to be tried, but in his speech on March 6th he went no farther than to says: "And this I promise you. For all that Saddam has done to his own people. to the Kuwaitis, and to the entire world, Saddam and those around him are accountable." But if Saddam can

keep his boat afloat he will not mind his foreign critics, and the thought of underlings facing criminal charges in Kuwait or elsewhere, while Saddam sits smugly in Baghdad, is not going to start a rush of lawyers thirsting to be prosecutors.

However, things may take a different turn, and a trial of Saddam and/or his henchmen, certainly well-deserved, may appear to be worthwhile. This war has been an international war, and in my personal opinion, if such circumstances should arise, it would be best to put the management of the trials in the hands of the United Nations, for the establishment of a special Tribunal. On March 6th, the United Nations announced that is was "sending a high-level mission to Kuwait to investigate reports of killings and other atrocities committed by Iraqi forces during the occupation, and to assess damage caused to property."

The difficulties of such an undertaking would be so prickly that no one should be obliged to think about them until it is really likely to happen. But I have one proposal for such a Tribunal. the Nuremberg Tribunal had jurisdiction only over defendants "of the European Axis countries.'

If the Allies had

been plainly guilty of grave atrocities--as some people might have called our bombing of Dresden--the Nuremberg Tribunal would have had no jurisdiction to hear the case.

It was a one-way street, and the Germans have never ceased to say that only the vanquished were tried. So, today any such

Tribunal should have general jurisdiction, for victors as well as vanquished can commit war crimes. After wars, the laws of war should move on a two-way street.

Mr. MAZZOLI. I wonder if because we have such a nice turnout of our panel here, it may be possible for us to have a first round of questions while things are still fresh in our minds on what Professor Taylor said. Would my friends go along with maybe 5 minutes with rigid limits? Then we could go on to the next witness and then we would have a wrap-up afterwards. But while things are still fresh-would that make any sense at all?

OK, let's do that then. Again, with the rigid limitation. For 5 minutes we'll go to my friend from Florida, the ranking member. Mr. MCCOLLUM. General Taylor, you have indicated that there would be problems in trying a case because of the practical matters in Kuwait and Iraq. What, if we did try any cases, would our objectives be? What should they be if we had an international tribunal? In other words, what would be the primary purpose of these trials? To deter some future action, to simply bring a Saddam Hussein to justice? To punish as we do in an American court when somebody has committed a crime like some of these Iraqis obviously did of stealing property from the Kuwaitis? You saw all of the vehicles that were on the highways where we caught them as they were trying to escape. There was a lot of contraband there and booty. What would be the objective of the trials, if we even have them? General TAYLOR. I believe that they would probably vary greatly among the people here and elsewhere. One might answer by saying that to a considerable extent the purposes of all this would be very | much the same as the purposes of criminal trials, for the purpose of justice in individual countries. I, myself, would hope that something more than that would come out of it. I am very sympathetic with the view that something more permanent in the vessel that is used to do these things than a one-time shot would be used.

Somehow we should bring about the beginnings of a more permanent international criminal basis. But, it may, on the other hand, mean that it's very difficult in a short time to bring up these fundamental things and do something about them. If one wishes to focus mainly on what we know about what's happened there, I think the purposes are essentially not very different from those that were in effect at Nuremberg.

Mr. MCCOLLUM. General Taylor, do you envision that in order for us to have a trial of any sort that we would have to have a United Nations vote? Either setting up the tribunal or setting the standards?

General TAYLOR. I don't see why. There are many ways that it might work out. One might have trials by particular countries or one might have trials on a wider basis, as you inquire. Myself, I have suggested in here that if it is going to be on a broad basis, it ought to be handled by the United Nations. I was interested to see that the United Nations has already sent a delegation to Kuwait to try to amass information that would be useful in what we're talking about.

So, though it doesn't have to be that, my preference would be to use the United Nations as the basis for deciding what the nature of the court should be and how prosecutors and defendants would be selected and other things that would have to be thought about and worked out.

Mr. MCCOLLUM. The last question I have, General, has to do with Saddam Hussein himself. It is highly improbable, at this point, that he would ever be in custody, at least we can't foresee that, for a trial. Would you recommend, if there were any trials at all, that he be tried in absentia?

General TAYLOR. I think not. I'm aware that one of my good friends down the road here has a different view. We had at Nuremberg two cases in which the problem of in absentia came up. One of them was Martin Bormann. At the time the trial took place it was not wholly clear that he was dead. The other was Gustav Krupp who, through carelessness, we had not looked into and discovered early enough that he was non compos mentis and in no condition to be tried.

