![]() Because Congress had criminalized violations of CA3 in its 1999 amendments to the War Crimes Act, it was essential that what was criminally sanctionable under federal law be carefully delineated, to provide clarity to both prosecutors and potential defendants as to what conduct was criminal. While this ambiguity may be understandable given the purposes of CA3, a clear definition of what conduct is prohibited was particularly important to us after the Hamdan decision concluded that CA3 applied to the conflict with al Qaida. But which acts constitute “outrages upon personal dignity, in particular humiliating and degrading treatment”? Pictet’s Commentary on CA3 states that the drafters intended to capture only those acts that “world public opinion finds particularly revolting.” Reasonable people can and do differ about what behavior that phrase captures. Murder, hostage taking, and torture are quite clear. ![]() ![]() Second, some of CA3’s terms are not sufficiently clear about which acts are prohibited and which are permitted. Thus, it has not had to grapple with precisely what CA3 requires. military trains to standards higher than the minimum standards of CA3 it trains to the standards that apply to the detention and treatment of prisoners of war. Let me say several things in response to those concerns. How can it be vague?” Others suggest that efforts to define the terms of the article are simply an effort by the Administration to walk back from its binding treaty obligations. Some say, “The military has been able to train to the standards of CA3 for years. I’ve heard lots of questions and concerns about why the President wanted to define in greater detail the terms of CA3. Today I’d like to offer thoughts on a few aspects of Common Article 3 (CA3) of the Geneva Conventions.
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