SENATE RESOLUTION 179--RELATING TO THE INDICTMENT AND PROSECUTION OF SADDAM HUSSEIN FOR WAR CRIMES AND OTHER CRIMES AGAINST HUMANITY (Senate - February 23, 1998)

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Mr. SPECTER submitted the following resolutions; which was referred to the Committee on Foreign Relations:

S. Res. 179

Whereas, the International Military Tribunal at Nuremberg was convened to try individuals for crimes against international law during World War II;

Whereas, the Nuremberg tribunal provision which held that `crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced' is as valid today as it was in 1946;

Whereas, on August 2, 1990 and without provocation, Iraq initiated a war of aggression against the sovereign state of Kuwait;

Whereas, the Charter of the United Nations imposes on its members the obligations to `refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state';

Whereas, the leaders of the Government of Iraq, a country which is a member of the United Nations, did violate this provision of the United Nations Charter;

Whereas the Geneva Convention Relative to the Protection of Civilian Persons in Times of War (the Fourth Geneva Convention) imposes certain obligations upon a belligerent State, occupying another country by force of arms, in order to protect the civilian population of the occupied territory from some of the ravages of the conflict;

Whereas, both Iraq and Kuwait are parties to the Fourth Geneva Convention;

Whereas, the public testimony of witnesses and victims has indicated that Iraqi officials violated Article 27 of the Fourth Geneva Convention by their inhumane treatment and acts of violence against the Kuwaiti civilian population;

Whereas, the public testimony of witnesses and victims has indicated that Iraqi officials violated Articles 31 and 32 of the Fourth Geneva Convention by subjecting Kuwaiti civilians to physical coercion, suffering and extermination in order to obtain information;

Whereas, in violation of the Fourth Geneva Convention, from January 18, 1991 to February 25, 1991, Iraq did fire 39 missiles on Israel in 18 separate attacks with the intent of making it a party to war and with the intent of killing or injuring innocent civilians, killing two persons directly, killing 12 people indirectly (through heart attacks, improper use of gas masks, choking), and injuring more than 200 persons;

Whereas, Article 146 of the Fourth Geneva Convention states that persons committing `grave breaches' are to be apprehended and subjected to trial;

Whereas, on several occasions, the United Nations Security Council has found Iraq's treatment of Kuwaiti civilians to be in violation of international law;

Whereas, in Resolution 665, adopted on August 25, 1990, the United Nations Security
Council deplored `the loss of innocent life stemming from the Iraq invasion of Kuwait';

Whereas, in Resolution 670, adopted by the United Nations Security Council on September 25, 1990, it condemned further `the treatment by Iraqi forces on Kuwait nationals and reaffirmed that the Fourth Geneva Convention applied to Kuwait';

Whereas, in Resolution 674, the United Nations Security Council demanded that Iraq cease mistreating and oppressing Kuwaiti nationals in violation of the Convention and reminded Iraq that it would be liable for any damage or injury suffered by Kuwaiti nationals due to Iraq's invasion and illegal occupation;

Whereas, Iraq is a party to the Prisoners of War Convention and there is evidence and testimony that during the Persian Gulf War, Iraq violated articles of the Convention by its physical and psychological abuse of military and civilian POW's including members of the international press;

Whereas, Iraq has committed deliberate and calculated crimes of environmental terrorism, inflicting grave risk to the health and well-being of innocent civilians in the region by its willful ignition of 732 Kuwaiti oil wells in January and February, 1991;

Whereas, President Clinton found `compelling evidence' that the Iraqi Intelligence Service directed and pursued an operation to assassinate former President George Bush in April 1993 when he visited Kuwait;

Whereas, Saddam Hussein and other Iraqi officials have systematically attempted to destroy the Kurdish population in Iraq through the use of chemical weapons against civilian Kurds, campaigns in 1987-88 which resulted in the disappearance of more than 182,000 persons and the destruction of more than 4,000 villages, the placement of more than 10 million landmines in Iraqi Kurdistan, and ethnic cleansing in the city of Kirkuk;

Whereas, the Republic of Iraq is a signatory to international agreements including the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, and the POW Convention, and is obligated to comply with these international agreements;

Whereas, Section 8 of Resolution 687 of the United Nations Security Council, adopted on April 3, 1991, requires Iraq to `unconditionally accept the destruction, removal, or rendering harmless, under international supervision of all chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support, and manufacturing facilities';

Whereas, Saddam Hussein and the Republic of Iraq have persistently and flagrantly violated the terms of Resolution 687 with respect to elimination of weapons of mass destruction and inspections by international supervisors;