Justice Jackson, for whom I worked, very much wished to have a trial in absentia. The court, I thought wisely, did not do that. What they did was to say that we will put him, so to speak, on ice and if he ever gets better, bring him to justice. But, he didn't.

As far as Bormann was concerned, the court issued a finding that he should be put to death. Now, I'm afraid that as a lawyer have scruples about coming to such conclusions when the defendant has had no opportunity to defend himself. In this case, of course, Bormann was, in fact, dead at the time. But nobody knew that for sure.

No, I am not, myself, in favor of the idea of a trial in absentia. Mr. MCCOLLUM. Thank you, Mr. Chairman.

Mr. SCHUMER. Thank you for your testimony. I want to thank all the experts for their testimony.

My only question is this and I'm not saying this would be advisable, but, in your judgment, General Taylor, would it be possible to try Saddam Hussein, or others in Iraq, on nonwar crime basis, such as we did with Noriega?

General TAYLOR. Sir, I don't know yet what we've done with Noriega.

Mr. SCHUMER. What we're attempting to do with Noriega.

General TAYLOR. Well, I would hate to get into a situation where we've got to keep attempting that long. I don't see how a useful jump from Noriega to Saddam Hussein can be made. It seems to me the situations are so different that even if Noriega were handled well, that we might not be able to do the same with Saddam. Mr. SCHUMER. Thank you. Thank you, Mr. Chairman. Mr. SMITH of Texas. Thank you, Mr. Chairman.

General Taylor, in your prepared remarks, you said that dealing with Iraq's war crimes was more of a political and administrative problem than a legal problem. Would you explain what you meant by that?

General TAYLOR. Yes, what I meant by that was that I think we know enough about what happened during the war, despite the problems of secrecy, that there is very little doubt that war crimes in bulk, very likely ordered by Saddam, are violations of the laws of war en masse. What is much more difficult, as I've already said, is the matter of evidence and how that will work out. What I meant further was that some of these obstacles, to which we don't know yet the answers, are essentially political rather than legal answers. Whether Saddam is alive or dead is not a legal question;

you could call it whatever you like, but it certainly is not a legal problem. It's a thing that happens that makes life more difficult. And that's what I meant.

Mr. SMITH of Texas. General Taylor, in response to Mr. McCollum's question a while ago, you seemed to favor an international tribunal perhaps under the United Nations. Do you feel that the United States could act unilaterally if it so desired? More specifically, what is there that Congress could do to initiate either an international tribunal or a more national tribunal?

General TAYLOR. Sure, I suppose that the United States could act unilaterally. But here, again, I would be much opposed to that on political grounds, if not legal, primarily perhaps political.

The fact that we have been so successful in the gulf by no means indicates that all of the people around there like us. I don't believe they do. I have felt that President Bush has been right, after the end of hostilities, doing something of a drawback and not being the No. 1 boy all the time. This seems to me a factor which is of a continuing nature and, therefore, I would think it would not be sensible.

Mr. SMITH of Texas. General Taylor, one last question in the interest of time. Assuming that we were able to establish some form of tribunal, how would it work? Who would sit on the tribunal and then how would punishment be enforced, if there was such a tribunal?

General TAYLOR. Well, if it started out the way it ought to, there would already be the defendants before one under suitable duress and, if they were found guilty, there would be decisions to that effect and they would get due punishment.

Mr. SMITH of Texas. But how would the punishment be enforced? General TAYLOR. Enforced? I don't know whether you really mean the kind of penalty or who would do it, but it would seem to me that there would have been a decision in advance that the decision rendered by the court might be reviewed-with us it was reviewed by the control counsel in Berlin who reviewed our decision-and the same thing might be done here by another source of review. I do not see that there's any overly difficult problem about that.

Mr. SMITH of Texas. Thank you, Mr. Chairman.

Mr. BERMAN. General Taylor, I have just two questions.

One, you made a reference which I did not fully understand, perhaps because I did not read this morning's Washington paper, regarding revelations of Iraqi activities in Kuwait different than those that were being asserted. What is this about?

General TAYLOR. Well, I think I have it with me.

Mr. BERMAN. How does it speak to this general issue?

General TAYLOR. It's on the front page of the Washington Post. It's an article stating that Kuwaiti soldiers have been using torture and other such devices against Iraqis. This comes from Iraq and one might say that it's a little bit strange that our first thing of this kind is the Iraqi that's complaining. But that's what it's all about-that Kuwait has been doing the same things that we have been accusing Iraq of.

Mr. BERMAN. I see. Well, that sort of leads in to the next question, which is your comment in your prepared remarks about the