War Crimes Trials: What Set of Rules Would Apply?

March 10, 1991|By LYLE DENNISTON

WASHINGTON — Washington.--As the Persian Gulf war passes into an era of postwar "arrangements," the lawyers' turn to act will come, and what they do -- about war crimes, for example -- could turn out to be one of the more complex but possibly least conclusive parts of the entire affair.

The war has left behind a pile of legal wrongs awaiting legal remedies, including deeply serious charges of wide-ranging atrocities. But, as is often the case with law, it is simpler to recite broad goals than it is to say what legal method, process or principle is to be used to reach the goals.

The world community has said loud and clear, through the United Nations Security Council, that it wants something done about the war crimes and the other breaches of law of which Iraq stands accused (informally accused, at this point).

But nothing the Security Council has proclaimed is self-enforcing, and it will be left to lawyers to work out the details of enforcement -- under potentially hobbling restraints of global politics, and under a stern mandate to display a deep awareness of Arab sensibilities.

Suppose Americans were to get what appears to be a wish many of them hold: a gesture by the allied victors toward punishing Iraqi president Saddam Hussein personally for the armed takeover of Kuwait and for grave misdeeds allegedly committed throughout the war.

That would be legally possible, and lawyers would have plenty of precedent from history to guide them in setting up a trial and spelling out the rules to govern it. War crimes prosecutions -- punishment by the victors of the losers for violating "the customs of war" -- have been going on for centuries, back at least to the earliest years of the 14th century.

But complications set in at the very moment the idea is addressed: a trial of Saddam Hussein may never happen, and, if it does, it may not get the results that would satisfy Americans stirred to anger by continuous White House rhetoric about Saddam Hussein's villainy. Or, on the other hand, it might get results that would be quite distasteful, by Western moral standards.

The allied coalition which won the war with Iraq has not yet made clear that it wants the Iraqi leader tried, and has not shown that it is willing to make the arrangements to bring that about, and has not agreed on what law should govern if Saddam Hussein were tried -- somewhere, at some time.

What if the idea were moved to action?

What law would apply: will it be the world's, Kuwait's or America's, Western or Islamic, ancient or modern, existing or newly codified?

Perhaps the only thing that is near to a certainty at this point is that it will not be America's law. Saddam Hussein, according to the prevailing view in the Bush administration, very likely will never face justice in a United States court -- the only place where American law would govern.

If customary international law were the key, Saddam Hussein -- even though he is the head of a government -- could be tried by some newly created global court for a wide range of offenses, and he could be severely punished. He might even be sentenced to death, by hanging or otherwise. He could even be tried in absentia, if he is not arrested. There are precedents for all of that.

If Islamic law were the controlling legal doctrine, he could be tried and convicted, for crimes against other Muslims. If found guilty, he could be beheaded, or have his arms chopped off. There are no precedents, apparently, for using Islamic law to deal with war crimes prosecutions sought by non-Islamic nations. But there has been a strong movement among Arab states in recent years to set up a pan-Arabic international court, to enforce Islamic law among Muslims -- including those who commit war crimes.

Just as it is a violation of the norms of international law to commit war crimes like those of which the Iraqi regime is accused, Islamic law makes that kind of conduct illegal, too.

While determining the fate of Saddam Hussein is perhaps the most provocative aspect of the postwar legal "arrangements" now being pondered for dealing with war crimes, it is by no means the only problem to be worked out before the war's victors can hope for at least some legal satisfaction from the losers.

The postwar search for remedies for the severe complaints made against Iraq -- atrocities, abuse of prisoners of war and wartime hostages, pillage and rape and even ordinary theft, environmental terrorism, sending Scud missiles against a non-combatant Israel -- is very active in Washington and abroad just now. In some sense, the study is well-advanced. It remains at this point only a search, however.

The Bush administration has let it be known, privately, that it much prefers an Arab solution to the war crimes matter. American military teams are gathering evidence that officials believe would support a war crimes prosecution. But America may get little more involved than that.

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