would ideally like to change the international system but the challenge is what can we do in the here and now to make a difference. Now I would like to simply make two specific points with respect to some reasons why we should take effective action on the war crimes and then discuss what I think that ought to be, though I think that's less important on the details, and then to rebut one argument that I heard from one or two of my panelists, happily not from Professor Levie, that I think can ensnare us.

First, I think that we should note that there is an obligation now under international law, as my colleague Professor Levie indicated, under the Geneva Conventions, to search out and either try or extradite those that have committed grave breaches under the conventions. At least the information that we have now strongly suggests that Saddam Hussein would be in that category. Certainly if he ordered the taking of large numbers of hostages, or if he ordered the torching of those oil wells, those are clearly grave breaches under the 1949 Civilian Convention which the Security Council itself says is applicable in this case and which Iraq is by. So, we have to realize that this is not something we are inventing out of whole cloth. There is a mechanism that is the most important mechanism in existence in law today to enforce the human rights provisions of these conventions and we have an obligation as a nation to carry out that provision.

The second point that I would like to make is a little more general, if you will bear with me for just a moment, Mr. Chairman. I have been, over the last few years, worrying a great deal about the whole question of war and peace and how do we seriously move to a more peaceful world. What is a new world order? How do you get there? What are the components producing aggressive war? What can we do to reduce its incidence in the future? And I am persuaded, while there's a great deal of difference of view in this field, that a major reason for aggressive war in the modern world is an interaction between an aggressive totalitarian regime on the one hand, typically a single-party, highly militarized regime bent on the use of aggressive force, and the impact of the entire global systemic system in having a deterrence failure on the other side of the equation. That is, the legal system hasn't worked to deter; the military coalitions, the political coalitions, whatever it is, all together have had a failure in a particular setting in terms of deterring the radical regime that wanted to use force.

Now one of the things that we're learning about that model is that many of the leaders of these radical regimes really don't care a great deal about their own people. They're willing to have 50,000 or 60,000 or larger numbers of their people killed in the process. So our deterrence model is going to need to take very seriously the question of deterring the regime elites themselves. What can we do at the margin that will add an effective element of deterrence on those regime elites is a very significant question in deterring aggressive war itself for the future?

Now in the past, Mr. Chairman-and I would certainly concede having taught this area for many years, that it hasn't been taken terribly seriously-conventional wisdom is not in favor of war crimes trials. Conventional wisdom in this area is concerned about problems of exacerbating future tensions between nations. It is con

cerned about all the issues we heard about this morning, victor's justice and all the rest.

I would submit that if we are serious about a new world order, that this is a very important area where we really should have new thinking. We really are going to have to rethink this area and to begin to look very seriously at how do we bring to bear kinds of deterrent sanctions that will bear directly on regime elites even if it is at the margin that we are doing it.

Now what do I think, should be done on the specific merits, again without putting this forward as any kind of definitive view but simply some thoughts on specifics as to what we ought to do? Specific No. 1, it is critically important that we have one or more capable international commissions that are set up to find the facts and issue reports, so that there can't be any doubt in the future as to what has happened here. That is, we need scrupulously fair reporting in these cases. I, personally, would like to see the Security Council establish a commission and I'm pleased that the SecretaryGeneral has established one. I think it should be even more formal. It seems to me we could get it from the Security Council, if we wanted it, and it would be a very useful thing to do. I, personally, think it would make sense also for the Gulf Cooperation Council to establish such a commission so that one has a regional perspective also on the extraordinary atrocities that have been committed.

Second, I'd like to draw attention to the importance of the appropriate mechanism bringing indictments. Whether or not there are in the end trials for all of those involved, I believe it is very important to bring indictments. The indictments that could be brought for grave breaches of the convention would simply be given to Interpol and in that setting would almost certainly trigger the automatic provisions in the Fourth Geneva Convention. That is, 166 nations around the world would be obligated to seek any of the people on that list out and to try them or extradite them, so that anybody on that list in the future is going to have their ability to travel internationally to many countries in the world dramatically reduced. I think that's worth doing.

The third point is I do favor war crimes trials and, if necessary, under appropriate safeguards, I believe that the interests of peace here and the interests of human rights in war time is sufficient that we should be willing to undertake those trials even in the absence of the defendants' turning themselves over. I would give them an opportunity, Mr. Chairman, to turn themselves over. I would give them notice and give them every opportunity to come and participate in their own defense, provide them with the right to counsel and a scrupulously fair trial, but I personally would be in favor of saying it is time for new thinking; we have had enough of these kinds of outrages in the international community. We are going to start taking this seriously.

