A Case of Nuremberg II?

By Jill Smolowe.

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."

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.

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.

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.

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.

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.

With reporting by J.F.O. McAllister/Washington and Andrea Sachs/New York