JURIST - Paper Chase: Gonzales says 'clear' US definition of war crimes necessary to protect troops

[JURIST] Following up on previous consultations with Republican lawmakers [JURIST report], US Attorney General Alberto Gonzales [official profile] said on Capitol Hill Wednesday that Congress should clarify the definition of war crimes prohibited by Common Article 3 [text] of the Geneva Conventions [ICRC materials], suggesting that "a definite and clear list of offenses serious enough to be considered war crimes" would "achieve ... clarity and certainty" on the issue of when US troops can be prosecuted for interrogation techniques that violate the Geneva Conventions. During a Senate Armed Services Committee hearing [committee materials; JURIST report] on the future of military commissions [JURIST news archive], Gonzales called language in Common Article 3 prohibiting "outrages upon personal dignity, in particular humiliating and degrading treatment" vague and said that the War Crimes Act [text], which makes it a felony to violate Common Article 3, should be revised to include more specific guidelines on what constitutes a war crime. In his prepared statement [text], Gonzales said:

For example, Common Article 3 prohibits 'outrages upon personal dignity, in particular, humiliating and degrading treatment,' a phrase that is susceptible of uncertain and unpredictable application. If left undefined by statute, the application of Common Article 3 will create an unacceptable degree of uncertainty for those who fight to defend us from terrorist attack, particularly because any violation of Common Article 3 constitutes a federal crime under the War Crimes Act...

We believe that the standards governing the treatment of detainees by United States personnel in the War on Terror should be certain, and that those standards should be defined clearly by U.S. law, consistent with our international obligations.

During Wednesday's hearing, Gonzales also confirmed that the White House is drafting legislation [JURIST report] that will allow hearsay evidence to be admitted against terrorism suspects, limit their rights against pretrial self-incrimination and withhold classified evidence from them. Those provisions would be key departures from the Uniform Code of Military Justice [text], which governs court-martial proceedings and which the administration is using as a basis for the military tribunal legislation. Gonzales said that administration's proposed legislation will include provisions clarifying the War Crimes Act.

The Bush administration agreed to work with Congress [JURIST report] to authorize military commissions for terror detainees after the US Supreme Court ruled in Hamdan v. Rumsfeld [opinion text] that military commissions as initially constituted lacked proper legal authorization [JURIST report]. The CRS has a summary [PDF] of the original military commission procedural rules compared with the UCMJ and other proposed legislation. The New York Times has more.

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