Page 591 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2441

(b)(1) The order of restitution under this sec- (3) which constitutes a grave breach of com- tion shall direct the defendant to pay the victim mon Article 3 (as defined in subsection (d)) (through the appropriate court mechanism) the when committed in the context of and in asso- full amount of the victim’s losses, as determined ciation with an armed conflict not of an inter- by the court under paragraph (3), and shall addi- national character; or tionally require the defendant to pay the great- (4) of a person who, in relation to an armed er of the gross income or value to the defendant conflict and contrary to the provisions of the of the victim’s services, if the services con- Protocol on Prohibitions or Restrictions on stitute commercial sex acts as defined under the Use of Mines, Booby-Traps and Other De- section 1591. vices as amended at Geneva on 3 May 1996 (2) An order of restitution under this section (Protocol II as amended on 3 May 1996), when shall be issued and enforced in accordance with the is a party to such Protocol, section 3664 in the same manner as an order willfully kills or causes serious injury to civil- under section 3663A. ians. (3) As used in this subsection, the term ‘‘full (d) COMMON ARTICLE 3 VIOLATIONS.— amount of the victim’s losses’’ has the same (1) PROHIBITED CONDUCT.—In subsection meaning as provided in section 2259(b)(3). (c)(3), the term ‘‘grave breach of common Arti- (c) The forfeiture of property under this sec- cle 3’’ means any conduct (such conduct con- tion shall be governed by the provisions of sec- stituting a grave breach of common Article 3 tion 413 (other than subsection (d) of such sec- of the international conventions done at Gene- tion) of the Controlled Substances Act (21 U.S.C. va August 12, 1949), as follows: 853). (A) .—The act of a person who (d) As used in this section, the term ‘‘victim’’ commits, or conspires or attempts to com- means the individual harmed as a result of a mit, an act specifically intended to inflict crime under this chapter, including, in the case severe physical or mental pain or suffering of a victim who is under 18 years of age, incom- (other than pain or suffering incidental to petent, incapacitated, or deceased, the legal lawful sanctions) upon another person with- guardian of the victim or a representative of the in his custody or physical control for the victim’s estate, or another family member, or purpose of obtaining information or a con- any other person appointed as suitable by the fession, punishment, intimidation, coercion, court, but in no event shall the defendant be or any reason based on discrimination of any named such representative or guardian. kind. (B) CRUEL OR INHUMAN TREATMENT.—The (Added Pub. L. 115–392, § 3(a), Dec. 21, 2018, 132 act of a person who commits, or conspires or Stat. 5251.) attempts to commit, an act intended to in- CHAPTER 118—WAR CRIMES flict severe or serious physical or mental pain or suffering (other than pain or suffer- Sec. ing incidental to lawful sanctions), including 2441. War crimes. 2442. Recruitment or use of child soldiers. serious physical abuse, upon another within his custody or control. AMENDMENTS (C) PERFORMING BIOLOGICAL EXPERI- 2008—Pub. L. 110–340, § 2(a)(3)(A), Oct. 3, 2008, 122 Stat. MENTS.—The act of a person who subjects, or 3736, added item 2442. conspires or attempts to subject, one or 1996—Pub. L. 104–294, title VI, § 605(p)(2), Oct. 11, 1996, more persons within his custody or physical 110 Stat. 3510, redesignated item 2401 as 2441. control to biological experiments without a § 2441. War crimes legitimate medical or dental purpose and in so doing endangers the body or health of (a) OFFENSE.—Whoever, whether inside or out- such person or persons. side the United States, commits a , in (D) .—The act of a person who in- any of the circumstances described in subsection tentionally kills, or conspires or attempts to (b), shall be fined under this title or imprisoned kill, or kills whether intentionally or unin- for life or any term of years, or both, and if tentionally in the course of committing any death results to the victim, shall also be subject other offense under this subsection, one or to the penalty of death. more persons taking no active part in the (b) CIRCUMSTANCES.