Whereas, there is good reason to believe that Iraq continues to have stockpiles of chemical and biological munitions, missiles capable of transporting such agents, and the capacity to produce such weapons of mass destruction, putting the international community at risk;

Whereas, on February 22, 1993, the United Nations Security Council adopted Resolution 808 establishing an international tribunal to try individuals accused of violations of international law in the former Yugoslavia;

Whereas, on November 8, 1994, the United Nations Security Council adopted Resolution 955 establishing an international tribunal to try individuals accused of the commission of violations of international law in Rwanda;

Whereas, more than 70 individuals have faced indictments handed down by the International Criminal Tribunal for the Former Yugoslavia in the Hague for war crimes and
crimes against humanity in the former Yugoslavia, leading in the first trial to the sentencing of a Serb jailer to 20 years in prison;

Whereas, the International Criminal Tribunal for Rwanda has indicted 31 individuals, with three trials occurring at present and 27 individuals in custody;

Whereas, a failure to try and punish leaders and other persons for crimes against international law establishes a dangerous precedent and negatively impacts the value of deterrence to future illegal acts;

Whereas, on February 17, 1998, the President of the United States outlined his policy on engaging in a military action against Iraq and stated that his purpose is `to seriously diminish the threat posed by Iraq's weapons of mass destruction program' and further stated that if a United States military operation does not prevent Saddam Hussein from rebuilding his weapons of mass destruction, future military strikes will be necessary;

Whereas, current plans are grossly inadequate because it is insufficient to `seriously diminish' the threat posed by Saddam Hussein to the international community through the use of weapons of mass destruction;

Whereas, there is a need for a long-term approach to removing Saddam Hussein from his position as President of Iraq; Now, therefore, be it

Resolved, That the President should--

(1) call for the creation of a commission under the auspices of the United Nations to establish an international record of the criminal culpability of Saddam Hussein and other Iraqi officials; and

(2) call for the United Nations to form an international criminal tribunal for the purpose of indicting, prosecuting, and imprisoning Saddam Hussein and other Iraqi officials who are responsible for crimes against humanity, genocide, and other violations of international law; and

(3) devise a long-term plan, in consultation with allies of the United States, for the removal of Saddam Hussein from his position as President of Iraq, so that he can be prosecuted fully for war crimes and other violations of international law.

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Mr. SPECTER. Mr. President, I now offer a resolution that seeks to deal with the international crisis caused by Saddam Hussein's amassing of weapons of mass destruction. There are reports as of this morning that Secretary General Kofi Annan has solved the problem after discussions with Saddam Hussein. A diplomatic solution is always preferable to a military solution, even though Saddam Hussein has carried the world to the brink of war. Before we will know whether or not Secretary General Kofi Annan has succeeded, we will have to read the fine print.

In the event that the Secretary General's efforts to end the crisis are unsuccessful, I submit that it is a constitutional imperative that Congress consider, debate, deliberate, and vote on a resolution on how to deal with this threat before the President takes unilateral action with air and missile strikes.

Air and missile strikes constitute acts of war. Under the U.S. Constitution, only the Congress has the authority to involve our Nation in war. In his constitutional capacity as Commander in Chief, the President may act in emergencies, but there is now time for deliberative action by the Congress.

During the week of February 9, when this issue was the talk of the caucuses and the cloakrooms, Congress spoke loudly by not speaking at all because there was no agreement on what should be done. On February 16, I wrote the President urging that no military action be taken until Congress returned from the recess today, February 23. With the prospect of unilateral Presidential action, if Secretary General Annan is unsuccessful, I believe it is our duty in both the Senate and the House to take a position on this obviously critical issue of war or peace before the President takes unilateral action with a military strike.

My resolution is an alternative to the approach outlined by the President on February 17. Without deciding whether I would vote to support the President's plan, I am submitting this alternative because I think it is a preferable course of action and, perhaps even more importantly, to stimulate debate in the Congress which could produce an even better course of U.S. action. The issues that now confront our Nation are complex, controversial, and could produce unintended consequences. I do not contend that my resolution provides all the answers, or even necessarily the best answer, but it could lead to the least of the available undesirable alternatives, and that is what I think we face, Mr. President--a question of which is the least of the undesirable alternatives.

At the outset, let there be no doubt that it is my view that Saddam Hussein's amassing weapons of mass destruction is intolerable and must be stopped. If the United States takes action, there must be national unity behind our fighting forces, but that doesn't mean giving the President a blank check in advance by delegating to the executive the Congress' constitutional duties.

