SPEAKERS CONTENTS INSERTS
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[H.A.S.C. No. 10815]
OPERATION IRAQI FREEDOM: OPERATIONS AND RECONSTRUCTION
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
APRIL 4, 2003
HOUSE COMMITTEE ON ARMED SERVICES
One Hundred Eighth Congress
DUNCAN HUNTER, California, Chairman
Page 2 PREV PAGE TOP OF DOCCURT WELDON, Pennsylvania
JOEL HEFLEY, Colorado
JIM SAXTON, New Jersey
JOHN M. McHUGH, New York
TERRY EVERETT, Alabama
ROSCOE G. BARTLETT, Maryland
HOWARD P. ''BUCK'' McKEON, California
MAC THORNBERRY, Texas
JOHN N. HOSTETTLER, Indiana
WALTER B. JONES, North Carolina
JIM RYUN, Kansas
JIM GIBBONS, Nevada
ROBIN HAYES, North Carolina
HEATHER WILSON, New Mexico
KEN CALVERT, California
ROB SIMMONS, Connecticut
JO ANN DAVIS, Virginia
ED SCHROCK, Virginia
W. TODD AKIN, Missouri
J. RANDY FORBES, Virginia
JEFF MILLER, Florida
JOE WILSON, South Carolina
FRANK A. LoBIONDO, New Jersey
TOM COLE, Oklahoma
JEB BRADLEY, New Hampshire
Page 3 PREV PAGE TOP OF DOCROB BISHOP, Utah
MICHAEL TURNER, Ohio
JOHN KLINE, Minnesota
CANDICE S. MILLER, Michigan
PHIL GINGREY, Georgia
MIKE ROGERS, Alabama
TRENT FRANKS, Arizona
IKE SKELTON, Missouri
JOHN SPRATT, South Carolina
SOLOMON P. ORTIZ, Texas
LANE EVANS, Illinois
GENE TAYLOR, Mississippi
NEIL ABERCROMBIE, Hawaii
MARTY MEEHAN, Massachusetts
SILVESTRE REYES, Texas
VIC SNYDER, Arkansas
JIM TURNER, Texas
ADAM SMITH, Washington
LORETTA SANCHEZ, California
MIKE McINTYRE, North Carolina
CIRO D. RODRIGUEZ, Texas
ELLEN O. TAUSCHER, California
ROBERT A. BRADY, Pennsylvania
BARON P. HILL, Indiana
Page 4 PREV PAGE TOP OF DOCJOHN B. LARSON, Connecticut
SUSAN A. DAVIS, California
JAMES R. LANGEVIN, Rhode Island
STEVE ISRAEL, New York
RICK LARSEN, Washington
JIM COOPER, Tennessee
JIM MARSHALL, Georgia
KENDRICK B. MEEK, Florida
MADELEINE Z. BORDALLO, Guam
RODNEY ALEXANDER, Louisiana
TIM RYAN, Ohio
Robert S. Rangel, Staff Director
James M. Lariviere, Professional Staff Member
Justin Bernier, Research Assistant
C O N T E N T S
Friday, April 4, 2003, Iraqi Violations of the Law of Armed Conflict
Friday, April 4, 2003
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FRIDAY, APRIL 4, 2003
IRAQI VIOLATIONS OF THE LAW OF ARMED CONFLICT
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
Hunter, Hon. Duncan, a Representative from California, Chairman, Committee on Armed Services
Skelton, Hon. Ike, a Representative from Missouri, Ranking Member, Committee on Armed Services
Parks, W. Hayes, Special Assistant, Law of War Matters, Judge Advocate General, Department of the Army
[The prepared statements can be viewed in the hard copy.]
Hunter, Hon. Duncan
Parks, Gen. W. Hays
Skelton, Hon. Ike
Page 6 PREV PAGE TOP OF DOCDOCUMENTS SUBMITTED FOR THE RECORD:
[There were no Documents submitted.]
QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD:
[There were no Questions submitted.]
IRAQI VIOLATIONS OF THE LAW OF ARMED CONFLICT
House of Representatives,
Committee on Armed Services,
Washington, DC, Friday, April 4, 2003.
The committee met, pursuant to call, at 1:07 p.m., in room 2118, Rayburn House Office Building, Hon. Duncan Hunter (chairman of the committee) presiding.
OPENING STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE FROM CALIFORNIA, CHAIRMAN, COMMITTEE ON ARMED SERVICES
The CHAIRMAN. The hearing will come to order. This afternoon the committee will review the apparent violations of the law of armed conflict by the Iraqi military, and it is a pleasure to welcome our witness this afternoon, a Mr. W. Hayes Parks, Special Assistant to the Judge Advocate General for Law of War Matters, Department of the Army. Sir, we look forward to your testimony.
Page 7 PREV PAGE TOP OF DOC The Law of Armed Conflict is a body of international law that governs the initiation and conduct of military operations. It consists of treaties, conventions, protocols and customary practices whose purpose is to protect noncombatants and facilitate the end of a conflict.
The United States, more than any other nation in history, conducts its military operations in strict compliance with the Law of Armed Conflict. Our extensive use of precision-guided munitions to destroy military targets while minimizing civilian casualties and the humane treatment of Iraqi prisoners of war and civilians by U.S. Forces bear witness to our commitment to these principles.
Our adversaries do not necessarily share our commitment. Since the start of Operation Iraqi Freedom, there had been reports of Iraqi soldiers faking surrender in order to get close to U.S. forces, only to open fire once our troops approached.
Last week, Marines took fire from a hospital, and after returning fire, captured the facility along with approximately 170 Iraqi soldiers, some 200 weapons and nearly 3,000 chemical suits.
There have been reports of Iraqis fighting in civilian clothes and using civilians as human shields, and just this morning, of course I watchedunconfirmed, but at least watched initial press reports of a suicide bomber who approached American soldiers on the basis that they werethat the person in question was pregnant and needed help and then blew off a device in the vehicle once the Americans approached. All these are flagrant violations of the law.
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But the most outrageous violation occurred during the weekend of March 22nd to 23rd. A maintenance convoy moving forward to support the 3rd Infantry Division was ambushed outside of Nasariya. But shortly after the ambush, Al-Jazeera, the Arabic language television network, broadcast an Iraqi TV video showing the dead American soldiers, some with a single bullet wound to the head. These scenes prompted Department of Defense (DOD) officials to state that they believe some of these soldiers had been executed by Iraqi forces.
One PFC. Jessica Lynch was successfully rescued last Tuesday, and we applaud her courage and fortitude as well as the courage and skills of the forces who conducted this daring operation.
I and all Americans deplore this flagrant violation of the Laws of Armed Conflict. While they will, in no way, alter the way we treat Iraqi prisoners, neither will they deter us from finding those responsible for this conduct and bringing them to justice once this conflict is over. And I think that is a consideration that has to be undertaken by every Iraqi officer at this time.
When they are held accountable for their actions during this war, will they be found guilty of war crimes? Will they be found guilty of abusing American prisoners? Will they be found guilty of executing American prisoners? Will they be found guilty of using weapons of mass destruction? I think it is incumbent upon every Iraqi officer who is in operations today to reflect very deeply and very gravely about their future and about the accountability that will occur very shortly.
Page 9 PREV PAGE TOP OF DOC [The prepared statement of Mr. Hunter can be viewed in the hard copy.]
The CHAIRMAN. So before going to our witness, let me now recognize the committee's ranking Democrat, my partner on this committee, Mr. Ike Skelton, the gentleman from Missouri, for any remarks he may wish to make.
STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM MISSOURI, RANKING MEMBER, COMMITTEE ON ARMED SERVICES
Mr. SKELTON. First, Mr. Chairman, let me not only thank you, but compliment you on calling this hearing. It is a very important issue that we in the Congress, the United States, should undertake, and I think it is very, very timely as well as important. We have all heard both the media stories and the classified briefings, we receive reports of the appalling Iraqi treatment of American prisoners of war. You have heard, too, about the Iraqi's ambush tactics on a battlefield where soldiers dressed as civilians have feigned surrender only to attack American soldiers once they approach. It is impossible to watch these stories without anger.
The United States military, more than any other in the world, trains our troops and demands their compliance with the Geneva conventions as well as all other laws of war. That our current adversary does not is a travesty, with a continuation of a long line of war crimes committed in its previous conflicts. That when the war is over, we will have to find a way to bring those who have perpetrated these actions to justice. No question about that. We will have to do this in a way that shows our continued commitment to the rule of law and nobly honoring the principles that some Iraqi troops have not.
