The time was 2.30 p.m. on Friday 22 March, the place the top floor of the Washington Hotel, Washington DC. Lined up on the platform in the glare of the television lights were nine elderly men, all into their seventies or beyond. Their names were Walter Brudno, Smith Brookhart, Nick Doman, Benjamin Ferencz, Whitney Harris, Charles Horsky, Henry King, Daniel Margolies and Walter Rockler, and they had all been prosecuting lawyers at the Nuremberg Trial and Subsequent Proceedings in 1945-9. Their audience was just as extraordinary: over a hundred men and women who had been lawyers, interpreters, translators, research analysts, secretaries, journalists and photographers at those trials, and who had come from all over the world to attend the 45th anniversary reunion of the International Military Tribunal. A gathering like this was never going to occur again, and the younger generation present trod softly in the presence of people who had cross-examined the men who for our century have been the definitive ‘war criminals’.
The lawyers were to address the reunion on the subject of ‘Nuremberg, the Gulf War and International Law’ – the reason for the intense media coverage. Time had not dealt equally kindly with all of them when it came to putting their thoughts into words, but several spoke with undiminished fluency. As the afternoon unfolded, what was most striking was the strength of the consensus that Saddam Hussein should be put on trial for war crimes, either in person, if he could be caught, or in absentia.
There is a precedent for the latter procedure, since Martin Bormann, head of the Nazi Party Chancellery, was tried in absentia at Nuremberg and sentenced to death. (He is thought to have died, possibly by his own hand, during the last days of the Reich, although, as with several other Nazi figures, alternative legends abound: I once spoke to a former military policewoman who worked at an Allied prison camp in the immediate aftermath of the war, and who recalled that one night there was a break-out and she overheard people saying: ‘We’ve lost Bormann.’) However, Charles Horsky thought that it would probably be diplomatically, politically and legally impossible to try a head of state in absentia, not least because he would still have control of the documentary evidence, and a case based on prima facie evidence would be inadvisable. An unsympathetic replacement government, on the other hand, might make him available to a tribunal, or if he were to seek asylum in another country he could be either tried in absentia or extradited to face trial.
What would Saddam be charged with? He and members of his Revolutionary Command Council could, in the opinion of the Nuremberg prosecutors, be charged with crimes against peace, war crimes and crimes against humanity. The first of these categories would be represented by Iraq’s invasion and annexation of Kuwait, in violation of a 1963 treaty in which it recognised Kuwait’s sovereignty. The second category, war crimes, would include the mistreatment of prisoners of war and civilians: in the case of the former, humiliation by television and also possibly torture (though the tabloids’ screaming headline, ‘The Bastard’s Torturing Our Boys,’ has now been discredited), and, in the case of the latter, deportation. There are Geneva Conventions against these, and also against pillage and plunder and the mistreatment of the wounded and the sick, but as Walter Rockler observed, ‘we must recognise that some of these rules are minor benevolences in the totally unlimited savagery that is war’ – in other words, it is not always realistic to expect them to be observed. He nevertheless felt that violation of them should be actionable.