offenses are committed against a U.S. national or a
member of U.S. Armed Forces, but also where offenses are commit-
ted by such persons. We are certainly interested in bringing to jus-
tice those who commit war crimes against our nationals and our
armed forces personnel, but we also have an interest in having the
authority, if necessary, to prosecute any U.S. national or armed
service member who commits such acts.

Further, we believe that the bill should be expanded to provide
criminal jurisdiction whenever the offense is committed in the
United States or where the perpetrator of the offense is later found
in the United States, regardless of where or against whom it was
committed. This follows a pattern adopted in the U.S. Criminal
Code for offenses implicating other international obligations, such
as piracy, attacks on internationally-protected persons, and attacks
against international civil aviation.

Second, the administration supports expanding the types of viola-
tions of international humanitarian law to be addressed by the bill.
We suggest that the provision cover not only g^-ave breaches of the
1949 Conventions, but also a more general category of war crimes
that would be defined to include certain violations of the law of war
in addition to grave breaches. Specifically, we believe that the bill
should make it a crime under U.S. law to commit violations of the
international rules that apply during nonintemational armed con-
flicts: that is, civil wars and other internal conflicts. U.S. nationals
and U.S. servicemen may well become the victims of war crimes in
such conflicts, as in fact happened in El Salvador and Somalia.

We further believe that the bill should be expanded to cover vio-
lations of the relevant articles of the Hague Convention No. IV,
which is an important source of international humanitarian law
with respect to means and methods of warfare.

And finally, we have recently participated in the successful nego-
tiation of an amendment to the International Protocol on Land
Mines, and this Protocol will soon be submitted to the Senate for
its advice and consent. It will require the imposition of penal sanc-
tions against persons who willfully kill or cause serious injury to
civilians by violation of the land mine provisions.

We believe that U.S. nationals and servicemen could certainly
become the victims of the improper use of land mines, as did, in-
deed, happen in Vietnam, and therefore, we believe the bill should
cover such violations as well.

Mr, Smith. Mr. Matheson, I'm going to need to move on. We have
your complete testimony for the record. So, if we could, either you
can bring it to a conclusion or we can go on.

Mr. Matheson. Fine. I would like to make just one more
point

Mr. Smith. OK.

Mr. Matheson. That you won't find in my prepared testimony,
which is that we realize that it would not necessarily be appro-
priate or a good use of U.S. law enforcement resources to prosecute
in U.S. courts all of the persons who might fall within the cat-
egories that I've been describing. We believe that in each case that
there should be careful judgment exercised at a high level \vithin
the Justice Department to ensure that each prosecution is war-
ranted, taking into account the seriousness of the offense, the cir-

cumstances, the interests of the United States in a particular case,
and the availability of alternatives such as extradition.

And therefore, we have included in our proposed revision of the
bill a provision stating that no prosecution should be undertaken
unless the Attorney General or his designee determine in writing
that such a prosecution would be in the public interest and nec-
essary to secure substantial justice. We believe this would ensure
against a flood of unnecessary cases while giving us the capability
and the option to use this autnority where we need to do it.

[The prepared statement of Mr. Matheson follows:]

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

Mr. Chairman, I am pleased to participate today in this hearing on H.R. 2587,
entitled the "War Crimes Act of 1995." H.R. 2587 would serve important goals: to
help deter war crimes against U.S. persons, and to ensure that tne United States
is able to comply fully with its international law obligations with respect to the
prosecution of war crimes. The Administration fully supports these goals.

The United States has played a leading role in international enbrts to bring to

iustice those who have committed war crimes and other violations of international
lumanitarian law. In his remarks on October 15, 1995, commemorating the 50th
anniversary of the Nuremberg Tribunals, President Clinton declared: "We have an
obligation to carry forward the lessons of Nuremberg." The President stressed the
need to "put into practice the principle that those who violated universal human
rights must be called to account for those actions." This is one of the reasons why
the United States has so strongly supported the establishment and the work of the
United Nations War Crimes Tribunals for the former Yugoslavia and for Rwanda.
As President Clinton said with regard to persons indicted by those Tribunals:

Those accused of war crimes, crimes against humanity and genocide must
be brought to justice. They must be tried and, if found guilty, they must
be held accountable.

The Congress acted in support of this objective earlier this year by its adoption of
Section 1342 of the National Defense Authorization Act, Fiscal Year 1996, which au-
thorized the surrender to the War Crimes Tribunals of persons found in the United
States who had been indicted or convicted for offenses within the jurisdiction of
those Tribunals.

Although the United States led the effort to create the War Crimes Tribunals for
the former Yugoslavia and for Rwanda, we do not believe that the prosecution of
war crimes can be left to international tribunals alone. The mandate of these tribu-
nals is limited to particular conflicts, and as a practical matter these tribunals will
not have the abibty to deal with most offenders even in those cases. More fun-
damentally, international law imposes an obligation on individual states to take
various measures to prevent and punish the commission of war crimes.

Making such acts criminal under domestic law is essential to deterring them.
When such acts do occur, prosecuting those who commit them is essential in nelping
to prevent their recurrence. If we are to ensure that those who conmiit war cnmes
are brought to justice, we must rely first and foremost on the domestic criminal
laws and practice of individual states.

Indeed, international law expressly requires states to enact penal legislation,
where necessary, to provide for the punishment of those who commit certain war
crimes. Parties to the Geneva Conventions of August 12, 1949, relating to the laws
of warfare ("the 1949 Geneva Conventions") are required to "enact any legislation
necessary to provide effective penal sanctions for persons committing, or ordering
to be committed, any of the grave breaches" defined in those Conventions. Grave
breaches include, among other things, acts such as wUlful killing, torture or inhu-
man treatment, and wulfully causing great suffering or serious injury to body or
health, when committed against sick or wounded combatants, prisoners of war, or
civilians.

At the time of the submission of the 1949 Geneva Conventions to the Senate for
advice and consent, the Executive Branch advised that implementing legislation was
not required, since offenders could be prosecuted under federal and state penal stat-
utes (in the case of crimes within United States jurisdiction) or the Uniform Code
of Militanr Justice (with respect to crimes wmmitted abroad). However, over the
years, U.S. courts have handed down a serins of decisions which cast doubt on the

constitutionality of the exercise by military tribunals of criminal jurisdiction over
the acts abroaa of various categories of persons who are not in active military serv-
ice.

It is therefore very useful, in our view, to establish clear jurisdiction in U.S.
courts to try any persons for such offenses if they come within U.S. jurisdiction. Fur-
thermore, since 1949 the United States has accepted certain specieJized rules of
international humanitarian law which may not have an equivalent in existing U.S.
criminal statutes.

As currently drafted, H.R. 2587 would create new provisions in title 18 of the U.S.
Code that would make it a criminal offense, prosecutable in U.S. courts, for any per-
son to commit a grave breach of the 1949 Geneva Conventions, or any protocol
thereto to which the United States is a party, against a citizen of the United States
or a member of the armed forces of the United States. Although we of course hope
that such acts are never committed against our nationals or armed forces personnel,
experience has taught us otherwise, and the Department of State certainly supports
the enactment of criminal legislation to deal with cases where our nationals or
armed forces personnel are the victims of grave breaches of the 1949 Geneva Con-
ventions.

If, however, we are to achieve the objectives to which I have referred, HJl. 2587
should be expanded in several important respects. First, it should be amended to
expand the circumstances under which the commission of the crimes in question
would be subject to the criminal jurisdiction of U.S. courts. Specifically:

The provision should apply not only where offenses are committed against a
U.S. national or member of the U.S. armed forces, but also where offenses are
committed by such persons. While we are certainly interested in bringing to jus-
tice those who commit war crimes against our nationals or armed service per-
sonnel, we also have an interest in punishing any U.S. national or armed serv-
ice member who conunits such acts.

Further, H.R. 2587 should be expanded to provide criminal jurisdiction when-
ever the offense is committed in the United States, or where the perpetrator of
an offense is later found in the United States regardless of where or agtdnst
whom it was committed. This would ensure the ability of the United States to
fiiUiU our obligations under the 1949 Geneva Conventions and other inter-
national agreements. It will ensure that the United States cannot be a safe
haven for those who have committed violations of the laws of war.
Second, the .Administration supports expanding the types of violations of inter-
national humanitarian law to be addressed by H.K. 2587. We suggest that the provi-
sion cover not only grave breaches of the 1949 Geneva Conventions, but a more gen-
ersd category of "war crimes" that would be defined to include certain violations of
the laws of war in addition to grave breaches. Specifically:

We believe H.R. 2587 should make it a crime under U.S. law to commit viola-
tions of the rules specified in Common Article 3 and Additional Protocol II to
the 1949 Geneva Conventions that apply during non-international armed con-
flict, that is, civil wars and other internal conflicts. As the grim experience in
Rwanda reminds us, some of the nwst horrible war crimes occur in internal
armed conflicts, as to which the grave breach provisions of the 1949 Geneva
Conventions may not be applicable.
For example, Common Article 3 of the Geneva Convention prohibits murder, cruel
treatment, and torture of persons, such as civilians or captured or wounded combat-
ants, taking no active part in hostilities during a non-international armed conflict.
As evidence of the importance of the protections of international law in non-inter-
national armed conflicts, the United States has taken the position that the Statute
of International Criminal Tribunal for the Former Yugoslavia, which gives the Tri-
bunal jurisdiction over "persons violating the laws or customs of war," includes vio-
lations of Conmion Article 3 and the additional protocols to the Geneva Conventions.
We believe that such violations should similarly be treated as war crimes for pur-
poses of U.S. law, and thus should be covered by an expanded H.R. 2587.

Further, H.R. 2587 should be expanded to cover violations of Articles 23, 25.
27, and 28 of the Annex to the Hague Convention IV, Respecting the Laws and
Customs of War on Land, of October 18, 1907, applicable to international armed
conflict. The 1907 Ha^e Convention is an important source of intemationtd hu-
manitarian law, and it served as an important basis of law for the Nuremberg
Tribunal.
Article 23 of the Convention lists a series of acts prohibited in war, including,
among other things, using poison weapons, killing inmviduals who have laid down
their arms and surrendered, and emplojring arms calculated to cause unnecessary
suffering. Article 25 prohibits the bombardment of undefended towns, villages,
dwellings, or buildings. Article 27 requires forces to take steps to spare, as far as

possible, buUdings dedicated to religion, art, science, or charitable purposes, historic
monuments, hospitals, and places where the sick and wounded are collected, oro-
vided they are not being used at the time for military purposes. Article 28 prohioits
pillage, revisions such as these have provided the basis for Article 3 of the Statute
of International Criminal Tribunal for the Former Yugoslavia, which gives the Tri-
bunal jurisdiction over "persons violating the laws or customs of war."

The Administration believes such violations should also be treated as war crimes
in HJl. 2587.

Finally, the United States has recently participated in the successful negotia-
tion of an amendment to Protocol II (on land mines) to the Convention on Con-
ventional Weapons, to which the United States is a Party. The amended Proto-
col, which will soon be submitted to the Senate for its advice and consent, will
require the imposition of penal sanctions against persons who, in relation to
armed conflict and contrary to the provisions of the Protocol, wUlfully kill or
cause serious injury to civilians.
The United States should take care now, in H.R. 2587, to provide for making such
offenses criminal under U.S. law when the amended Protocol comes into force for
the United States. (We fully expect favorable Senate consideration, and hopefuUy
entry into force, next year.) Doing so would ensure, for example, that deliberate, in-
discriminate use of anti-personnel mines to harm civilians would constitute an of-
fense under U.S. law. This objective is entirely consistent with Congressional senti-
ments and Administration policy on ending the humanitarian crisis posed by these
weapons.

Expanding U.S. criminal jurisdiction over war crimes will serve not only the pur-
pose of ensuring that the United States is able to comply fully with its obligations
under international law, but will also serve as a diplomatic tool in urging other
countries to do the same. Currently the U.S. (Jovemment's leverage in calling on
other governments to enforce the laws of armed conflict is restricted because of the
limitations I have noted concerning our own domestic enforcement jurisdiction. H Jl.
2587, if amended in the manner we propose, would remedy this defect concerning
U.S. enforcement of the laws of armed conflict, particularly with respect to persons
who commit sudi crimes outside the United States but who enter U.S. territory.
With this bill, if modified as we suggest, we will set the right example and use it
to persuade other governments to abide by and enforce the laws of armed conflict.
Mr. Chairman, this concludes my prepared testimony. I have also submitted for
the record the Administration's proposed revision of H.R. 2587 to expand the bill
in the manner I have described. I thank you for the opportunity to appear before
you and would be happy to answer any questions.

Mr. Smith. Thank you.
Mr. McNeill.

STATEMENT OF JOHN H. McNEILL, SENIOR DEPUTY GENERAL
COUNSEL (INTERNATIONAL AFFAIRS AND INTELLIGENCE),
OFFICE OF GENERAL COUNSEL, DEPARTMENT OF DEFENSE

Mr. McNeill. Thank you, Mr. Chairman, Mr. McCollum. We
also appreciate the opportunity to participate today in this hearing
on H.R. 2587, the War Crimes Act of 1996. The Department of De-
fense fully supports the purposes of the bill and its ^oal of bringing
U.S. criminal law into conformity with the international legal obli-
gations of the United States with respect to the prosecution of war
crimes.

Likewise, we also agree that the bill should be expanded to in-
clude violations of the laws and customs of war not reflected in the
Geneva Conventions of 1949, including violations of articles 23, 25,
27, and 28 of the Annex to Hague Convention IV, as well as of Pro-
tocol II to the Conventional Weapons Convention, when that Proto-
col comes into force for the United States, as mentioned by Mr.
Matheson.

We believe that violations of the laws governing the means and
methods of warfare, which these provisions address, can be iust 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 and is subject to the jurisdiction of U.S. courts. We
concur that the 1949 Geneva Conventions require states to enact
penal legislation to provide for the punishment of those who com-
mit 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 gov-
erned by the Uniform Code of Military Justice, with which I know
you are very familiar in this committee. Those subject to the UCMJ
include members of the Armed Forces on active duty, reserve mem-
bers on active duty or inactive duty training, members of the Na-
tional Guard and Air National Guard on active duty or inactive
duty training in Federal service, retired members receiving retired
pav, and cadets, aviation cadets and midshipmen, to mention just
a ^w who fall under the jurisdiction of the Code.

Violations of the laws and customs of war by these members dur-
ing armed conflict ordinarily would be investigated and prosecuted
as violations of the Uniform Code of Military Justice, and the ac-
cused 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 per se, nevertheless, the accused would be prosecuted for
crimes specified, for example, as grave breaches of the Geneva Con-
ventions of 1949. Such violations could include murder, article 118
of the UCMJ, and rape, article 120 of the UCMJ, and other very
serious crimes.

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 recent years in Panama and Somalia, where
accused members of the U.S. Armed Forces were prosecuted for
what might have amounted to grave breaches of the Geneva Con-
ventions.

The Armed Forces of the United States train and operate in ac-
cordance with the laws and customs of war. Our Armed Forces
have an important stake in adherence to these laws, not only to en-
sure deterrence, control, and discipline in our own ranks, Mr.
Chairman, but also to encourage adherence to the laws and cus-
toms of war by our adversaries, the point I think that was made
so eloquently by Mr. Jones and Captain Cronin.

Although the jurisdiction of the UCMJ extends to all active duty
and other personnel who I have mentioned previously, there is one
class of personnel to which the UCMJ does not extend; namely, the
soldier^ sailor, airman, or marine who has completed his or her
tour of duty in the Armed Forces, has mustered out of the service,
and has been discharged. Should that person have committed a
war crime during his or her active duty tour, 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, pros-
ecution under Federal or State law may be unavailing, especially
if the crime were to have been committed during deployment of our

Armed Forces overseas. H.R, 2587, as modified by the administra-
tion's draft, is designed, among other things, to fill this lacuna in
the law, and would ensure that such individuals could be pros-
ecuted and brought to justice for violations of the laws and customs
of war during their service on active duty.

Mr. Chairman, once again, I would like to express the Depart-
ment'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. We appre-
ciate the opportunity to appear before you and provide the Depart-
ment's views. And certainly I would be pleased to address any
questions that you or other members of the subcommittee may
have.

Thank you.

[The prepared statement of Mr. McNeill follows:]

Prepared Statement of John H. McNeill, Senior Deputy General Counsel
(International Affairs and Intelligence), Office of General Counsel, De-
partment OF Defense

Mr. 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 con-
formity with the international legal obligations of the United States with respect to
the prosecution of war crimes. Lake wise, we also agree that the biU should oe ex-
panded to include violations of the laws and customs of war not reflected in the Ge-
neva 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 wnen that Protocol comes into force. We believe that violations of the
laws governing the "means and methods of warfare," which these provisions ad-
dress, 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 Uni-
form 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 Na-
tional 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 ofthe laws
and customs of war by these members during armed conflict ordinarily would be in-
vestigated 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 pros-
ecuted for crimes specified, for example, as "grave breaches" of the (jeneva Conven-
tions of 1949. Such violations could include murder (Article 118, UCMJ), rape (Arti-
cle 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 grow-
ing 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 per-
sonnel wno 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 re-
call 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. Chair-
man, this concludes my prepared testimony to the subcommittee. We appreciate the
opportunity to appear before you and provide the Defense Departments views on
H.R. 2587. 1 would be pleased to address any questions that you may have.

Mr. Smith. Thank you, Mr. McNeill.

Let me direct my first question to Mr. Matheson. The United
States is a strong supporter of the International Criminal Tribunal
for the former Yugoslavia, which was established by the U.N. Secu-
rity Council to prosecute war criminals from the Yugoslavian civil
war. Are such international tribunals more appropriate venues for
dealing with war crimes than domestic criminal courts?

Mr. Matheson. No. I think even in the case of the Yugoslav Tri-
bunal, it is not an exclusive forum for war crimes against — ^in that
situation. They have a statute which reaffirms that there is concur-
rent jurisdiction both by the Tribunal and by domestic courts. That
is essential because the Tribunal will only be able to try a small
fraction of the persons who have committed war crimes, and this
is even more true for the Rwanda Tribunal where there were lit-
erally tens of thousands of individuals who committed serious war
crimes.

So it will always be the case that domestic courts will have a big
burden to bear, even

Mr. Smith. So it's primarily because of the numbers then that
it's

Mr. Matheson. Partially because of the numbers, partially be-
cause of access to the individuals, and partially because tribunals
will probably only be created in a relatively small number of cases,
as you can already see is the case now.

Mr. Smith. Do you have any worry that enactment of H.R. 2587
would encourage rogue nations — for instance, Libya or Iran — ^to
seize Americans and prosecute them for so-called war crimes?

Mr. Matheson. No. If they want to do that, they'll do that now.
I don't think that these countries base their decisions on what U.S.
laws are enacted. And, furthermore, it is already the case that the
1949 Conventions, and international law generally, recognize war
crimes as what you have called universal-jurisdiction crimes, which
one may prosecute when an individual comes within one's jurisdic-
tion. So nothing we would do in this bill would expand any already-
accepted notion.

Mr. Smith. Have Libya or Iran seized any Americans that you're
aware of and prosecuted them for war crimes?

Mr. Matheson. I'm not aware of any offhand.

Mr. Smith, Well, you mentioned that there's nothing to stop
them now. I'm wondering if they might find it easier to do so or
find a self-justification to do so if 2587 were expanded in jurisdic-
tion.

Mr. Matheson. No, I think not. What stops them now, if any-
thing stops them, is the possibility of other measures being applied,
as you've seen in the history of both of these countries. I do not
think that the enactment of this bill will have any effect on their
behavior.

Mr. Smith. OK, thank you.

Mr. McNeill, do you believe that the signing of the third Greneva
Convention, which protected prisoners of war, has ameliorated the
treatment of American prisoners of war in conflicts since the Sec-
ond World War? Do you believe that the enactment of H.R. 2587
would ameliorate the treatment of American prisoners of war in fu-
ture conflicts?

Mr, McNeil, Well, Mr. Chairman, I think we can certainly hope
that it would help. I think it would add to the overall effect — hope-
fully, an interrorum effect — that we would like to create in the
minds of those who would commit war crimes against our prisoners
of war.

As you know, it has been a priority, a very leading priority, for
our Department to look afler situations in which our prisoners of
war find themselves, both looking into the past and looking toward
the future. We have tried to give a great deal of emphasis to the
rights of prisoners of war under the Geneva Convention, and we
think that maltreatment of our prisoners of war, such as occurred
at the hands of Iraq — as you know, every one of our prisoners of
war during the Gulf War was maltreated by Iraq — that these are
extremely serious crimes against the law of armed conflict, against
the Geneva Conventions. And we feel that these people should be
brought to justice whenever possible, and we want to make sure
that there is an infrastructure in the law prepared to address that
problem, should we get the opportunity,

I think that the rules have created, to a certain extent, a deter-
rent effect against even more terrible atrocities than might have
occurred otherwise. There's no way to gauge that, of course, and we
do know that many outrages were committed in Vietnam and else-
where against our POWs, but we want to continue in our effort to
try to protect them in every way we can for the future and we
think this is a good way of so doing.

