Maybe you can address yourself to the point of this question of political decisions and how that works. Professor MOORE. Let me say again, Mr. Chairman, to the extent that the points you have just made are borne out by the facts, then they would come out in the commissions that I am recommending. Mr. MAZZOLI. Then would the allies be accused of atrocities, and if you say it's an atrocity to have an oil well on fire and it's empirically proved that 10 percent of those oil wells were set afire because of fire from the air, missiles and so forth, would that mean that the pilots who flew those planes would be guilty of atrocities? Professor MoORE. No, sir, it doesn't. And I think this is a critically important discussion because the fact that there is incidental damage from combat operations aimed at combat facilities does not make one a Mr. MAZZOLI. Well, maybe the Iraqis might consider setting wells afire to be a combat responsibility that they have if we set them afire for a combat responsibility. Professor MOORE. Are you, Mr. Chairman, seriously arguing that an effort to blow up 600 to 700 oil wells as the Iraqis withdraw is anything other than a grave breach and a war crime of the convention, if that occurred? Mr. Mazzoli. I'm just simply moving us to the decision about sweeping things under the rug and whether that's a characterization that would cover the political decisions that nations-and we made them apparently after the Korean War, to send the North Koreans back home rather than to keep them. We could have kept them, but we decided, for some reason, it was prudent, or appropriate, or correct, or balanced, or something to send them back. We could have kept them. We could have put them in the pillory and we could have brought them up. Apparently, we didn't do it. I'm kind of curious as to how your research has shown those decisions to have been made and what reason drives those decisions? Professor MoORE. We function in a real world, of course. But I would stick by my characterization, Mr. Chairman. I think that if we, in this setting, with the entire international community, with the authorization of the Security Council and the extraordinary clarity of the violations that take place now, do not take some form of effective action, I regard it as a minimum characterization of sweeping it under the rug. Mr. MAZZOLI. OK. I applaud that. Professor Levie, you have dealt with this question, as Professor Taylor has, about this thing of the victor-vanquished and the question of whether or not this discussion ought to be open to activities pursued not just by the vanquished but by the victor, too. Can you give me a little idea of how that works and to what extent? We decided at Nuremberg, and you're very familiar with the London Agreement and the Nuremberg Charter, to just leave this to the Axis Powers and that's it. Professor LEVIE. The difficulty with the argument that it's the victors punishing the vanquished is, Who else is going to punish them? You try to get neutrals-Portugal, Spain and Sweden were the only major neutrals after World War II. If you had asked them, they would have refused to sit because they wouldn't want to get in the middle. Are you going to have the accused try themselves? The Germans did that at the end of World War I and it was a fiasco. So the victors are the only ones who can try the vanquished. I don't think that the trials after World War II exemplified victor over vanquished because they were as fair as trials could be. There were hundreds of convictions that were set aside and there were hundreds of acquittals. Mr. MAZZOLI. How about the argument of looking at activities not just by the Axis but by the other participants in the war? Not just the fairness of the conduct of the trials dealing with the Axis accused but should the mandate, if we were going to go to war, or if the U.N. Security Council were to open up, should it go to anyone involved in the Kuwaiti theater of operations? Professor LEVIE. No, I don't think so. Every country does its own policing of that kind. You know the Calley case. We tried that as a murder case. It was a war crimes trial and there were a dozen others. I sat in a court in Korea where a man who had just come back from a patrol saw a North Korean being interrogated and he picked up his rifle and shot and killed him. We tried him for that, for murder; it was a war crime. We sent him to jail for 40 years. Mr. MAZZOLI. Good. My time has expired. The gentleman from Oregon. Mr. KOPETSKI. Mr. Levie, as a followup to the chairman's line of questioning, I don't quite understand, therefore, the distinction legally in this jurisdictional affair, as it's described, the mandatewhy, if we're talking about Iraqis, it's OK to prosecute them, but if it's a Saudi Arabian, then the tribunal would not have jurisdiction. Professor LEVIE. The Saudi Arabians would, presumably, try him themselves. Mr. KOPETSKI. Yes, but what if the Iraqis say, "We're going to try our own as well, so you stay out of it."-and the record shows that won't happen. Isn't that correct? Professor LEVIE. Unfortunately, the U.S. Supreme Court held after the Civil War that you could try the enemy but the enemy could not try you. Mr. KOPETSKI. Well, let's assume that there's a new and different government in Iraq and that new government says, "No, no international court; we'll take care of ourselves." Would that be sufficient for you? Professor LEVIE. That would be just what the Germans did—— Mr. KOPETSKI. No, no that's not the question. The question is: Would you support thein? Professor LEVIE. No, I would not. That's not a real trial. Mr. KOPETSKI. And you think there would be justice if it was a Saudi Arabian trying a Saudi Arabian in a Saudi Arabian court? Professor LEVIE. Yes. Mr. KOPETSKI. I see. Well, I think people will think about that logic for a while. Let me ask-first, let me ask General Taylor the same question. General, in terms of the-should the jurisdiction of an international tribunal be for all forces involved in the Kuwaiti theater? Or should it be limited to the Iraqi army? General TAYLOR. Well, I think I would stick to what I said before, that if you were having a tribunal set up-I think much of the desire of my friends here to have a permanent court is precisely for the purpose of avoiding that it's always the vanquished who get tried. If you have a permanent court, then it will not be the case. Of course, you are quite right in saying that most likely the victors are the ones that will start this off. But, if you have a tribunal that is not a tribunal of the victors but a tribunal which is