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I would like to thank you, Chairman, again, for holding this hearing now when the issues are fresh in our minds. It is a perfect time to better understand what the laws of war say and what the range of options may be for handling those who violate the laws; but decisions about how to handle those Iraqis accused of a crime must be made with sober deliberation, mindful of the high standards of the international law.
First step is doing what we are doing today. Let me also add, we take a page out of history. This is not the first time our country has been faced with challenges such as this. We all recall, of course, the Nuremberg trials that I had a lawyer from my hometown participating in those. The trials ofas established by General Douglas MacArthur of the Japanese leaders who allowed atrocities to occur, General Homma and General Yamashita as well as Tojo and the others that were tried by tribunals under General MacArthur.
And then, of course, it is a little different from what we are talking about today, but it is still a tribunal, a tribunal of the eight German saboteurs who were captured in 1942, tried and convicted of espionage, and all of these historical precedents could very well play a role in what we in the Congress do today. This is a very serious matter. And I commend you on calling for this all-important hearing. Thank you.
The CHAIRMAN. I thank my colleague, and I want to thank all the members who came here today, even though we are not in session, and lots of folks have a lot of work to do back in their districts. It was important to be here, I think, and work on this important issue. So I want to thank everyone who stayed here today to work this important issue for the House Armed Services Committee.
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So once again, our witness is a Mr. W. Hayes Parks, who is Special Assistant to the Judge Advocate General for Law of War Matters, Department of the Army. And Mr. Parks, thank you, sir, for your service to our country, and thank you for reflecting on this important issue. The floor is yours.
[The prepared statement of Mr. Skelton can be viewed in the hard copy.]
STATEMENT OF W. HAYES PARKS, SPECIAL ASSISTANT, LAW OF WAR MATTERS, JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY
Mr. PARKS. Thank you, Mr. Chairman. And thank you for inviting me to testify on this very important subject.
I have been asked to comment on the 1949 Geneva Convention relative to the protection of prisoners of war, Department of Defense policies with respect to that Convention, and the current conflict with Iraq and Iraqi violations of that Convention and other aspects of the Law of War.
The 1949 Geneva Convention relative to the protection of prisoners of war, commonly referred to by the acronym GPW, was negotiated after World War II. Out of 194 nations in the world, 190 are states parties, including the United States and Iraq. More governments are states parties to this Convention than member states of the United Nations, making it one of the most widely accepted treaties.
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The protections of the Convention apply when the members of the armed forces of one belligerent nation fall into the hands of an enemy belligerent. This can happen through capture or surrender to enemy military forces.
The Geneva Convention provides the following fundamental protections for prisoners of war: Prisoners of war must, at all times, be humanely treated. Humane treatment is the baseline, but prisoner of war protections are much more extensive.
Any act or omission that causes the death or endangers a prisoner of war (POW) is prohibited and is a serious breach of the Convention. Prisoners of war must be removed from the battlefield as soon as circumstances permit, and at all times protected from physical and mental harm.
Prisoners of war must be provided adequate food, shelter and medical aid. Prisoners of war must be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
If questioned, prisoners of war are required to provide their name, rank, serial number and date of birth. They may not be required or forced to provide any other information.
Prisoners of war may not be subjected to physical or mental torture. Those who refuse to answer questions may not be threatened, insulted or exposed to any unpleasant or disadvantageddisadvantageous treatment of any kind. Subject to valid security reasons, prisoners of war are entitled to retain their personal property and protective equipment. These items may not be taken from a prisoner of war unless properly accounted for and receipted.
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Representatives from the International Committee of the Red Cross (ICRC) must be permitted access to prisoners of war as soon as practical. All prisoners of war must be protected against assault, including sexual assault. Female prisoners of war shall be treated with a regard due to their gender, and like all POWs, are entitled respect for their person and their honor.
In addition to the GPW, there are other Geneva Conventions relative to the current conflict. In particular, the United States and Iraq are both parties to the 1949 Geneva Convention for the amelioration of the condition of the wounded and sick of armed forces in the field. The title of this Convention is a bit misleading because it also provides protection for the dead.
In particular, this Convention first requires parties to the conflict to protect the dead against pillage and ill treatment; and second, requires parties to ensure that the dead are honorably interred, their graves respected and information as to their identity, et cetera, provided to the International Committee of the Red Cross to be provided to the government that sent them to the conflict.
With respect to Department of Defense policies in the conflict with Iraq, the United States and its coalition forces conduct all operations in compliance with the law of war. As the Chairman noted, no nation devotes more resources to training and compliance with the laws of war than the United States.
Both the United States and Iraq are parties to the GPW, which the United States has fully observed in this conflict. U.S. and coalition forces have planned for the protection and proper treatment of Iraqi POWs under each of the Geneva conventions I have identified. These plans are integrated into current operations.
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Before describing our policies, I should note that in Operation Desert Storm in 1991, the United States and its coalition partners detained 86,743 Iraqi prisoners of war. These Iraqi POWs were given all the protections required by the Geneva conventions.
Our aims and acts are precisely the same in the current conflict. We are providing and will continue to provide captured Iraqi combatants with the protections of the Geneva Conventions and other pertinent international law.
In addition, arrangements are in place to allow for representatives from the International Committee of the Red Cross to meet with Iraqi POWs in U.S. and coalition hands.
With respect to Iraqi violations of the Geneva conventions and related laws of war, unfortunately, the Iraqi regime is not complying with the Geneva conventions. Before turning to a summary of the current Iraqi violations, I should note that in the Desert Storm in 1991, the Iraqis mistreated U.S. and coalition forces in numerous respects, including physical abuse and torture of prisoners of war, forcing them to make propaganda statements, depriving them of food and denial of access to the International Committee of the Red Cross until the day of repatriation, and of course, much, much more.
The Iraqis similarly mistreated Iranian prisoners of war during their Iran-Iraq war in the 1980s. The Iraqi regime has thus displayed a system of systematic disregard for the laws of war.
Based upon initial reports and including those in the media, it appears that Iraq has once again committed extensive violation of the Geneva Conventions and related laws of war. I will note just three. First, Iraqi government television and Al-Jazeera have aired a lengthy tape of deceased or U.S. coalition service members. I understand that some of you have seen the tape. I will not describe it in detail.
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Suffice it to say that this tape, made at the direction of the Iraqi regime, shows fundamental violations of the Geneva Convention obligations, to include prohibitions on pillage and ill treatment of the dead, the duty to respect the personal dignity of all captured combatants and possibly prohibitions against willful killing, torture, inhumane treatment or the willful causing of rape, suffering or serious injury to body or health of a POW.
Second, Iraqi government television and Al-Jazeera have aired a tape of U.S. soldiers answering questions in humiliating and insulting circumstances, designed to make them objects of public curiosity in violation of the Geneva Convention for protection of prisoners of war.
Third, there are reports that the Iraqi regime has sent forces carrying white flags as if to indicate an intention to surrender, repeating an illegal act used by the Iraqi military in the 1991 coalition war to liberate Kuwait, or dressed forces as liberated civilians to draw coalition forces into ambushes. These acts of perfidy are among the most fundamental violations of war, endangering coalition forces and innocent Iraqi civilians. These are three obvious Iraqi Law of War violations. Behind the tapes and initial reports from the field, there are likely to be additional violations.
The position of the United States Government is to do everything in its power to bring to justice anyone who, by action or inaction, is responsible for violations of the laws of war.
A war crimes investigation by the Secretary of the Army to record Iraqi war crimes during the 1990, 1991 Persian Gulf war resulted in a detailed report. Steps have been taken to begin a similar investigation and information collection effort. Ultimate disposition will depend upon evidence collected, identified violations and individuals who come under U.S. control.
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I thank you again for the opportunity to be here. I will be happy to take any questions you may have.
The CHAIRMAN. Thank you, Mr. Parks.
[The prepared statement of Mr. Parks can be viewed in the hard copy.]
The CHAIRMAN. Mr. Parks, just a first kind of a threshold question here. What are America's options with respect to bringing to justice and to accountability war criminals, that is, officers or other military or political personnel who may have directed some of the acts that you have talked about?
Mr. PARKS. If I might preface that just a bit, Mr. Chairman, we are doing this on a basis of a treaty obligation that every state party to the Geneva Conventions has. In Article 1, common to all four Geneva Conventions, it is stated that each government must respect and ensure respect for the present Convention in all circumstances. That includes bringing to justice those who have committed these offenses.
In the United States, ways to discharge this obligation are statutory. First, within our general courts marshall, we are permitted to try persons for war crimes. Second, there is
The CHAIRMAN. When you say within our jurisdiction for courts marshall, we have the power to try for war crimes. Does that meanthat means members of the Iraqi Armed Forces as well as ours?