Mr. Smith, Thank you, Mr. McNeill,

The gentleman from Florida, Mr, McCollum, is recognized.

Mr. McCollum. Thank you very much.

Mr. Matheson, do any oi the additional war crimes, as you've laid
out in what you've proposed, require some kind of separate ratifica-
tion by the Senate besides our just passing a criminal bill. Is there
some process that, because of the nature of a convention, that re-
quires them to address this separately?

Mr, Matheson, Yes, absolutely. Several have already been rati-
fied. Another one of those mentioned — that is. Additional Protocol
II to the 1949 Conventions^has been submitted to the Senate, and
we hope the Senate will ratify. And we expect shortly to submit the
Land Mines Protocol to the Senate for ratification.

And our bill is carefully crafted so that, in the case of those
agpreements where such advice and consent has not yet been given,
the legislation only operates after that happens.

Mr. McCoLLUM. Thank you. Well, I was curious about that. But
we need to encourage them to do that, in any event.

Mr. McNeill, Judge Everett, Professor Everett, who is going to
testify, has suggested, and is going to suggest to us, that articles
18 and 21 of the UCMJ be amended, he says, to specifically em-
power courts-martials and military commissions to try anyone ac-
cused of a grave breach of any treaty to which H.R, 2587 may refer.
And that is simply as an alternative, so that, in addition to the dis-
trict court powers, that the powers of the military be clearly delin-
eated to include anything we do in this act. Would there be a prob-
lem with doing that, in your eyes?

Mr. McNeill. Well, Mr. ^lcCollum, I think that we in the De-
partment of Defense right now would prefer to move ahead with
the bill as it's currently drafted. The Uniform Code of Military Jus-
tice, as we know from the decision of the Supreme Court in the
Toth case of 1955, has been deemed not to be an appropriate vehi-
cle for prosecution of certain types of crimes, particularly with re-
spect to the class of people I referred to in my testimony; that is,
people who have been discharged and who may have committed
while in active service something regarded as a war crime. It is ap-
pears that, from the Toth decision, that it would probably not be
found constitutional to add that portion of jurisdiction to the
UCMJ.

Mr. McCoLLUM. Do you feel that currently, if we did anything
that was less than adding more people, subject to the UCMJ juris-
diction, there would be no additional thing we'd be adding by ex-
panding the opportunity to prosecute under the UCMJ? In other
words, by any language we may throw in to cover g^ave breach or
cover anything such as Mr. Matheson suggested may be needed to
be covered, we don't need to do that in order to give you full juris-
diction over the persons who are now covered?

Mr. McNeill. Well, we do have full jurisdiction over our active
duty people; that is correct. We also have jurisdiction of general
courts-martial under the UCMJ. And, if I understood the judge's
proposal correctly, it's based on his view that there is some residual
autnority under the Constitution to exercise jurisdiction under the
UCMJ if — even now, without additional statutory authority. This is
a point that I think many commentators are not clear about.

Mr. McCOLLUM. All right, that's fair enough.

Mr. McNeill. And so we would see that the proposed legislation
would, at the very least, clarify and move forward the authority of
the executive branch and to say that we think it's constitutional
and for the judicial branch to conduct the trials.

If I could just say in closing that this legislation also has the ad-
ditional benefit as an opportunity for Members of Congress to en-
dorse the idea that the United States, as a political matter, should
be seen as full;y in conformity with its international obligations in
this very sensitive area. And so we think that's another distinct
benefit that would flow from enactment of this legislation.

Mr, McCoLLUM. Mr. Matheson, I believe that you would concur
with the judge that we ought to expand the word in the bill called

"citizen" to something broader, so that you cover other people? He
has su^ested — and I think you may have, too — the term "na-
tional." rm just wondering if that's broad enough. In other words,
should we lie including legal residents, citizens and legal resident
aliens? How would we term this? I mean, what word would you use
instead of "citizen" or what combination of words?

Mr. Matheson. We were advised by the Justice Department that
the proper word to use in this case was "nationals," which is de-
fined in the Code. But, in fact, the formulation we propose goes
well beyond just that simple category and includes any person who
comes into the jurisdiction of the United States. So we've opted for
a broader sweep than simply this class of persons that have some
kind of allegiance to the United States, however you would define
it.

Mr. McCoLLUM. Last — and, again, I'm looking at some of the
things you've said and also some of the criticism — there is the
question the judge raises about capital punishment and the effect
internationally that might have, if we leave capital punishment as
a possibilitv in terms of being able to, get extradition. That's often
been raised in the Crime Subcommittee with regard to some of the
efforts we've made with piracy and hostage-taking, and so forth,
over the years I've served on the committee. Is that a concern to
the State Department, that we subject any of these folks to capital
punishment or not?

Mr. Matheson. It's not a concern in terms of these provisions of
the U.S. Code. We know that we have difficultv when we try to ne-
gotiate any international instrument that would provide for capital
punishment. In the case of the international tribunals, we proposed
that they have the ability to impose a sentence of death, but the
Europeans and others refuse to accept that. So we were not able
to do it internationally. But in terms of the U.S. legislation, of
course, the death penalty is provided for in many cases, and these
are the most heinous crimes that one could imagine. And if any
crime deserves this penalty or the possibility of such penalty, then
it's this one.

Mr. McCoLLUM. Very well. Thank you very much. Thank you,
Mr. Chairman.

Mr. Smith. Thank you, Mr. McCollum.

Thank you, Mr. Matheson, Mr. McNeill, for joining us today and
for your testimony as well.

Mr. McNeill. Thank you, sir.

Mr. Smith. If the members of the second panel would come for-
ward now — I will introduce you all as you take your seats.

Judge Robinson Everett is now a Senior Judge on the U.S. Court
of Appeals for the Armed Forces, having formerly served as Chief
Judge. He is founder of the Center on Law Ethics and National Se-
curity at the Duke University School of Law, and he is past chair-
man of the American Bar Association's Standing Committee on
Military Law. Most interestingly, he was once counsel to the Sen-
ate Judiciary Committee.

Monroe Leigh is a partner at the law firm of Steptoe & Johnson
here in Washington. He is chairman of the American Bar Associa-
tion's Task Force on War Crimes in Yugoslavia and a member of
the ABA's Standing Committee on Law and National Security. Mr.

Leigh is a member of the Department of State Legal Adviser's Pub-
lic Advisory Committee on International Law. He nas served as As-
sistant General Counsel for International Affairs at the Defense
Department and Legal Advisor at the State Department.

Mark Zaid has a law practice here in Washington. He is vice
chair of the American Bar Association International Criminal Law
Committee's Section of Criminal Justice, and he has chaired the
ABA's Task Force on Proposed Protocols of Evidence and Procedure
for Future War Crimes Tribunals. Mr. Zaid is a member of the
International Law Association's Committee on a Permanent Inter-
national Criminal Court.

I thank you all for being with us. We look forward to your testi-
mony. Ana if I could urge you to keep it within the 5-minute time
frame, that will allow us more time for questions since we're ex-
pecting a vote on the House floor in just a few minute.

Again, thank you for being here, and we will start off with Judge
Everett.

STATEMENT OF HON. ROBINSON O. EVERETT, PROFESSOR OF
LAW, DUKE UNIVERSITY SCHOOL OF LAW, AND SENIOR
JUDGE, U.S. COURT OF APPEALS FOR THE ARMED FORCES

Judge Everett. Mr. Chairman, let me express my appreciation
to you and the committee and to Mr. McCollum for this opportunity
to be here. I'm particularly proud that a North Carolinian, Con-
gressman Jones, is the one who introduced this legislation.

You know, occasionally, we have these unfortunate jurisdictional
gaps, and your reference to the time when I was serving as a coun-
sel on the other side of Capitol Hill reminds me of one of the most
unfortunate. It was one created in the midfifties by a couple of Su-
preme Court decisions that excluded continuing military jurisdic-
tion over discharged service members and also precluded the trial
of civilian defendants and employees. And for about 10 years, each
session Senator Ervin would introduce a bill designed to create ju-
risdiction in Federal district courts to cure that jurisdictional gap.
Fortunately, in the most recent appropriation bill legislation, I un-
derstand an advisory committee is now to be created at the Depart-
ment of Defense to consider that issue. So these things take a long
time to remedy, and I guess that's one reason we waited about 25
years on this particular matter.

I just want to summarize a few basic points and then answer any
questions later that you may have.

First, I think the proposal by Congressman Jones is excellent.
It's very important, very much needed. I think it should go further.
I think, for example, that there should be jurisdiction with respect
to crimes committed by American nationals. I have no doubt as to
the constitutionality of broadening the Federal criminal jurisdic-
tion. There are three cases that I think fully sustain that under ar-
ticle 1, section 8, clause 10, of the Constitution. These were cases
that involved trials by military commissions, and, of course, the
Congress has recently used this power very extensively in punish-
ing skyjacking, terrorist activity, providing for protection of dip-
lomats, and things of that sort.

I would, however, suggest a few things that I think are impor-
tant. In the first place, I think it's very important that there be no

negative implication as to the jurisdiction which military tribunals
now have. Therefore, I would hope there would be some specific
language included making it clear that there is no repeal by impli-
cation of the jurisdiction that courts-martial and military^ commis-
sions have under articles 18 and 21 of the Uniform Code. I think
it would be particularly unfortunate if that repeal occurred because
there are going to be many of these situations, in my opinion,
where military tribunals will be the only way to try the crime be-
cause of the fact that witnesses cannot be brought to the United
States. And I think that in some of these situations having the ju-
risdiction of military courts is going to be very important.

Second, I agree fully with tne State Department that the word
"citizen" should be broadened. "National" seems to be the accepted
term, as Congressman McCollum brought out, even "national" may
not be broad enough to cover all the matters as to which I would
have concern.

I think there should be an expansion of jurisdiction to make it
clear that if an American service member or someone connected
with the military commits one of these war crimes, then that per-
son would be included within the jurisdiction that is being broad-
ened by this proposed legislation.

Frankly, I would go further than the State Department in broad-
ening jurisdiction. I would broaden it to include anything that falls
within the universal jurisdiction of the courts, a lurisdiction that
has been recognized in connection with the law of war, but which
can go even further. And it seems to me that it is important to
have the jurisdiction, to have it in the Federal district courts,
whether or not it is exercised. I think it's important to have guide-
lines for exercise, but to have the jurisdiction is important, even
though there may be a very ample room for prosecutorial discretion
in deciding whether or not to exercise it.

Indeed, I suggest in my statement that there may be advantages
in the international arena from having the jurisdiction. I'm think-
ing of the situation that arose under the Status of Forces Agree-
ment with Japan in the midfifties, after the Supreme Court had
ruled there was no jurisdiction over civilian dependents. This pre-
cluded the opportunity for having these persons tried by American
courts. The Japanese were regularly waiving primary jurisdiction,
so we could tiy our own citizens. But once it was established there
was no jurisdiction in any American court, the alternative was ei-
ther trial by a Japanese court or no trial at all. And that situation
led me to write an article entitled, "Crime Without Punishment,"
because of the jurisdictional gap which was created.

I would suggest that articles 18 and 21 of the Uniform Code be
expanded to include any of the matters that are brought within the
jurisdiction of the Federal district court under this War Crimes
Act. I think that this is important because, as I mentioned earlier,
there may be opportunities to use this type of court, a military
court, when a civilian court simply will not be able to function.

A couple of final things: first, as to the death penalty, I have no
opposition to the death penalty. In fact, an opinion that I wrote a
week ago was upheld by the Supreme Court when they upheld the
death penalty for persons in the military. However, I think as a
practical matter, given what's happened in the international arena,

if you include a death penalty, it's going to be a lightning rod; it
creates more problems than it s worth. And, of course, by tne same
token, I would exclude applicability of the sentencing guidelines.

I think that covers the main points here, and I'Tl oe glad later
to respond to questions.

[The prepared statement of Judge Everett follows:]

Prepared Statement of Hon. Robinson O. Everett, Professor of Law, Duke
University School of Law, and Senior Judge, U.S. Court of Appeals for
THE Armed Forces

At the outset let me express my thanks to this Committee for the opportunity to
discuss with you HJl. 2587.. Frankly I believe that this bill introduced oy my fellow
Tar Heel Congressman Walter B. Jones, Jr., is very significant and addresses an
iniportant need.

Unfortunately from time to time we discover that important jurisdictional ^ps
exist in our criminal laws. For example, as a result of two Supreme Court decisions
in the I950'»-Toth v. Quarles. 350 U.S. 1 (1955) and Reid v. Covert, 354 U.S. 1
(1957) — we learned that sometimes no tribunal, civilian or military, wiU be available
to deal with serious crimes committed by former service members or by civilian de-

Sendents or employees accompanying the Armed Services overseas. See Everett &
[ourcle. Crime Without Punishment — Ex- Servicemen, Civilian Employees and De-
pendents, 13 A.F.L. Rev. 184 (1971). Thereafter, during the next decade. Senator
Sam Ervin, Jr. — for whom I served at one time as a counsel — repeatedly proposed
legislation to fill some of these jurisdictional voids; but not until a few months ago
did Confess address the problem by creating an Advisory Conamittee on Criminal
Law Jurisdiction over Civilians Accompanying the Armed Forces in Time of Armed
Confiict. See Section 1151 of the National Defense Authorization Act for FY 1996.

H.R. 2587 represents an efibrt to assure that our Federal courts will not lack ju-
risdiction to deal with war crimes of which our service members and nationals may
be victims. How ironic it would be if persons who had perpetrated war crimes
against American servicemembers could subsequently visit our country without any
concern that they might be tried and punished for their crimes. Thus, the wisdom
of enacting legislation such as H.R. 2587 seems almost self-evident to me.

Likewise, ii our own servicemembers perpetrate war crimes, they also should not
be immune from trial and punishment in our Federal courts. Under Toth v. Quarles,
supra, this becomes especially important if the servicemember has been separated
from the Armed Services subsequent to commission of the war crimes, because at
that point, the military turisdiction will have terminated as to conduct which not
only is a war crime but also in some way violates the Uniform Code of Military Jus-
tice.

I have no doubt about the constitutionality of broadening federal criminal Jurisdic-
tion as proposed by H.R. 2587 — or an expanded version ofthat bUl. Article I, section
8, cl. 10 ofthe Constitution empowers Congress to "define and punish Piracies and
. . . Offenses Against the Law of Nations," That war crimes qualify as such of-
fenses has been made clear by three Supreme Court decisions — Ex parte Quinn, 317
U.S. 1 (1942); In re Yamashita, 327 U.S. 1 (1946); and, Madsen v. Kinsella. 78 S.
Ct. 697 (1952). In those cases, the jurisdiction of American military tribunals was
upheld under the law of war, which is included within the law of nations.

Indeed, responding to the threat of terrorism, Congress has recently used on three
occasions its power to "define and punish" crimes against international law. The
Aircraft Sabotage Act, P.L. No. 98-473 (1984), codified at 18 U.S.C. §631.2, 40
U.S.C. App. §§1301, 1471, 1972 (Supp. V. 1987), makes punishable aircraft brack-
ing which results in harm to American passengers and planes, wherever the terror-
ist incident takes place. Another statute is directed at terrorists who take hostages
in order to influence the United States government and applies if either the hijacker
or the victim is an American. Act for the Prevention ana Punishment of the Crime
of Hostage-Taking. 18 U.S.C. §1203 (1988). This statute provided a basis for the
successfm prosecution of Fawaz Yunis, a Lebanese who hijacked a Jordanian airline
with two American passengers. See United States v. Yunis, 867 F.2d 617 (D.C. Cir.
1989). A third statute seeks to provide greater security for American diplomats. See
Omnibus Diplomatic Security and Anti-Terrorism Act of 1986, Public Law No. 99-
399 (1986).

In connection with the Committee's consideration of H.R. 2587, I would, however,
propose several additions. First, I would include specific language to ntiake clear that
the creation of jurisdiction over war crimes in Federal district courts is not intended
by negative implication to deprive militaiy tribunals of any jurisdiction that they

might possess under Articles 18 and 21 of the Uniform Code of Military Justice, 10
U.S.C. §818, §821 or otherwise. Courts-martial and military commissions may pro-
vide a necessary forum for trying war crimes when practical obstacles, such as in-
ability to bring witnesses to the United States, preclude successful prosecution in
a Federal district court sitting in the United States.

Secondly, as suggested by the State Department, I would replace the word "citi-
zen* with some broader term — such as "national." It would be anomalous to deny
protection to aliens long resident in and connected with the United States — perhaps
even spouses of American citizens. Also, in line with the State Department's rec-
ommendation, I would expand the scope of H Jl. 2587 to include not only violations
of the Geneva Conventions but also violations of several other major treaties en-
tered into by the United States — such as the Hague Convention and the treaties
concerned with land mines. These treaties help deUneate the duties and responsibil-
ities imposed by the law of nations and for Congress to provide for punishment of
violations of those treaties is within its power under Article I, section 8, cl. 10 of
our Constitution.

An ancillary benefit is derived from broadening jurisdiction in this manner. Un-
doubtedly, occasions will arise in the luture when an American national or a person
under American control or in American custody will be accused of having violated
treaty provisions and demands will be made that the person accused be delivered
for trial in the courts of the foreign country where tha alleged crimes occurred or
for trial in some International Criminal Court, like that which now sits at the
Hague to try certain grave breaches of international law in the former Yugoslavia
ana Rwanda. If American courts have jurisdiction to try the accused for the alleged
offense, a basis exists for conducting the trial in our own courts, where important
procedural protection exist. However, if our courts lack jurisdiction, treaty obliga-
tions may require the United States to surrender the accused or detain the accused
for trial elsewhere. In short, I believe that broadening the jurisdiction of American
courts may in some instances assure procedural protections for any of our own citi-
zens who are accused of grave breaches of international law and may allow our
country to "wash its own dirty linen."

I would probably go much further than the State Department in broadening the
jurisdiction of Feoeral courts to try war crimes. Instead of relying for jurisdiction
solely on the nationality of the offender or the victim, I would suggest that jurisdic-
tion be predicated on the principle of universality, which is increasingly recognized
in the ''law of nations." In short, some crimes — like privacy in ancient times — are
so generally viewed as heinous that they should be subject to prosecution in the
courts of any civilized country. K the heinousness of a crime and its impact on the
international community have been recognized by treaties into which our countries
and many others have entered, American courts should have jurisdiction over that
crime. Of course, possession of jurisdiction is not the same as exercise of that juris-
diction; and prosecutorial discretion can be employed to determine which cases
should be brou^t to trial.

I would also suggest that Articles 18 and 21 of the Uniform Code of Military Jus-
tice be amended specifically to empower courts-martial and military commission to
try anyone accused of a "grave breach" of any treaty to which H.R. 2587 may refer.
Just as for traditional war crimes, there may be occasions when a court-martial or
military commission is in a better position to conduct a trial than a district court
would be. Indeed, when American servicemembers are accused, the expansion of
Title 18 to include punishment for "gave breaches" would probably of itself broaden
the jurisdiction of courts-martial. The third clause of Article 134 of the Uniform
Code of Military Justice, 10 U.S.C. §934, which concerns "crimes and offenses not
capital," incorporates federal criminal statutes into military law— just as under
some circumstances the Assimilative Crimes Act, 18 U.S.C. § 13, incorporate state
criminal law into Federal criminal law. Cf. U.S. v. Sharpnack. 255 U.S. 286 (1958).

I realize that in suggesting an addition to the jurisdiction of military tribunals,
I venture into an area which is the specific concern of a different congressional com-
mittee, and so perhaps my suggestion is premature. Nonetheless, it would be desir-
able if any loose ends could be tidied up at this time.

My final suggestion concerns punishment for war crimes. First, I would specifi-
cally exclude such offenses from the scope of Federal Sentencing Guidelines. Sec-
ondly I would omit any provision for capital punishment. Admittedly, there is ample
Srecedent for punishixig war crimes by death. Cf. Quinn and Yamashita, supra.
[owever, the mtemational Criminal Court established for trial of war crimes in the
former Yugoslavia and in Rwanda does not have jurisdiction to impose death pen-
alties. I also recall that on European country was unwilling to deliver an American
servicemember for trial by general court martial pursuant to the NATO Status of
Forces Agreement, until mihtary authorities agree to handle the case as non-capital.

In light of the widespread opposition to death penalties, I suspect that the benefits
derived from authonzing a death penalty for war crimes would be outwei^ed by
the disadvantages.

In conclusion, may I commend this Committee for conducting hearings on this im-
portant subject.

Mr. Smith. Thank you, Judge Everett.
Mr. Leigh.

