X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A cavernous room in the Pentagon, some experts report, holds boxes and boxes of documents, tapes and other evidence of war crimes by Iraq before the current Gulf War. They gather dust after an unsuccessful, decade-long effort to form an international tribunal to hold Saddam Hussein accountable. But the reach of international law is longer and stronger today, add experts and scholars, and Hussein and members of his regime will face war crimes prosecutions stemming from the latest Gulf War. The only uncertainty, they add, is where and by whom. “I think there will be prosecutions in the post-Iraq context,” said Pamela Falk of New York University School of Law. “There’s a real sense of justice in bringing war criminals to trial. And, there is absolutely the threat of international prosecutions, not just prosecutions by the United States, in this context, and it’s not at all mushy.” The law of war crimes is international law, and it may seem mushy to some because it is not a body of law similar to what U.S. citizens know of their criminal law, for example, said Charles Shanor of Emory University School of Law. “The reason is that treaties and customary international law [customs and principles generally accepted by nations] don’t have a unitary enforcement system in the way that we do in this country, with police and courts all subject ultimately to the same civilian control and authority process,” Shanor explained. “But that isn’t to say there is no law.” Shanor, Falk and a sampling of other international law experts say, based on war crimes law and recent news reports, Iraq faces potential prosecution for war crimes that might include: � Parading prisoners of war in front of cameras; � Broadcasting interrogations of POWs; � Filming of the dead and wounded; � Perfidy in carrying a white flag to set up ambushes and other ruses; and � Disguising a weapons base as a hospital. On the U.S. side of the equation, there has been criticism of the U.S. military for failing to stop the filming of Iraqis captured by British and U.S. forces. But some experts don’t view that in the same manner as the Iraqi videos of U.S. POWs. “We don’t know what will occur, what can occur,” said Falk. “Obviously the U.S. is vulnerable to questions for any kind of attacks or mistakes against civilian populations.” However, she added, the international legal community has reached a consensus that war crimes are systematic. “They are meant to be against populations with intent to commit the crime,” Falk explained, adding, “I don’t see any basis for intent here.” CRIMES OF WAR War crimes are “pretty well defined,” said Michael Scharf of Case Western Reserve University Law School and director of the Cox Center War Crimes Research Office. They are defined in both treaty law and customary international law, the generally accepted common law of nations. The centerpiece of that treaty law are the four Geneva Conventions of 1949 which regulate war between and within states and which has been signed by all nations. The four conventions deal with the wounded and sick on land; the wounded, sick and shipwrecked at sea; prisoners of war; and the fate of civilian noncombatants. If an issue rises to the level of customary international law, everybody is bound to it whether or not they are signatories to a treaty covering that crime, said Shanor. All nations are bound by the consensus against the use of weapons of mass destruction, the use of civilians as human shields and the torturing of captives, he said, adding, “All of those things and more are matters of customary international law. We couldn’t argue for a minute that we don’t have to abide by those and nor could Iraq argue that.” There is disagreement about what the full body of war crimes is, said Steven R. Ratner of the University of Texas School of Law. “The United States has said any violation of the conventions or customary law is a war crime,” said Ratner. “Not everybody has that view.” For example, some would say a trivial violation of the Geneva Convention, such as a military commander refusing to give an allowance to a subordinate, is not a war crime, explained Ratner. “The U.S. view is any violation of the law of war is a war crime.” Exposure of POWs to public curiosity is not on a list of “grave breaches” in the conventions that require prosecution, but it could be a violation of the requirement to protect prisoners from insults. Grave breaches, Ratner noted, include the willful killing, torture or inhumane treatment of prisoners. Although war crimes today are well defined, Scharf added, “Determining what falls within those definitions is often a little tricky and depends on who is doing the judging.” THE ENFORCERS In pursuing war crimes, there are two kinds of accountability, said Ratner: holding a state responsible and holding individuals responsible. “A state whose troops violated the laws of war can be subject to all sorts of sanctioning mechanisms: fewer friends in the world, diplomats cooler to it, economic sanctions,” he explained. “One of the reasons Iraq was so ostracized is it did commit a war crime using poison gas against Iran and its own people.” Recent U.S. law allows private suits in U.S. courts against terrorist states. Just last week, the Treasury Department freed a portion of Iraq’s frozen assets in this country to pay part of a multimillion-dollar judgment awarded to a group of American hostages used as human shields during the first Gulf War and a group of American workers taken hostage on the Kuwait-Iraq border and allegedly tortured by Iraq. The U.S. can prosecute individuals for war crimes in military commissions and in general courts-martial, said Jordan Paust of the University of Houston Law Center. “We will prosecute our people if accused of war crimes in general courts-martial,” he explained. “It may be imperfect, but we’ve prosecuted our own in every war we’ve been involved in.” He noted the My Lai courts-martial from the Vietnam War. The U.S. typically has prosecuted enemy war crimes in military commissions. These commissions have a war-territory limitation: They must operate in a theater of war or in occupied territory, said Paust. On the international side, war crimes cases can be brought to the World Court. The U.S. has participated in World Court proceedings even when it was not to its advantage, said New York University’s Falk. International tribunals, like those now in place for Rwanda and Bosnia atrocities, also could be used, but would require U.N. Security Council support. Those tribunals, said Falk, might be perceived as a fairer forum than a U.S. military commission, which may not be as open to the public. A recent and potentially powerful mechanism for pursuing war crimes is the growing and controversial concept of universal jurisdiction. It is based on the belief that some offenses are so serious in international law, such as war crimes and crimes against humanity, that there are no borders. A nation has a duty to search for and prosecute an offender within its borders, regardless of the person’s nationality, or extradite the person to a nation that will try him. Universal jurisdiction is widely accepted in almost all member countries of the United Nations, said Falk. U.S. law incorporates it, she added, noting that it was used to indict Osama bin Laden in absentia in federal court for the World Trade Center bombing.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.