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- THE GULF WAR, Page 36A Case of Nuremberg II?
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- As evidence -- and rumors -- of Iraqi outrages in Kuwait
- mounted last week, allied calls for legal action against Saddam
- Hussein and his minions were gaining momentum. For the moment,
- George Bush ducked the issue, declaring, "We have to just wait
- and see."
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- Among U.S. legal experts, there is wide agreement that
- Saddam Hussein, his Revolutionary Command Council and his
- military officers should be held accountable for three types
- of transgressions identified and prosecuted in the Nuremberg
- trials of German leaders after World War II: crimes against
- peace, crimes against humanity and war crimes. But since there
- is no permanent international criminal court, there are
- questions about who should conduct such prosecutions, what
- precise charges would be made -- and whether the chief target,
- Saddam, could be brought to justice.
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- International-law specialists suggest several possibilities
- for convening a war-crimes tribunal -- each with drawbacks. One
- would be via the U.N., whose General Assembly endorsed the
- Nuremberg principles in 1946. The U.N. could designate a panel
- of judges drawn from the allied coalition as well as from
- nations that were not involved in the gulf crisis. Such a
- scheme, however, might face a veto in the Security Council by
- the Soviet Union or China.
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- A second option would see the coalition partners convene
- their own tribunal, using Nuremberg as a model. As in 1945, the
- judges would be drafted from among the victor nations. Experts
- caution that this approach might look like "victors' vengeance"
- and might offend those Arabs who still lionize Saddam.
- Procedure could also become a sticking point since the
- coalition partners have different legal systems. A third scheme
- would have members of the six-nation Gulf Cooperation Council
- convene trials, possibly under Islamic law.
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- Even with agreement on the appropriate tribunal, questions
- would remain about precisely what crimes are punishable and who
- should be held responsible. Actions that breach the Geneva
- Conventions of 1949, to which Iraq is a signatory, are patently
- criminal: the use of civilians as human shields, the
- mistreatment of prisoners of war and the targeting of civilian
- populations. But was the polluting of the Persian Gulf during
- the second week of the conflict a war crime? There is room for
- doubt about the causes of the spill.
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- Whatever the legalities, unless the Baghdad regime is
- overthrown, it is unlikely that Saddam and his top henchmen
- will be placed in the dock. Some jurists suggest they should
- be tried anyway, in absentia. But even without that dramatic
- event, the meticulous documenting of atrocities and the
- punishment of Iraqis who carried out their superiors' most
- unconscionable orders would serve a deterrent purpose and
- underscore the justice of the allied cause. "The idea of a trial
- would be to show the Arabs that Saddam Hussein is not the
- great savior," says Howard Levie, professor emeritus of law at
- St. Louis University. At the very least, a prosecution would
- hold Saddam and his regime up to formal international scrutiny
- for deeds that much of the world has already judged to be
- barbaric.
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- By Jill Smolowe. Reported by J.F.O. McAllister/Washington and
- Andrea Sachs/New York.
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