STATEMENT OF MONROE LEIGH, PARTNER, STEPTOE & JOHN-
SON, FORMER ASSISTANT GENERAL COUNSEL FOR INTER-
NATIONAL AFFAIRS, DEPARTMENT OF DEFENSE, AND
CHAIRMAN, AMERICAN BAR ASSOCIATION TASK FORCE ON
WAR CRIMES IN YUGOSLAVIA

Mr. Leigh. Thank you very much, Mr. Chairman.

In 1955, I was in the Pentagon and I participated in the prepara-
tion of the administration's testimony in support of the advice and
consent to the four Geneva Conventions. And let me say that with-
in the administration the pressure for action at that time came pri-
marily from the military services. I want to make that clear. They
were very anxious to get on with the task of educating the troops
as to what was required by the 1949 Conventions. I say that be-
cause I'd like the record to reflect it.

Let me spend just a little time talking about the reasons which
led the administration, as I look at it now 41 years later, to take
a minimalist approach as to the implementing legislation. First of
all, we were at the conclusion of the Korean War, and you may re-
member that in that war we had a serious disagreement with the
Communists regarding the application of the Conventions, And, in
fact, it was that disagreement which led the Truman administra-
tion to request that the hearings on the Conventions, which had
originally been requested for 1951, be postponed, and they were
postponed until 1955.

The reason for that has to do with article 118 of the 1949 POW
Convention, That has language which was interpreted in a similar
context at the end of World War II as requiring forcible repatri-
ation of POWs under the 1929 Convention, General Eisenhower
did order the forcible repatriation, as did other allied commanders
in Europe at the end of World War IL

The Communists took the same position as to the proper inter-
pretation of article 118 in the 1949 Conventions, The State Depart-
ment was very anxious not to have that controversy ventilated in
the 1950's because the United States was taking the position — and
I think justifiably — that article 118 did not require forcible repatri-
ation and did not in any way interfere with the right of a sovereign
nation to grant asylum to those who didn't want to return to the
countries to which they owed allegiance. So that was one reason.

The second reason I think had to do with the Bricker amend-
ment, which was very active in the early days of the Eisenhower
administration. Now that's a curious provision; I don't want to go
into the details; it would take too much time. But, basically, there
was a view in various circles in the United States, in the American
Bar Association, and in the Congress that treaties were being
adopted and were being used to bootstrap the power of the Con-
gress to enact legislation which it would not otherwise have been
able to enact.

Now I don't want to go into the details of it, but it was very
much the position of the Eisenhower administration that they did
not wish to draw any kind of controversy about the Bricker amend-
ment, because the year before they had survived a very near pas-
sage of a substitute for the Bricker amendment. So that was one
reason that they took the minimahst approach.

And then, finally, I'd have to be candid and say that most admin-
istrations, when they look at the situation of securing implement-
ing legislation, think it's easier to convince one body than two. Now
that doesn't always prevail; sometimes they think it's easier to get
a majority vote in two Houses than to get two-thirds in one. But,
nevertheless, I think that was one of the influences.

In any case, I mention these three points; I think really none of
them now applies to this situation, and I think it is desirable that
the United States should go ahead at this time with implementing
legislation.

I have, by the way, a letter, which was filed in 1955 by the De-
partment of Justice, outlining its views on what implementing leg-
islation was needed. It's a two-page letter, and I'll offer that for in-
clusion in the record.

Mr. Smith. Without objection, it will be.

[The information follows:]

58 GENEVA CONVENTIONS FOR PROTECTION OF WAR VICTIMS

Depabtment of Justice,
Washinffton 25, D. C, June 7, 1955.
Honorable Walter F. George,

United States Senate, Washingtwi, D. C.

Mt Dear Senator George : During the hearing before the Senate Oommittee oa
Foreign Relations on June 3, 3955, on thie Geceva conventions of 1949, several
members of the committee raised questions which deserve more detailed answers.

Thus, Senator Hickenlocper inquired whether the articles of the convention,
dealing with "grave breaches" would, upon ratification of the conventions by the
United States, enlarge the legislative powers of Congress. The articles in ques-
tion are articles 49 and 50 of the convention for the amelioration of the condi-
tion of the wounded and sick in armed forces in the field, articles 50 and 51 of
the convention for the amelioration of the condition of the wounded, sick and
shipwrecked members of armed forces at sea ; articles 129 and 1.30 of the prisoner
of war convention ; and articles 146 and 147 of the civilian convention. These
articles dealing with grave breaches are identical in the four conventions except
the enumeration of the violations of a particular convention which constitute
grave breaches varies somewhat with the subject matter of the conventions.

Article I, section 8, clause 10, of the Constitution expressly empowers Congress
"to define and punish * • • offenses against the law of nations." In United
States v. Arjona (120 U. S. 479) the Supreme Court sustained the power of Con-
gress, under article I, section 8, to enact a criminal statute prohibiting counter-
feiting of foreign currency within the United States. More recently in Ex parte
Quirin (317 U. S. 1) and In re Yamashita (327 U. S. 1> the Supreme Court held
that Congress had power under article I, section 8, to provide for the trial and
punishment of offenses against the law of war (as a part of the law of nations)
as defined in the Hague Regulations or elsewhere in international law. It Is
significant that neither the Quirin nor Yamashita cases involved any treaty
obligation of the UnUed States to provide penal sanction for violation of the law
of war.

Independently of the existence of offenses against the law of nations or of
any treaties for the protection of war victims. Congress has broad authority
under the Constitution to provide penal sanctions for the mistreatment of such
persons. Under its war powers as set forth in the Constitution, Congress could
regulate the treatment accorded by the United States to enemy sick and wounded,
prisoners of war, civilian internees, and the inhabitants of territory occupied by
our Armed Forces. It can enact the criminal sanction required to prevent inter-
ference with the discharge of these necessary war functions. Also, such legisla-
tive power may be found in more specific provisions of the Constitution. Thus,
exercising its power under article I, section 8, clause 14, "to make rules for the
government and regulation of the land and naval forces," Congress could provide
penal sanctions for the mistreatment of such persons by members of our Armed
Forces. Consequently, the conventions would not create in the Congress a poweil
to impose penal sanctions in this area which it would otherwise lack under the*
Constitution.

A review of existing legislation reveals no need to enact further legislation in
order to provide effective penal sanctions for those violations of the Geneva
conventions which are designated as grave breaches. Under the Uniform Code
of Military Justice, military courts already have jurisdiction to try for violations
of the laws of war members of our own Armed Forces, captured enemy military
personnel, and the inhabitants of occupied territory. Moreover, since most of
the acts designated as grave breaches would violate our Federal and State penal
laws, they could be tried in our civil courts if committed within the United States.

In a related question. Senator Mansfield asked whether the articles dealing
with grave breaches could result in imposing criminal liability upon persons
without official status. Generally, the acts designated as grave breaches are to
be treated as such only when they are in some way the result of action by civilian
or military agents of a detaining or occupying power in violation of the conven-
tions. Moreover, as a practical matter, only persons exercising governmental au-
thority ordinarily would be in a position to commit grave breaches against
protected persons, such as the serious mistreatment of prisoners of war, sick
and wounded of the armed forces, civilian internees, or the inhabitants of occu-
pied territory. We are reluctant to state that the mistreatment of a person pro-
tected by the conventions by a private person (e. g., the killing of a wounded
airman) could never constitute a grave breach no matter what the intent and

circumstances. However, it is entirely clear that these provisions of the conven-
tions were not intended to convert into grave breaches every common crime in
which the victim happens to be a person protected by the conventions.

During the hearing before the committee on June 3. there may have been a
misunderstanding as to whether, upon ratification of the conventions, it will be
necessary for the United States to enact any legislation to implement and comply
with the conventions. 4 ctually. the United States will be required to ena ct
only relat ively minor legislation clearly witnin FL'e poWtT Ul' CTHT^^?^ TEe
probTCTir-^f contmued use of the Ked Cro.ss emblem by commercial users in this
country has already been presented to the committee. In addition it should be
noted that title IS United States Code 706 presently limits the use of the Red Cross
emblem to the American National Red Cross and to the medical services of the
Armed Forces (in addition to the pre-lOO,") commercial users). However, the
Geneva conventions of 1949 for the first time authorized the use of the protective
Red Cross emblem by the International Committee of the Red Cross, civilian
hospitals and their personnel, and convoys of vehicles, hospital trains, and air-
crart conveying wounded and sick civilians. It would seem to be appropriate to
amend section TOG to permit such additional uses of the emblem, and the agencies
concerned will recommend to the Congress legislation to this effect.

Article o3 of the convention for the protection of the sick and wounded also
prohibits private or commercial use of the emblems of a red crescent on a white
background and a red lion and sun on a white background, which are used,
respectively, by Turkey and certain other Moslem countries and by Iran, in place
of the Red Cross emblem. However, this prohibition of article 53 is by its express
terms "without any effect upon any rights acquired through prior use." Since we
have no legislation restricting the use of these emblems, the United States will
be obligated to enact legislation (as by amending 18 U. S. C. 706) prohibiting
the private and commercial uses of such emblems, excepting the rights acquired
by prior use.

Similarly, article 23 of the Prisoner of War Convention provides that only
prisoner of war camps shall be marked "PW" or "PG" (prisonniers de guerre),
while article 82 of the Civilian Convention provides that no place other than
internment camps shall be marked "IC". It would seem that the United States
should provide penal sanctions for misleading use of these designations.

Depending upon whether civilian internees in a future conflict work for public
or private employers, and depending upon the type of work they perform, it
might be necessary to implement article 95 of the Civilian Convention with legis-
lation providing workmen's com pensatio n protection where it would not be avail-
able under existing FederaT''all3"''Stafe legTsnTtiomr" However, consideration of
such legislation might be deferred until such tiine as the problem may be pre-
sented in more specific form.

Article 74 of the Prisoners of AVar Convention and article 110 of the Civilian
.Convention provide that all relief shipments for prisoners of war and civilian
internees shall be exempt from import, customs and other duties. Although title
19 United States Code 1318 provides that during a war or national emergency
the President may authorize the Secretary of the Treasury to permit the duty-
free importation of food, clothing, and other supplies for use in emergency relief
work, it was apparently considered necessary in World War II to enact specific
legislation (act of June 27, 1942, 56 Stat. 461, 462) to implement article 38 of
the 1929 Prisoner of War Convention by providing for the exemption from all
duties and customs charges of articles addressed to prisoners of war and civilian
internees in the United States. Accordingly, it may be appropriate to revive this
statute to comply with the Geneva conventions of 1949.

I may say that the Departments of State and Defense concur in the views
stated above. Please advise me if I can be of further assistance to the committee.
Sincerely yours,

J. Lee Rankin,
Assistant Attorney Oeneral, Office of Legal Counsel.

Mr. Leigh. So, finally, then let me just say that it seems to me
it's desirable to universalize the prohibitions in this case. It seems
to me also desirable that we federalize the prohibitions in this case.

The view was taken in 1955 that we had a choice: we could ei-
ther prosecute under State law or Federal law, or if we couldn't do
that, why, then, we could extradite. And that leads me to my last
point.

If you extradite, of course, it may mean that Americans who may
have, God forbid, committed crimes against the laws of war mi^ht
have to be extradited under the treaty to other countries. I thmk
it's preferable that the United States be able to keep it's people in
this country and have them tried here, if they have to be tried for
offenses against the treaty.

So, in short, Mr. Chairman, I favor this legislation. I favor the
expanded version, and I hope Congress will be able to act upon it
this session.

[The prepared statement of Mr. Leigh follows:]

Prepared Statement of Monroe Leigh, Partner, Steptoe & Johnson, Former
Assistant General Counsel for International Affairs, Department of De-
fense, AND Chairman, American Bar Association Task Force on War Crimes
in Yugoslavia

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
Washinjrton, D.C. law firm of Steptoe & Johnson. From 1975 to 1977, I served as
Legal Aaviser 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 imple-
menting legislation in support of those obligations when considering ratification of
the Conventions in 1955; and (3) the reasons such implementing legislation is nec-
essary today.

U.S. obligations under the geneva conventions

The War Crimes Act of 1995 implements U.S. obligations under the Geneva Con-
ventions 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 wUlfiil killing, torture, inhuman treat-
ment, willfully causing great suffering or serious injury to body or health, and ex-
tensive 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 &nate to defer action until 1955. The Committee Report in
1955 stated that the "grave breaches" provisions of the Conventions are not self exe-
cuting and do not create international criminal law.

However, Congress did not enact implementing legislation at that time. The Exec-
utive 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. There-
fore, the obligations of Article 49 to try or extradite anyone accused of a "grave
breach" could oe 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 11 problem in which war criminals avoided pun-
ishment by finding sanctuary in neutral nations. Article 49 requires those countries
to enact legislation sanctioning "grave breaches" and to prosecute or extradite the
ofTender.

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 repa-
triation. 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 requir-
ing forcible repatriation. The U.S. position in 1955 was that Article 118 does noth-
ing to precluae asylum for prisoners of war under accepted principles of inter-
national 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 con-
tested issues during the armistice negotiations. It was this controversial issue which
grompted the Executive Branch in 1951 to request that consideration of the 1949
onventions 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 lim-
ited to the "grave breaches" listed in Article 50 but also covers other "war crimes"
such as those proscribed in the Hague Reflations of 1907. The expanded version
also covers a broader category of ofienders. 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 ofienses 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 obli-

f Rations of the United States. Furthermore, as I read the State Department draft it
iederalizes 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 tnat the position of the Government as to imple-
menting legislation was influenced by the Brinker 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 pos-
sible in 1955. For this reason, tne administration wanted as little legislation as pos-
sible in implementation of the 1949 treaties.

CONCLUSION

The Senate Committee on Foreign Relations did not find a need in 1955 for imple-
menting 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

^This fact is best demonstrated by the exchange between Robert Murphy, then Deputy Under
Secretary of State, and Senator Capehart during the 1955 Committee hearings:

Senator CAPEHART. . . . Now, my question is: Are there listed in article 50 or
thereafter all of the specific things that might well be legislated upon?

Mr. Murphy. We think, Senator, that those headings certainly comprise the bulk of
the possible crimes that could be envisaged here, and it was the total list on which
agreement could be achieved at Geneva.

Senator CAPEHART. But it is not necessary to limit it to those listings?

Mr. Murphy. No . . . [b]ut these were the principal ones that came out of the ex-
periences of World War I and World War II.

27-100 0-96

legislation is now needed. The War Crimes Act of 1995 is desirable implementing
lenslation 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 ques-
tions you or members of the Subcommittee may have.

Mr. Smith. Thank you, Mr. Leigh.
Mr. Zaid.

STATEMENT OF MARK S. ZAID, LAW OFFICE OF MARK S. ZAID,
VICE CHAIR, INTERNATIONAL CRIMINAL LAW COMMITTEE,
SECTION OF CRIMINAL JUSTICE, AMERICAN BAR ASSOCIA-
TION, AND CHAIR, AMERICAN BAR ASSOCIATION TASK
FORCE ON PROPOSED PROTOCOLS OF EVIDENCE AND PRO-
CEDURE FOR FUTURE WAR CRIMES TRIBUNALS

Mr. Zaid. Thank you, Mr. Chairman, Mr. McCollum. I appreciate
the opportunity to appear before you. I submitted my detailed testi-
mony, which I would ask to be included in the record, and I will
just summarize. I do apologize for submitting it late, but I was out
of the country until late Monday evening.

I applaud Congressman Jones' effort to create a statutory mecha-
nism as proposed here. However, I would urge the subcommittee to
take the additional steps to adopt the principles of universal juris-
diction promoted by the Departments of State and Defense. By re-
stricting the scope of our laws to apply only to the basis of
territoriality or nationality of the victim or perpetrator could have
the obscene effect of allowing murderers to live free among us. Mr.
Chairman, could you imagine one day coming home to discover that
your next-door neighbor is Idi Amin or Pol Pot, and that despite
the strength that your Government possesses as the sole super-

Eower, they are powerless to prosecute that person? In fact, the
est they could do, even if it were Adolph Hitler, would be to seek
the extradition or deportation of the person, a process that could
take years and have the perverse result of allowing that murderer
to live his life out in luxury in another country. This, Mr. Chair-
man, has oftentimes been the result of United States' efforts to con-
duct judicial proceedings against suspected Nazi war criminals that
were living among us, and it should not be allowed to continue
were future war criminals to seek refuge here in the United States.

For the past 3 years, I've worked extensively on matters dealing
with war crimes, the creation of an international criminal court
and terrorism. In fact, I serve as cocounsel to families of the vic-
tims of Pan Am 103 in their civil litigation against the Government
of Libya here in the United States.

What I would like to do is just briefly summarize what I have
submitted in my statement, as well as offer three suggestions to
the proposed legislation.

Universal jurisdiction stems back all the way to the 1600's, aris-
ing out of piracy. In modern times, since 1935 or so with the Har-
vard draft, it's been gaining predominant acceptance. Of course,
universal jurisdiction recognizes that the crimes are so heinous
that any state has an interest in prosecuting the individuals that
might have perpetrated it. Of the few international crimes that are
held to permit universal jurisdiction, there is no doubt that war
crimes is explicitly within that category. And, as Mr. McNeill had
mentioned, the four Geneva Conventions absolutely mandate the

imposition of universal jurisdiction by those states that are party
to it. Therefore, under international law, the United States is obli-
gated to assert this type of jurisdiction, and, in fact, not to adopt
the revision suggested by the Departments of State and Defense,
we would fall far short of what we were required to do over 40
years ago.

Now, of course, adopting this principle does not mean that we
will need to commence prosecution each and every time a suspected
war criminal is found within our territory. We can always seek to
extradite or deport that individual, but where there's not a state
willing to accept the individual or prosecute the individual, we are
going to be left with a gap where that individual would go
unpunished.

Since World War II, the United States has ratified several Con-
ventions that also impose the exercise of universal jurisdiction.
This demonstrates not only the executive branch's is support, but
the Senate's as well, of course.

International conventions on torture, hostage-taking, hijacking
and sabotage of aircraft, crimes against internationally-protected
persons, all contain provisions, with minor variations, requiring
universal jurisdiction. Indeed, in the 1980's several Federal courts,
both in the criminal and civil context, have recognized and ac-
knowledged universal jurisdiction over acts of terrorism, torture,
and war crimes.

Of course, the best example that comes to mind would be the
international military tribunal that we established following the
defeat of Nazi Germany, and the subsequent war crimes trials that
were held by U.S. military tribunals offer even more explicit sup-
port for universal jurisdiction. Several of our key allies as well —
for instance, Israel, the United Kingdom, Canada, Australia, and
Ireland — ^have already adopted implementing legislation under the
Greneva Conventions or have at least prosecuted suspected war
criminals under the theory of universal jurisdiction. This dem-
onstrates the growing trend toward ensuring that perpetrators of
war crimes must not go impunished regardless of where the act
might have taken place.

Mr. Chairman, I would suggest three amendments to this pend-
ing legislation. I echo what Judge Everett said about the death
penalty. The fact is that many states have prohibitions in their na-
tional laws against the death penalty, and in recent times, in fact,
the European Court of Human Rights refused to extradite an indi-
vidual to the United States because of the fact that death row to
them was considered inhumane.

So imagine a situation where an American, whether a member
of our Araied Forces or a civilian, is harmed or killed as a result
of a war crime in another country, and a prime suspect is in cus-
tody. Because the possibility of the death penalty might be im-
posed, that country would not extradite that individual. There,
where our interests are paramount, we would want to have a provi-
sion in the legislation that should that country's laws prohibit the
death penalty, it could be waived in that instance.

I will quickly summarize the two remaining points. Civil rem-
edies must be recognized for American victims. We have the
strange occurrence here that an alien national would be allowed to

seek civil remedies under this legislation, but not an American vic-
tim, and that should be remedied as well.

And then, finally, it would seem quite ironic to allow universal
jurisdiction for crimes of war crimes but not crimes of genocide.
And so the Proxmire Act of 1988 should, likewise, be amended
within this legislation.

In concluding, Mr. Chairman, the cries of "Never forget" that
arose out of the ashes of the 6 million murdered in the Holocaust
are still sadlv being drowned out by the millions that are being
murdered today. In ensuring that we never forget those who are
victimized by such atrocities, we must strive to ' always prosecute"
those that cause such unjustified and inexcusable suffering.

Thank you.

[The prepared statement of Mr. Zaid follows:]

Prepared Statement of Mark S. Zaid, ^ Law Office of Mark S. Zaid, Vice
Chair, International Criminal Law CoMMriTEE, Section of Criminal Justice,
American Bar Association, and Chair, American Association Task Force on
Proposed Protocols of Evidence and Procedure for Future War Crimes
Tribunals

Mr. Chairman, distiitj^ished members of the Subcommittee, thank you for the op-
portunity to appear betore you and offer my comments on H.R. 2587 and the sug-
gested Administration amendments. As you know, the original bill would provide
criminal jurisdiction to the United States so as to enable prosecution of those who
may have committed war crimes, as defined by the four Geneva Conventions,
against American nationals or within our territorial boundaries. I applaud Con-
gressman Walter Jones' efforts to create a statutory mechanism to bring to justice
those individuals who would commit such unspeakable acts.

