against. For example, it's quite plain, I think, that the nature and effect of war crimes might be very different depending, for example, whether Saddam Hussein is dead, whether he is a prisoner-defendant, whether he's a fugitive, or whether he's still in charge of Iraq. Those things will make a great difference on how you would go about it.

Then, the attitude of Kuwait is going to be of great importance. I assume that some of you have seen this morning the piece in the Washington paper indicating some matters that Kuwait has gotten into that don't seem altogether different from what we are now accusing Iraq. And finally, the evidentiary problem may be very difficult for anyone called upon to carry this sort of thing through. I don't think there's any legal difficulty about the fact that there are, indeed, gross violations of the laws of war, but it's quite another matter, so to speak, to catch your rabbit. How are you going to get the evidence? Most people really don't know the name of anybody in Iraq except its president.

For all of these reasons, it seems to me, that we're going to have to find out a lot of things that we don't know yet before one could start to think about what kind of a trial one would have here.

I wish to be brief and I think, with that statement, I will close my mouth.

Mr. MAZZOLI. Thank you very much, General.

[The prepared statement of General Taylor follows:]

House Committee on the Judiciary

March 13, 1991

Statement of Telford Taylor:

It is not my purpose, in the wake of the Persian Gulf War, to advocate or oppose the bringing of war crimes charges against Saddam Hussein or any other suspected Iraqis. The circumstances in that region are still very volatile, and it appears to me that it will be some time before such trials could, in an event, be undertaken. Rather, I will try to put together some of the factors that would be relevant, if such trials are seriously

contemplated.

While war crime trials might be based on the criminal law of Kuwait or some other individual participant country, this war has been an international undertaking, and I believe that trials would be better based on the international laws of war, as embodied in the many treaties and agreements among many nations over the course of many years.

The treaties and agreements most likely to prove relevant to the present situation comprise the following:

(1) The Hague Conventions of 1899 and 1907, especially Hague Convention IV Respecting the Laws and Customs of war on Land.

(2) The Geneva Conventions of 1929 on the Treatment of Prisoners of War, and of 1949, especially Convention I for the Amelioration of the Condition of the Wounded and sick in Armed

Forces in the Field, Convention III Relative to the Treatment of Prisoners of War, and Convention IV Relative to the Protection of Civil Persons in Time of War.

(3) The Charter and Judgments of the Nuremberg and Tokyo International Tribunals, insofar as in 1946 it was declared and held that planning and waging aggressive wars are international crimes, as affirmed by the General Assembly of the United Nations.

(4) The Hague Convention and Protocol of 1954 for the Protection of Cultural Property in the Event of Armed Conflict.

(5) The 1977 United Nations Convention on the Prohibition of Military of Any Other Hostile Use of Environment Modification Techniques.

Although, in my opinion, all five of these international prohibitory agreements are soundly based legally, it is true that the three last date from World War Two or later, and are not part of the long-established laws of war.

The substance of the first two, on the other hand, has been internationally codified for nearly a century. Their substance had been codified during the War Between the States by the Union Army in 1863, and as customary law goes back even before the time when, bound by the laws of war, the British hanged Nathan Hale and we banged Major André.

In an article ten days ago printed in the Wall Street Journal, my Columbia Law School colleague, ex-Ambassador Richard

Gardner writes: "Article 147 [of the Fourth 1949 Geneva Convention] defines as 'grave breaches' killing, torturing or abducting civilians, or carrying away property not justified by military necessity. Iraq has obviously committed all thesa prohibited acts in Kuwait." I cannot believe that there is any real evidentiary problem about the validity of charges against Iraqis involved in these activities in Kuwait. Proof of individual guilt, however, may well be difficult.

As for treating aggressive war as an international crime, at the time of Nuremberg this was a much-argued matter. The defendants accused of this newly presented offence had engaged in their aggressivo wars several years before the Charter declared aggressive war to be a crime. The defendants argued, with considerable merit, that they were being punished for actions which had not yet been declared to be criminal--an ex post facto

accusation.

I am certainly not going to reargue this issue nearly half a century later, and I have brought it up now as a reminder that when the President initially announced his decision to send troops to Saudi Arabia, he justified it on the ground that Iraq was waging aggressive war, and this was a crime that could not be tolerated. Mr. Bush reiterated these words a number of times.

These were by no means the first occasions since Nuremberg that this position had been taken. The United Nations took the same view when it supported the United States and other nations in going to war with North korea to protect South Korea. Later

Secretary of State Dean Rusk echoed these views to justify our war against North Vietnam.

Accordingly, it is my view that our immediate war crimes problems are not primarily legal but political and, perhaps also No doubt there will be further mention of

administrative.

Nuremberg here this morning. but there is almost no similarity between the problems we then faced, and those we confront today. I say 'almost" because there is one common thread, and that is the international law of war. Iraq and Kuwait both acceded to the 1949 Geneva Conventions.

Otherwise there are no parallels. At the time of

Nuremberg, the German Government did not exist, and neither did its erstwhile Fuhrer. The major victorias allies hald as prisoners Hermann Goring and virtually all the surviving military and civilian chiefs. We soon collected literally tons of German military and diplomatic documents which provided ample proof of individual guilt.

At Nuremberg, we certainly had legal and administrative problems, but nothing like the obstacles and shifting sands in Iraq and Kuwait today. I understand that American officers, and perhaps Kuwait and Saudi Arabia, have been sequestering Iraqis who might have participated in the terrible bashing of Kuwait. Clear proof many be hard to come by, and it would remain to be seen whether or not Kuwait's leaders would welcome being the hosts of war crimes trials of Iraqis.

Some days ago the President stated that Saddam Hussein ought