vanquished and the victors. Play that out in the context of what we might do here. Is this a jurisdictional question, and if your preferred avenue which is some sort of U.N.-convened international tribunal is the body to hear these cases, how would you deal with that issue in the context of that forum?

General TAYLOR. Well, the point that I was endeavoring to make about Kuwait just 1 minute ago was really political much more than legal. The fact is, of course, that Iraq overran Kuwait, not vice versa. I don't mean at all that because the Kuwaitis are doing bad things that should remove any reason for carrying through with Iraq, but there's no doubt that things like this would tend to diminish the public's general desire and wish to see war crimes trials. If you get them all thinking that well, everybody's the same-Kuwait, Iraq-there's no difference, it would be a wet blanket on the support of people in general that one would need to carry this thing through.

Mr. BERMAN. But on the point that you raised in your written testimony, the criticism of Nuremberg that the jurisdiction was limited to war crimes by European Axis Powers, what are you suggesting here in terms of a jurisdictional mandate to this tribunal?

General TAYLOR. Well, I would suggest that, whatever the engine is that is going to be used for the trial, that it should be what I call a two-way street. I have tried to make it clear in the statement that actually this would call for nothing more than a different statement of the jurisdiction of the tribunal. Instead of stating it the way it was in 1945, which meant that the court was powerless to look at anything except the things done wrong by the Axis Powers, I would have a jurisdiction that was general so that if there was a situation, as I said, that victors can also commit war crimes, that any international body set up as a judicial body should have general jurisdiction and not be confined to things that are done by victims.

Mr. BERMAN. I have a followup question in the remaining time. In your brief summary of international law, I saw something in there about damage or harm to civilian populations as one of the articles-one of the Hague Conventions.

General TAYLOR. 1949 convention, yes.

Mr. BERMAN. To what extent could the civilian damage that occurred as a byproduct of the coalition's bombing become, then, a subject of a tribunal that had this jurisdiction?

General TAYLOR. You're inquiring whether, if this were done under present circumstances, would this mean there would also be trials against the United States for the bombing?

Mr. BERMAN. Yes, that's the question.

General TAYLOR. Well, there's no question that my suggestion would open up that possibility from the standpoint of jurisdiction. If you were coming to the nuts of the matter, so to speak, there is no way that I could know whether any, or a substantial amount, of the bombing was not in accordance with generally agreed laws of war. In other words, if there were extensive evidence that much of the bombing had been deliberately or very carelessly targeted at nonmilitary objectives, why, then, of course, we would be guilty under the laws of war, but I have not suggested here that that is the case. You well know, I think, that the amount of information

that has been given out about that subject is very limited. To come to any final conclusion about it, you would have to know a great deal about what the target was, how it was handled.

Mr. MAZZOLI. Thank you, General Taylor. In the interest of time we will move on to Mr. James.

Mr. JAMES. I take it what you are suggesting is that, if you make it a matter of general jurisdiction, then, indeed, anyone that could allege that there were war crimes against any one of the parties involved in the coalition and would have a trial based perhaps on the legitimacy of the allegations.

General TAYLOR. Yes.

Mr. JAMES. In other words, the negligence of our bombing may be an issue. The acts of any of our specific officers or generals may, indeed, be an issue. We may see a retrial of every single bombing raid that was performed over that period of time.

General TAYLOR. If I may break in on that-that last would take place only if the tribunal were open to anything, whether they thought it had any basis or not. Of course, there would have to be color of reason to come to either side, victor or vanquished.

Mr. JAMES. You are saying there would have to be a hearing, perhaps, or probable cause, so to speak, to determine whether you would proceed from a given point?

General TAYLOR. Well, that's general usage in criminal law generally. There's a hearing to determine whether the thing looks to be sufficiently bad-

Mr. JAMES. So, unless you were going to invite colossal allegations and cross-allegations over an extended period of months and years, trying all of the participants, you would not then suggest, I take it, general jurisdiction?

