The president’s vow that Saddam would be brought to justice for his abuse of captured allied pilots raised the prospect that for the first time since World War II full-dress trials for war crimes might be in the offing. Before there could be a court, of course, there would have to be a decisive victory and a warm body to arrest–assuming the allies could take Saddam alive. But Washington was gearing up for postwar judicial proceedings. “Newsweek’ has learned that a group of Defense Department lawyers has begun compiling reports of alleged Iraqi offenses. That growing list could form the spine of an early but comprehensive indictment against Iraqi officials.
Any case against Saddam would have to rest on violations of a handful of international treaties that were ratified throughout the 20th century. The Hague Convention of 1907 prohibits attacks on “undefended” civilian targets. The Geneva Protocol of 1925 bars the use of poisonous weapons. The Geneva Conventions of 1929 and 1949, among their many provisions laid down strict restrictions on the treatment of wounded or captured soldiers. And the United Nations Charter itself forbids wars of aggression by guaranteeing the territory and independence of all states. Both Iraq and the United States have signed these pacts and could, if a clear victor emerges, attempt to enforce them.
With war crimes, there is no substitute for victory; as the maxim says, to the victors go the trials. That was most clearly the case in the famous war trials of German officers after World War II at Nuremberg. (Similar trials were held for Japanese defendants but they were not entrenched in the collective public memory.) At the first set of Nuremberg trials, a panel of judges drawn from the Allied powers heard evidence of war crimes against the remnants of the Nazi high command. These were dramatic proceedings, featuring Germans in the dock, wearing uniforms, headphones and expressions that ranged from defiance to pathetic bewilderment. The prosecution was led by Robert H. Jackson, a U.S. Supreme Court justice who tool a leave of absence. The defendants were supplied with lawyers. In the end 19 were convicted, 12 sentenced to die, 3 acquitted and 7 sentenced to prison terms of 10 years to life, and one committed suicide before the trial.
Nuremberg would be the model for another round of trials in this war. Its basic framework–crimes against peace, crimes against humanity and crimes committed during the war–would undoubtedly be applied again. Also, Nuremberg is a precedent for the convening of an international tribunal. There is no permanent international criminal court; the World Court in The Hague hears only civil disputes between nations. An ad hoc panel could be created by U.N. resolution or military order, and, says Walter Rockler, a Washington lawyer who was a Nuremberg prosecutor, “it could be held anywhere as long as it’s under international auspices.” Trials could also pay diplomatic dividends. “We need to have an Arab solution to an Arab problem,” says Col. Eric Chase, a lawyer who teaches at the Marine Corps University. He favors an all-Arab panel of judges.
Trying the accused may prove to be easier than punishing the guilty. Invoking the death penalty could be divisive; the Western Europeans seldom use it and the Arab countries might not want to create martyrs. But a prison term raises questions, too. Whose jail? Who wants the problems of guarding Saddam or his aides?
The laws of war are an optimistic compromise. Having failed to stop combat, nations decided they could at least regulate it. While military courts that try spies and traitors date at least to the 1700s, according to Yeshiva University law professor Telford Taylor, it wasn’t until the Civil War that a formal code of war was drawn up at Abraham Lincoln’s specific request. The rules formed the basis for the first celebrated war-crimes trial, that of Confederate Maj. Henry Wirz, the commandant of the wretched Andersonville prison camp. He was hanged.