However, I would urge this Subcommittee to take the additional steps to adopt
the principles of universal jurisdiction suggested by the U.S. Departments of State
and Defense. By restricting the scope of our laws to apoly only on the basis of
territoriality or nationality of the victim could have the ooscene effect of allowing
murderers live free among us. Mr. Chairman, can you imagine one day discovering
that your next door neighbor is Idi Amin or Pol Pot, individuals who are responsible
for the murders of milhons of innocent victims, and that despite the strength your
government possesses as the sole superpower in the world, it is powerless to pros-
ecute that person on even one count of murder. The best it could do, even were the
person Adolph Hitler, would be to seek the extradition or deportation of the individ-
ual, a process that could take years and have the preverse result of permitting a
murderer, such as those I have just named, to live out their life in luxury in another
country. This, Mr. chairman, has oftentimes been the result of the United States'
judicial proceedings brought against suspected Nazi war criminals living as our
neighbors and it must not be allowed to continue in this manner should future war
criminals seek refuge in our country.

I have provided below a history and analysis of why the exercise of universal ju-
risdiction is not only appropriate as a matter of international and United States do-
mestic law and public policy, but it is also our obligation under international law.
Finally, I submit some additional suggestions to the proposed legislation to ensure
that American interests are best served.

For the past three years I have worked extensively on matters dealing with war
crimes, particularly with respect to the ad hoc criminal tribunals for the former

»Law OfRce of Mark S. Zaid, 1501 M Street, NW., Suite 1175, Washington, D.C. 20005. Tel.
No. (202) 785-3801; Fax No. (202) 223-4826. Mark Zaid is the Chair of the American Bar Asso-
ciation's Task Force on Proposed Protocols on Evidence and Procedure for Future War Crimes
Tribunals and a member of the Committee of Experts on the Establishment of an International
Criminal Court organized under the auspices of the Association Internationale de Droit Penal,
the Institute Superiore Intemazionale di Scienze Criminali and the Max Planck Institute for
Foreign and International Penal Law. In the latter position, he served as the reporter on the
jurisdictional sections of the "Draa SUtute for an International Criminal Court Suggested Modi-
fications to the 1994 ILC Draft (Updated Siracusa Draft)" which was presented for consideration
by the Preparatory Committee on the Establishment of a Permanent International Court Pursu-
ant to G.A. Res. 50/46 (1995). The views expressed by Mr. Zaid are his own and do not nec-
essarily reflect the views of any organization or entity with which he is or has been affiliated.

Yugoslavia and Rwanda and the creation of a permanent international criminal
court, as well as other crimes of universal jurisdiction such as certain acts of terror-
ism. In the latter category, I serve as co-counsel for the families of victims of Pan
Am Flight 103 who are pursuing civil remedies in the United States against the
government of Libya for the terrorist bombing of December 21, 1988 that claimed
the lives of 270 persons, including 189 Americans.

Enactment of this legislation would not only meet our international obligations,
but would also serve to promote the moral and legal principles for which this nation
was created and stUl stands upon. The capture and punishinent by any State of one
who commits a war crime benefits the entire international community and is a no-
tion the United States should actively support through legislative means.

UNIVERSAL JURISDICTION OVER WAR CRIMES IS HISTORICALLY WELL-SETTLED

"[T]he history of universal jurisdiction stems from the customary international

Eractices regarding pirates and brigands in the 1600s; even '[bjefore International
.aw in the modem sense of the term was in existence. . . .' " ^ Indeed, over 360
years ago Hugo Grotius gave his approval to the concept of the right of states to
try crimes committed outside their territorial jurisdiction when those crimes vio-
lated the law of nature or the law of nations:

. , . Kings, and those who are invested with a Power equal to that of
Kings, have a Right to exact Punishments, not only for injuries committed
against themselves or their Subjects, but likewise, for those which do not
peculiarly concern them, but which are, in any Persons whatsoever,
grevious Violations of the Law of Nature or Nations. For the Liberty of con-
sulting the Benefit of human Society, by Punishments, does now, since Civil
Societies, and Courts and Justice, have been instituted, reside in those who
are possessed of the supreme Power, and that properly, not as they have
Authority over others, but as they are in Subjection to none. For ... it
is so much more honourable, to revenge other Peoples Injuries rather than
their own . . . Kings, beside the Cnarge of their particular Dominions,
have upon them the care of human Society in general.^

In modem times, universal jurisdiction has been increasingly accepted since 1935
when it was included as a basis for jurisdiction in a draft convention outlining a
State's jurisdiction in criminal cases involving a foreign element. ■♦ The principle of
universal jurisdiction recognizes the interest that each State has in exercising juris-
diction to combat offenses which have been internationally condemned. *

Of the few international crimes that are held out to permit assertion of universal

{urisdiction by States, war crimes is without question within that category.® As ac-
knowledged by the Restatement (Third) on the Foreign Relations Law of the United
States:

A state has jurisdiction to define and prescribe punishment for certain of-
fenses recognized by the conununity of nations as of universal concern, such
as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war
crimes, and f>erhaps certain acts of terrorism. , . . '

THE FOUR GENEVA CONVENTIONS OF 1949 REQUIRE THE EXERCISING OF UNIVERSAL
JURISDICTION

Although only a few of the international criminal law conventions during the last
two centuries contain references that could be interpreted as providing universal iu-
risdiction, those that do have been either ratified by the United States or have be-
come customary international law; most prominent among them are the treaties

»M.C. BaBsiouni, Crimes Against Humanity in International Criminal Law 513 (1992).
3H. Grotius, De Jure Belli Ac Pacis, Book II, Chap. XX (1624).

* Harvard Research in IntT Law, Jurisdiction with Respect to Crime, 29 AJ.I.L. 435 (Supp.
1935). ^ . K fv

■L. LeBlanc, The United States and the Genocide Convention 180 (1991).

'See e.g., B. Carter & P. Trimble, International Law 735 (2d ed. 1995); L. Chen, An Introduc-
tion to Contemporary International Law 239 (1989); J.G. Starke, Introduction to International
Law 234 (1989); I Brownlie, Principles of Public International Law 304-05 (1979).

'Restatement (Third) on the foreign Relation Laws of the United States §404
(1987Xhereinafter "Restatement"). See also Faust, Universality and the Responsibility to Enfortx
International Criminal Law, 11 Hous. J. Intl. L. 337, 340 (1989)(univer8al enforcement recMf-
nized for "crimes against mankind," "crimes against the whole worlr' " the "enemies of the whole
human family" and those perBons who are hostis hunvini generis).

which are the subject of this legislation. The four Geneva Conventions of 1949* all
provide that:

Each [party] shall be under the obligation to search for persons alleged
to have committed, or to have ordered to be committed . . . grave
breaches, and shall bring such persons, regardless of their nationality, be-
fore its own courts.'

The four Geneva Conventions entered into force on October 21, 1950, and the
United States became a party on February 2, 1956. Hence, as a result, the United
States is obligated to assert universal jurisdiction with respect to violations of the
four Conventions. H.R. 2587, as revised by the U.S. Departments of State and De-
fense, would finally implement the steps we were required to have taken forty years
ago. Anything less would fall short of our international obligations and responsibil-
ities.

Of course, adoption of this principle does not mean that the United States will
be obligated to commence a prosecution each and every time a suspected war crimi-
nal is found within our territory. The United States can always seek to extradite
the individual should another State request custody. i° However, there may not be
such a State and without this legislation, a crime may go unpunished.!^ Further-
more, the fact remains that it is highly unlikely that war crimes will occur within
the United States in the near future or that many Americans will conunit a war
crime. While it is certainly possible that an American may find themselves a victim
of a war crime, the most likely scenario to occur is for a suspected war criminal from
another country to settle in the United States and thereafter be reported to the au-
thorities. Without universal jurisdiction the United States will be essentially power-
less to punish these individuals and must resort to extradition or deportation. ^^

THE UNITED STATES HAS SUPPORTED THE PRINCIPLE OF UNIVERSAL JURISDICTION IN
BOTH INTERNATIONAL AND DOMESTIC SETTINGS

The United States Has Ratified Several International Conventions Upholding Uni-
versal Jurisdiction
Since World War Two, the United States has ratified several international con-
ventions pertaining to criminal law that also impose the exercise of universal juris-
diction. TTiis demonstrates not only the Executive Branch's support of universal ju-
risdiction, but that of the United States Senate as well.

'See Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31 (Geneva
Convention I); Convention for the Amelioration of the Condition of Wounded, Sick and Ship-
wrecked members of the Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, T.I.A.S. No. 3363,
75 U.N.T.S. 85 (Geneva Convention II), Convention Relative to the Treatment of PrisonerB of
War. August 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135 (Geneva Convention
III), Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949,
6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287 (Geneva Convention IV).

•Geneva Convention I, art. 49 at 3146, T.I.A.S. No. 3362 at 34, 75 U.N.T.S. at 62 (emphasis
added); Geneva Convention II, art 50, at 3250, T.I.A.S. No. 3363 at 34, 75 U.N.T.S. at 116 (em-
phasis added); Geneva Convention III, art 129, at 3418, T.I.A.S. No. 3364 at 104, 75 U.N.T.S.
at 236 (emphasis added); Geneva Convention IV, art. 146, at 3616, T.I.A.S. No. 3365 at 102,
75 U.N.T.S. at 386 (emphasis added).

10 A State that captures a perpetrator of war crimes either may "surrender the all^^ crimi-
nal to the state where the offense was committed, or . . . retain the alleged criminal for trial
tmder its own legal processes." In re List, II Trials of War Criminals (1946-1949) at 1242 (U.S.
Mil. Trib.— Nuremberg 1948).

ii"IT]here is often no well-organized police or judicial system at the place were the acts are
conunitted, and both the pirate and the war criminal take advantage of this fact, hoping thereby
to commit their crimes with impunity." Cowls, Universality of Jurisdiction over War Crimes, 33
Calif. L.Rev. 177, 194 (1945).

"This has prompted one commentator to note that "[b]y deporting war criminals or criminals
against humanity, the United States expresses its moral disapproval of their crimes, but does
little to deter them. Neither does it discourage a fugitive criminal fTX>m seeking a safe haven
in this country, especially when, if he were caught, he could at best choose the countiy to which
he would be deported and at worst delay his deportation or extradition through long judicial
processes." Note, U.S. Prosecution of Past and Future War Criminals and Criminals Against Hu-
manity; Proposals for Reform Based on the Canadian and Australian Experience, 29 Va. J. Intl.
L. 887, 934-35 (1989).

The 1982 United Nations Convention on the Law of the Sea at Article 105, ^^
which is identical to article 19 of the 1958 Convention on the High Seas ^* provides
that.

On the high seas, or in any other place outside the jurisdiction of any
State, every State may seize a pirate ship or aircraft, or ship or aircraft
taken by piracy and under the control of pirates, and arrest the persons
and seize the property on board. The Courts, of the State which carried out
the seizure may decide upon penalties to be imposed, and may also deter-
mine the action to be taken with regard to the ship, aircraft or property,
subject to the rights of third parties action in good faith.

The international conventions on torture, ^'^ hostage taking, ^® hijacking and sabo-
tage of aircraft" and crimes against internationally protected persons^* all contain
provisions, with minor variation, requiring the assertion of universal jurisdiction, i®
For example. Article 8(a) of the 1979 Hostage Convention states:

The State Party in the territory of which the alleged offender is found
shall, if it does not extradite him, be obliged, without exception whatsoever
and whether or not the offense was committed in its territory, to submit
the case to its competent authorities for the purpose of prosecution, through
proceedings in accordance with the laws of the State.
Although the Genocide Convention ^o maintains its explicit jurisdictional base on
the territoriality principle, ^i the crime of genocide may be prosecuted based on uni-
versal jurisdiction as a matter of customary international law. Support for this prop-
osition includes The Eichman Case^ and the Restatement (Third) of the Foreign
Relations Law of the United States. ^3 The United States implemented its obliga-
tions under the Genocide Convention when it enacted the Genocide Convention Im-
plementation Act of 1988 (the Proxmire Act). ^ Unfortunately, the Act only follows
the territoriality and nationality principled of jurisdiction. As I have suggested
below, since the opportunity is now before this Honorable Subcommittee to allow
universal jurisdiction for the prosecution of war crimes, we should take this one step
further and permit the same for the crime of genocide.^s

13 United Nations Convention on the Law of the Sea, done in Mont^o Bay, 10 December 1982,
reprinted in The Law of the Sea, U.N. Doc. A/CONF. 62/122.

1* Convention on the High Seas, done 29 April 1958, 13 U.S.T. 2312. T.I.A.S. No. 5200. 450
U.N.T.S. 82.

^ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-
ment, adopted 10 December 1984. reprinted in 23 I.L.M. 1027 (1984). as modified. 24 I.L.M. 535
(1985). at art 7(1).

i« International Convention Against the Taking of Hostages. 4 December 1979, U.N.G.A. Res.
34/146. 34 U.S. GAOR Supp. (No. 39). U.N. Doc. A/C. 6/34 L. 23. reprinted in 18 I.L.M. 1456
(1979). art. 8(1).

1' Convention for the Suppression of Unlawful Seizure of Aircrafl, The Hague. 16 December
1970. 22 U.S.T. 1641. T.I.A.S. 7192. 860 U.N.T.S. 105, reprinted in 10 I.L.M. 133 (1971), art.
7; Convention for the Suppression of Unlawful Acts Against the Safety of U.N.T.S. 177. re-
prinUd in 10 I.L.M. 1151 (1971), art. 7.

"Convention on the Prevention and Punishment of Crimes Against Internationally Protected
Pereons, Including Diplomatic Agents. 14 December 1973. 28 U.S.T. 1975. T.I.A.S. No. 8532,
1035 U.N.T.S. 167. G.A. Res. 3166. 27 U.N. GAOR Supp. (No. 10), U.N. Doc. A/Re8/3166 (1974),
art 7.

i»The Convention on the Suppression and Punishment of Apartheid, adopted 30 November
1973, 1015 U.N.T.S. 243, adopted by G.A. Res. 3068, 28 U.N. GAOR Supp. (No. 30) at 75, U.N.
Doc. A/Re8/3068 (1973). reprinUd in 13 I.L.M. 50 (1974) also has a similar oroyision. although
universal jurisdiction is permissive rather than mandatory. Persons charged with the crime of
apartheid "may be tried by a competent tribunal of any State Party to the Convention which
may acquire jxmsdiction over the person of the accused or by an international penal tribu-
nal. . . ." Id. art 5, at 246. The United States is not a party to this Convention.

*> Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9 Decem-
ber 1948. 78 U.N.T.S. 277 (1948).

'1 "Persons charged with genocide . . . shall be tried by a competent tribunal of the State
in the territory of which the act was committed, or by such international penal tribunal as may
have jurisdiction." Id. at Article 6.

""[T]he reference in Article 6 to territorial jurisdiction is not exhaustive. Every sovereign
State may exercise its existing powers within the limits of customary international law . . ."
Attorney Gen. of Israel v. Eichmann, 36 I.L.R. 18, 39 (1st Dist. Ct.^Jerusalem 1961), affd, 36
I.L.R 277 (1st Sup. Ct. 1962).

"3 Restatement, supra note 7, at §404.

a* 18 U.S.C. § 1091 et seq. (1994).

*" I also support the suggestions of the U.S. Department of State to apply this l^slation to
non-international conflicts and Protocol II to the Convention on Conventional Weapons. The

Continued

United States Courts Have Recognized The Application Of Universal Jurisdiction

During the 19808, several federal courts, both in the criminal and civil context,
have recognized or acknowledged universal jurisdiction over acts of terrorism, tor-
ture and war crimes.^fl For example, in United States v. Lavton, 2' which involved
the prosecution of an individual lor the terrorist shooting of a United States Con-
gressman in Guyana, the Court held that "nations have begun to extend [universal]
jurisdiction to . . . crimes considered in the modem era to be as a great a threat
to the well-being of the international community as pirticy."^*

Of course, the penultimate example of universal jurisdiction is widely held to be
that of the International Military Tribunal (IMT) established by the United States,
Great Britain, France and Soviet Union following the victory over Nazi Germany .2®
However, "Vhile many sources view the IMTs proceedings as being partly based on
the universality principle, the IMTs judgement and records actually evidence little
or no explicit reliance on universal juriscfiction," 3° The subsequent war crimes trials
held by United States military tribunals offered more explicit references to universal
jurisdiction. 31 Consider the following statements by several U.S. military courts sit-
ting in judgment of Nazi war criminals:

An international crime is . . . an act universally recognized as crimi-
nal, which is considered a grave matter of international concern and for
some valid reason cannot to left within the exclusive jurisdiction of the
state that would have control over it under ordinary circumstances.^^

[Jurisdiction exists regardless of the nationalities of the defendants and
their victims and] of the place where the offense was committed, particu-
larly where, for some reason, the criminal would otherwise go
unpunished. ^

A war crime ... is not a crime against the law or criminal code of any
individual nation, but a crime against the jus gentium. The laws and usages
of war are of universal application, and do not depend for their existence
upon national laws and frontiers. Arguments to the effect that only a sov-
ereign of the locus criminis has jurisdiction and that only the lex loci can
be applied, are therefore without any foundation.**

former position certainly reflecte the current views of the international community as it is being
applied to the prosecution of war crimes in the former Yugoslavia.

^See TelOren v. Ubyan Arab Republic. 726 F.2d 774, 781, 788 (D.C. Cir. 1984Xper cu-
riamXEdwards, J., concurringXvoting to dismiss the action, but making several references to do-
mestic jurisdiction over extraterritorial offenses under the universality principle), cert, denied.
470 U.S. 1003 (9185); Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2nd Cir. 1980Xanalogizing the
defendant, a Paraguayan official accused of conunitting torture, to a pirate and slave trader);
United StaUs v. Yunis. 681 F. Supp. 896 (D.D.C. 1988)^uri8diction proper over defendant pros-
ecuted for hijacking and destruction of civilian aircraft under, inter alia, universial jurisdiction);
Von Dardel v. Union of Soviet Socialist Republics. 623 F.Supp. 246, 254 (D.D.C. 1985Xreferring
to the "concept of extraordinary judicial jurisdiction over acts in violation of significant inter-
national standards . . . embodied in the principle of "universal' violations of international
law"); In Re Demjanjuk, 612 F.Supp. 544, 555 (N.D. OhioXholding that Israel's jurisdiction to
prosecute alleged Nazi guard "conforms with the international law principle of "universal iuris-
diction'"), affd sub nom. Demjanjuk v. Petrovsky. 776 F.2d 571 (6th Cir. 1985), cert, denied. 475
U.S. 1016 (1986); UniUd States v. Layton, 509 F.Supp. 212, 223 (N.D.Cal.Xrecognizing universal
jurisdiction to define and punish terrorist attacks against internationally protected persons),
aqppeal dismissed. 646 F.2d 681 (9th Cir.), cert. denUd. 452 U.S. 972 (1981). See also the Alien
Tort Statute, 28 U.S.C. §1350 (1988Xallowing U.S. courts to assert universal jurisdiction over
aliens who have violated the law of nations).

2''509 F.Supp. 212, 223 (N.D.Cal.), appeal dismissed, 645 F.2d 681 (9th Cir.), cert, denied.,
452 U.S. 972 (1981).

M/d. at 223.

»The Allies estabhshed the IMT through the London Agreement, Aug. 8. 1945, 59 Stat 1544,
E.A.S. No. 472, 82 U.N.T.S. 280, which later annexed the Charter of the International Military
Tribunal, 59 Stat. 1546, E.A.S. No. 472, 82 U.N.T.S. 284.

*> Randall, Universal Jurisdiction Under International Law. 66 Tex. L. Rev. 785, 807 (1988).

31 At letist one scholar has stated that the postwar tribunals established "war crimes as the
chief example of the modem application of the universality principle." Sponsler, The Universal-
ity Principle of Jurisdiction and the Threatened Trials of American Airmen. 15 Loy. L.Rev. 43,
53 (1968). See aUo Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir. 1985X"it is generally
agreed that the estabhshment of these tribunals and their proceedings were based on universal
jurisdictions."), cert denied, 475 U.S. 1016 (1986).

^In re List. 11 Trials of War Criminals (1946-1949) at 757 (U.S. Mil. Trib.— Nuremberg
1948).

33Hadamar Trial. 1 United Nations War Crimes Commission, Law Reports of Trials of War
Criminal at 46 (U.S. Mil. Comm'n— Wiesbaden 1945).

^In re Eisentrager, 14 United Nations War Crimes Commission, Law Reports of Trials of War
Criminals at 15-16 (U.S. Mil. Comm'n— Shanghai 1947).