General TAYLOR. I can't see any basis for saying that the jurisdiction extending to victors as well as vanquished would cause anything like what you are saying. One might as well say that we're going to be going on and on and on to decide which Iraqis to try. In either case, it would be by generally understood judicial action

Mr. JAMES. I'm sorry. I thought you suggested that prosecution of coalition forces is a possibility if, in fact, there was an allegation of, let's say negligence in a particular bombing raid. In fact, we've had those allegations already made. Although I'm sure they wouldn't be true, there would be allegations, I'm sure, concerning the traffic jam that occurred at the very end of the war where all of the vehicles were annihilated. Indeed, you could have each of our individual generals who would be identifiable by name, accused, falsely perhaps of allegations that the tribunal would have to investigate, and then it would be a matter of trial by press to a certain extent in the initial stages of the allegations?

General TAYLOR. It's hard for me to follow you on that track. Mr. JAMES. What I'm suggesting is that because our generals, our officers, our actions are well documented by the networks by individual names, and so forth, it is quite easy to make the allegation, and I'm sure our enemies would have no problem making an allegation, whether true or not, in relationship to specific individuals which would at least require some kind of tentative finding of no probable cause by an international tribunal if the allegations were made.

General TAYLOR. I'm sorry, I cannot follow you down that path. Of course, if it's merely a question of a single thing like what happened with the British where they had a bad piece of machinery which led to going away from the target, you can't bring people up before the court simply because they've done a particular thing which is negligent. You have to have negligency sufficient to amount to something which is intended.

Mr. JAMES. My point is, once the allegation is made, if indeed made, there at least has to be some kind of factual finding of some sort by the tribunal that you selected that there is no case, or otherwise. In the meantime, there's a passage of weeks or months and it could be strung out for years in regard to a series of very false allegations made one at a time. I can see that as a problem of opening it up to general jurisdiction.

General TAYLOR. If the tribunal is staffed as well as they usually are, there's no difference whether it's a victor or vanquished in which there is a question as to whether or not he or she should be tried. It doesn't work any worse on the vanquished than it does on the victor. There's always a problem of deciding whether to put that man or woman before the court or not, but this is not going to mean that it's a different sort of procedure just because the miscreant is a victor rather than vanquished.

Mr. JAMES. Obviously, what I'm concerned about is that general jurisdiction encompassing of all parties would leave a very fertile and attractive field for taking political advantage just by making an allegation, false though it may be. It is very difficult to unring a bell when an allegation has been made, and it would confuse the issue to the extent that it would be counterproductive even to have begun the trials of general jurisdiction. It would also detract from prosecuting the horrible, heinous crimes that were, in fact, committed or appear to have been committed by some individuals.

Mr. Mazzoli. Professor Bassiouni has a time problem. Would the other two panelists mind if he went at this point? Professor, you are recognized and we thank you very much for coming.

STATEMENT OF M. CHERIF BASSIOUNI, PROFESSOR OF LAW, DePAUL UNIVERSITY, AND PRESIDENT, INTERNATIONAL HUMAN RIGHTS LAW INSTITUTE

Professor BASSIOUNI. Thank you, Mr. Chairman and distinguished members of the committee. It's a privilege to be here before you and, as the chairman has kindly agreed to have my statement entered into the record, I hope that he would also agree to have the attachments, including the draft statute for the creation of an international criminal court which is a U.N. document which I had the honor of preparing for the United Nations and that is quite relevant to-

Mr. MAZZOLI. Without objection, that will be made a part of the record.

[See appendix.]

Professor BASSIOUNI. Thank you, Mr. Chairman.

I think it's important to bear in mind, Mr. Chairman and distinguished members of the committee, that there are a number of international crimes. There are 22 international categories of

crimes-aggression, war crimes, crimes against humanity, genocide, apartheide, international traffic in drugs, terrorism, slavery, torture and that, in the course of time, there have been various efforts at finding ways of enforcing those international provisions by establishing various mechanisms for the enforcement of international criminal law of which war crimes is one variety.

It is important, however, to keep in mind that in the heat of the emotion of the time we may sometimes be rushing headlong into something that we may find regrettable and yet, at the same time, we may lose a historic opportunity. I think this is a historic opportunity, for the establishment of a permanent international criminal court. We may not be able to have the court established and ready to function right away, but at least we can give it the necessary impulse.

This is not the first time this question has been before the international community. The Treaty of Versailles in 1919 sought the establishment of such a court and nothing came about. It seems that after each major conflict, we have great emotions and great excitement about prosecuting, usually the vanquished, and wanting to create an international system. Then, as soon as the conflict is over, we forget about it.