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Mr. PARKS. It does, sir.
Second, in 10 U.S. Code, Section 21, there is also the authority to use military commissions. As the Chairman knows, I am sure, that has been one historic way that we have tried war crimes in the past.
And finally, in 18 U.S. Code, Section 2441, there is also jurisdiction in Federal district court. So we have three
The CHAIRMAN. Jurisdiction in what?
Mr. PARKS. Federal district court. So we have three
Statutory options on the record.
The CHAIRMAN. Okay
Mr. SPRATT. Mr. Chairman, I was just curious. What was the second one? I didn't get the citation.
Mr. PARKS. Military commissions, 10 U.S. Code Section 21.
The CHAIRMAN. And with respect to the Federal district court, is there a particular part of U.S. Code that addresses war crimes?
Page 18 PREV PAGE TOP OF DOC Mr. PARKS. In fact, this particular provision, 18 U.S. Code, Section 2441, provided the jurisdiction to the Federal district court for trial of war crimes.
The CHAIRMAN. And so I presume it has an array of punishments which arewhich one wouldwhich the court would hand out upon certain findings of fact and convictions?
Mr. PARKS. I cannot say for certain.
The CHAIRMAN. Or activities.
Mr. PARKS. I would be happy to get that answer for you.
The CHAIRMAN. I would just like to see that, and maybe our staff can provide that. But you have laid out a series of what are at least apparent violations from the information that we have seen with our own eyes, and I would like to see what those particular remedies are.
If you give us just a little historic background, give us an example of the military commission and how it has operated in the past.
Mr. PARKS. Military commissions actually very much parallel our own court-martial system. It is a matter of using the same system, usually because the defendants are not
Page 19 PREV PAGE TOP OF DOC The CHAIRMAN. Bring your microphone up a little closer there.
Mr. PARKS. Oh, sorry. Because the defendants are persons not normally covered by the Uniform Code of Military Justice. Many of the rules and procedures are exactly the same as they would be within a court-martial. Manyor actually almost all of the individuals who were tried for war crimes after World War II were, in fact, prosecuted before military commissions.
The CHAIRMAN. Those were the so-called MacArthur Commissions?
Mr. PARKS. No, sir. General MacArthur convened the court that tried General Yamashita in the Philippines after World War II.
Most of the other tribunals were three-officer courts convened at a local level for offenses committed in a particular geographic area, not only in the Far East, but also in Europe. Military commissions of this type were used by just about every ally of ours during World War II and the United States.
The CHAIRMAN. So under what framework were the MacArthur prosecutions undertaken?
Mr. PARKS. He was using that historical military commission precedent. There had been some in the past, and basically were usingpart of the articles of war at that time gave us the same authority that Congress gave us under the Uniform Code of Military Justice and
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The CHAIRMAN. Okay. Could you now describe to some degree the apparatus that we set up in the war against terror that has been given so much publicity here in the recent months?
Mr. PARKS. I am not in a position to give a lot of detail on that, sir. I have not been directly involved in that. I have been involved in some other issues. I know that we have had a group of individuals, people much smarter than me, who are experts in criminal law who have worked these procedures.
The CHAIRMAN. Okay. Thank you for your opening statement. It has been very good. Mr. Parks, at this time let me turn to the ranking member of the committee, the gentleman from Missouri, for any questions he has.
Mr. SKELTON. I may be able to help you, Mr. Chairman, on your last question.
The CHAIRMAN. You know, I kind of think you are going to be able to, and I want to thank the ranking member, incidentally, as a guy who has a great historic perspective on a lot of these issues that come before the committee. And I can see that you had done a lot of work and a lot of background
Mr. SKELTON. You will think by the time I am through that every lawyer of my hometown from Missouri participated in various tribunals, which is somewhat close to the truth, but I am somewhat familiar with the 1942 tribunal that was established by executive order by Franklin Roosevelt. As a matter of fact, I have a copy of it. I think I sent it to you. Franklin Roosevelt signed an executive order establishing a tribunal for the eight saboteurs, German saboteurs, the forum or capture that came on the Ponte Vedra Beach just outside Jacksonville Beach in Florida, and the other four were captured not long after they landed at Long Island.
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They were tried. A lawyer from my hometown, a reserve colonel by the name of Carl Ristine, defended one who in essence turned state's evidence, and he received life imprisonment. The others were executed within moments of their conviction before this special tribunal.
And think the tribunal that the Attorney General has establishedI have seen the language on itregarding the terrorists is a parallel to that particular tribunal established by Franklin Roosevelt.
Let me go back a bit, Mr. Parks. 1991, a number of our troops were captured and mistreated, and my recollection is before our committee, a woman pilot testified about her being tortured, her arms being broken. Was there any punitive action taken against those who perpetrated those war crimes against our American troops in that 1991 war?
Mr. PARKS. Mr. Congressman, there were none. As we said, we captured the 86,000 some-odd. We found that, in fact, most of the people we captured were very low-ranking Iraqi soldiers. The officers had all fled back to Baghdad long before that. Those who were responsible for her abuse, that was then-major, now-Colonel Rhonda Cornum, were never apprehended. So we did not have them in our custody. But it was well established that she was abused, along with the other prisoners of war as the Congressman has noted.
Mr. SKELTON. So according to our testimony, there are three potential remedies. One is a court-martial of the offending party before a military court of the American military. Is that correct?
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Mr. PARKS. That is correct, sir.
Mr. SKELTON. Second is a military commission which evidently is established by statute. Is that correct?
Mr. PARKS. That is correct, sir.
Mr. SKELTON. And then, of course, the third is Federal courts in response to a question put by the question to you, you are not familiar with the penalties or if a jury trial is available, et cetera? You will give those back to us. Am I correct?
Mr. PARKS. I will, sir. It is my understanding, and it has been sometime since I looked at the legislationI was involved at the time that went through the Congressthat the idea was we would be using the same procedures and punishments and what have you. We were just adding to the Federal district's authority the jurisdiction to try these offenses in cases for someone who is not
Mr. SKELTON. Of course, the biggest problem is having physical custody of the defendants. Am I correct?
Mr. PARKS. That is correct, sir, but at this timearound the same time, actually a few years before that, I am sure the Congressman was directly involved, we extended our long arm statute authority to start going after people for violations that did not necessarily occur within the United States. This is yet one more step in that process.
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Mr. SKELTON. The Nuremberg Tribunal of which we all may well remember, that tried Goering and Speer and Rosenberg and the other notable Nazi criminals was an international tribunal of the four successful powers. Am I correct?
Mr. PARKS. That is correct, sir. There were actually multiple tiers of tribunals after the war. The top one was the International Military Tribunal of the principal Nazi accused. There was a similar tribunal in Japan simply known as the Tokyo Tribunal.
Mr. SKELTON. I will get to that in just a second. Explain the ones in Europe, first.
Mr. PARKS. All right. The first one was for the principal Nazi accused for a number of violations, massive war crimes, crimes against humanity, wagingstarting the war and what have you.
The next level were other military tribunals conducted of higher ranking general officers, but who were not directly part of the Nazi leadership as such. These are the officers who commanded core divisions and what have you in the field, and who actually carried out many of the illegal orders issued by Hitler and his regime.
The third level was the smaller military tribunals of individual accused who committed a specific act. I can recall one particular caseit was actually tried in Italywhere eight U.S. Army Rangers went ashore one evening, were almost immediately caught. The commanding general, in whose custody they were ordered their execution under the Commando Order. His staff judge advocate and others advised him against it, but the orders went out anyway, and they were executed. He was tried before an American military tribunal for those offenses. Was convicted, sentenced to death and executed by firing squad.
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Mr. SKELTON. Now, let's talk about the Japanese war tribunals. For instance, the one that tried Tojo and subsequently hanged him, where did that come from?
Mr. PARKS. That was the International Military Tribunal for the Far East, otherwise known as the Tokyo Tribunal.
Mr. SKELTON. That was composed of American justices and who else?
Mr. PARKS. That was Americans, Russians, India
Mr. SKELTON. British?
Mr. PARKS. Yes, sir, Great Britain; I believe Australia and the Dutch, if I am not mistaken.
Mr. SKELTON. Now, contrast that to the MacArthur tribunals that tried Yamashita and Homma. They are the butchers
Mr. PARKS. Butchers in the Philippines?
Mr. SKELTON. Yes.
Mr. PARKS. Again, it is the option that was considered at the time. These people had committed
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Mr. SKELTON. What statutory authority, if any, did MacArthur have?
Mr. PARKS. He had the authority under the statuteswas given the authority under the statutes to create military commissions and under the Articles of War, I assume.