UNIVERSAL JURISDICTION HAS BEEN EXERCISED CRIMINALLY BY SEVERAL UNITED
STATES' ALLIES

Several key allies of the United States — Israel, United Kingdom, Canada, Aus-
tralia and Ireland — ^have allowed prosecutions based on universal jurisdiction and,
particularly within the last few years, have enacted additional legislation permitting
the prosecution of future war crimes. This demonstrates the growing trend toward
ensuring that perpetrators of war crimes not go unpunished, regardless of where the
underlying act may have taken place.

Israel

The trial of Adolph Eichmann under Israel's Nazis and Nazi Collaborators (Pun-
ishment) Act^ provides a clear example of a State's reliance on the universality
principle for prosecution of a war criminal. The district court rationalized its deci-
sion on the basis that:

[t]he abhorrent crimes defined in this law are crimes not under Israel law
alone. These crimes which afflicted the whole of mankind and shocked the
conscience of nations are grave offences against the law of nations itself
("delicta juris gentium"). Therefore, so far irom international law negating
or limiting the jurisdiction of countries with respect to such crimes, m the
absence of an mtemational Court the international law is in need of the
judicial and legislative authorities of every country, to give effect to its
penal injunctions and to bring criminals to trial. ^^

United Kingdom

In the Almelo Trial ^^ of 1945, this Britian prosecution of German defendants was
based in part on universal jurisdiction under which "every independent state has
in international Law jurisdiction to punish pirates and war criminals in its custody
regardless of the nationality of the victim or the place where the offense was com-
nutted." The following a year, a British military court in the Zyklon B Case^^ also
based its case in part on the universal jurisdiction of States to prosecute war crimi-
nals.

The United Kingdom enacted legislation in 1991 which permitted the prosecution
of Nazi war criminals and, just last year, Britian passed additional implementing
legislation pertaining to the Geneva Conventions.^*

Australia

The Australian War Crimes Amendment of 1988^ permits prosecution of Nazi
war criminals who committed crimes between September 1, 1939 and May 8, 1945.
The Australian definition of war crimes encompasses both war crimes and crimes
against humanity as they are defined in the EMT. Although the Act was limited the
time to the World War Two period, it nevertheless is based on the universality prin-
ciple as it applies to crimes committed outside of Australia, and by and against peo-
ple with no connection to Australia.

In 1991, Australia enacted additional implementing legislation with respect to the
Geneva Conventions.

Canada

In 1987, Canada passed An Act to Amend the Criminal Code, the Immigration
Act, 1976 and the Citizenship Act*i which provides that any person who commits
a war crime or crime against humanity "shall be deemed to [have] committ[ed] that
[crime] in Canada at the time of the act or omission, if the crime, if committed in
Canada, would constitute an offence against the laws of Canada in force at [that]
time.'''*^ Although the statute was enacted amid cries to prosecute Nazi war crimi-
nals, the language of the statutes also provide deterrent value for its allows for the
prosecution of past, present and future war criminals.

»Law No. 64, 4 Laws of the State of Israel 154 (5710-1949/50), reprinted in United Nations,
1950 Y.B. on Human Rights 163.

3« Attorney General of Isr. v. Eichmann, 36 I.L.R. 18, 26 (Isr. Dist. Ct.— JeruBalem 1961),
(^d, 36 LL.R. 277 (Isr. Sup. Ct. 1962).

3' 1 United Nations War Crimes Commission, Law Reports of Trials of War Criminals at 35
(Brit. Mil. Ct— Almelo 1945).

" 1 United Nations War Crimes Commission, Law Reports of Trials of War Criminals at 93
(Brit. Mil. Ct— Hamburg 1946).

3" Ireland has also passed implementing legislation.

■*» War Crimes Amendment Act, §9, 1989 Aust Acts 926; 119 Pari. Deb., S. 497 (1987).

*i Act to Amend the Criminal Code, ch. 37, 1987 Can. Stat 1107.

*»/d. at § 1.91, 1987 Can. Stat at 1109.

Additional legislation was enacted in 1990 to allow for universal jurisdiction based
on the Geneva Conventions.

SUGGESTED MODIFICATIONS TO H.R. 2587

Although the proposed legislation is a tremendous step towards the United States
fulfilling its international obligations, there are additional steps that should be
taken at this time to further strengthen the enforcement of international law as
well as ensure the utmost protection of American interests. These changes include
amending the bill to provide for: (a) the non-application of the death penalty in in-
stances where the United States is seeking the extradition of a suspected war crimi-
nal from a State that opposes the imposition of the death penalty; (b) the ability
of Americans to pursue civil remedies against suspected war criminals; and (c) uni-
versal jurisdiction over crimes of genocide.

Non-Application of the Death Penalty in Certain Instances

Both the original version of H.R. 2587 and the revisions suggested by the U.S.
Departments of State and Defense provide for the possible imposition of the death
penalty to the perpetrator should death result to the victim oi a war crime. In the
Unitea States imposition of the death penalty is commonly included as a possible
penalty in offenses that would be deemed analogous to this statute.'*^ However, as
is well known, most nations of the world oppose the death penalty and would refuse
to extradite a suspected war criminal to the United States for trial based on, among
other reasons, the possibility that the individual might be sentenced to death and,
in the interim, languish on death row for many years.**

Image a situation where an American, whether a civilian or a member of our
Armed Forces, was killed as a result of a war crime committed in another country
and a prime suspect is in custody of the foreign power. Here exists a scenario where
the United States interests to prosecute the individual are obviously heightened.
Yet, because of the possibility that the death penalty may be imposed as a sentence,
the custodial state may well refuse to extradite the accused. American justice will
not be adequately served in a case of this type.

Therefore, I would propose that the statute be amended to provide that in in-
stances where the United States seeks the extradition of an individual suspected of
committing a war crime from a State whose laws, or the extradition treaty in force,
prohibits the extradition of the individual due to the possible sentence of death, the
death penalty will not be applied in such cases. It would seem that the interests
of the Unitea States lie in seeing the individual prosecuted to the fullest extent pos-
sible under our laws, even if absent the death penalty, rather than seeing the indi-
vidual receive a lesser sentence or none at all in the custoditil state.

Civil Remedies Must Be Created For The American Victims of War Crimes

Oftentimes, in prosecuting alleged violators of horrific crimes we sometimes forget
or neglect the victims and their families who have suffered terribly. It should oe
recognized that there exists twin pillars to attaining justice punishment of the per-
petrator and securing compensation for the victim and/or their family. I have wit-
nessed firsthand the need for parallel remedies during my representation of families
of the victims of the terrorist bombing of Pan Am Flight 103. Recently, I had the
great satisfaction of having participated in drafting substantial portions of the
amendment of the Foreign &)vereign Immunities Act of 1976 ^^ that was signed into
law by President Clinton in April of this year as part of the "Antiterrorism and Ef-
fective Death Penalty Act of 1996."'*® This amendment now permits victims of air-
craft sabotage, torture, hostage-taking and extrajudicial killing to sue those foreign
governments responsible for their losses.'*''

*^See e.g.. Omnibus Diplomatic Security and Antiterrorism Act of 1986, Pub. L. No. 97-399
§ 1202, 100 Stat 853 (1986), codified at 18 U.S.C. §2331 et sea. (certain terrorism offenses).

**For example, in 1989, the European Court of Human Rignts refused to extradite an accused
murderer to the United States because the court found the prospect of eight years on death row,
due to the nature of appeals in this country, should he be sentenced to death, would be "inhu-
man or degrading treatment or punishment." The Soering Case, 28 I.L.M. 1063 (1989).

*»28 U.S.C. 5§ 1602 et seq. (1988).

*«H.R Rep. No. 518, 104th Cong., 2d Sess. (1996).

*^The amendment creates Section 1605(aX7) of Title 28 of the United States Code and pei^
mite jurisdiction for lawsuits against terrorist states. Prior to the passage of this amendment,
cases against foreign states for terrorist acts or other violations of the law of nations committed
outside of the territory of the United States against Americans were dismissed for lack of juris-
diction. See e.g., Cicippio v. Islamic Republic of Iran, 30 F.3d 164 (D.C. Cir. 1994), cert, de-
nied, U.S.-— —(19Q5XNo jurisdiction existed over Iran for holding Americans hostage); Smith

With respect to civil remedies, the prosecution of an alleged war criminal in the
United States for acts committed abroad under this legislation may have the unwel-
come effect of providing alien victims and their famflies with greater rights than
their American counteroarts. Aliens that have suffered injury as a result of a war
crime committed abroad may initiate a civil action against their perpetrator when
the individual is found within the United States under the Alien Tort Statute**
which provides district courts with "original jurisdiction of any civil action by an
alien for a tort only, committed in violation of the law of nations or a treaty of the
United States." *» In recent years, several successful actions have been instituted in
the United States against foreign perpetrators of torture, war crimes and genocide
by their foreign victims and/or surviving family members.^"

Of course, war crimes both violate the law of nations and treaties of the United
States, therefore providing aliens with a civil remedy should the alleged war crimi-
nal be brought to or found within the United States. However, no such right exists
for American victims or their families. Althou^ American victims can seek civil
remedies under the Torture Victim F*rotection Act of 1991, 'i the Act only encom-
passes acts of torture or extrajudicial killing, thereby excluding many other acts
that fall within the definition of war crimes. As it was obviously never the intent
to grant aliens greater rights than American victims of war crimes, I would implore
this Subcommittee to fill this accidental vacuum.

Universal Jurisdiction Should Be Provided for Crimes of Genocide

Under the Proxmire Act, the United States claims the right to try persons for
committing genocide and related acts only on the basis of the nationality and
territoriality principles of jurisdiction. Thus, as the law now stands, alleged per-
petrators of genocide such as Radovan Karadzic or Ratko Mladic could not oe pros-
ecuted in the United States for these atrocities. However, as explained above, al-
though the Genocide Convention does not obligate nations to assert universal juris-
diction, crimes of genocide can be prosecuted based on universality as a matter of
customary international law.

Given the le^slation being proposed today, it would seem farcical to provide uni-
versal jurisdiction with respect to war crimes, yet maintain the jurisdictional limita-
tions imposed by the Proxmire Act on crimes of genocide. Therefore, this Sub-
committee should consider including within its proposed bill the appropriate clarify-
ing amendment.

CONCLUSION

Mr. Chairman, the cries of "Never Forget" that arose out of the ashes of the six
million murdered in the Holocaust are sadly being drowned out by the millions of
innocents still falling victim to war crimes and acts of genocide throughout the
world. In ensuring that we "Never Forget" those that have been victimized by such
atrocities, we must strive to "Always Prosecute" those that caused such uniustified
and inexcusable suffering. H.R. 2587, with the suggested revisions proposedf herein,
wiU serve to accomplish just that and perhaps send a message to those who are con-
templating committing such atrocities that the United States will never allow its
territory to serve as a safe haven for them.

Perhaps one day soon a permanent international criminal court will exist that will
be in a position to prosecute suspected war criminals. But that day has not yet ar-
rived £ind in the interim war criminals are not wasting any time to continue their
slaughter of innocent victims. By enacting this legislation the United States will
continue to help lead the international community towards an end to this madness
or, at the very least, to ensure that justice rises from the aftermath.

Thank you for the opportunity to present my views on this matter. If requested,
I would be happy to assist the Subcommittee in drafting the language necessary for
the amendments I suggested above.

Mr. Smith. Thank you, Mr. Zaid.

V. The Socialist People's Libyan Arab Jamahiriya, 886 F. Supp. 306 (E.D.N.Y. 1995XVictiin8 of
Pan Am Flight 103 were without jurisdiction to seek civil remedies against Libya).
*« Judiciary Act of 1789, ch. 20, § 9(b), 1 Stat. 73, 77 (1789), codified at 28 U.S.C. § 1350 (1988).

"See e.g. Doe v. Karadzic, 70 F.3d 232 (2nd Cir. 1995XAction against Serbian leader for geno-
cide, war crimes against humanity); Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980XAction
against Paraguayan official accused of torture); Mushikiwabo v. Barayagwiza. 1996 WL 164496
(S.D.N.Y. April 9, 1996XAction against Rwandan pohtical leader for massacre of thousands).

"Pub. L. No. 102-2567, 106 Stat. 73 (1992), codified at 28 U.S.C.A. § 1350 note.

Judge Everett, before I direct my first question to you, may I ask
who was chairman of the Senate Judiciary Committee when you
served as counsel? I'm just curious about the historical

Judge Everett. Well, I was actually primarily serving with the
Subcommittee on Constitutional Rights, of which Senator Ervin
was the Chair,

Mr. Smith. Is that right?

Judge Everett. And so he was the one that I had continuing
contact with during that period of time. And, as I recall, there was
a succession of— there were a couple of Chairs for the full Judiciary
Committee, but my work was primarily with Senator Ervin.

Mr. Smith. Thank you.

Judge Everett, both you and Mr. Zaid have opposed a possible
death penalty provision in this bill. I am just curious. Do you op-
pose or support the death penalty in other circumstances?

Judge Everett. I have no problem with it whatsoever. I do sup-
port it in other circumstances.

Mr. Smith. OK.

Judge Everett. As I say, I've written an opinion

Mr. Smith. Right.

Judge Everett [continuing]. Upholding it. There's one other
practical problem that I thought of during the testimony today that
will exist if there is a death penalty. That is that, well, put it this
way: article 134, which applies to service members, has a third
clause which incorporates by reference all crimes and offenses not
capital, which means that anything in the Federal Code which is
not capital can be tried by a court-martial if a service member is
involved. If there is a capital offense authorized, I fear that it
might have the practical effect of ousting court-martial jurisdiction
that would otherwise exist, and I think that would be a very impor-
tant and unfortunate byproduct. It's a technical point, and at the
very least I would hope that would be dealt with somewhere along
the line, because it would be unfortunate to deprive courts -martial
and military commissions of an opportunity to try cases where they
might be the only really realistic forum that could be used.

Mr. Smith. Judge Everett, let me ask you a question that I asked
a member of the first panel, but I just want to have repeated again.
Do you have any worry that enactment of H.R. 2587 would encour-
age rogue nations such as Iran and Libya to seize Americans and
prosecute them for so-called war crimes? You heard the previous
response, but I want to get your response.

Judge Everett. I thiiik that's a very accurate response.

Mr. Smith. OK.

Judge Everett. They're ^oing to do their own thing. I think, on
the other hand, our having jurisdiction may protect us in situations
where we need to be able to say we want to deal with our people;
we don't want to surrender them to an international court or to ex-
tradite them somewhere else.

Mr. Smith. Thank you.

Mr. Leigh, I also have a repeat question for you. This goes to
something that you mentioned a while ago. The United States is
a strong supporter of the International Criminal Tribune for the
former Yugoslavia which was established by the U.N. Security
Council to prosecute war criminals from the Yugoslavian civil war.

Are such international tribunals appropriate venues for dealing
with war crimes or more appropriate than domestic criminal law
or not?

Mr. Leigh. Well, I think they're highly appropriate for the par-
ticular situation in Yugoslavia, but a lot of considerations go into
establishing a special and temporary tribunal of this sort.

Mr. Smith. To handle the numbers that

Mr. Leigh. There must be enough funding. There has to be
enough staffing to really do the job that needs to be done. And I
think it's clear, as Mr. Matheson said, that there are going to be
far more crimes of this sort than a particular ad hoc international
tribunal could handle.

Mr. Smith. So it's an appropriate venue

Mr. Leigh. It needs to be national

Mr. Smith. It's an appropriate venue, in other words; you just
need to make sure that it's capable of processing the individuals?

Mr. Leigh. That's right.

Mr. Smith. OK Another question for you, Mr. Leigh. Can there
be instances when prosecutions of individuals for war crimes inter-
feres with peace initiatives and the reconciliation of warring par-
ties? I know that's a little bit of a hypothetical, but with all your
experience you probably

Mr. Leigh. Well, there are many people that are saying that.

Mr. Smith. Yes.

Mr. Leigh. I don't share that view at this time. I think, at any
rate, that as far as this legislation is concerned, we should be pre-
pared to do what we need to do. And it seems to me that some of
the assumptions made in 1955 as to what we could do have proven
unsustainable, by virtue of Supreme Court decisions as to the trial
of civilians, as to the trial of people who have been discharged from
military service. So there is a gap here.

And I think also the alternative of extradition is not really a ter-
ribly good one. I think we ought to be able to do everything that
we need to do in this country.

Mr. Smith. Thank you, Mr. Leigh.

Mr. Zaid, what was your response to my question about the
death penalty? Do you support it in other circumstances or are you
opposed to the death penalty

Mr. Zaid. I have no problem with the death penalty, Mr. Chair-
man. It's used in several analogous statutes, like the terrorism
statutes, for instance.

Mr. Smith. OK.

Mr. Zaid. The problem arises, where the American interest is so
great, we would rather have the person prosecuted here

Mr. Smith. Right.

Mr. Zaid [continuing]. Rather than allow them to be prosecuted
elsewhere.

Mr. Smith. I understand that. I just was checking for bias; that's
all. [Laughter.]

Mr. Zaid. No, no bias.

Mr. Smith. I do have another question, Mr. Zaid. A number of
other countries, such as the United Kingdom, have enacted penal
legislation implementing the Geneva Conventions. Have there ever

been any prosecutions under these statutes? I suspect there's only
been a few, if any, but

Mr. Zaid. I know in England and Canada and Australia there
were attempts for prosecutions of Nazi war criminals. I'm not
aware of any prosecutions of other war criminals. They have pre-
dominantly been unsuccessful, but that is because of the evi-
dentiary problems surrounding the passage of time more than any-
thing else.

Mr. Smith. Would you say that the statutes are symbolic or not?

Mr. Zaid. No, they very well could have teeth, particularly in
these countries where

Mr. Smith. If you had the evidence?

Mr. Zaid. If you have the evidence, and, of course, many times
these countries, as our country does, these individuals find their
way here. The 1980's saw quite a few. In fact, just last month there
was another case up in New York of torturers that were sued civ-
illy by their victims who happened to find themselves in the same
neighborhoods. So, with this statute in hand, we could do more
than just civilly prosecute them; we could criminally prosecute
them.

Mr. Smith. OK. Thank you, Mr. Zaid.

The gentleman from Florida is recognized, Mr. McCollum.

Mr. McCollum. Thank you very much.

Mr. Zfiid, I find your suggestion with regard to the death penalty
to be interesting in that you don't just propose we don't have one
for these crimes, but you propose that, if I read your testimony and
heard it correctly, that we have a provision that would say, where
somebody is suspected of committing one of these crimes and there
is an extradition process required to get them before our courts,
and that country prohibits the death penalty, that we provide that
the death penalty shall not apply. Perhaps we can do that. Does
that present any problems, in your judgment — and I'd be curious
if anybody else thinks it does or doesn't — with respect to constitu-
tionality of the death penalty being applied in other cases, if we
were to make that kind of an exception for those situations? I mean
other cases involving this law.

Mr. Zaid. I certainly would not hold myself out to be a constitu-
tional lawyer, but certainly the imposition of the death penalty has
always been a discretionary function of the prosecutors, and I don't
believe there's a constitutional balance to determine when, in what
instance it's applied, and when it might not be in the other, even
if it's the same crimes

Mr. McCollum. Well, you're probably right, but I'm just con-
cerned, if we actually codify that as opposed to leaving it to pros-
ecutorial discretion, but obviously your concern would not be fully
addressed if we didn't codify it because the question is, what does
the other country think of that, though I suppose we could always
strike a deal. It seems to me that seems to be self-evident with re-
spect to international relations. We could have the death penalty
on the books, and if we tell country X, Y, or Z we're not going to
seek it — and I suppose that depends on whether they believe we
aren't going to seek it.

Mr. Zaid. That may be, Mr. McCollum. The type of situation that
I'm getting at here to show where our interest is, let's take, for ex-
ample, the Achille Lauro hijacking

Mr. McCollum, Right.

Mr. Zaid [continuing]. And we were unable to secure custody
over the perpetrators, and they were prosecuted by Italy, and sev-
eral of them were let go early and one most recently. If in that in-
stance we had been able to secure custody over them, those people
would be secure in our jails for quite a long time with no possibili-
ties of getting out. I'd rather see that happen than argue over im-
posing the death penalty versus them serving a lighter sentence
abroad.

Mr. McCollum. We faced a similar decision or two relative to
laws we passed here not too long ago on terrorism, and so forth.
So I understand the argument; I'm just curious about the constitu-
tional question.

Judge, do you have any comment about whether the proposal of
Mr. Zaid to carve out a statutory exception to the death penalty in
those extradition cases might be interpreted negatively toward the
application of it in the other cases which would be tried under such
a law?