One of the main tragedies of World War I is that we missed the opportunity of prosecuting the Kaiser for crimes against peace, we missed to create an international criminal court to prosecute the German war criminals. We rejected-and I underscore that this was the position the United States-the possibility of prosecuting Turkish officials for violations of the laws of humanity in respect of the Armenian massacre and when World War II came upon us, we had great difficulties proving the existence of crimes against peace as an international crime and great difficulty extrapolating from war crimes the notion of crimes against humanity. Yet, since World War II, we have not yet codified international criminal law, we have let crimes against humanity literally fall by the legal wayside. We have left a variety of violations that we are now concerned with completely without attention.

May I just point out that in the internal civil conflict in Nigeria, 1 million Biafrans were killed in the 1960's; in the independence conflict of Bangladesh in 1972-73, 1 million Bangladeshis were killed by the Pakistanis. In 1973 Bangladesh considered a statute for establishing war crimes tribunal but nothing came of it and the reason was very simple. The new country did not want to prosecute people from a country that was going to be a neighboring one and risk future peaceful political relations. And, in my estimation, Kuwait will be reluctant to prosecute war criminals in Iraq because it is going to be looking forward to friendly relations with that country in the future.

That is the main problem when you leave the onus on the victim countries to establish ad hoc tribunals. We have witnessed the Pol Pot regime and the Khmer Rouge kill 1.5 million people and yet we do not hear any hue and cry for setting up war crimes tribunals. We seem to forget that the symbol of justice is the Greek goddess blindfolded, which means impartiality and fairness.

Impartiality requires the creation of a structure that would have credibility in the world community and acceptance. Fairness and

impartiality means that we do not seize only the opportunities of conflicts in which we are victorious to try to establish ad hoc war crimes tribunal to apply to the vanquished and overlook other conflicts in which we may have less of a political interest in doing it. Now, having said that, I think the creation of a permanent international criminal court is, indeed, possible and feasible. There are various mechanisms that could avoid some of the difficulties and problems that many countries seek to avert in terms of loss of sovereignty, in terms of the national obligation to prosecute which exists in different countries, in terms of an earlier question that Mr. James had raised about the secrecy of the investigatory process, of the prosecution's branch so that information and allegations do not leak out and become part of a propaganda war; that matters are properly documented before they are brought before a branch of the tribunal to act as a grand jury and issue an indictment with adequate probable cause; that matters be handled in a way which the draft statute that I presented to the United Nations covers and which is part of my written statement.

Now, let me move on to the present situation in the gulf. General Taylor mentioned earlier allegations, and the source is not Iraq; the source is U.S. military reports and U.S. reporters with information from U.S. military personnel, that a number of non-Iraqis, guest workers and residents in Kuwait have been tortured and mistreated by the Kuwaitis and simply dumped on the Iraq side of the border.

I think this goes to illustrate the fact that no one has a monopoly on being a good guy or a bad guy. The point is that if we have to establish a system of international justice, it has to be fair and impartial and apply to all those who violate the rules of international law.

I have been somewhat involved since October with this situation and it was my recommendation to the Secretary-General of the United Nations that he establishes a commission to investigate the allegations of violations of the international law on conflict during the occupation of Kuwait. There is presently a commission that the Secretary-General has dispatched to Iraq and Kuwait to look into these matters.

The United States has been particularly interested in this matter since early October. A number of meetings have taken place at the Department of State and the Department of Defense; contacts have been made with the Kuwaiti and Saudi authorities as well as the Egyptian authorities. I have looked into the matter at various stages and consulted with certain authorities that I would prefer not to make public-so that it does not become, as Mr. James was saying, a subject of propaganda speculation-but there are three options that were being discussed and they are the following:

One is the establishment of an investigative commission either by the U.N. or by the Kuwaiti authorities or by the Gulf Cooperation Council States to list the violations. Unfortunately, due diligence was not taken from the beginning of the crisis to gather the evidence, to obtain the witnesses, to obtain the corroborating facts. Whatever little evidence that I have been able to see, working with Amnesty International and other human rights organizations, is that we may be dealing with a total of 2,000 victims. So that the