The idea was this was a local offense. It was committed by General Yamashita and by his subordinate officers, and MacArthur had the authority to convene the court and try him at the scene of the crime, which was
Mr. SKELTON. Was that an American court?
Mr. PARKS. That was purely an American court.
Mr. SKELTON. Were there others tried besides those two?
Mr. PARKS. Yes, sir. His chief of staff was tried.
Mr. SKELTON. General Yamashita.
Mr. PARKS. General Yamashita's chief of staff was tried. Of course General Yamashita argued that he did not know these things were going on. And that was disproved, in my opinion, and generalI am sorry, Admiral Toyoda, T-o-y-o-d-a, who was, in fact, in charge of the Japanese naval forcesbut he was in Japanwas tried for these same offenses before the Tokyo Tribunal and acquitted, that court saying that Yamashita had full authority. But the primary individuals tried were Yamashita and his chief of staff. I do not know if they went to lower levels. They may have in those lower tribunals of the type that I referred to.
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Mr. SKELTON. Now, let's talk about today, and I will be through in just a moment, Mr. Chairman.
The CHAIRMAN. The gentleman may take as much time as he needs. I think this is extremely important to build the historic base for what we may do shortly.
Mr. SKELTON. The International Red Cross, of course, has visited the Iraqi prisoners that are in American hands. Is that not correct?
Mr. PARKS. That is correct.
Mr. SKELTON. Has International Red Cross, to your knowledge, made a request to visit the American prisoners of war?
Mr. PARKS. It is my understanding that they are in Baghdad and have made that request.
Mr. SKELTON. Has it been granted, to your knowledge?
Mr. PARKS. To my knowledge, it has not. I would point out that during the previous conflict, as I believe I said in my prepared statement, the International Committee of the Red Cross had representatives in Baghdad throughout Operations Desert Storm, Desert Shield, Desert Storm, made requests to the Iraqi government, and were not allowed to see the coalition prisoners of war until the completion of hostilities after the Iraqis signed the agreements, at which time I can say that the ICRC representatives performed superlative duty in getting our forcesour coalition POWs repatriated as quickly as possible, but not until they had the consent of the Iraqi government, which did not come until the Iraqi government had been defeated on the battlefield.
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Mr. SKELTON. Mr. Chairman, I will reserve my other questions. Thank you.
The CHAIRMAN. I thank the gentleman for his knowledge of history and for setting the stage here for what we may have to do at the conclusion of this conflict.
The gentleman from New Jersey, the Chairman of the Terrorism, Unconventional Threats and Capabilities Subcommittee, Mr. Saxton.
Mr. SAXTON. Thank you, Mr. Chairman. Mr. Parks, let me ask a question that kind of picks up where the ranking member left off. Can you kind of walk us through the process that we might expect to see? There was another example in this morning's press of an Iraqi individual who observed the alleged mistreatment of an American POW and came to the Marine Corps, reported the mistreatment, a series of events took place, and they were successful, of course.
The question here is, now, can you kind of walk us throughuse this case as an example that we have all read aboutcan you walk us through what we might expect to see in the days, weeks, months ahead.
Mr. PARKS. I think the first thing we all want to see is winning the war, and of course, that is where the combatant commander has his priorities at this time.
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We do have army criminal investigation elements in the theater of operations. I think until they feel that it is safe to actually proceed into areas where offenses allegedly occurred, they are not going to those areas because it might require additional security requirements around them to get them there. And I am offering more of my personal guess based upon experience in these types ofprosecuting these types of crimes in Vietnam.
Mr. SAXTON. May I just ask you
Mr. PARKS. Yes, sir.
Mr. SAXTON [continuing]. What you are saying is that evidencethe collection of evidence would be an important thing to be ongoing now, and it is difficult to do that because of the current situation?
Mr. PARKS. Because of the current conflict. The combatant commander has his focus on getting into Baghdad and getting the conflict over.
And there is, I think, in my opinion, another reason for that, and that is there may be, in fact, Iraqi citizens who have been witnesses to crimes. They may not be where they live. They may have fled because of the fighting. Even if they were there, they might be reluctant to speak until they are sure that their safety can be ensured. So I think that the first thing is to win the war, and I know that from our experience in 1991, we collected tons of documents. And many of those documents we went through for evidence of Iraqi war crimes while they were occupying Kuwait.
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The same will be the case now. Documents have to be reviewed for any number of things, potentially orders from the Iraqi regime to do this, that and the other that is illegal, collecting on-the-scene physical evidence, covering remains, perhaps, and finding witnesses. This is in the hands of professional criminal investigators.
At that time the Army, Navy, Marine Corps, Air Force judge advocates would assist them in reviewing the evidence that determined, A, who might have done this; what units were where at what time; looking at the order of battle the Iraqis might have had at the time; finding out if these people are still alive; seeing if we have them in custody. As I mentioned, in the 1991 Gulf War, we had 86,000 POWs, mostly enlisted. We didn't have the perpetrators of the offenses. This might be a different circumstance this time. So it is a matter of finding out who was where at what time, what evidence do we have that a crime was committed, who might have committed it, who were the witnesses, building a case just as we might do right here in the United States?
During that time, the policymakers, working with lawyers back here, would be determining the best course with respect to the particular forum to try these cases.
Mr. SAXTON. We thank you.
Mr. PARKS. Yes, sir.
The CHAIRMAN. I thank the gentleman, and I am going to go to the gentleman from Texas in just a second, but let me just ask you, Mr. Parks; you related in answer to Mr. Skelton's question that an executionthat there was a prosecution and an execution of the general who ordered American POWs to be executed in one conflict.
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Mr. PARKS. That is correct, sir.
The CHAIRMAN. Is that regulation or that prescription of execution, that is, the capital punishment, for the ordering of execution of POWs still manifest in the regulations?
Mr. PARKS. It is certainly manifest in the Uniform Code of Military Justice. I am sure it would be manifest in tribunals or before the Federal district court. It is not off the table.
The CHAIRMAN. So an Iraqi officer who orders the execution of an American POW can expect that if historic precedent is carried out, he could well be executed for that action?
Mr. PARKS. If the court so determines.
The CHAIRMAN. Okay. Thank you.
The gentleman from El Paso, the distinguished gentleman, Mr. Reyes.
Mr. REYES. Thank you, Mr. Chairman. I want to thank you and the ranking member for holding this very important hearing. As you know, Mr. Chairman, I am proud to represent Fort Bliss. That is the home of the 507th maintenance company that suffered, at least to date, the most in terms of prisoners of war. We have got five, and then a number that are missing. And as I mentioned to you yesterday, Mr. Chairman, I was very proud to have visited three of those members of the 507th at Walter Reed, and am convinced that when their story is told, it will reinforce the courage and the bravery of America's fighting men and women. So thank you for holding this very important hearing.
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My first questionMr. Parks, thank you for your testimony. I thank you for being heredeals with the fact that a nation is signatory to the Geneva Convention, it obligates every subsequent government of that nation or form of government, does it not?
Mr. PARKS. It does, sir.
Mr. REYES. And if a government were to renounce, reject, in some term, disassociate it with the signing of that Convention, would that beis there a provision that allows that?
Mr. PARKS. The basic laws of treaties, a humanitarian instrument of this type, cannot be renounced in a time of armed conflict.
Mr. REYES. To our knowledge, has the Saddam Hussein regime ever made any statements renouncing the Geneva Convention or somein some way or fashion disassociating themselves from that signatory obligation?
Mr. PARKS. It has not, Mr. Congressman.
Mr. REYES. Thank you. I have done a number of call-in shows, and one of the questions that has been asked several times deals with the fact that we are at war, and how can we reasonably expect nations to follow ''rules of war.'' I have explained it in terms that I felt were important in terms of making sure that when we take into custody as prisoners members of armed services or innocents, that we have an inherent moral obligation to follow rules of war, and if for no other reason, for the sake of morality, members of humanity and human kind.
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If you were asked that question, how would you respond, Mr. Parks?
Mr. PARKS. Mr. Congressman, I get that question every time I teach a class. I can give you a long answer or a short answer. I will give you the short answer to begin with. For a dozen years, I taught a five-day course in the United States Marine Corps on the Law of War. It was for captains to colonels. On the first day, everyone sort of sits there asking the very same kind of question you are thinking aboutare asking, that here comes this Marine Corps colonel in to talk to them about touchy-feely stuff and at the end of the day, we will all stand around and sing Kumbayah.