Judge Everett. I'd go all or nothing. I think by introducing that
distinction, it would create a legal hurdle later on. I noticed in the
case the Supreme Court handed down last week on capital punish-
ment for the military that they introduced a very — there were four
Justices who had a very unique distinction applicable to capital of-
fenses. And if you have anything they could play with, as, for ex-
ample, equal protection or something of that sort, I think it would
mean that probably the capital punishment would not be enforced
anyway; there would be some legal difficulties. So I would suggest
eitner leave it in or take it completely out.

Mr. McCollum. All right. Let me ask for a clarification. Mr.
Zaid, you have suggested that we need to repeal, if you will, a limi-
tation imposed by the Proxmire Act on crimes of genocide. I'm a lit-
tle confused about the term "universality." Does the proposal to
make the application of this law that we're dealing with, and what
Mr. Jones wants to do, encompass or not encompass genocide? I
mean, if we do what the State Department is suggesting, and what
I believe. Judge Everett, you would embrace, do we cover crimes
of genocide generally or is this broader, what Mr. Zaid is proposing,
that we specifically have to repeal the Proxmire Act? Does anybocfy
here know? Mr. Zaid.

Mr. Zaid. Well, I think there is some overlap between war crimes
and genocide, but they have been considered tor be separate of-
fenses, particularly in the last few decades. The International
Criminal Court, the jurisdiction that it would be holding, were it
to be created as promoted by the United States, sees genocide and
war crimes as separate offenses. So we face a distinction or the
problem here of, if Mladic or Karadzic ended up in the United
States, we would not be able to prosecute them for genocide, but
yet an individual could be prosecuted for war crimes.

Mr. McCollum. What's the history behind why the Proxmire Act
limited the jurisdiction; do you know?

Mr. Zaid. Well, the Genocide Convention, in fact, was not man-
datory in the imposition of universal jurisdiction. So here you have
a significant difference where the Geneva Conventions do impose
mandatory obligations of state parties.

There was a long, long debate that goes back many years, which
I'm sure Mr. Leigh participated in rather than me just reading
about. So maybe he might be able to elaborate on it.

Mr. McCoLLUM. Well, the bottom-line reason for the question is
not so much to get the history, though I would enjoy hearing it. I
enjoyed Mr. Leigh earlier telling us that. I find that to be one of
the more fascinating parts of considering this bill.

But I am concerned about where the objections might lie and
what kind of pitfalls we're in. I don't want — I'd like to expand this
bill, to be very frank, to go as far as we can go relative to the sug-
gestions that several of you made, including the State Department,
but, on the other hand, I don't want to jeopardize Mr. Jones' bill
by putting it out there so that it's going to get fired at by somebody
over in the Senate who is going to say this is such a radical pro-
posal, I'll sit on it. The Senators, as Judge Everett well knows, with
about 2 months to go, have no problem at all stopping a bill.

So the question — and I'll leave it at this, but I think it is impor-
tant, Mr. Chairman — ^is: is there anything in that proposal or any
of these other suggestions that any of you see that you think raise
red flags where someone is likely or probably going to come for-
ward and raise some opposition to it, to this bill, if we put it in
there under current conditions? And, again, I know the history, Mr.
Leigh, but I'm looking at it as it exists today.

Judge, do you want to comment on that?

Judge Everett. I think one of the good things about it is the ad-
ministration is backing it, apparently, wholeheartedly, and I don't
think they could walk away from it. And I think if there is no con-
certed opposition there, that the broadening of jurisdiction by the
committee would not encounter trouble. It's hard to predict. Obvi-
ously, someone may have a special concern. But there seems to be
such logic in broadening the jurisdiction, so that our courts can
deal with the problem, and it may actually protect the rights of our
own citizens.

Mr. McCoLLUM. Right.

Judge Everett. I think that's a good selling point. So that I
think, on balance, there are advantages. I would hate to do any-
thing that would jeopardize the success of Congressman Jones' bill,
believe me. So I had some hesitation in even suggesting a broaden-
ing of jurisdiction, and yet it seems quite logical to provide as
broad a jurisdiction as possible for our courts.

Mr. McCoLLUM. Well, I didn't ask the question I should have of
the State Department with respect to genocide. We'll ask that sepa-
rately, and I know that that testimony's passed, but other than
that, it doesn't look like there's anything here anyway.

Mr. Leigh, do you see an)dihing, any roadblocks, impediments to
expanding this jurisdiction, as is

Mr. Leigh. Well, I was a minimalist in 1955. I'm still more mini-
mal than my colleagues on either side. I would go as far as the
State Department wants to go, but I think if you re trying to get

a bill this year, it seems to me there's something to be said for con-
fining it within those limits.

I would like to point out also that the one reservation that the
United States made to these Conventions was the one that had to
do with tfie death penalty, and we and the United Kingdom, and
various other countries, made a reservation to article 68 which
freed us to apply the death penalty, if we chose to.

Now on the question of whether it would interfere with our abil-
ity to secure extradition, it seems to me that that's easily handled.
At the time the United States requests extradition, it can certify
that it is not going to try for a capital offense — it has to say what
the charges will be, and so the charges can be made noncapital, so
the death penalty would not be involved. So it seems to me there's
an area of discretion here which you don't need to anticipate in the
statute.

Mr. McCoLLUM. Mr. Zaid.

Mr. Zaid. I would think if anyone has a problem with this par-
ticular bill, they might still have a problem with genocide. It would
go hand in hand. I would have trouble rationalizing why someone
would support universal jurisdiction over a crime such as war
crimes and not support it over genocide. The historic debate sur-
rounding why it was limited had a great deal to do with whether
it was going to be applied to U.S. servicemen. The debate came up
quite a deal during the Vietnam era, and, in fact, in the early sev-
enties Justice William Rehnquist testified, when he was an official
at the Justice Department, that, in fact, even by expanding it then
at that point, that it really would have no effect on what would
occur to our servicemen abroad. If a serviceman commits an act of
genocide in another country, that country will always have jurisdic-
tion over that individual because of the territoriality principle.

So, honestly, I would not envision someone having difficulty with
genocide that's apart from the difficulty that they might have with
war crimes.

Mr. McCoLLUM. Well, Mr. Chairman, the only thing I would
ask — and I certainly went over my time — ^is that if we could get a
comment from the State Department, before we mark this up, on
the genocide question.

Thank you.

Mr. Smith. Thank you, Mr. McCollum. We will do so.

[The information follows:]

I'niteil Stali-s Df^mrXnifnt ol' Stale
Uns/tinatofi. Of. i'O.Sl'O

JUL I 5 1996

Dear Mr. McCollum:

I am writing in response to your question, posed following
the June 12, 1996. testimony of Administration officials before
the Immigration and Claims Subcommittee of the Committee on the
Judiciary on H.R. 2587, the War Crimes Act of 1996. You asked
whether the Department of State would support extending U.S.
criminal jurisdiction over genocide.

The Administration's suggested revisions to the War Crimes
Act are intended to ensure that the United States has the
domestic legal authority to meet its obligations under
international law. As noted in the State Department's prepared
statement at the June 12 hearing, for example, it is our view
that it would be useful to establish clear jurisdiction even
over persons who commit grave breaches of the Geneva
Conventions outside the United States if they are later found
In the United States, as the Geneva Conventions require.
Similarly, since 1949 the United States has accepted certain
specialized rules of international humanitarian law which may
not have an equivalent in existing U.S. criminal statutes.

With respect to genocide. United States law currently
provides authority even beyond that required by the U.N.
Convention on the Prevention and Punishment of the Crime of
Genocide. Federal law makes genocide a crime if it is
committed within the United States or by a United States
national. Sfifi 18 U.S.C. § 1091. The Genocide Convention only
requires prosecution of crime.5 committed within one's
territory; it does not require the establishment of
ji.ir i cr»ictioo over gen<^ride committed outside the United States
by non-nationals who are later found within one's territory.
Genocide is thus on a very different footing than war crimes.
The proposed legislation expanding jurisdiction over war crimes
could be important to ensuring that our international
obligations are fulfilled, but additional legislation on
genocide would be entirely a unilateral, domestic initiative.

The Honorable

Bill McCollum.

Subcommittee on Immigration and Claims,
Committee on the Judiciary,

House of Representatives.

Although expansion of jurisdiction over genocide committed
outside the united Stares by non-U. S- nationals warrants
further serious consideration, in view of the short legislative
calendar remaining in this Congress, the Department of State
would not propose sucn expansion at this time.

Please do not hesitate to contact us if you have additional
questions or believe that we may be of further assistance.

Sincerely,

Barbara Larkin

Acting Assistant Secretary

Legislative Affairs

Mr. Smith. And thanks again for your contributions today. I
knew you were a man of many interests and talents; I didn't know
vou had expertise on this subject, which is the first time it's come
before this subcommittee. So I thank you for your contributions.

Let me also thank Congressman Jones. If it were not for him, as
I said earlier, we would not be here today. If it were not for the
idea presented to him by Captain Cronin, we would not be here
today. So we thank you, Walter, for your participation, as well as
for your interest in such an important subject.

Let me thank the panelists for contributing their expertise today.

This will conclude our hearing today, but we thank everyone who
participated. And this subcommittee stands adjourned.

[Whereupon, at 4:25 p.m., the subcommittee adjourned.]

APPENDIXES

Appendix 1. — Letter Dated June 17, 1996, From Judge Robin-
son O. Everett, U.S. Court of Appeals for the Armed
Forces

Wiited States Court af^ppeaCs

far
IJU Arttu^ forces

450 E Street. Norltiwesf
WcBhIngton. DC. 20442-0001

" Tot C2D2)761-1*«

f*X.: £202)761-4672

June 17, 1996

George M. Fishrnan, Esq.

Assistant Counsel, Subcommittee on

Immigration and Claims
House Committee on the Judiciary
Washington, DC 20515

RE: H.R- 2587

Dear George:

In our conversation today, I told you that I would be glad
to suggest language to effectuate the additions to H.R. 2587
that I suggested during my testimony before the Subcommittee on
June 12, 1996. I must acknowledge that ray ability to draft
statutes is far less than when I served as a counsel for
Senator Ervin; but I hope that the following suggestions will
be of some assistance:

(1) To implement my first proposal, I would suggest
use of this language:

"Enactment of this Law shall not repeal or
diminish in any way the jurisdiction of any
cQurt-martial, military commission, or other
military tribunal under Articles 18 and 21. 10
U.S.C sees. 818, 821, or any other Article of the
Uniform Code of Military Justice, or under the
law of war or the law of nations."

Secondly, I would substitute for "citizens"
whenever it appears the words "national, as
defined by (with statutory appropriate
reference) . "

Third. I would include language stating that "A
war crime, as defined herein, shall be punishable

(a) if the perpetrator or the victim is a
servicemeraber or national of the United States ;

(b) if the perpetrator is found within the United
States or within its special maritime and
territorial jurisdiction; or (c) if the Attorney
General certifies that it is in the national
interest of the United States that the war crime
be tried and punished in a court of the United
States."

(49)

Fourth, I would define a war crime as "conduct
which constitutes a grave breach of any duty
imposed by the law of war or the law of nations,
as incorporated in (enumerated treaties)"

Fifth, I would amend Article 134 of the Uniform
Code, 10 U.S.C. sec. 934. to add a fourth clause
stating, 'or any conduct which constitutes a
violation of the War Crimes Act of 1996, as it
may be at the enactment of this law or as it may
be hereafter amended."

Sixth, I would provide: "Punishments under this
act shall not be subject to the Sentencing
Guidelines Act."

Seventh, I would either delete the death penalty
provision entirely or would authorize the death
penalty without regard to the nationality or
status of the victim.

Hoping that these suggestions will be of some assistance, I

Cordially, ^ — -

M-^u^ts^

Robinson O. Everett

Appendix 2.— Statement of the International Committee of
THE Red Cross

The Inienutional CommiRee of the Red Cross presems its con^luiMats to the Chainnaa and
Members of the Subcomminee on Lrutnigmion and Claims aod expresses iis apprecianoa for
the opportunity to make a staiemeni on HJC 2587, entitied the "War Crimes Act of 1993".

Since its establishment in 1 863. the Intemaiional Committee of Red Cross has worked around
the world to protect and assist the victims of ansed conflicL As an independent and oeuttvl
intomediaiy it has been entrusted by States with a range of humanitarian tasks, and has
played a key role in the development of the rules of international humanitarian law. These
rules, which apply during aimed conflict, are designed to prevent unnecessary suffering and
Id protect those affected by ^>'ar including the wounded, sick, prisoners of war and civilians.

The widespread atrocities committed in recent coafliets such as those in Rwanda and the
foimer Yufioslavia are tragically familiar. The effective imptameniation of imeioaiional
humanitarian law requires that those wfao commit such war dimes are brought to Justice.

Goveraments and national courts have, and will conlinue to have, a key role to play in the
punisbmeni of war crimes and in ensuring that there is no havea fi>r war criminals. The
establishment of intemationBl tribunals for the foimer Yugoslavia and Rwanda is a valuable
to contribution to the suppression of war crimes, but does not Himini«h die importance of
action at the national level. Similarly any future permanent intemntinnal criminal court
should complement, ladier than displace, the role of national courts.

Under Ae Geneva Conveadons of 1949 all countrica are obUged to enact any legUlaiion
oecassaiy to punish grave breaches of those conventions and to bring persons accused of such
breaches before their own couro. regardless of Ae nationality of the perpettaior or the place
of the offence. A significant number of countries adopted have such legislation including.
araoQg common Uw coimmcs: Australia. Canada. India. Ireland. Kenya. Malaysia, New
Z fi ilMV* . tfaff iTwitad Yir,gAnm and Zimbabwe.

The iHtemarioma Comminee of the Red Cross Strongly wrieomea H.R.2S87 together with the
additions proposed by the Department of State. The ICRC is also pleased to note the role of
the American Red Cross in the disseminaiioa of imemarional humanitaiian law within die
United States and their expression of support for this ptoposaL The punishment of war
crimes, whoever and by yAxfvez tbey ate committed, will make a vital cogatributioD to the
of it

Appendix 3. — Statement of Alfred P. Rubin, Distinguished
Professor of International Law, the Fletcher School of
Law and Diplomacy, Tufts University

FORMAL STATEMENT ON H.R. 2 587
f
Submitted to the Subcommittee on Immigration and Claims, Committee
on the Judiciary, United States House of Representatives, by:

Alfred P. Rubin, Distinguished Professor of International Law
The Fletcher School of Law & Diplomacy
Tufts University
Medford, MA 02155

Tel: (617)627-3700

I represent only myself.

The invitation to present my views on H.R. 2587 to the House
of Representatives subcommittee on Immigration and Claims of the
Conmittee on the Judiciary is very much appreciated. In this case,
I find my opinions inconsistent with what many of my most learned
and conscientious acadenic and legal colleagues seem to regard as
a consensus which they support. I am grateful for the opportunity
to present my reasons.

For the record, I am submitting part of a "conclusions" sec-
tion of my book. Ethics and Authority in International Law, now in
the publication process at Cambridge University Press. Unfortu-
nately, due to the timing of the invitation and the expenses that
would be involved, I have been unable to submit to the subcommittee
the desired number of copies of this statement and its supporting
docuaentation. I regret the inconvenience that this might cause to
the members of the subcommittee or their staffs.

H.R. 2587 has been proposed as legislation "To carry out the
international obligations of the United States under the Geneva
Conventions to provide criminal penalties for certain war crimes."
It provides criminal sanctions against "Whoever . . . commits a
grave breach of the Geneva Conventions where the victim of such

H.R. 2587 Testimony/Rubin - 2 -

breach is [a] member of the armed forces of the United States or a
citizen of the United States." Since the Uniform Code of Military
Justice already provides procedures and criminal sanctions for
members of the United States armed services committing war crimes,
including such "grave breaches," no matter who the victim, the only
notable gap in existing American law relates persons subject to the
laws of war who are not subject to the jurisdiction of local terri-
torial law or American courts martial: third country nationals in
•OBe cases, members of the armed services since discharged, civil-
lanB accompanying the armed forces, other American nationals in
places where the laws of war apply and the "normal" laws of the
place cannot be applied. The gap is small, but significant. The
proposal does not seem to address it directly. Instead, it ad-
dresses the case in which an American or a foreign person commits
a "grave breach" of one of the 1949 Geneva Conventions and the
victim is an American. Jurisdiction to prescribe in such cases is
generally conceived to be "universal" and jurisdiction to adjudi-
cate would be based on the nationality of the victim.

The proposal contains no provision regarding the jurisdiction
of an American tribunal to enforce United States law. If it were
presumed that the normal rules regarding jurisdiction to enforce
persisted, I should say the proposed legislation still leaves an
unaccountable gap, but could support it. If it were interpreted to
mean that jurisdiction to enforce were also "universal," I should
have to bring to your attention the heavy problems that would force

H.R. 2587 Testimony/Rubin - 3 -

me to counsel against its adoption. It does not address, nor could
legislation address, the much more difficult Constitutional obsta-
cle to American tribunals applying any law to American civilians
and possibly others that does not meet the procedural standards of
the Vth (or, in State courts, the XlVth) Amendment (s) to our Con-
stitution. The notion of applying martial law, the laws of war, in
appropriate circumstances is an intriguing one, but it is not clear
to ne that the legislation as proposed would do that or that the
Congress would want it done in the absence of a declaration of war,
despite the fact that for about 200 years the application of mar-
tial law and the presence of a declaration of war have been regard-
ed as Constitutionally independent. See Talbot v. Seeman, 1 Cr. (5
U.S.) 1 (1801), discussed in Alfred P. Robin, War Powers and the Consti-
TOTIOH, 68(2) Foreign Service Journal 20-23 (1991) reprinted in
CoHBittee on Foreign Relations, U.S. Senate, 101st Cong., 2d Sess.
Ralations in a Multipolar World, Hearings, 235-240, (30 November
1990) .

The Department of State has responded no grappling with these
issues, but with an opinion that "in order to be in compliance with
our international obligations, jurisdiction should also exist when
•the perpetrator of anv grave breach of the Geneva conventions is
later found in the United States after such activity was committed"
[enphasis sic]. State Department also supports expanding the
"grave breaches" language to cover all "war crimes," including the

H.R. 2587 Testimony/Rubin - 4 -

rules of international law allegedly applicable in non-internation-
al armed conflicts, the subject of Article 3 common to the four
Geneva Conventions of 1949. Finally, State Department proposes
that persons who plant land mines or booby traps and similar devic-
es be treated also as war criminals "when the United State is a
party to" a Protocol, amended recently to require parties to make
such activity subject to national criminal sanctions.

The first of the State Department proposals solves the problem
of a lack of jurisdiction to enforce by restricting the operation
of the legislation to cases in which the accused is found within
tihe United States. Unfortunately, I cannot support the rest. In
■y opinion, the State Department opinion mistakes the international
obligations of the United States under the 1949 Geneva Conventions
and general international law and, if implemented, would set a
precedent that the United States would soon learn to regret.

Parties to any of the four Geneva Conventions are obliged to
"search for persons alleged to have committed, or to have ordered
to be committed, such grave breaches ..." There is no reason why
■ere seeking requires the exercise of criminal jurisdiction.

Nor do the Conventions otherwise require the exercise of crim-
inal jurisdiction. They allow for an alternative at the discretion
of the "searching" party. They provide that that party can either
"bring such persons, regardless of their nationality, before its
o%m courts" or "if it prefers [emphasis added] . . . hand such per-
sons over for trial to another High Contracting Party concerned.

H.R. 2587 Testimony/Rubin - 5 -

provided such High Contracting Party has made out a prima facie
case."

This language can be construed to require a trial, but it can
sore coherently be construed not to require a trial. It is plainly
self -contradictory. What happens if no other "High Contracting
Party concerned" is interested in receiving the accused, or has not
Bade out a prima facie case? Does "alleged to have committed" or
"ordered" a grave breach involve making out a prima facie case on
the part of the Party searching for the alleged grave breacher?
What happens to the accused if nobody wants to try him or her?
Indeed, there are many weaknesses in the language of the 1949 Gene-
va Conventions, and great care ought to be exercised before any
particular interpretation is accepted as definitive. See GEOprRZY
BEST, WAR AND LAW SINCE 1945 (Oxford: Clarendon Press 1994) passia.
Best attributes one oddity in the grave breaches provision, a ref-
erence to wilful killing, torture or inhuman treatment to "proper-
ty," to a reported incident of an influential member of the draft-
ing committee "wanting his lunch and not allowing the drafting
conaittee enough time" (p. 165 n. 84) . It is significant to inter-
preting the language that no High Contracting Party has yet con-
strued its obligation to require it to bring the accused to trial
itself, and the Conventions have now been in effect for 45 years of
war and atrocity.