set up independently, then I see an opportunity to have a situation where both victors and vanquished can appeal to the court. Take the bombing of Dresden during World War II. There are many, many people who think that was a war crime with some good reason. If that question had been brought up before the tribunal at Nuremberg, they would have had no jurisdiction to pursue it because it was a tribunal of victors. Mr. KOPETSKI. But let me just comment about the full picture of immediate past World War II history and that is, in terms of the victors punishing the vanquished, I don't think that's true because I think that after World War II what we did was unheard of in world history. That is, through the Marshall Plan, we rebuilt Germany. We rebuilt Japan. I think that's part of the picture as well and should be taken into account. So, I don't think it was a victorvanquished situation. I hope Nuremberg was a moral decision by the world community that we need to get to the facts and apply international law. General TAYLOR. I couldn't agree more. But it's not only a matter of whether it was unfair, or whether many, many people will think it was unfair, which as time goes by is just about as important. I do not think that the Nuremberg trial was victors over the vanquished in the sense that it was somehow tried one way. I think it was a fair trial. But you can well understand that most Germans don't look at it that way. They think that we never got a chance to say that the bombing of Dresden was a bad affair and something that should be taken account of. They didn't have such a chance. I am trying to make the matter better. I am not saying that what we did was bad. I'm proud of having been in Nuremberg. I am proud of what we did there. I have said so and written books about it again and again. But, I would like to make it better. And I think that having an independent court that is a two-way street and not a one-way street will be an advance. Mr. KOPETSKI. Let me ask just one final question, Mr. Chairman. What if we, the United States, go to the United Nations, whether it is the Security Council or the General Assembly, and we lose? What does that say? What do you think the long-term ramifications are in terms of a new world order based upon law and enforcement of law in our society? And I close with that question. All three individuals-start with General Taylor and then Professor Levie. General TAYLOR. I was puzzled because I thought it was not I who raised this matter. Would you say it again? Mr. KOPETSKI. What do you think the ramifications are if we, the United States, go to the Security Council or the General Assembly and ask for a tribunal and they say no? General TAYLOR. Then we ought to try something else. I certainly didn't mean that unless we got the tribunal from the United Nations that we're going to say, "Oh, too bad." and then go on to something else. If there are other ways of doing it, I would be all for it. What I said was that it appeared to me that it was the best avenue to take, but I did by no means intend to say that it was that or nothing. Mr. KOPETSKI. OK. Professor Levie. Professor LEVIE. In my presentation, I gave four alternatives and I certainly believe that if you have a veto in the Security Council, that you shouldn't give up then. You should go on with the other alternatives until you get one that you feel is viable and you want to proceed with. Professor MOORE. Congressman, the answer to that is that we would do exactly as we did on resolution 686 itself. The way a experienced diplomat works the United Nations is that you know the answer on the votes before you go to the vote. So, obviously, we should not go to a vote on that in the Security Council if, in fact, we can't get it. I would strongly urge that we try. I wonder, Mr. Chairman, if I might have 1 second on this to amplify an excellent point that you made. Since I agree with you on this point, and it's important to me to be on the record with this, I'd like to make the point. I want to say very clearly that I think it is very important for the United States-I personally know this committee feels the same way-to work for human rights and fundamental principles wherever they are abused in the world. If these reports that we have heard here are accurate as to mistreatment of Palestinians and others, I am with you, Mr. Chairman. These are things that have to be addressed as well. My point, though, that I wanted to make on this is really several fold. One is that what we're talking about in one case is an extraordinarily clear pattern of violations by a government, and in the second we are talking about allegations that are surfacing now when it is not clear that a government, in fact, was even effectively in charge. Here we have an aftermath of troops pulling out. We certainly do not have any allegations that these are policies of the government. In that setting, that was the setting in which the United Nations Human Rights Commission did address the potential of linkage of these issues on March 6. The linkage was supported only by the Iraqis, by the Cubans, and by the PLO delegate, and was defeated soundly and the U.N. Human Rights Commission did not link. Mr. MAZZOLI. This has been an excellent panel. We've really gotten quite a lot of information from you three and then from our fourth witness earlier. We thank you very much. There may be some need for us to send questions in writing as a followup on a point we may not have gotten into or need a little amplification on. So you'll permit us, I hope, to send material like that, or phone calls, and you can then perhaps get to them. We thank you very much and the subcommittee stands adjourned. [Whereupon, at 12:25 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.] APPENDIX EIGHTH UNITED NATIONS CONGRESS ON THE PREVENTION OF CRIME AND THE TREATMENT OF OFFENDERS, HAVANA, CUBA, 27 AUGUST TO 7 SEPTEMBER 1990, DRAFT STATUTE, INTERNATIONAL CRIMINAL TRIBUNAL AND THE TREATMENT OF OFFENDERS A/CONF.144/NGO ISISC Havana, Cuba, 27 August to 7 September 1990 31 July 1990 ORIGINAL: ENGLISH Item 5 *International Institute of Higher Studies in Criminal Sciences Institut Superieur International des Sciences Criminelles Istituto Superiore Internazionale di Scienze Criminali DRAFT STATUTE INTERNATIONAL CRIMINAL TRIBUNAL The designations employed, the presentation of the material and the views expressed in this paper are those of the International Institute of Higher Studies in Criminal Sciences (ISISC), and do not necessarily reflect the practices and views of the United Nations in any of these respects. (83) |