By the second day, they begin to get involved with this, and by the third day, they say this is not only a moral issue, this is what America is all about, and this is basically good leadership. And everybody should be getting this. It is consistent with the way the United States fights. They may not have identified these things as legal obligations, but they have seen that this is the right way to fight. What I do in teaching is to challenge people. Tell me what it is I am going to tell you in this Law of War course that keeps you from winning and doing your job. And to date, this is about 35 years of this now, I have not had anyone say, yes, but we would like to be able to do this.
Let me say a little bit about how treaties are negotiated. I have been on a delegation since 1978 regulating rules related to the use of certain conventional weapons in combat. The delegation consists and is headed by a representative from the State Department. It has representatives from the Department of Defense, representatives of each of the military services. Our guidance is given to us. It has been coordinated, sent through interagency process and clearance by the Joint Chiefs of Staff, and we go over and negotiate what we are told to negotiate.
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When we come back, we are not there to be salesman for that treaty. We bring it back and say, here it is, take a look at it and see if we can live with it. It goes through a very thorough vetting process within the Pentagon. It is sent out to the combatant commanders. They are told, look at this and tell us if there is anything that is not acceptable. And when we finish that, we make sure that the Joint Chiefs of Staff, the Department of Defense, the State Department are all on board. That is then sent to the White House, which submits it to the Senate for its advice and consent to ratification. And the members of the Joint Chiefs of Staff and the chairman are expected to sit at the table and say this is the way we fight, this will not restrict our capabilities. And if it does, to say so, at which time we will take a reservation to it. So this is not something that has been written by people out of contact with combat. These are people who say, well, sure, this is exactly how we want to fight.
The rules there arewe try to make them common sense. The devil is in the details, of course, and convincing that young 18-year-old soldier, sailor, airman or Marine, this is in your best interest and the best interest of the Nation, this is what the people of the United States expect of you, and I have got to say in witnessing the leadership, that we have got, particularly over the last 20 years, we have gotten our soldiers and sailors to understand that.
Mr. REYES. Thank you. I have other questions, Mr. Chairman, but I will wait for the second round.
The CHAIRMAN. I thank the gentleman.
The distinguished gentleman who is a former Marine,
Page 34 PREV PAGE TOP OF DOCMr. Kline.
Mr. KLINE. Thank you, Mr. Chairman. And thank you, Mr. Parks, for being here. I am proud to say that I have sat through those classes of yours. You are an excellent instructor, near as I can remember from 20 years ago. And I remember the kinds of questions we asked and the understanding that we had, and so my firstmy first question to you is, are you still teaching those classes?
Mr. PARKS. I am retired from the Marine Corps Reserve, happily collecting my Marine Corps Reserve retirement check, but I still do quite a bit of teaching at the staff and war colleges.
Mr. KLINE. And so, the point of that question really is that our officers, our soldiers and sailors and airmen and Marines are getting instructed in the Law of War, and we have every reason to expect that they will understand it and abide by those laws.
Mr. PARKS. That is correct, sir. I would actually say the education program in the Law of War today is broader and deeper than it has ever been in the history of the United States military.
Mr. KLINE. Thank you. Moving to the other guys now, there have been a lot of stories about the Fedayeen Saddam either threatening to shoot or actually shooting Iraqi civilians to keep them in line. Where does that fall in as far as a violation of the Law of War, and whose jurisdiction would that be under to punish those actions?
Page 35 PREV PAGE TOP OF DOC Mr. PARKS. I believe we actually would have authority to try these folks for this. The 1949 Geneva Convention generally talks about, as a Congressman knows, military wounded and sick, military wounded, sick and shipwrecked, prisoners of war and enemy civilians in our hands. So the 1949 conventions probably would not apply. Other aspects of the Law of War would apply.
When you are using your own citizens as human shields or ordering them out to commit acts of perfidy, as is the case with the Fedayeen Saddam, then I think in that case you are issuing illegal orders, and you can be prosecuted for those offenses.
Mr. KLINE. So whether they are shooting their own civilians, an incomprehensible sort of concept, I think, to us, or mistreating our coalition POWs, they could be tried by the same system of commissions and tribunals and so forth that you have already explained to us?
Mr. PARKS. They could be.
Mr. KLINE. Thank you very much, Mr. Chairman. I yield back.
The CHAIRMAN. I thank the gentleman.
The gentleman from Ohio, Mr. Ryan.
Mr. RYAN. Thank you, Mr. Chairman. I appreciate you coming here today, and I would also like to thank you, Mr. Chairman, for calling this hearing, because we have an enormous amount of interest back at home on these issues.
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One question I did want to ask you is that after September 11th, the Administration decided not to confer POW status on terrorist suspects. It was argued that they did not meet the standard laid out in the Laws of War, and similar decision was made with regard to the Taliban, as well, despite their roles as defenders of the Afghani state.
In Iraq, there have been both conventional military troops and troops who have changed into civilian clothes to fight, and then they also have the paramilitary troops who are there. What factors should the Administration take into account in determining which prisoners should be accorded prisoner of war status?
Mr. PARKS. There is no question but the Iraqimembers of the Iraqi military, the regular military, would be entitled to prisoner of war status. The question comes with regard to those who are not part of the Iraqi regular military forces, whether they are this paramilitary force of some sort or individual civilians.
As a fundamental basis for protection as a prisoner of war, private citizens are not allowed to engage in combatant acts. If they do so, they are not entitled to prisoner of war status. If you have an irregular militia like this, there are criteria set forth within the Prisoner of War Convention. There must be some formal association with the government. They must be commanded by a person responsible for their acts. They must be carrying their arms openly, which of course with the Fedayeen Saddam, that is not often happening. They must be wearing some sort of a distinctive device, whatever that might be, that shows they are acting as part of the military forces, which the Fedayeen Saddam is not doing. And they must carry out their operations in accordance with the Law of War, which of course they are not doing either.
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So that gets into the issue of whether or not they would be entitled to prisoner of war status as such. So the criteria are well laid out within the Prisoner of War Convention.
Mr. RYAN. And what is the difference between the way a prisoner of war would be treated and, say, a civilian who took up arms?
Mr. PARKS. There are provisions in a fourth convention I have not talked about, the Geneva Civilians Convention, that lays out some fundamental protection for enemy civilians in our hands. As a practical matter, oftentimes we have had people in our hands who might not technically have been entitled to prisoner of war status, but we have provided them prisoner of war protection, and basically we take the Prisoner of War Convention and use it as a template for how to set up a camp to take care of them.
For example, the Viet Cong that we captured in Vietnam were not technically entitled to prisoner of war status, but the military knows how to run a prisoner of war camp, and so they simply set that camp up and ran it much as they would a prisoner of war camp without technically providing them the status as such. They know how to provide adequate food, shelter, medical aid and what have you, and so even though they might not technically have all the protections of a prisoner of war, they are provided many of the privileges of them by simply using this same template.
Mr. RYAN. That is good to know. How far backI know you mentioned a little bit about the process of doing the investigation. How far back can we realistically go in Iraq to investigate these war crimes and everything that has happened in between that we, I am sure, will find out about as we continue to have access to more of their documents?
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Mr. PARKS. We have a very large body of evidence from the first Gulf War, very substantial, which is now in the national archives, both classified and unclassified. And I think we did a fairly good job of documenting the violations during that conflict.
It will depend on the evidence that we can get. The witnesses, the victims that we might have that we might be able to find, and then, of course, finally, the persons we have in our custody who we have been able to identify.
Mr. RYAN. One last question, Mr. Chairman. We have all learned about Al-Jazeera and the TV coverage that has been going on in the Middle East. Are they somehow contributing to some of the inhumane treatment just by the nature of who they are and what they are doing as far as covering this? Do they hold any responsibility at all for being called to go in and watch an execution or film an execution to violating somehow some of these rules and laws?
Mr. PARKS. That is a tough question. Of course you have to always ask, are they there voluntarily? If they are in Baghdad and they are credited to Baghdad and the Iraqi government says, you will come and film this and publicize it, you always get into the question of coercion. And as I recall from watching the news just in the last night or so, Al-Jazeera, I believe, has been told they can no longer broadcast from Baghdad. So I can only speculate why that happened. But there is no criminal responsibility, no. It is wonderful evidence, as far as I am concerned, if that were to happen. However unfortunate the act itself might be.
Page 39 PREV PAGE TOP OF DOC Mr. RYAN. I am sure it makes it a lot easier, absolutely. Well, thank you very much for coming. Thanks again, Mr. Chairman.
The CHAIRMAN. I thank the gentleman.
The gentleman from South Carolina, Mr. Wilson, who has a number of members in his family in the uniformed services. And I know there is great interest in this proceeding.
