US Public Law 109-366 revision of USC 18.2441.d

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Introduction

The following text is is part of the Military Commissions Act of 2006, and is the new subsection (d) to be inserted into Section 2441 of title 18, United States Code, after the existing subsection (c) (which the Act also modifies).

The formatting has been altered for easier reading.

Text

(d) Common Article 3 Violations.--

  • (1) Prohibited conduct.--In subsection (c)(3), the term `grave breach of common Article 3' means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
    • (A) Torture.--The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
    • (B) Cruel or inhuman treatment.--The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.
    • (C) Performing biological experiments.--The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.
    • (D) Murder.--The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause. [[Page 120 STAT. 2634]]
    • (E) Mutilation or maiming.--The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.
    • (F) Intentionally causing serious bodily injury.--The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.
    • (G) Rape.--The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.
    • (H) Sexual assault or abuse.--The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.
    • (I) Taking hostages.--The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.
  • (2) Definitions.--In the case of an offense under subsection (a) by reason of subsection (c)(3)--
    • (A) the term `severe mental pain or suffering' shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340(2) of this title;
    • (B) the term `serious bodily injury' shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113(b)(2) of this title;
    • (C) the term `sexual contact' shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246(3) of this title;
    • (D) the term `serious physical pain or suffering' shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves--
      • (i) a substantial risk of death;
      • (ii) extreme physical pain;
      • (iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
      • (iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and
    • (E) the term `serious mental pain or suffering' shall be applied for purposes of paragraph (1)(B) in accordance [[Page 120 STAT. 2635]] with the meaning given the term `severe mental pain or suffering' (as defined in section 2340(2) of this title), except that--
      • (i) the term `serious' shall replace the term `severe' where it appears; and
      • (ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term `serious and non-transitory mental harm (which need not be prolonged)' shall replace the term `prolonged mental harm' where it appears.
  • (3) Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack.--The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to--
    • (A) collateral damage; or
    • (B) death, damage, or injury incident to a lawful attack.
  • (4) Inapplicability of taking hostages to prisoner exchange.--Paragraph (1)(I) does not apply to an offense under subsection (a) by reason of subsection (c)(3) in the case of a prisoner exchange during wartime.
  • (5) Definition of grave breaches.--The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article.
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