When American troops were captured in Iraq, President Bush said that he expects them to be treated humanely. "If not," the President warned, "the people who mistreat the prisoners will be treated as war criminals."
President Bush's remarks drove home the importance of strict adherence to the Geneva Conventions and the question of how war crimes trials may be convened in post-war Iraq and who will conduct them. The US plan for war crimes trials covers violations committed before the current conflict began. American officials recently released a list of Iraqis who would face trial for past crimes.
The American military takes the Geneva Conventions seriously. The main provisions of the Conventions are repeated in the rules of combat of the US armed services. Similar rules to govern the conduct of the United States Army during the Civil War have guided the American military since 1863, when a code of 159 articles was drafted by Francis Lieber, a German immigrant who became a professor of law at Columbia University.
Among the reasons the American military is committed to respect for the Geneva Conventions is a concern about reciprocity. By treating others properly, American forces strengthen their argument that they themselves should be dealt with in accordance with the Geneva Conventions.
But the treatment accorded the prisoners of various nationalities (Arab, Uzbek, Ughuir, Chinese) at the US military base at Guantanamo Bay, Cuba, shows that President Bush and his top advisors apply the Conventions when it suits them. Not one detainee has been accorded prisoner-of-war status; none has been granted a hearing as required by the Geneva Conventions in cases of doubt. Prisoners, it seems, are denied legal protection so that coercive interrogations can proceed without interference. This is no way to set an example for the humane treatment of captured combatants.
Having said that, whatever America does at Guantanamo does not justify Iraqi mistreatment of American or British prisoners. Every government has an independent duty to comply with the Geneva Conventions.
Unfortunately, judging by the past record of Saddam Hussein's forces, it is likely that they will commit many war crimes. As a long-time advocate of bringing Saddam and his cohorts to justice for their crimes against the Kurds, the Marsh Arabs and many others, I endorse the Bush Administration's view that proceedings should not be limited to offenses committed in the current war. But those charged with responsibility for such crimes should be brought before an international--not American--tribunal.
Following World War Two, the victorious allies tried Germans and Japanese for war crimes at Nuremberg and Tokyo. Although those proceedings were admirable in many ways, including in the care taken to protect the procedural rights of the defendants, they have always been tainted by the charge of "victor's justice."
Nearly a half-century later, the world embarked on a better course with the establishment of the International Criminal Tribunal for ex-Yugoslavia (ICTY) in 1993. It is not susceptible to the charge of victor's justice, because the entire world is represented by its judgments. The ICTY has convicted Serbs, Croats, and Bosnians, and recently indicted several leaders of the Kosovo Liberation Army. Although the most high-profile defendants, Slobodan Milosevic and Vojislav Seselj, are doing their best to discredit the tribunal, they will fail. The charge of bias is simply not sustainable.
If the US tries Iraqi officials before a US military commission, as leading American defense officials have suggested, it would reverse the progress made in the decade since the establishment of the tribunal for ex-Yugoslavia. Ironically, the American proposal coincided with the inauguration of the International Criminal Court. An even blacker irony is that America and Iraq were two of the seven governments that voted against its establishment in Rome in 1998 when the treaty for the court was adopted.
If the US continues to do all that it can to minimize civilian casualties, it has nothing to fear from an international tribunal. The fact that errant bombs or missiles kill some civilians does not make their deaths war crimes. The US, having flouted international justice by disregarding the Geneva Conventions at Guantanamo, would make matters worse by reverting to a system in which military victors doff their uniforms and attire themselves in judicial robes.
"Military justice is to justice what military music is to music," George Bernard Shaw once quipped. The bite in his comment is justified. "Victor's justice" is no longer acceptable.