Mr. WILSON OF SOUTH CAROLINA. Thank you, Mr. Chairman. And thank you, Mr. Chairman, and thank you, Ranking Member Mr. Skelton, for your having and providing for this extraordinarily important hearing today. And I am so proud of the service of our troops. I believe that the conduct of our troops over the past couple of weeks will be a model in the future as to tactics, as to the use of professionalism and technology. And the same can apply for those of us who have a judge advocate general (JAG) background, and I hope that what we have got with the professionalism that you have already previously indicated, with the technology, with the investigative abilities that we have, that we will use this conflict as a model and a model for deterrence now for the next couple of weeks, or whatever may occur, but also in future conflicts as a model, particularly a message to persons who engage in violations of Law of War, that the United States will take proper action. And I appreciate you bringing to our attention and reminding us all as to the ability of a courts marshal or a military commission or U.S. district court.
Mr. WILSON OF SOUTH CAROLINA. And with that background you indicated that there had been an investigation in the prior war. Is thatyou said that it was both classified and unclassified. Is there a summary available that could be provided to us?
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Mr. PARKS. We produced a summary, and I know that it was delivered to the State Department, and I believe it was delivered to the Secretary General of the United Nations. It may have been delivered to the Congress. I know in the large volume of the report to Congress on the conduct of the Gulf War there was an entire chapter in there on the Law of War, and there was a brief summary in there on violations by the Iraqi military in that conflict. There is an executive summary that is unclassified, however, and we will see if we can run that to ground.
Mr. WILSON OF SOUTH CAROLINA. That would be excellent. The executive summary is exactly what I would like to see. I think other members of the committee would find that of interest. too.
Additionally, it has been reported that there is a special investigations team to investigate the Iraqi violations of the Geneva Conventions. What is the status of that team?
Mr. PARKS. The Secretarylet me back up just a moment. The Department of Defense has a directive that has been in effect since 1974 with minor revisions, Department of Defense Directive 5100.77. It establishes that the Secretary of the Army is the executive agent for investigation of war crimes committed by enemy personnel against U.S. forces. The Deputy Secretary of Defense on, I believe, the 25th of March, just last week, reappointed the Secretary of the Army in that role, the same role the Secretary of the Army discharged during the first Gulf War. That is now the process for beginning to establish the overall framework for carrying out the executionthe investigations.
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As I mentioned, there are already Army criminal investigations in the theater of operations, collecting the information, recovering whatever data we might have, and establishing a way in which this information can be collected, evaluated, and put together to identify the offenses and proceed from there.
The first step, as I mentioned, however, was won last week. I think the special investigation itself is sort of probably lower case, s-i-t, rather than capital; that the idea was we are using the processes we have in place but we are now building the framework to receive the information and act upon it.
Mr. WILSON OF SOUTH CAROLINA. Our investigative teams now are so professional and they know what they are doing. Again, I want to restate about the technology we know who is where, when. It is just extraordinary. Again, the opportunity that we have to send a message to the world that war crimes are not to be permitted. And I would like to point out, too, I am quite familiar that there are Reserve and National Guard JAG officers who would be very enthusiastic in serving in the future, to be deployed in the future on this particular project. And I yield the balance of my time.
The CHAIRMAN. I thank the gentleman.
The other distinguished gentleman from South Carolina, Mr. Spratt.
Mr. SPRATT. Thank you, Mr. Chairman.
Page 42 PREV PAGE TOP OF DOC Thank you very much for your testimony. Could I go back to the three options you listed for trying war criminals: the general court marshal authority for war crimes, I think it was 10 U.S.C., Section 21, Military Commissions, and 18 U.S.C. 2441. Who is the convening authority for the military commission?
Mr. PARKS. It will depend on entirely how those are set up. Since the decision has not been taken as to whether or not which of those options will be utilized, that is one of the details I think yet to be decided upon.
Mr. SPRATT. I believe, there is a standing authority in the so-called Articles of War, Law of War, that is 234 U.S. Code for such a commission, where Congress has actually created a generic commission that can be used and convened from time to time?
Mr. PARKS. That was the section that I cited. Now, the Articles of War have been supplanted by the Uniform Code of Military Justice. It gives that dual jurisdiction in Article 18 of the Uniform Code of Military Justice. It provides that a general court marshal may try violations of the Uniform Code of Military Justice and violations of the Law of War. So that is how we get that dual track.
Mr. SPRATT. Typically, who makes the prosecutorial decisions as to which court of tribunal to use?
Mr. PARKS. I think it would be made by the executive branch as to which is the best option under the circumstances for the particular type of crimes and accused.
Page 43 PREV PAGE TOP OF DOC Mr. SPRATT. The Attorney General or the President himself?
Mr. PARKS. I suspect the President himself.
Mr. SPRATT. Why did Congress add 18 U.S.C. 2441 to the other two procedures?
Mr. PARKS. I am not be able to tell you, sir. That was in 1851. I have not looked at the history of that. It could be that the feeling was thatI know that at the time, some of the concern was what if we have some discharged U.S. serviceman who has left the service but may have committed an offense while on active duty and we have no way to recall him, he would no longer be subject to the Uniform Code of Military Justice. So therefore, if he had committed a war crimewe all hate to think about thatbut if he had committed a war crime, we could bring him back before general court marshal and try him under Article 18 for a violation of the Law of War.
As I am sure the Congressman knows, in the mid-1950s there were a number of Supreme Court cases that limited the jurisdiction of general courts marshal against persons who were no longer subject to the Uniform Code of Military Justice, and persons who had never been subject to it such as the dependents of servicemen. I believe there was one case in which the wife of a serviceman murdered him in Germany and was brought before a general court marshal, and the caseobviously the Supreme Court decided there was no jurisdiction. So those jurisdictional questions were raised at the time as to whether or not we could bring back a discharged servicemen.
Page 44 PREV PAGE TOP OF DOC There was an issue raised at the time of the My Lai investigations in 1970 and 1971. There were a number of members of Charlie 1st of the 20th who were involved in the massacre at My Lai who were no longer in the military. And an option at that time was to bring them back and try them under Article 18 of the Uniform Code of Military Justice for violations of the Law of War. The decision was taken on both a legal and policy basis that that would not be done.
Mr. SPRATT. So if they have the third option, they felt more constitutionally secure in bringing a new civilian into the jurisdiction of the US district court as opposed to trying to haul them back before a military court
Mr. PARKS. Yes, sir.
Mr. SPRATT [continuing]. When their military status was not clear.
With respect to unlawful combatants, what rights do they have?
Mr. PARKS. They are certainly not entitled to be prisoners of war. But both within the Civilians Convention and our practices, we are going to provide them certain minimum humanitarian standards. With respect to the individuals we have down at Guantanamo, for example, we have taken the Prisoner of War Convention as a template and provided them much of the same treatment we would provide a prisoner of war. They don't get certain things; like in Article 60 of the Prisoner of War Convention it provides that every prisoner of war shall receive an advance pay of X number of Swiss francs per month so they can buy things at the post exchange. We don't provide them that. We provide them free: the soap, towels, toothpaste, toothbrush, tobacco and what have you. So it is a matter of finding those basic things that we would provide anyone in our hands and in our custody and providing them those amenities.
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Mr. SPRATT. Having engaged in combat but not being in uniform or in regular service or even in a militia, are they war criminals; and does it require them to be tried before they can ultimately be released?
Mr. PARKS. They would be tried for those offenses. The basic difference is if I am a lawful combatant, I am lawfully entitled to kill an enemy soldier and there is no crime for that. Because this person is an unprivileged belligerent, the fact that a civilian who has now taken part in the hostilities, he can now be prosecuted for killing an enemy soldier. That is the basic difference. This is a criminal offense, to kill an enemy soldier. Whereas, when a regular combatant does that, there is no crime.
Mr. SPRATT. If they are irregular troops and unlawful combatants, does that mean if they have killed American soldiers that they are to be tried for murder?
Mr. PARKS. They could be tried for murder, sir.
Mr. SPRATT. Is that in the works now? Is that planned for the disposition of these prisoners?
Mr. PARKS. As Congressman Skelton saidI am sorry, I believe it was Congressman Skelton that said we are in step one, and that is where we are with regard to this conflict. As I mentioned, right now the first thing we want to do is win the war. And then we will proceed on those next steps.
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Mr. SPRATT. But their legal situation is sort of in limbo.
Mr. PARKS. I am not sure that we have that many of them in custody, but certainly if we had members of the Fedayeen Saddam in our hands, they can be detained as our prisoners of war for the duration of the hostilities and they can be prosecuted for their crimes.
Mr. SPRATT. Thank you very much.