H.R. 2587 Testimony/Rubin - 6 -

In order to exercise criminal jurisdiction, it is not only
necessary that a prescription exist that can be applied by an Amer-
ican tribunal, but also that there be "jurisdiction to adjudicate."
RzsT. 3RD., Restatement of the Foreign Relations Law of the United States SS
421-423. In my opinion the Restaters ' remarks regarding "piracy"
and other assertedly "universal" offenses in S 404 Reporters' Notes
1 and S 423 are not supported by precedent or logic. As to "pira-
cy," see Alfred P. Rubin, The Law of Piracy, 63 U.S. Naval War College,
International Law studies (1988) ch. Ill, esp. pp. 144-146, 303-304;
Historical ajid Revision Note in 18 U.S.C. Ch. 81. Their opinions
expressed with regard to $S 421-422 seem to me to be adequately
supported. In the 4 5 years or so that the Conventions have been in
force there has not been a single case in which any state has in-
terpreted the Conventions to require it to exercise its own crim-
inal jurisdiction over a foreigner accused of committing a "grave
breach" in a conflict in which the "seeking" state was not in-
volved; i.e., did not have jurisdiction to adjudicate. Nor have
there been any allegations by a state "concerned" that construe
this language to oblige any other state to render more cooperation
that would be required by the usual extradition processes or simi-
lar assistance in transnational criminal matters. It is very dif-
ficult now to understand the basis for a State Department interpre-
tation of the Geneva Conventions to require action that no party to
the Conventions has construed from the words of the Conventions.

H.R. 2587 Testimony/Rubin - 7 -

The refusal of states to accept such obligations has ancient
roots and is well-founded in the structure of the international
legal order. For at least seven centuries national "prize courts"
have applied to maritime ventures what many scholars have called
the international laws of war. Attempts to create an international
prize court have failed. The reason is that states have been con-
strued to be responsible for the activities of their licensed mari-
ners and soldiers; failures of states to control their agents has
involved state responsibility and occasionally compensation has
been paid even to enemy belligerents in time of war. See the Ava
Haru incident, U.S. Naval War College, International Law Documents, 1944-45,
125-138 (1946) ; ROBERT w. Tucker, The Law or War and Neutrality at Sea (50
U.S. Naval war College, International Law studies 1955) (1957) note 16 at
pp. 98-99. The idea that a third party under any circumstances
should be in a position to de-commission a warship or "decapitate"
a Navy by arresting an Admiral or civilian "Commander-in-Chief" has
been regarded as inconsistent with the existing legal order. War
is not a game overseen by neutral umpires; it is a contention among
states in which atrocities are committed by some licensees on both
sides and children get killed. The failures of some belligerents
to abide by their legal commitments are not remedied by the inter-
position of third-party umpires; they are influential in undermin-
ing the morale of the defaulting state, discouraging its allies,
stiffening the resolve of adversaries, justifying "reprisals," and,
in effect, triggering the community pressures that encourage states

H.R. 2587 Testimony/Rubin - 8 -

to obey the law. See Ford v. Surget, 97 U.S. 594 (1878). An anal-
ogy can be drawn to the means by which American Constitutional Law
is enforced by political and other pressures rather than by police
or direct judicial interposition.

In the Genocide Convention of 1948, jurisdiction to adjudicate
was specifically restricted to the tribunals of the state "in the
territory of which the act was committed, or by such international
penal tribunal as may have jurisdiction with respect to those Con-
tracting Paries which shall have accepted its jurisdiction" (Arti-
cle 6) . There is no provision for universal jurisdiction to natch
the notion of universal offense. Now, if the Geneva Conventions
had been Bore clearly drafted, it would be possible to argue that
they superseded the reluctance expressed in the Genocide Convention
concluded about eight months earlier to have universal policing
deter atrocities. But the Geneva Conventions' grave breaches pro-
visions are notoriously badly drafted, evidencing enthusiasm more
than deliberation. In the circumstances, there seems to be no
reason to suppose United States obligations under the Geneva Con-
ventions extend to such a radical step as a major revision of the
underlying rules of the international legal order restricting ju-
risdiction to adjudicate. Or is it argued that Genocide is less of
an atrocity than a grave breach of the 1949 Conventions?

And nothing has changed this basic orientation. Not even the
Nuremberg and Tokyo trials, which, although in my opinion morally
end politically necessary and preceded the Geneva Conventions by

H.R. 2587 Testimony/Rubin - 9 -

three years, were victors' tribunals whose procedures were ques-
tionable and whose procedural precedents have not been followed for
fifty years of war and atrocity.

The effect of this State Department proposal would be to in-
ject the United States into disputes among others in which the
United States should play no role. Its effects would be unpredict-
able and certainly not in the interests of the Unitied States,
vrhat, for example, would be the position under this proposal of an
accused who had been "pardoned" by the state or belligerent leader-
ship with the legal authority to represent the victims of the sup-
posed atrocities? Pardoned by his own state or belligerent leader-
ship? Pardoned in an exchange of pardons negotiated to end the
conflict? Is it the position of the Department of State that the
Gsnsva Conventions or the general international laws of war require
the punishnent of war criminals regardless of the political circum-
stances in which mutual claims for "war crimes" have been waived by
the belligerents, as the United States and Japan waived their mutu-
al claims at the close of the Second World War (much to the dismay
of those who would like to have regarded the dropping of nuclear
weapons on Japan as a "war crime" for which the United States owed
Japan compensation and individual American leaders should have been
tried). See Ryuichi Shimoda et al . v. The State, reprinted in
English translation in The Japanese Annual of International Law por 1964,
212-252 (1964) ; RICHARD A. Palk, The Shimoda Case: A Legal Appraisal op the
Atonic Attacks upon Hiroshima and Nagasaki, 59 Am. J. op Int'l L. 759-793

H.R. 2587 Testimony/Rubin - H -

Iran can exercise. Now, the State Department proposal distinguish-
es between jurisdiction to prescribe, which is usually regarded as
universal when "war crimes" are concerned, and jurisdiction to
enforce (the State Department proposal would apply only to accused
foreigners found within the territory of the United States) . But
under the American Constitution, a bad capture does not deprive a
tribunal of criminal jurisdiction: Male captus, bene detentus . See
U.S. V. Alvarez-Machain, 31 Int'l Legal Materials 900 (1992). Is it
supposed that there would not be attempts to kidnap a foreign vil-
lain if a trial in the United States might satisfy somebody's urge
to upset a foreign peace accord? Suppose a fanatic group were to
kidnap Yasir Arafat or Yitzhak Shamir and bring him to the United
States for trial as a war criminal as Israel kidnapped Adolph Eich-
Bann in Argentina and brought him to Israel for trial? Or if Lib-
ya, which was at one time reported to have send "hit squads" to the
United States to apply Libyan law to Libyan students here, were to
do the same as we, asserting the Libyan interpretation of the in-
ternational laws of war to be validly applied to people the Libyans
accused of committing atrocities in Libya. Those Americans who
ordered a bombing raid in Tripoli? Or committing atrocities else-
where in the Middle East? Or anywhere?

Now, I doubt that any of these things would happen, because -
the United States would move to enforce its view of law by mili-
tary, economic, political and other means. But what, then, happens
to the sanctity of law? To the sovereign equality of states?

H.R. 2587 Testimony/Rubin - 12 -

As to the State Department proposal to extend the criminal
jurisdiction of the United States beyond the terms of the Geneva
Conventions to "war crimes" and violations of the provisions of
Article 3 common to the four conventions — i.e., civil wars, again
I find myself in reluctant opposition. The language regarding
"grave breaches" was negotiated specifically to avoid extending
jurisdiction to "war crimes," violations of the laws and customs of
war. The reason is that the Annex to the 1907 Hague Convention
respecting the Laws and Customs of War on Land, attempting to
translate major parts of the general international laws of war into
positive law, included in the violations such venial acts as taking
private property without giving a receipt (Article 52). The State
Department seeks to avoid this problem by specifying that only four
articles of the Annex to the 1907 Hague Convention should be read
to define "war crimes" to which American jurisdiction to adjudicate
should be extended. But those four themselves are overbroad and
not fit for such use. For example, one of them is Article 23.
Mow, Article 23(g) makes it a war crime "To destroy or seize the
enemy's property, unless such destruction or seizure be imperative-
ly demanded by the necessities of war." Who is to judge how imper-
itive a necessity of war was; to second-guess the evaluation of a
General ordering the bombing of what turned out to be a civilian
bonb-shelter, or the destruction of a civilian dwelling believed to
shield a small-arms cache? If it is supposed to leave such speci-
fications to later cases and judicial refinement, bearing in mind

H.R. 2587 Testimony/Rubin - 13 -

that criminal penalties are involved, not tort or contract pay-
ments, it would seem that "common law crimes" are to be resuscitat-
ed. Assuming the accused had been on the "winning" side, would
there not be a protest from the foreign country of which the ac-
cused is a national? Is it proposed that the United States respond
to such a protest by asserting universal adjudicatory authority,
the legal power to oversee the "legitimacy" of some foreign succes-
sion by requiring revolutions to be fought by our version of the
"book," that book not yet having been written? Has Metternich
revived to take over our Government? Or do we fancy our courts to
be coaposed of "Guardians" in the sense of Plato's Republic ruling
the world. Do we select them and approve their appointment with
that in mind?

Finally, to the State Department proposal to implement the as-
yet-unratif ied Protocol to the Conventional Weapons Convention, all
the preceding comments seem to apply, compelling opposition. More-
over, the wording of the State Department proposal seems odd; it
apparently intends to refer to the United States accepting the
latest amendment but seems to refer to the United States accepting
a document it has already accepted. If acceptance of the Amendment
of 1996 is intended, as I imagine, the question of the reach of
Anarican criminal jurisdiction with regard to people violating the
Protocol should be dealt with when acceptance of the Protocol is
discussed. At that time, the views expressed with regard to the
structure of the international legal order, the role of law in

H.R. 2587 Testimony/Rubin - 14 -

attempting to control some of the baser instincts of mankind,
should be more fully discussed, along with the role of the United
States, as only one component of the international legal and polit-
ical order, should be considered. Until that happens, with great
regret I must oppose the proposals of the Department of State.

Excerpt from Alfred p. Rubin, Ethics a.:, a rnoRiTif in Internationm, Law
(now in publication process ,it the Li.M,i..lcje University Press)

In fact, the positive iecjal order ices not require people or
states morally revolted by th:- acticis :[ others to stand helpless.
There are ameliorations to s..ch horrois in the existing interna-
tional legal order which are being overlooked by those whose mo-
niat-moralist model has seemed to becone an obsession.

The simplest is merely to apply the positive law codified in
the 1949 Geneva Conventions' to all struggles for authority that
turn violent. Those four Conventions are very widely ratified and,
despite many unclarities and inconsistencies in them, are usually
rsqarded as definitive formulations of the substantive law binding
•s a Batter of general practice accepted as law even if not ex-
prsssly accepted by formal ratification. Since they are so widely
ratified, the question has been treated as one of positive law, and
the relationship of the rules stated in the Conventions to general
international law has only rarely arisen. The Conventions take a
"dualist" view of the international legal order, obliging paxrties
to the conflict to take action against individual violators of the
substantive rules, but leave open the possibility that an interna-
tional tribunal might yet be established to exercise adjudicatory
functions.^ Whether the tribunal established by the Security
Council to adjudicate alleged war crines and human rights viola-
tions in former Yugoslavia represents a definitive shift to a "mo-
nlst" legal order for purposes in enforcing "international criminal
law" remains to be seen. It certainly represents an attempt In
that direction, but the complications, reinterpretations of trea-
ties and exceptions raise conceptual problems that are probably

Excerpts/ Rubin Book - - -

insuperable to those who are aware oi Occam's Razor.

Under the "positive law of armed com 1 let," persons accused of
"grave breaches" of any of the 1949 conventions, including wanton
murder, must be sought out, then tried or handed over for trial to
another party concerned in the struggle. It would mean, in the
case of former Yugoslavia, that a person accused of killing or
ordering a killing outside the privilege of soldiers to kill the
resisting enemy could be handed over to either his own command with
a public commitment to apply the rules to which Yugoslavia was
bound by treaty and its successor states by the normal law of state
succession, if not by general international law developed by the
practice of states accepted as law in diplomatic correspondence and
other actions, and codified by the Conventions. If that "solution"
is not trusted to do what the initial captor considers "justice,"
th« accused could properly be handed over to the opposing side for
trial and punishment under international safeguards set out in the
Conventions, including the appointment of a "Protecting Power" and
th« presence of impartial observers at the trial.

Nor is it a valid criticism of this positivist approach that
the fanaticism that accompanies armed struggle would make a trial
by either of the participants inherently unfair. Equivalent emo-
tions and ambitions to alter the international legal order to the
benefit of lawyers and tihe detriment of national leaders also cloud
proposals by both positivist and naturalist scholars to establish
an international criminal court. The reasons why British proposals

Excerpts/Rubin Book - j -

along that line were rejected by the LiiCcJ estates in the mid-nine-
teenth century have been sutticiently discussed above. There does
not appear to be any attempt to respond to those objections by
advocates of an international criminal court today. Instead, dis-
cussions seem to proceed on the assunption that the officials of
enlightened states would not commit such acts (which is patently
unbelievable) or that the legal orders of those enlightened states
would deal with those problems as they arise wholly within their
own municipal orders; that the traditional distribution of authori-
ty will serve for us, but not for them, so we should impose our
tribunals on them, but do not need to alter the system as it might
apply to us. This approach obviously rejects the fundamental no-
tion of sovereign equality of states. It is unlikely to be accept-
ed for long by those societies whose people demand the same respect
that' our own friends demand. And it is no answer to them that they
are wrong in their value systems or administration of "justice,"
and we are right.

Instead, there seems to be a growing movement on the part of
a nuBber of states to reject international supervision of their po-
litical order and punishment of those responsible for recent abomi-
nations. Their leaders see the futility cf "criminal" penalties
under their own municipal orders when reconciliation, peace and an
evolution towards democracy is their aim. Those societies have
chosen to abandon the positive remedies of an inappropriate crimi-
nal law model, even if confined to their own municipal order.

Excerpts/Rubin Book - A -

Instead, several have inst icution.. . i . ;• ; a virtue-moral solution:
"Truth tribunals." Under tnat pattern, .ontessions and exposure of
atrocities are placed in the pubiC recji J tor history to know and,
in return, criminal penalties are -aL-ed. If public opprobrium
■akes life difficult for those confess. i-j to having committed atro-
cities to achieve what they had conceived to be the public good,
the moral sanctions are working to punish present fanatics and
deter future ones. Such punishment is not likely to be less severe
than internment together with others -.vno feel not that they have
dona %rt-ong, but that they have lost a mere struggle for authority.

If there is no sense of public opprobrium that attaches to
thos* who confess the truth, then it is likely either that the past
has been "cleansed," that the pubic has matured as its political
order has matured, or that the evils of the past still permeate the
society and criminal sanctions would have been regarded as mere
political suppression anyhow.'

In practice, "truth" tribunals making amnesty conditional on
confession seem to be more effective in the search for peace and
reconciliation than positive law tribunals would be attempting to
apply retributive justice. Examples of such tribunals can be found
in Argentina, Chile and South Africa. In all those places there is
opposition based on the sense that the books cannot be closed on a
horrid chapter in national history unless retributive justice is
done. Accepting that for many, that will remain true, it is also
true that for many others peace and reconciliation, accepting the

70
Excerpts /Rub in Book - 5 -

evils of the past as beyond efiective rj'.vedy, but truth being es-
sential to a better future, are recjar.led as the more compelling
values.

Reasonable people will surely continue to disagree as to the
relative moral values of "justice" and "peace." An example of this
conflict occurred in the Unitea States hen Lieutenant Calley was
tried and convicted by a United States Court Martial for the
breaches of military discipline committed v/hen he committed un-
doubted atrocities in Viet Nam. He was (oardoned by President Nixon
when it became clear that Calley in peacetime was no danger to
anybody and that a significant part of the American populace felt
that atrocities committed against an "enemy" in "war" (even though
"war had not been declared; but it was universally agreed that the
international laws of war applied in that place at that time) did
not justify significant punishment regardless of American coaait-
■•nts to various conventions that seemed applicable.^

Another "solution" would be consciously to separate "legal"
from "moral" condemnation, treat adjudication by a third party as
•iaply not an option that the legal order permits, but to apply
Boral sanctions to the villains, including the leaders of the force
considered to deserve such sanctions and those who control the
legal orders that have not discharged their moral, perhaps even
positive legal, obligations to prevent or punish "grave breaches"
of the 1949 Geneva Conventions and other "war crimes." Moral sanc-
tions applied to states or belligerent parties to a conflict even

Excerpts/ Rubin Book - o -

if not "states," and to the- muivi^luil .;i.Tins, would include such
things as refusing to establish diplonai;:c relations, issue visas
or invite the accused individuals to participate in conferences of
interest to them or their constituents. Kurt Waldheim, at one time
Secretary-General of the United Nations, later Chancellor of the
state of Austria, faced such opprobrium as a result of the exposure
of his past. Since entry into a foreign country is not a legal
right, there is no violation of the law in refusing to facilitate
it. Such moral sanctions applied to states did have an effect in
convincing the people of South Africa that a public policy of
"apartheid" was not acceptable in a business partner. The pres-
sures of moral sanctions are not quick and not sure, but they do
express the revulsion that is felt by tnose applying them towards
those accused of atrocities or lax enforcement of the law that
condeams atrocities, and are as likely to have an effect as any
other actions that do not reach the level of direct involvement in
the foreign struggle.

A third approach would be to develop Joseph Story's choice of
lav approach better to fit the current needs of the existing legal
order. According to dicta of Chief Justice Marshall in The Ante-
lopo, "The courts of no country execute the penal laws of anoth-
er."* Whatever the validity of this assertion as a rule of law, it
is certainly a recognition of the complexities of the international
legal order. A court, being the creation of a municipal legal
order, is usually authorized to "execute" the penal laws only of

Excerpts/Rubin Book

the legislator who estnblishod tiie .jcit. Why should the public
purse of the establ ishinq order [jir, t-: C!ie enforcement of "laws"
that its own public authority hiid oiiiy ..n attenuated voice or even
no voice in making and that lie beyond the legal powers of its o%m
ameliorating authorities, such as those empowered to grant amnesty?
But are the criminal laws of the intt.-rnational legal order, if
there are any, the penal laws of another "country"? Rather than
attempt to analyze further the concept. ons of Chief Justice Mar-
shall and the apparently unanimous American Supreme Court in. the
Antmlope , the working out of Joseph Story's conception of choice of
lav has pointed the way to a simple solution. Why should a legal
order not make criminal by its own law the violation of some chosen
foreign law, whether municipal or international (if there is any
such thing as "international criminal law")?

Doctrinal complexities arise which seem insuperable when
publicists or legislators attempt to ground state authorities'
cooperation with the authorities of other states in criminal law
enforcement on theories of natural law and perceptions of positive
law that bear little relationship to the actual distribution of
authority in the international legal order." Rarely is it more
desirable to remind scholars of the utility of Occam's Razor. But
those complexities disappear when the reguested state extends its
o*m prescriptions on the basis of nationality or, in some cases,
"effects" to cover the situation. In fact, at least one country,
Germany, does effectively extend its jurisdiction to adjudicate in

Excerpt '; /bin Book

criminr ' r itters to its ov/n na ' . :..il3 violating toreign criminal
law abr r: when the same act won. i^ave been criminal under German
law hac .•: been committed withi'i eiman territory. This extension
of Gerr :r/ ' s assertion of jurisd. .^-on to adjudicate was apparently
inspire : t- ameliorate the consecu-anoes of Germany's legal prohibi-
tion against extraditing its own nationals for acts done within the
prescri t: /e jurisdiction of a foreign legal order and denominated
crimes '; / both legal orders concerned in extradition proceedings,
but thr cron rationale goes much further.' As to the exercise of
Gcraan ijr:sdiction over German nationals committing crimes against
foreigr U-v only, the crime againsc the foreign law becomes a criBe
against German law and can be tried, and pardoned, as such." Since
interna lional law already accepts the notion that a state's
prescri -tive jurisdiction in criniinal matters can extend to the
acts of its nationals wherever the acts are actually committed,'
and the jurisdiction to enforce is satisfied by the physical pres-
ence of -;-.:» defendant in German territory, it seems a minor matter
to exte-.d the jurisdiction to adjudicate in criminal matters to
cover t .3 acts of the forum state's nationals abroad. If failure
to exer 1^-^ that jurisdiction would leave the requested state in
breach :f n extradition treaty, cr in a position as potential asy-
lUB ste. ■- - or its own nationals who perform acts which are criminal
by botf its own municipal law anJ che municipal law of the place
where those acts were actually performed or have effects, bringing
thea ir.-Q the prescriptive jurisdiction of the requesting state.

Excerpts/ Rubin Book. - •■• -

state, the failure to punish r.l-.o nacionil .ould well be interpreted
to be a violation of at least cr.e socicicvjical "natural law" posit-
•d by Aristotle. The resulting strain in diplomatic relations, so
•asily avoidable by an exercise of lurisdiction to adjudicate,
would seem unnecessary and a sound policy argument seems clear to
•ncourage all states in the international order to follow Germany's
l«ad in this regard.