Again, without committing myself on how I will vote if the President's plan is submitted to Congress in a resolution, I do wish to express my deep reservations and concerns for the following reasons:

First, the President's plan does not reach the core issue of removing Saddam Hussein as Iraq's leader or in eliminating his weapons of mass destruction. The maximum result, as articulated by the President in his own words, is `to seriously diminish the threat posed by weapons of mass destruction.' But there is the understanding or concession in that statement that there would only be a serious diminution, not an elimination, of weapons of mass destruction. The President then noted that if such weapons are rebuilt, there would be another strike. Such a series of strikes, which could be indefinite for all we know, are hardly the answer.

Saddam Hussein's continuous flouting of his specific agreements and U.S. mandates since 1991 requires removing him from office as the only adequate answer.

My second concern is that U.S. air and missile strikes, aided only by Great Britain, could materially hurt our position as the world leader, or at least as the leader of the free world. We are, after all, seeking to enforce the U.N. position on Saddam Hussein's weapons of mass destruction and that Iraq must comply with those U.N. resolutions and yield to U.N. inspections.

When we arrogate unto ourselves, with only Great Britain's concurrence, the decision to undertake air and missile strikes, on this state of the record, we are likely to be viewed by the world as arrogant, which is the root meaning of arrogating unto ourselves that ultimate decision.

In my foreign travels, I have found enormous respect and admiration for the United States around the world. People everywhere admire and really envy our freedom, our democratic values, our standard of living, and our power. But, in a January trip to Europe, the Mideast and North Africa, I heard virtually unanimous objections to the proposed U.S. air and missile strikes on Iraq as an abuse of power and U.S. arrogance. The key part of that arrogance involves projected Iraqi civilian casualties and our insistence on acting as we see fit, contrasted with the views of the other nations, almost uniformly with the exception of Great Britain.

Third, air and missile strikes may cause devastating unintended consequences. Our experience has demonstrated that we may expect retaliation from terrorists. The bombing of Libya in 1986 produced the bombing of Pan Am 103. Our so-called covert proposals against Iran most probably produced the terrorist attack on Khobar Towers in June of 1996.

On the issue of unintended consequences, who can be sure what will happen if we detonate Iraq's biological and chemical weapons of mass destruction and those substances enter the atmosphere? In March 1991, allied forces detonated Iraq's chemical weapons at Kamasia. Those substances became airborne and may have been a significant contributing cause to Gulf War syndrome, an issue now under intensive investigation by the Veterans Affairs Committee, which I chair.

The resolution, which I am submitting today, strikes at the core of the problem: removing Saddam Hussein as Iraq's leader by prosecuting him as an international war criminal; and, if he is not taken into custody as a war criminal, by then implementing a long-term plan for his removal as Iraq's President.

My basic proposal to try Saddam Hussein as an international war criminal was advanced on March 5, 1991, at the conclusion of the Gulf War. On that day I introduced a Senate resolution which articulated the applicable principles of international law, and then concluded with this clause.

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Resolve . . . , that it is the sense of the Senate that the President should confer with Kuwait and other member nations of the coalition of the United Nations to establish an international criminal court or an international military tribunal to try and punish all individuals involved in the planning or execution of the above-referenced crimes including Saddam Hussein.

Had we pursued that course of action at that time we would very likely--almost certainly, in fact--be in a different position today.

Since my resolution was offered, and this is an ongoing effort which I have made, along with Congressman Jim Leach in the House, and Senator Christopher Dodd here in the Senate, a War Crimes Tribunal has been established by U.N. Security Council Resolution 808 on February 22, 1993, establishing an international tribunal to try individuals accused of international war crimes in the former Yugoslavia, and Resolution 955 adopted on November 8, 1994, to establish a similar war crimes tribunal for Rwanda. By extending the jurisdiction to Iraq, the War Crimes Tribunal could prosecute

Saddam Hussein.

There is an abundance of evidence which would warrant the conviction of Saddam Hussein and the imposition of the death penalty. While the U.N. resolutions on the former Yugoslavia and Rwanda do not provide for the death penalty, the United Nations may well be persuaded that Saddam Hussein's conduct warrants the death penalty. I believe the evidence speaks loudly to that effect. Beyond his war of aggression against Kuwait and his missile attacks killing U.S. personnel in Saudi Arabia and Israelis in Tel Aviv, there is powerful evidence of Saddam Hussein's systematic action to destroy the population of civilian Kurds in Iraq through the use of chemical weapons in 1997-1998, with more than 182,000 missing persons and the destruction of more than 4,000 villages, including the placement of more than 10 million land mines in Iraq's Kurdistan and ethnic cleansing in the city of Kurkuk.