The CHAIRMAN. Thank the gentleman for his excellent questions.
The gentleman who is vice chairman of the Total Force Subcommittee, which oversees all of our active and Reserve and Guard forces, the gentleman from Oklahoma, Mr. Cole.
Mr. COLE. Thank you, Mr. Chairman. Like the other members on the committee I want to thank you for having this very, very important hearing. I think all of us take this personally. I know certainly I do. I have an uncle who did four years in a prison camp in the Second World War and went through some horrific experiences.
Let me ask you, if I may, Mr. Parks, could you walk through for me the sequence of conditions and circumstances whereby we might hold somebody who was not directly responsible for a crime or an atrocity in question, but, in the chain of command above people who actually committed an act. How do you establish the degree of responsibility? How far up can you go?
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Mr. PARKS. Actually the standard began with the Yamashita case that we discussed earlier. I think there is some misunderstanding as to what was the decision in the Yamishita case. But that decision was then developed more in subsequent cases during World War II, and it came out with the basic concepts of command responsibility. And that is, a commander can be criminally responsible for the crimes committed by his subordinates if he orders them or if he knows of them or he should have known of them and fails to act. How far up the chain of command will depend on how far you can trace that order, what the criminal information may be.
During World War II, the evidence was very overwhelming that, obviously, the orders flowed from top down. And as I mentioned in that brief summary of the three-tiered process we had, whenever we found someone within that chain of command and we found evidence that they knew or should have known the crimes being committed by their subordinates, they were found criminally responsible for those acts.
Mr. COLE. And as you trace that chain of command, can that reach that civil authorities as well as directly in the military chain of command?
Mr. PARKS. There were some civil authorities in the postwar trials both in Germany and Japan. Obviously, today, I think it would be possible in a regime that if you had people directly involved in the civilian sidefor instance, I believe one of Saddam Hussein's sons is responsible for the Fedayeen Saddam. I have no doubt if I were a prosecutor of that, I would go to court if his son was still alive and prosecute him for those offenses on the basis of command responsibility.
Page 48 PREV PAGE TOP OF DOC Mr. COLE. Thank you. Just a few more questions, if I may. Are there any statutes of limitation that apply on crimes against the Geneva Convention or other types of war crimes?
Mr. PARKS. If it is a violation of the Geneva Conventions, particularly those categorized as grave breaches, such as willful killing, willful torture, there is no statute of limitations.
Mr. COLE. Let me ask you this, too. Let's assume we had a situation where we hadwell, let me ask you this first. Can somebody be convicted in absentia?
Mr. PARKS. The United States as a longstanding policy has not carried out crimetrials in absentia.
Mr. COLE. Let's assume someone had been charged with a war crime and fled, clearly to escape prosecution, but fled into another sovereign state, a noncombatant state. Would we have the authority to take that person out either legally through extradition, or if we didn't get cooperation, to try a special operation to go after somebody if they fled to avoid prosecution for war crimes?
Mr. PARKS. The provision that I cited from, Article 1 to the 419 Geneva Convention, ''respect'' and ''ensure respect'' has been interpreted as requiring the nation holding that person to either prosecute or extradite. The dilemma you have, of course, is if there is not an extradition treaty in process, sometimes some governments hesitate to do that.
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However, that has other consequences, because oftentimes they find it very uncomfortable to have that person within their territory and encourage them to go elsewhere or perhaps find their way into U.S. hands.
Mr. COLE. So just to be specific on this point if I may, at the risk of being a bit redundant, if someone fled, let's say into thein all likelihoodthe jurisdiction of another country that had signed the Geneva Convention, would that country have some degree of obligation to be cooperative and turn that person over to an appropriate tribunal for trial?
Mr. PARKS. That would beI believe that would be our position; that under the Geneva Conventions that they would have that obligation to either prosecute or extradite that person.
Mr. COLE. Thank you, Mr. Parks. I yield back my time, Mr. Chairman.
The CHAIRMAN. I thank the gentleman. Mr. Meek.
Mr. MEEK. Thank you, Mr. Chairman.
Thank you so very much, Mr. Parks, for being here today to talk to us. Give us some insight on the Geneva Convention and other tools that we would have to follow up on war crimes.
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Recently, the Minister of Information in Iraq announced that Iraqi forces will start using unconventionalhow would you saywar efforts against U.S. troops and allied forces. And I know in Article 18 and 19 it talks a little bit about hospitals, it talks about the do's and don'ts as it relates to the rules of engagement. We all know that the Iraqi military or Saddam Hussein are using these hospitals to stockpile arms and possibly chemical weapons.
How is that going to deal with the prosecution? Because we are going to have to engage those hospitals in some way. And parts of what I am reading in 18 and 19 is a protection of civilians. Coupled withyou can elaborate on thiscoupled with the fact that we are having a lot of incidents at our checkpoints, we are trying to help civilians move out of the area, migrate to a safer area, and every now and then we have suicide bombers. And U.S. troopsobviously, we had an incident where a bus wouldn't stop and women and children lost their lives in that case, including the driver. How difficult is this going to make this sword as we start to head towards prosecution in the future, towards some of these war crimes?
Mr. PARKS. I think my first concern, if I were on the battlefield, would be protecting my own men, protecting the Iraqi civilian population, the innocents, and also, obviously, accomplishing the mission. And that is exactly what Saddam is trying to keep us from doing, all three of those.
It is very difficultthis makes the challenge of prosecuting the war successfully and rapidly more difficult, there is no doubt about that. The issue I think is one of criminal responsibility for those actions. Obviously in the case of the homicide bomber, there is no issue of prosecution because he is no longer with us. Unfortunately, they have a tendency to take innocent persons with them, as we seem to be seeing in the cases you cited.
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I think this goes back to the question asked by the Congressman just a few minutes ago as to what criminal liability might we have. And one of the points that I have made is that I think in a case like that, we can show that this is what we refer to as treacherous killing, which is a violation of the 1908 Convention Number four that has been around for a very long time. The term I used earlier was the term ''perfidy,'' which is more the modern concept, but it is basically killing treacherously.
The best example I can give of this is we train our soldiers when someone waves a white flaga white flag actually does not mean surrender. A white flag does mean, however, that I want to negotiate with you, and it causes our soldiers to restrain themselves in the use of force against the enemy because they feel they have that obligation at that point in time. There is a trust factor. If the other side is now using that white flag to gain a military advantage to kill people that is, in fact, killing treacherously.
It is my opinion that the people who are ordering members of the Fedayeen Saddam or what have you to carry out those acts could be prosecuted, would be criminally liable for killing treacherously under the 1907 Hague provision.
Mr. MEEK. If I may, I want to getas a past law enforcement officer, the kind of don't shoot/shoot scenarios that you may have, that is a perfect example; 18 speaks of civilian hospital casualties or things of that nature, or prevention ofor saying those are sites that are off limits. Obviously, you stated that if the pattern is set forth that that particular section is being violated constantly, and in the case of human shields things of that nature, human nature would tell you after you go through these suicide incidents, you can very well have individuals that are innocent and trying to do something and it is a shoot or don't shoot situation.
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And I believe when we start to, how would you say, engage in urban warfare as we start moving into Baghdad, that we are going to have more and more of these incidents, unfortunately, due to the fact that we have been trained to negotiate when we see that. There may be a point where we even have to put a halt to that because of the danger as it relates to it.
How far up in the past, as it relates to convictions of war crimes, have we gone? I know, usually this comes from the top command; how many lieutenants, sergeants, or what have you, or field command officers? Because the President has said those that carry out orders will be prosecuted byunder either the Geneva Convention or what have you, under the War Crimes Act of thehow far have we gone in the past as relates to our prosecutions in the past conflicts?
Mr. PARKS. The last complete experience we had, of course, was in the post-World War II trials. Generally, if you looked at a chain of command, you mightlet's assume that you have an enemy soldier who is taken a prisoner of war and he has received an order to murder that prisoner of war. If he pulls the trigger, he will be prosecuted for that. Those in the chain of command who gave the orders would be prosecuted. Those in the chain of command who might have known or should have known of the orders and did not stop the act could be prosecuted.
Now, in response directly to your question, as a practical matter during World War II, unless there was some direct involvement in that chain of command, the tendency generally was not to prosecute all except those most closely directed with the offense that has occurred.
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Mr. MEEK. There are no statutes of limitations on that?
Mr. PARKS. There is none.
Mr. MEEK. Thank you, Mr. Chairman. I yield back the balance of my time.
The CHAIRMAN. I thank the gentleman. We will do a second round of questioning. Mr. Skelton.
Mr. SKELTON. Thank you. Thank you, Mr. Chairman.
