Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, February 27, 1991 TAG: 9102270483
SECTION: EDITORIAL PAGE: A-11 EDITION: METRO
SOURCE: FREDERIC L. KIRGIS JR.
DATELINE: LENGTH: Long
In broad terms, they fall into five categories: waging aggressive war against Kuwait; cruelly mistreating civilians and their property in Kuwait; taking hostages and using them as human shields; mistreating prisoners of war; and indiscriminate Scud missile attacks on Israeli and Saudi Arabian cities.
The four Geneva Conventions of 1949 are the primary sources of international law on the conduct of war. Iraq, the United States and all other countries involved in the Persian Gulf War are parties to all four Geneva Conventions. Two of the conventions specifically protect civilians and prisoners of war.
The conventions are quite detailed, prohibiting and regulating a wide range of conduct likely to cause unnecessary risk of harm to non-combatants. But only certain violations, defined as "grave breaches," amount to war crimes. These include torture or inhuman treatment; willfully causing great suffering or serious injury; taking of hostages;and extensive destruction and appropriation of property, if carried out wantonly.
If media reports are correct, Saddam Hussein and his armed forces have committed grave breaches of these conventions, in both Kuwait and Iraq. Murder, rape and torture of civilians in Kuwait clearly would be grave breaches, not only by those who carried them out but also by commanders who could have prevented them.
Some of the most egregious conduct, though, is not expressly covered by the Geneva conventions. The conventions deal only with the conduct of war, not the legitimacy of war itself, and despite all their details they contain some gaps on the conduct of war. Some of the gaps are filled by customary international law, stemming from the Nuremberg trials of war crimes at the end of World War II. The Nuremberg principles make the waging of aggressive war, like Iraq's invasion of Kuwait, a crime against peace. They also suggest that pre-World War II rules prohibiting indiscriminate, unprovoked bombardment of cities could be applied to the Scud missile attacks, even though they are not expressly covered by the Geneva conventions.
Neither the conventions nor the Nuremberg principles prohibit deliberate environmental harm, such as polluting the Persian Gulf with oil. A 1977 protocol to the conventions does cover severe environmental harm, but neither Iraq nor the United States has ratified the protocol.
There is no international criminal court with jurisdiction to try accused war criminals. The International Court of Justice in The Hague has jurisdiction only over nations, and then only in civil proceedings and only with governments' consent. Nor is the Nuremberg tribunal available. It was established by agreement among the allies in 1945, and went out of existence when the trials of the German high command were finished.
Perhaps the Nuremberg precedent could be followed at the end of the Persian Gulf War, if Saddam Hussein and Iraq's military commanders are captured. The coalition governments could agree to set up a Nuremberg-style tribunal, and could define its jurisdiction. The objection to this is the one heard at the time of the Nuremberg tribunal: It amounts to victors' justice, on the victors' own terms.
To some extent, the objection could be met by a judicious selection of judges. For example, it would be possible to select only judges with international reputations for fairness and only from nations not directly involved in the conflict. But even so, if the tribunal is established by the victors and judges only the vanquished, any judgments it might reach would be tainted in the eyes of many Arabs and others.
Alternatively, the U.N. Security Council might establish a tribunal. No precedent for this exists. There is also no guarantee that an attempt to do it would not be vetoed by one of the permanent Security Council members (China, France, Great Britain, the Soviet Union and the United States).
There would be doubt about the legal authority of the Security Council to set up the tribunal and define its jurisdiction, since nothing in the U.N. Charter expressly contemplates it. Nevertheless, the charter does give the Security Council broad authority to maintain international peace. The charter also gives the Security Council authority to "investigate" any dispute likely to endanger international peace, or any situation that might lead to international friction. One could argue that these mandates allow the Security Council to establish a war-crimes tribunal that could be a deterrent against future wars and war crimes.
If the Security Council were to do this, we should be prepared to have the tribunal's jurisdiction extend to all alleged war crimes stemming from the Persian Gulf conflict, not just to those alleged against Saddam and other Iraqis. That would mean allegations could be made against U.S. and other coalition military officers, perhaps focusing on bombing raids that killed civilians in Iraq, even if the allegations would stand little chance of success in a fair trial. The United States has the power to veto such a broad grant of jurisdiction by the Security Council, but it probably is unrealistic to expect all of the other members with vetoes to go along with establishing a tribunal that considers only the allegations against Iraqi leaders. The Security Council would then be in an impasse.
Finally, the Geneva conventions contemplate possible war-crimes trials in national courts. But any attempt to try Iraqis in the courts of coalition countries would obviously be open to charges of bias and victors' justice.
We thus have wrongs without a clear means of punishment that would be widely seen as impartial. Some international lawyers and diplomats are pushing for a permanent international criminal court that could try cases like these. Perhaps one will arise from the ashes of the present war.
by CNB