Those international crimes certainly warrant the death penalty by all existing standards. With an international judicial determination that the death penalty should be imposed on Saddam Hussein, we would then have the high moral ground to carry out that verdict.

The removal of Saddam Hussein as Iraq's President does pose questions as to who would take over and what would happen to Iraq's ability to counterbalance Iran in that region. It is hard to imagine an international situation worse than the one currently posed by Saddam Hussein, and it is hard to imagine a new Iraqi leader worse than Saddam Hussein. It may well be that a covert action or covert actions might succeed in deposing Saddam Hussein. That was the subject of an op-ed piece in the New York Times yesterday by former CIA Director John Deutch. The Voice of America could be intensified giving encouragement to his many enemies in Iraq. An alternative government could be established with those dissident forces. And, a no-fly zone could be established over all of Iraq. A naval blockade could further tighten the noose and perhaps bring Saddam Hussein to his knees. These and other proposals could lead to his removal without targeting him.

As a generalization, our national policy is sound, not to kill a foreign leader for political purposes. But it is important to note that that prohibition is mandated only by a Presidential Executive order. It does not have the force of law of congressional enactment.

Let me now pursue a series of questions relating to that policy.

First, should that policy be applied to Saddam Hussein after he attempted to assassinate former President George Bush?

Second, should that policy be applied to Saddam Hussein, considering his atrocious record of war crimes, or at least after he is convicted and sentenced to death?

Three, would targeting Saddam Hussein constitute a lesser use of force and a more justifiable use of force than the President's contemplated air and missile strikes?

Fourth, is it time to reexamine that policy as it applies to the likes of Saddam Hussein?

Fifth, is it sensible to tie our own hands for self-defense by such a Presidential Executive order when Saddam Hussein amasses weapons of mass destruction which threaten the United States and the whole world with horrible consequences?

Sixth, if we are justified in preemptive air and missile strikes, which will inevitably kill Iraqi civilians, why are we not justified in preemptive actions against Saddam Hussein who is a mass murderer and a certified international war criminal?

Mr. President, it is a rapidly changing world scene. It is time to consider those questions.

I have no doubt about two propositions. First, a trial of Saddam Hussein as an international war criminal would be preeminently just. Second, solving the international threat posed by Iraq's weapons of mass destruction mandates removing Saddam Hussein as Iraq's leader. Perhaps Saddam Hussein could be replaced by the people of Iraq with additional U.N. sanctions, a stronger Voice of America, and nonlethal covert action. If not, then we may have to change our answers to those six questions, just as Saddam Hussein has changed the world with his weapons of mass destruction.

Mr. President, I ask unanimous consent that my letter to the President, dated February 16, be printed in the Record.

There being no objection, the letter was ordered to be printed in the Record, as follows:
U.S. SENATE,

Committee on Veterans' Affairs
Washington, DC, February 16, 1998.

The President,
The White House,
Washington, DC.

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Dear Mr. President: I strongly urge you not to take military action against Iraq until Congress has an opportunity to consider a resolution to authorize the use of force.

Bomber and missile strikes constitute acts of war. Only Congress has the Constitutional prerogative to authorize war. The Congress spoke loudly last week by not speaking at all. It is not too long to wait until next week for Congress to consider and vote on this issue.

Our national experience in Vietnam is a relatively recent reminder that public and Congressional support are indispensable to successful military involvement. I am glad to note you plan to address the nation tomorrow night. I held five town meetings last Monday and Friday, and can tell you that my constituents are very uneasy about air and missile strikes. There are concerns about inflicting casualties on innocent Iraqis, about potential terrorist reprisals, and the possibilities of expanding the conflict.

There is general agreement that Saddam Hussein is an intolerable menace and cannot be alloweded to threaten the world with weapons of mass destruction. But are there near-term alternatives such as a blockade to tighten the noose on his oil exports? Or can our allies be persuaded to tighten economic sanctions if they will not join us on the use of force?

I compliment Secretary Cohen and Secretary Albright, but their visits have not produced the coalition which was formed for the successful prosecution of the 1991 Gulf War. Have you considered personal meetings with the leaders of France, Russia, China, Germany, Egypt, etc?

There has been unanimity in our Congressional discussions to support the men and women of our military forces. But that unanimity does not extend to giving the President a blank check when the Constitution calls for independent Congressional action to decide whether to involve the United States in war.

There is yet time to pursue alternatives. Diplomacy and other sanctions short of war should be given every chance to work.

Sincerely,
Arlen Specter.

Mr. SPECTER. I thank the Chair.

END