Let me just add one point on this. I do not believe that any such tribunal could ever be set up lawfully by the General Assembly. The General Assembly acts under a provision in article 11 of the Charter of the United Nations which indicates that anything in which "action is necessary must be referred to the Security Council." I believe that the United Nations can only establish ad hoc war crimes tribunals, or any other kind that becomes a binding

action, by acting either through the Security Council or through multilateral treaties, the normal route accepted by all the parties.

So, I do not believe-and I think it's important to point this out because there can be quite some concerns about the notion of the General Assembly doing whatever it wanted to by a highly politicized vote and I think those concerns are real-but it cannot do it lawfully under the charter. It can only be the Security Council in these settings.

I personally believe that the best way to set up the ad hoc tribunal-and I would say that's what we want here, is not to wait for something else but to set it up by the Security Council. My colleague, Professor Levie, might be right that the Soviets in the end or the PRC in the end would not like this, but which of us would have expected, Mr. Chairman, ahead of time that we would have had the degree of Security Council support for the use of force in the gulf crisis? And we can note that those countries have voted in the General Assembly against Iraq with a very clear human rights condemnation. Even Cuba and Yemen, which have been fellow travelers with Iraq, did not vote in the General Assembly with Iraq in that particular vote on human rights condemnation. So I think that we ought to try the Security Council. We should make an effort to take it seriously.

The Security Council mandate has been atrociously breached by Iraq. How can we have the Security Council taken seriously if it tells the Iraqis during the conflict not to commit violations of the Fourth Geneva Convention and then it goes forward and commits those violations and the Security Council does nothing after that? I think we have a stake in world order in getting the Security Council to do something in that setting.

Along with that, by the way, if we couldn't get the Security Council to do it, my second option that I would favor most would be either the coalition as a group or the Gulf Cooperation Council.

I think, finally, the last option would be something that would be done through a number of courts of national governments, Kuwait, the United States, and other coalition member states, perhaps Britain, for example.

Mr. Mazzoli. Professor, I hate to hurry you along but I have a problem about noon. So, if you could summarize in a couple of minutes your last point, then we could get to questions. Is that possible? I hate to rush you.

Professor MOORE. It goes faster when I read my testimony.

Mr. MAZZOLI. Excellent. We'll have that opportunity to read it. Professor MOORE. Let me just finish with one more brief rebuttal to a point that has been made.

First, I think we should not take the advice that says that we should do nothing here unless we succeed in establishing an international tribunal. That is a formula for inaction. My colleague again has said very well, how many years we've been trying to get a permanent international criminal tribunal. Such a tribunal does have a variety of problems. I would support a good tribunal, but I do not see it realistically on the horizon, and to tie this to that means to take no action.

The other point that I am a little troubled by is this argument somehow that we can't do anything because we would have to

bring U.S. Armed Forces before the tribunal or others in the region. We did not do that at Nuremberg. I regard it as a shocking juxtaposition here to be making that argument. The coalition force had an extraordinarily carefully conducted campaign in coordination with the laws of war, one of the most careful in human history.

We have a mechanism already in place for anyone that violates the laws of war. It is prosecution under the Uniform Code of Military Justice and the military has been very good about that. We need not be troubled that somehow we're having victor's justice if we have it applied to the other side.

And in that, Mr. Chairman, just let me call to your attention that on these allegations about human rights violations on the Kuwaiti side, these issues were before the United Nations Human Rights Commission on March 6 and the Commission rejected an amendment made by Cuba and Iraq.

[The prepared statement of Professor Moore follows:]

PREPARED STATEMENT OF JOHN NORTON Moore, Walter L. BROWN PROFESSOR EMERITUS OF LAW, UNIVERSITY OF VIRGINIA

"The principles of the charter [at the Nuremberg Trials], no less than its wide acceptance, establish its significance as a step in the evolution of a law-governed society of nations. . . .

... If the nations which command the great physical forces of the world want the society of nations to be governed by law, these principles may contribute to that end. If those who have the power of decision revert to the concept of unlimited and irresponsible sovereignty, neither this nor any charter will save the world from international lawlessness."

Justice Robert H. Jackson, in the preface to his official report as United States Representative to the Nuremberg Trials, February 1949.