—The circumstances re- hostilities, including those placed out of ferred to in subsection (a) are that the person combat by sickness, wounds, detention, or committing such war crime or the victim of any other cause. such war crime is a member of the Armed (E) MUTILATION OR MAIMING.—The act of a Forces of the United States or a national of the person who intentionally injures, or con- United States (as defined in section 101 of the spires or attempts to injure, or injures Immigration and Nationality Act). whether intentionally or unintentionally in (c) DEFINITION.—As used in this section the the course of committing any other offense term ‘‘war crime’’ means any conduct— under this subsection, one or more persons (1) defined as a grave breach in any of the taking no active part in the hostilities, in- international conventions signed at Geneva 12 cluding those placed out of combat by sick- August 1949, or any protocol to such conven- ness, wounds, detention, or any other cause, tion to which the United States is a party; by disfiguring the person or persons by any (2) prohibited by Article 23, 25, 27, or 28 of mutilation thereof or by permanently dis- the Annex to the Hague Convention IV, Re- abling any member, limb, or organ of his specting the Laws and Customs of War on body, without any legitimate medical or Land, signed 18 October 1907; dental purpose. § 2441 TITLE 18—CRIMES AND CRIMINAL PROCEDURE Page 592

(F) INTENTIONALLY CAUSING SERIOUS BODILY and non-transitory mental harm (which INJURY.—The act of a person who inten- need not be prolonged)’’ shall replace the tionally causes, or conspires or attempts to term ‘‘prolonged mental harm’’ where it cause, serious bodily injury to one or more appears. persons, including lawful combatants, in vio- (3) INAPPLICABILITY OF CERTAIN PROVISIONS lation of the . WITH RESPECT TO COLLATERAL DAMAGE OR INCI- (G) .—The act of a person who forc- DENT OF LAWFUL ATTACK.—The intent specified ibly or with coercion or threat of force for the conduct stated in subparagraphs (D), wrongfully invades, or conspires or attempts (E), and (F) or paragraph (1) precludes the ap- to invade, the body of a person by penetrat- plicability of those subparagraphs to an of- ing, however slightly, the anal or genital fense under subsection (a) by reasons of sub- opening of the victim with any part of the section (c)(3) with respect to— body of the accused, or with any foreign ob- (A) collateral damage; or ject. (B) death, damage, or injury incident to a (H) SEXUAL ASSAULT OR ABUSE.—The act of lawful attack. a person who forcibly or with coercion or threat of force engages, or conspires or at- (4) INAPPLICABILITY OF TAKING HOSTAGES TO tempts to engage, in sexual contact with one PRISONER EXCHANGE.—Paragraph (1)(I) does not or more persons, or causes, or conspires or apply to an offense under subsection (a) by attempts to cause, one or more persons to reason of subsection (c)(3) in the case of a pris- engage in sexual contact. oner exchange during wartime. (I) TAKING HOSTAGES.—The act of a person (5) DEFINITION OF GRAVE BREACHES.—The who, having knowingly seized or detained definitions in this subsection are intended one or more persons, threatens to kill, in- only to define the grave breaches of common jure, or continue to detain such person or Article 3 and not the full scope of United persons with the intent of compelling any States obligations under that Article. nation, person other than the hostage, or (Added Pub. L. 104–192, § 2(a), Aug. 21, 1996, 110 group of persons to act or refrain from act- Stat. 2104, § 2401; renumbered § 2441, Pub. L. ing as an explicit or implicit condition for 104–294, title VI, § 605(p)(1), Oct. 11, 1996, 110 Stat. the safety or release of such person or per- 3510; amended Pub. L. 105–118, title V, § 583, Nov. sons. 26, 1997, 111 Stat. 2436; Pub. L. 107–273, div. B, (2) DEFINITIONS.—In the case of an offense title IV, § 4002(e)(7), Nov. 2, 2002, 116 Stat. 1810; under subsection (a) by reason of subsection Pub. L. 109–366, § 6(b)(1), Oct. 17, 2006, 120 Stat. (c)(3)— 2633.) (A) the term ‘‘severe mental pain or suffer- REFERENCES IN TEXT ing’’ shall be applied for purposes of para- graphs (1)(A) and (1)(B) in accordance with Section 101 of the Immigration and Nationality Act, referred to in subsec. (b), is classified to section 1101 of the meaning given that term in section Title 8, Aliens and Nationality. 