As to applying German versions of a foreign criminai pre-
scription to the acts of a foreigner against other foreigners
abroad, it is very hard to see how the law can be justified. Not
only are traditional lines of authority relating to jurisdiction to
adjudicate ignored, but human rights implications seem obvious.
Undsr whose public policy is a plea-bargain or pardon to be enter-
tained? How can the accused subpoena his or her defense witnesses
or physical evidence? Like it or not, territorial boundaries still
dsteroine the limits to the authority of a tribunal to issue bind-
ing orders and punish by contempt proceedings those who ignore or
disobey them. At least some of these problems might be ameliorated
if the rules were translated to positive law, perhaps treaties by
which states undertook to cooperate v/ith each other in criminal
prosecutions that disregard jurisdiction to adjudicate. But there
does not as yet seem to be a groundv;ork laid that would solve those
problems. To put it most kindly, ttie German legislation is complex
and not all observers would agree that the German perception of

Excerpts/Rubin Book - 1'. -

municipal jurisdiction to a^.1 ludic •. '^ _ v.-onsistent v;ith the sim-
plest model of the interndt iona 1 l-^nl ,idet or that Germany would
feel comfortable itself if its nodel '..e-e applied by its neighbors;
a practice under which those neiai.nc.i vould provide their own
municipal criminal penalties for persor.i accused of violating Ger-
man criminal law within German prescriptive jurisdiction and not
within what would be their own in tne atsence of a political deci-
sion not to extradite or deport the accused.

The arguments in favor of extending a state's jurisdiction to
adjudicate to the acts of nationals, or even of foreigners, abroad
•eem even clearer in cases in which an accused has committed
atrocities such as grave breaches of the 1949 Geneva Conventions,
or acts, usually called "terrorism," which would be "grave breach-
es" except for a refusal by the political organs of the forua
state, on policy grounds, to apply the legal labels that might
imply recognition of a "belligerency."'

By this rationale, a person accused of violating a law of war,
which all parties to the 1949 Geneva Conventions have legally
obliged themselves to make criminal in their own law," when not
"handed over" by reason of the lack of a tribunal or fair trial
safeguards that meet human rights standards or the standards of the
Conventions, could be tried by any state that has the normal juris-
diction to adjudicate, perhaps based on the nationality of a vic-
tim. The state running the fair trial with international observers

Excerpts/Rubin Book - i . -

according to the terms of the i . -, - j ^.r. . -.c .'-ns wouKI not be enforc-
ing substantive " internat loi.c 1 i>i,.' as .1:, interloper, but its own
municipal criminal prescription winch, i.y treaty, should be more or
less identical with the prescription of the defaulting state. In
effect, it would be doing for j default ..r.cj state what that default-
ing state has a legal obligation to do. It would derive its juris-
diction to adjudicate from the iegiii detriment it suffers through
the nationality of a victim or an effect in its territory, from the
injury done to it by the default of anotner contributing to that
injury by failing to perform its own duty of handing over the
accused for trial as envisaged in the Conventions. The rationale
is "rectification."'' In fact, the International Law Commission,
a body of learned publicists formed to advise the United Nations
General Assembly concerning areas in which the rules of interna-
tional law could be usefully codified, as this is written seems to
be moving in that direction."

"International terrorism" has provoked substantial interna-
tional concern and monist-naturalist actions that seem far less
effective than a dualist-positivist approach would be. At this
writing, in actual practice two states, the United States and Ger-
many, have gone so far as to ignore the normal requirement for jus
standi, the legal interest necessary to establish jurisdiction to
adjudicate. They seem to consider "terrorism," as defined by them-
selves and as performed by persons whom no state appears willing to
protect or to discharge against them the obligations incumbent upon

Excerp-

partier to the 1949 Geneva Conw . ons, to be j matcc-f for univer-
sal jurisdiction not only to pi-..^Tibe, but also to adjudicate.'*
Parenthetically, it might be ob;-n-ved that the rationale used to
support assertions of universal -> ;ri3diction to adjudicate in those
cases r o.-: much broader than wo- .ci seem warranted by the facts or
a Bodel of the legal order that onforms to the traditions of the
Westph- liar, "constitution"; wc.:.'; seem thus to violate Occam's
Razor.

Tt "^re seem to be no cases applying national versions of the
hypotheL- ized international criminal law to the acts of a foreigner
against st -ictly foreign interests abroad other than two "terror-
!■■" cases in which the accused were in the position of Klintock in
thm leaflir.rj American case asserting jurisdiction over the acts of
th« foreigner against foreign interests abroad, professing alle-
giance to no legal order (i.e., belligerent or government) recog-
nizad Lv ti-.e state seeking to expand its adjudicatory authority."
Th« two cnres arising recently involved Arab "terrorists" of either
no reli-tly asserted nationality or no state willing to press
diplomc: ic correspondence to protect them. The two cases are the
convict lor of Mohammed Hamadei by a German tribunal and the convic-
tion by a 'nited States tribunal of Fawaz Vunis.""

Excerpts/Rubin Book - i ■ -

To say that this abstoncion tro;-i •.-i.oa^jinq in diplomatic cor-
respondence was evidence :: i con..ct.-; Lhcit the I.t.-/ would not
support the argument that ch.e prosQcut i :-.c! state lacked jus standi
ia far more than the political realities .vould seem to bear. The
European and American outcry at Ir.in's :atwa condemning Salman
Rushdie for violating Iran's version or -iivine law while the secu-
lar law of the current international leijal order would categorize
Rushdie as a foreigner outside or" Iran ?.:-:d doing no sufficiently
direct injury within Iran seems strong evidence the other way.' And
y«t, the push to extend at least adjudicatory and enforcement ju-
risdiction seems well underway as this is written. Article 6 of
the German Penal Code asserts the applicability of German crisinal
law to a list of actions "affecting internationally protected in-
tsrests [Auslandstaten gegen international geschutzte Rechtsgilter]'
such as genocide, crimes involving nuclear energy or explosives,
attacks on air and sea traffic, slave trade, narcotics dealing,
diffusion of pornography, countei-f eiting and a few other things;
and article 7 expanding the applicability of German penal law to
acts of foreigners outside of Germany where the territorial law
forbidding those acts is not enforced and the victim is a German
national, or where the foreign jurisdiction should be applied but
•xtradition is not feasible {"die Auslieferung nicht ausfUhrbar

Signalling a possible future direction in which the urge to
punish foreigners committing atrocities against other foreigners

Excerpts/Rubin Book - ; ;

to have been subord in.i tev.1 to the more traditional use of
Bunicipal criminal law to protect the public order of the particu-
lar state enacting and enforcir.g that law, Belgium has a much more
limited statute. First, it nods in the direction of international
cooperation to help suppress tlie commission of war crimes; "grave
breaches" of the 1949 Geneva Conventions and their 1977 Protocols.
Its Law of 16 June 1993 asserts for Belgian tribunals whatever
jurisdiction is necessary to implement the penal provisions of the
1949 Geneva Conventions and their 1977 Protocols. In light of a
n\iBber of serious problems in interpreting those provisions," it
Is very difficult to say just what the effect of this law might b«
in practice; no cases are known to have been brought under them.
But much clearer is the Belgian Law of 13 April 1995. Article 8
provides for criminal jurisdiction over a foreigner found in Bel-
glum (thus within Belgian jurisdiction to enforce) who has commit-
ted any of the listed offenses outside of Belgium. But all of the
offenses listed involve pornography, sexual or similar moral de-
licts involving minors under 16 years of age." Since the accused
must have been found in Belgium, it appears that extradition to
Belgium is not envisaged, although, again, a definitive inter-
pretation of the statute must av;ait actual practice under it. It
can certainly be argued that the Belgian approach assumes a -dis-
tinction among jurisdiction to prescribe, jurisdiction to adjudi-
cate, and jurisdiction to enforce. It remains to be seen whether
those traditional distinctions will be maintained in light of the

Excerpts/Rubin Book - . . -

ganeral wording of the := r ituuc.-. tr, ir int-inded erfect, and the
increased flow of people acros.- .:urc;.ean borders.

A fourth course of action consistent v.ith the current inter-
national system is in fact inaccion. Do nothing. This is the
course most likely in fact to be take.T once the problems of nation-
al tribunals exercising a purportod universal jurisdiction to adju-
dicate have become clearer, and the enthusiasm for international
criminal tribunals has died down, as seems likely if they fail to
reduce the horrors occurring in former Yugoslavia. Rwanda, and else-
where and today's tribunals' advocates begin to speak more of "use-
ful precedents" than of immediate effects. This has in fact been
the fate of the "Nuremberg precedent." Volumes have been filled
with analyses of the il logic of trying some of the accused for
"conspiring to wage aggressive war" when representatives of their
partners in the conspiracy were sitting at the prosecution table
and on the bench.'" The first attempt to apply the precedent to
another defeated enemy, Japan, provoked a persuasive formal dissent
from one of the judges, a partial dissent from another and a rather
confusing concurrence from a third. The Nuremberg and Tokyo "pre-
cedents" have then not been repeated in a legal proceeding for
fifty years. It surely cannot be argued that during that period
there were no "aggressions" or unprosecuted "war crimes" or "crises
against humanity" as those phrases were defined for purposes of the
Muremberg and Tokyo tribunals.

Excerpts/Rubin Book - . j -

In my opinion, tiie- u.s'- ;i t e lorms ot law to achieve a nec-
essary political aim recjaiJless ^: leqal principle and consistency
has demeaned the law more than it has strengthened it. Bat in some
cases, as at Nuremberg, it lias also achieved its political and some
■oral purposes, so perhaps a3s rne oest course available to the
victors. In my opinion, the |.rcb-em is not with using the forms of
law to expose the horrors of an unspeakable episode in human histo-
ry, but with attempting to use those forms to justify redistribut-
ing authority in the international legal order without considering
the full range of consequences: Precisely who should have the au-
thority to order whom to justify his or her acts before whom, and
ifJiJO selects the judges, the "guardians"? Meanwhile, for the inter-
national community to do nothing about such moral horrors as the
likely genocide in Rwanda and the probable violations of the lavs
of war in former Yugoslavia seems to be a true reflection of the
international legal order in its usual practice. That practice is
probably dictated by the unwritten constitutional law of a society
of separate legal orders, states, and no universal authority; a
■horizontal" legal order.-' The practice is to confine the horrors
to the territory controlled by rogues and encourage the escape of
potential victims. Those who cannot escape, like Jews and Gypsies
in territory under Nazi control or Cambodians in territory control-
led by Pol Pot's villains, are likely to be killed or worse. But
those who escape that territory face only the more civilized hor-
rors of starting life afresh, if they can. And there is no legal

Excerpts/Rubin Book - ' -

obligation on a potential Tsy:>... st. '3 actu..lly to ott-^r asylum.

This is the approiich in i>.>.- noiraally taken by municipal law
when confronted with analogous norrjrs. One obvious example is
child abuse. The child escaping his or her abusive family is wel-
comed (or not) by a neighbor, an:l the abusive parent cannot invade
the neighbor's house without other consequences that in fact in-
volve community reactions. Meanri::ie, the community response to the
abusive situation itself is noto:iously dubious. Few trust social
case-workers to make the decisions that could finally break up even
• dysfunctional family, and otlier community organs normally will
not step in until it is too late to help. The evils of being too
late are normally regarded as less than the evils of acting too
quickly in light of the other interests involved in a family situa-
tion. So the abuse is confined to that family, and the moral in-
dignation of the neighbors is the only effective social response
the system cannot stop. So in international affairs, the genocide
is confined by the system to the territory which the villains con-
trol, and the neighbors look on aghast but legally powerless to
halp. Those that feel that nioral sanctions are appropriate can
apply them.

There is nothing wrong v/ith that system except in the minds of
those who feel secure enough in their own moral insight and
psrception of facts to try to govern the lives (and deaths) of
others. From a strictly personal point of view, I would not trust
anybody from outside the circle of those immediately involved who

Excerp*- /F' bin Book

assert >-■ 1 -. :h certainty to make •. -se decisions for .-ne or my family
or my c ur-.try. To those who wou M arque that the evils of genocide
can be -".ppnrent, and the moral obligation to stop it so compelling
that the use of third-party tov:e is legally as well as morally
justifiable in response, the Isgal system poses two answers.
First, the notion that noral coi.viction by an outsider justifies
the use cf force by that outside • is an open invitation to chaos:
rule by the strongest outsider with the most persuasive demagogues,
and scrapping the fundamental rule of sovereign equality of states.
In some cases the human benefits might be worth the cost to the
system, but there is a strong possibility that the moralist is
falliblr^ in his or her appreciation of the facts or the moral
Issues, and the cost to the sy stein should be measured before
anybody should be persuaded to act on the basis of strong moral
pressor <3S. Second, as pointed out above, the alternative response
Of the legal order is not negligible. Admitting into one's own
protective system those fleeing the horrors of a neighboring
country as was not generally done in the case of German
persecution of Jews in the mid-20th century, is a legal response
both chearrer in lives and property than war, and more effective
than wa.- if humanitarian concerns are really the dominant issues in
the minds cf those counseling action.

Excerpts/Rubin Book - . -

NOTES

1. The four Conventions for t:\e :rotection of the Victims of
Armed Conflict adopted at Gene\\^ on 12 August 1949 have been
ratified by nearly ciil st.^-es -,enbers of the international
community and are widely pu. lisned. 75 UNTS 31-417 (Reserva-
tions are on p. 419-4G3); l"? Br. For. & St. Papers 234-423.
I have used the version in 2ietr:ch Schindler and Jiri Tokan, The
Laws of Armed Conflicts (3rd revised and completed ed.) (Geneva:
Henry Dunant Institute 1988) 373-562 (Reservations are on pp.
563-594) . Two Protocols to the Geneva Conventions were ado-
pted on 10 June 1977 (Schindler & Toman 605-718) , but have not
yet been ratified by several major Parties to the Conventions.
Anong the non-ratifying states are the United Kingdom, the
United States and Russia.

2. For an analysis colored by the discussions taking place in the
United States during the Viet Nam "war," see Rubin, Rebels.

3. Michael Scharf, Swapping Amnesty for Peace: Was there a Duty to
Prosecute International Crir.es in Haiti?, 31(1) Texas Intsrka-
TIONAL Law Journal l (1996), argues that state practice does not
support the existence of a legal "rule" requiring prosecution
of crimes and suggests that the United Nations make such a
rule by opposing unconditional amnesty as a matter of
political and moral principle (pp. 40-41), although "truth"
tribunals, making amnesty conditional on confession and

Excerpts/Rubin Book - ■ -

cooperation in exposir.cj t!,' trL.-li, v.oul.i be perniisible.

4. See Alfred P. Rubin, Lt=gct. A-r.ectj of the y.y Lai J/icident, 49
(3) Oregon Law Review 260-j7j {19~Q), reprinted in i R.A. Falk,
ED., Vietnam and Interna — cnal :,aw ^Princeton, 1972) J46-358.

5. The Antelope , cited note 22. supra at p. 123. See also Janls,
op.cit. note 290 supra. liv referring to the arguments of
counsel in The A/iteiope, Jm.is concludes, as do I on the basis
of this review of the evolution of jurisprudential postulates,
that Chief Justice Marsh?. 11 and uhe Supreme Court were taking
a clear and general "positivist" and "dualist" line, not seek-
ing to carve out a narrow exception to a "naturalist" or
communitarian general rule of universal assistance in criminal
matters relating to offenses which a foreign sovereign had the
power to pardon.

6. See ISTVAN Szaszy , Conflict-of-Laws Rules in International
Criminal Law and Municipal Criminal Law in Western and So-
cialist Countries, in 2 M. Cherif Bassiouni & Ved Nanda, eds., A
Treatise ON International Criminal Law (1973) 135, esp. pp. 159-168.

7. See the German Constitution {Verfassungsrecht) Article 16(2):
"Kein Deutscher darf ?.ii das Ausland ausgeliefert v/erden [No
German may be extradited to another country]."

8. For an outline of the German legal framework, see Kennedy,
Stein & Rubin, Hamadei , at 12-20 (by Professor Dr. Torsten
Stein) .

Excerpt:;/!-, ii.ii; Book

9. The Lotus Case (l..- ) . I f.i:u v. Turkey j , P . C . 1 . J . Ser. A, No.
10, esp. dissent i;y Join. b.. jet; Moore.

10. FiriAL Report of the 1mte;-.:4atio: .l Lv.; Assoc:atic;i Committee on Legal
Problems of Extras ir'.urj ;:: :%: r:c:: to Terpc:<is7 Offem<;s, Warsaw,
19SS. The full Proceed ii- ;s i.-.cluding the Report and the
debate that led to its adoption by the Association are printed
in 11 Terrorism; An iNTERMArroriAL Journal, 511-529 (1989). See
also Alfred P. Rubin, Terrcirism ar.d the Laws of War, 12 Denver
Journal of International Law a:.d Policy 219-25 (19S3). The first
proposal along this line f.cpears to have been r.ade by the
InsCitut de Droit Internaticnal in 1880.

11. Each of the four Geneva Conventions of 12 August 1949 (cited
at note 1 supra) requires the states parties to try or "hand

over for trial to another High Contracting Party
concerned," persons accused of a "grave breach" specified but
not clearly defined in parallel articles cf each of the four
conventions. The list of "grave breaches" is expanded but not
clarified in two Protocols concluded in 1977. it is not
universally agreed that ratifying the Protocols would lead to
greater respect for internaticnal humanitarian law or the
moral convictions on which :t is based. See Alfred P.

Rjsit., Is the Law of War Really Law?, (Review article of
Geoffrey Best, War and Lav since 1945, 1994), 17(2) Mich. J. of Imt'l
L. ? (1996). And see exchanges between Ambassador George H.
Aldrich and Alfred P. Rubin in 85(4) Am. J. of Int'l L. 662-663

Excerpt--. r<.:uiri Book - -

(1991); Sditorizi: co/n;....-;.! > : i-^Lessor TlieoJor Meron in 88 Am.
J. OF INT'L L. G78 (19i/,j .nJ responding Corresuondence by
Alfred P. Rubin in S9i2) A... J. of Int'l L. 363-364 (1995).

12. See Jeffrey Sheeham, The £;: Cu-'be Faid: The Principle of Self-
Help 111 Internacior.al La.: Sj.stification for State Use of
Armed Force, l(2j The F_e7c:-.h rOR.! of World Affairs i:iO (1977) at
144-146. This conception n.is not yet been evidenced in dip-
lomatic correspondence or .:cate practice; nor has it been
rejected. It has been ignored. It is suggested here, that
the rationale should become increasingly persuasive to those
wishing to find a basis consistent with the current interna-
tional legal order for international action to ameliorate the
horrors perpetrated in former Yugoslavia, Rwanda and other
places too depressing to list.

13. On the origin of the International Law Commission and it«
relationship to the United Nations General Assembly, see

Gcr-DR:CH, HAMBRO AND SIMONS, THE CHAPTER OF THE UNITED NATIONS (3rd tUld

reVd ed. 1969) 137. The ILC draft of 16 July 1993 as
reproduced in 33 I.L.M. 253 (1994), article 24 restricts the
jurisdiction of the proposed international criminal court to
those cases "accepted" by states "which have jurisdiction [to
try the suspect . . . before its own courts] under the rele-
vant treaty" defining the crime, plus "genocide" as defined in
the Genocide Convention cf 1948. This raises very complex
quostions of treaty interpretation, and the draft has not been

Excerp" -/r- ^bin Book

accepted. The I Lc !:■ .r .at.i' -.-.ork is rt-;jOi. t ._-(J co have
adopted a rule that looks /■. ly l.ke " rect i t ica c loii , " although
not using the term. It seer.s probable, although documentary
evidence cannot be found, "nat the members of the ILC have
ir.Jepcndently come to the s:.nie conclusion as Sheehan.

14. Gerr'nny, for one. See Kenr-idy, Stein & Rubin, Hamadei, esp.
pp. :--35.

15. See U.S. v. Klintock, cited note 170 supra.

16. See Kennedy, Stein & Rubin, Hamadei.

17. I am indebted to Florian Thoma for the texts of the original
German and a useful English translation.

18. For a critique of those provisions, and of the 1977 Protocols
in general, see Alfred P. Rjbin, Is the Law of Mar Really
Law?, (Review article of Geoffrey Best, War and Law since 1945
(1994), 17(2? 3?) MICH. J. OF INT'L L. p.? (1996).

19. I an indebted to Professor Pierre d' Argent of the Centre
Charles de Visscher pour le droit international, University
cr.thclique de Louvain, for the French texts of these statutes.

20. See note 5 supra.

21. Sci GiDOM Gottlieb, The Sature of International Law: Toward a
S'dcord Concept of Law, in'4 Cyril Black and Richard A. Falk, eds.,
The Future of the International Legal Order (1972) 331 sq.

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