2340(2) of this title; The date of the enactment of the Military Commis- (B) the term ‘‘serious bodily injury’’ shall sions Act of 2006, referred to in subsec. (d)(2)(E)(ii), is be applied for purposes of paragraph (1)(F) in the date of enactment of Pub. L. 109–366, which was ap- accordance with the meaning given that proved Oct. 17, 2006. term in section 113(b)(2) of this title; AMENDMENTS (C) the term ‘‘sexual contact’’ shall be ap- plied for purposes of paragraph (1)(G) in ac- 2006—Subsec. (c)(3). Pub. L. 109–366, § 6(b)(1)(A), added par. (3) and struck out former par. (3) which read as fol- cordance with the meaning given that term lows: ‘‘which constitutes a violation of common Article in section 2246(3) of this title; 3 of the international conventions signed at Geneva, 12 (D) the term ‘‘serious physical pain or suf- August 1949, or any protocol to such convention to fering’’ shall be applied for purposes of para- which the United States is a party and which deals graph (1)(B) as meaning bodily injury that with non-international armed conflict; or’’. involves— Subsec. (d). Pub. L. 109–366, § 6(b)(1)(B), added subsec. (i) a substantial risk of death; (d). (ii) extreme physical pain; 2002—Subsecs. (a) to (c). Pub. L. 107–273 made tech- (iii) a burn or physical disfigurement of nical correction to directory language of Pub. L. 105–118, § 583. See 1997 Amendment notes below. a serious nature (other than cuts, abra- 1997—Subsec. (a). Pub. L. 105–118, § 583(1), as amended sions, or bruises); or by Pub. L. 107–273, substituted ‘‘war crime’’ for ‘‘grave (iv) significant loss or impairment of the breach of the ’’. function of a bodily member, organ, or Subsec. (b). Pub. L. 105–118, § 583(2), as amended by mental faculty; and Pub. L. 107–273, substituted ‘‘war crime’’ for ‘‘breach’’ in two places. (E) the term ‘‘serious mental pain or suf- Subsec. (c). Pub. L. 105–118, § 583(3), as amended by fering’’ shall be applied for purposes of para- Pub. L. 107–273, amended subsec. (c) generally. Prior to graph (1)(B) in accordance with the meaning amendment, subsec. (c) read as follows: given the term ‘‘severe mental pain or suf- ‘‘(c) DEFINITIONS.—As used in this section, the term fering’’ (as defined in section 2340(2) of this ‘grave breach of the Geneva Conventions’ means con- title), except that— duct defined as a grave breach in any of the inter- (i) the term ‘‘serious’’ shall replace the national conventions relating to the laws of warfare signed at Geneva 12 August 1949 or any protocol to any term ‘‘severe’’ where it appears; and such convention, to which the United States is a (ii) as to conduct occurring after the party.’’ date of the enactment of the Military 1996—Pub. L. 104–294 renumbered section 2401 of this Commissions Act of 2006, the term ‘‘serious title as this section. Page 593 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2442

EFFECTIVE DATE OF 2006 AMENDMENT ‘‘(B) THIRD GENEVA CONVENTION.—The term ‘Third Pub. L. 109–366, § 6(b)(2), Oct. 17, 2006, 120 Stat. 2635, Geneva Convention’ means the international conven- provided that: ‘‘The amendments made by this sub- tion referred to in subparagraph (A)(iii).’’ section [amending this section], except as specified in subsection (d)(2)(E) of section 2441 of title 18, United EXECUTIVE ORDER NO. 13440 States Code, shall take effect as of November 26, 1997, Ex. Ord. No. 13440, July 20, 2007, 72 F.R. 40707, which as if enacted immediately after the amendments made interpreted the Geneva Conventions Common Article 3 by section 583 of Public Law 105–118 [amending this sec- as applied to a program of detention and interrogation tion] (as amended by section 4002(e)(7) of Public Law operated by the Central Intelligence Agency, was re- 107–273).’’ voked by Ex. Ord. No. 13491, § 1, Jan. 22, 2009, 74 F.R. 4893, set out as a note under section 2000dd of Title 42, EFFECTIVE DATE OF 2002 AMENDMENT The Public Health and Welfare. Pub. L. 107–273, div. B, title IV, § 4002(e)(7), Nov. 2, 2002, 116 Stat. 1810, provided that the amendment made § 2442. Recruitment or use of child soldiers by section 4002(e)(7) is effective Nov. 26, 1997. (a) OFFENSE.—Whoever knowingly— SHORT TITLE (1) recruits, enlists, or conscripts a person to Pub. L. 104–192, § 1, Aug. 21, 1996, 110 Stat. 2104, pro- serve while such person is under 15 years of vided that: ‘‘This Act [enacting this chapter] may be age in an armed force or group; or cited as the ‘War Crimes Act of 1996’.’’ (2) uses a person under 15 years of age to par- IMPLEMENTATION OF TREATY OBLIGATIONS ticipate actively in hostilities; Pub. L. 109–366, § 6(a), Oct. 17, 2006, 120 Stat. 2632, pro- knowing such person is under 15 years of age, vided that: shall be punished as provided in subsection (b). ‘‘(1) IN GENERAL.—The acts enumerated in subsection (d) of section 2441 of title 18, , as (b) PENALTY.—Whoever violates, or attempts added by subsection (b) of this section, and in sub- or conspires to violate, subsection (a) shall be section (c) of this section [enacting section 2000dd–0 of fined under this title or imprisoned not more Title 42, The Public Health and Welfare], constitute than 20 years, or both and, if death of any person violations of common Article 3 of the Geneva Conven- results, shall be fined under this title and im- tions prohibited by United States law. prisoned for any term of years or for life. ‘‘(2) PROHIBITION ON GRAVE BREACHES.—The provisions of section 2441 of title 18, United States Code, as (c) JURISDICTION.—There is jurisdiction over amended by this section, fully satisfy the obligation an offense described in subsection (a), and any under Article 129 of the Third Geneva Convention for attempt or conspiracy to commit such offense, the United States to provide effective penal sanctions if— for grave breaches which are encompassed in common (1) the alleged offender is a national of the Article 3 in the context of an armed conflict not of an United States (as defined in section 101(a)(22) international character. No foreign or international of the Immigration and Nationality Act (8 source of law shall supply a basis for a rule of decision U.S.C. 1101(a)(22))) or an alien lawfully admit- in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such sec- ted for permanent residence in the United tion 2441. States (as defined in section 101(a)(20) of such 1 ‘‘(3) INTERPRETATION BY THE PRESIDENT.— Act (8 U.S.C. 1101(a)(20)); ‘‘(A) As provided by the Constitution and by this (2) the alleged offender is a stateless person section, the President has the authority for the whose habitual residence is in the United United States to interpret the meaning and applica- States; tion of the Geneva Conventions and to promulgate (3) the alleged offender is present in the higher standards and administrative regulations for violations of treaty obligations which are not grave United States, irrespective of the nationality breaches of the Geneva Conventions. of the alleged offender; or ‘‘(B) The President shall issue interpretations de- (4) the offense occurs in whole or in part scribed by subparagraph (A) by Executive Order pub- within the United States. lished in the Federal Register. ‘‘(C) Any Executive Order published under this (d) DEFINITIONS.—In this section: paragraph shall be authoritative (except as to grave (1) PARTICIPATE ACTIVELY IN HOSTILITIES.— breaches of common Article 3) as a matter of United The term ‘‘participate actively in hostilities’’ States law, in the same manner as other administra- means taking part in— tive regulations. (A) combat or military activities related ‘‘(D) Nothing in this section shall be construed to to combat, including sabotage and serving as affect the constitutional functions and responsibil- ities of Congress and the judicial branch of the a decoy, a courier, or at a military check- United States. point; or ‘‘(4) DEFINITIONS.—In this subsection: (B) direct support functions related to ‘‘(A) GENEVA CONVENTIONS.—The term ‘Geneva Con- combat, including transporting supplies or ventions’ means— providing other services. ‘‘(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed (2) ARMED FORCE OR GROUP.—The term Forces in the Field, done at Geneva August 12, 1949 ‘‘armed force or group’’ means any army, mili- (6 UST 3217); tia, or other military organization, whether or ‘‘(ii) the Convention for the Amelioration of the not it is state-sponsored, excluding any group Condition of the Wounded, Sick, and Shipwrecked assembled solely for nonviolent political asso- Members of the Armed Forces at Sea, done at Gene- va August 12, 1949 (6 UST 3217); ciation. ‘‘(iii) the Convention Relative to the Treatment (Added Pub. L. 110–340, § 2(a)(1), Oct. 3, 2008, 122 of Prisoners of War, done at Geneva August 12, 1949 Stat. 3735.) (6 UST 3316); and ‘‘(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva 1 So in original. An additional closing parenthesis probably August 12, 1949 (6 UST 3516). should precede the semicolon.