I am certain that at the end of the present conflict there will be occasion to charge and try some Iraqis for horrible violations of international law. So, may I review with you if we can get a sense of the convening authority or authorities for the, as I have listed them, six tribunals or courts that we have had through history. First, let's look at the Nuremberg trials, which were multicountryAmerica, Britain, Russiathat tried various defendants, which we have discussed previously. What was the convention authority for that tribunal?
Mr. PARKS. It was the Moscow Declaration of November 1, 1943 that established not only that the intent of the signatories, which were President Roosevelt, Prime Minister Churchill, and Joseph Stalin, but it also established the basic document for convening an international military tribunal.
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Mr. SKELTON. That, of course, was carried out in 1945-46 on; is that correct?
Mr. PARKS. That is correct.
Mr. SKELTON. The second tribunal to which we referred was the multinational tribunal that tried certain Japanese in Japan after the war, the most notable being the former Prime Minister Tojo. What was the convening authority for that?
Mr. PARKS. There was a similar declaration. I don't have the date, sir, but it was the same type of thing the partiesthe international allies signed and put together to form this international tribunal.
Mr. SKELTON. Would that be available?
Mr. PARKS. It should be, sir.
Mr. SKELTON. Number three is thewhat was the convention authority of General MacArthur's tribunal where he tried the various Japanese commanders, two of which we have mentioned, Yamishita and Homma?
Mr. PARKS. That came under, I believe, the Articles of War that had the provision for establishment of military tribunals.
Page 55 PREV PAGE TOP OF DOC Mr. SKELTON. When you say Articles of War
Mr. PARKS. That was the predecessor to the Uniform Code of Military Justice.
Mr. SKELTON. American.
Mr. PARKS. American Articles of War.
Mr. SKELTON. American Articles of War. Would that be statutory or
Mr. PARKS. Statutory.
Mr. SKELTON. Okay. Then, of course, we are familiar with the three that we mentioned. Would you please review those again for us?
Mr. PARKS. The one would be the Uniform Code of Military Justice, which is Article 18 of the Uniform Code of Military Justice; and the Code itself, of course, is 10 U.S. Code. Section 818 is actually the specific provision that says general courts marshal may try violations of Uniform Code of Military Justice and violations of the Law of War.
The second is the military commissions provision in U.S. Code Section 21. And the third is the jurisdiction provided the Federal district court for violations of the Law of War in 18 U.S. Code Section 2441.
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Mr. SKELTON. Should the Iraqi perpetrators of these war crimes be captured, they could be tried, in your opinion, at least under the three statutes to which you refer.
Mr. PARKS. Yes, sir.
Mr. SKELTON. And to try them under any of the previous types of tribunal, that would have to be done by international treaty; is that not correct?
Mr. PARKS. Or some sort of international agreement. As the Congressman knows, the United Nations, of course, established through the Security Council the international tribunals for Yugoslavia and Rwanda and for Sierra Leone. So that is something, that there may be individuals of other governments who may wish to propose something like that. There may be Iraqis in our custody who are responsible for committing the crimes in Kuwait. It may be that the Kuwaiti Government may ask for them to try them themselves. These are not the only options; these are the options the United States has under consideration for individuals.
The CHAIRMAN. Would the gentleman yield? I want to thank the gentleman, and all members of the committee have been really eliciting very important information in this area. I am trying to understand here, and I think it is my understanding that what you are saying is under an international agreement. If you talk about World War II and the major allies in the operation basically agreeing among themselves to set up the tribunals, that would lead one to conclude that the logical path would be that the coalition allies in Operation Iraqi Freedom would be the primary parties to such a tribunal in Iraq. Does that make sense?
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Mr. PARKS. It is an alternative. I would think personally that if you hadlet's suppose you had a situation where American soldiers were captured and executed by members of one Iraqi unit. The only victims involved are American soldiers. In a case like that, I thinkor let's say they were British soldiers. In a case like that, the government who had the victims would, I think might, wish to try those persons before their courts on an individual basis rather than trying them before an international tribunal. There may be some who were involved in massive crimes; some of the top leadership, for example, in the 1991 Gulf War and also on the current conflict that have more international victims, more international implications.
I can give you one example. At the start of the 1990 war, on August 2, 1990, when Iraqi forces went into Kuwait, they took any number of foreign nationals out of Kuwait back to Baghdad. And as the Congressman I am sure recalls, many of them were held as human shields initially before they were all released in December of 1990. That is regarded as a grave breach of the 1949 Civilians Convention.
The CHAIRMAN. There are some 800 or so people who were taken from Kuwait that were never returned.
Mr. PARKS. That is correct. So, conceivably, in a case like that, there may be governments who would seek to have an international tribunal for those persons. Again, it is going to depend on what was the crime, what is the evidence, who were the victims, who has jurisdiction, and who would wish to try them. As we saw in the post-World War II trials, we had a little bit of each. We had some international tribunals; we also had some national tribunals.
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The CHAIRMAN. Thank the gentleman.
Mr. SKELTON. So we will not be confused on jurisdiction; the six situations to which we referred are not to be confused with the 1942 tribunal established by Franklin Roosevelt of the saboteurs or the tribunal established by the President at the behest of Attorney General John Ashcroft, is that correct, for terrorists; is that correct?
Mr. PARKS. Certainly. There may be a lot of parallels and overlaps, but they would appear to be different.
Mr. SKELTON. Mr. Chairman, thank you.
The CHAIRMAN. Thank the gentleman. Mr. Kline.
Mr. KLINE. Thank you, Mr. Chairman.
Hays, we have been talking about jurisdiction and courts who would convene them and who would conduct them and so forth. That means that we are trying crimes, and I am just thinking about the logistics of the troops that are on the ground now. These are infantry commanders and maybe maintenance battalion commanders and so forth who are taking persons into their custody. And the people that are taken into custody could be a wide variety: regular troops, Republican Guard, Fedayeen Saddam, civilians and so forth.
Mr. Wilson asked earlier about the investigative teams. My question to you is just one of mechanics of law enforcement, if you will, of how are we equipped to sort these out and get our detainees from capture to court? Because at the end of this, there is going to be a criminal proceeding, a criminal court. So if you could help us walk through that, how are we equipped to deal with that?
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Mr. PARKS. There is actually a two-step process or parallel process that is operating. Obviously, we have a very detailed procedure for taking a prisoner of war from the time he is captured from the collection point up the chain of command to, let's say, the core level where they go through initial processing. Then ultimately they go back to a theater prisoner of war camp.
During the 1991 Gulf War, we established two prisoner-of-war camps called Brooklyn and Bronx, because the 800th M.P. Brigade comes from that part of the world and they ran these two camps. They had a capacity of 50,000 prisoners of war each. We filled them rather rapidly. And they have a U.S. processing system basically using laptops to record who they have, get as much information on them as they can, and that information then is sent back to the National Prisoner of War Information Center in the Pentagon, run by the Army; and then from there it is forwarded to the International Committee of the Red Cross to record every single person we have. We insisted upon a detailed accounting of who we have in our hands, because we also want to insist upon a detailed accounting of those persons in enemy hands.
Now, in that process, coming back to the question I believe Congressman Ryan asked, how do we tell the regular forces from the Fedayeen Saddam? In Article Five of the Prisoner of War Convention, it provides that in case of any doubt as to a person's status, that person shall be afforded prisoner-of-war protection until his precise identity or, rather, status has been ascertained by a military tribunal. We actually convened what are called Article Five tribunals both in Vietnam and in the 1991 Gulf War, because we did have some people come inwe weren't sure if they were Iraqi military dressed in civilian clothing, trying to hide, or if they were in fact innocent civilians. They listened to the circumstances of capture, they listen to other evidence they have, and they make a determination. If they make a factual determinationArticle Five says if there remains any doubt, they are entitled to prisoner-of-war status, which they will receive. On the other hand, of course, if they have committed a crime, they are still subject to being prosecuted for that crime.
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So there is that additional vetting or screening process using the Article Five tribunal process. We have used those. I believe the British may have used them already in the current conflict with regard to some of the people they have captured. So we know how to run these.
If they are a prisoner of war, that person may remain in our hands until the cessation of active hostilities and for a period thereafter going through processing and repatriation. It took until September of 1991, for example, for us to repatriate all of the Iraqis that we had in our hands from the first Gulf War. And even then, they are interviewed twice in private by the International Committee of the Red Cross to ensure that they want to go back voluntarily. And there were quite a few who did not, and in fact some were allowed to resettle in the United States.
So the process can be rather lengthy. If they are in fact charged with a war crime during this time, they may be detained until they are prosecuted. And if they are sentenced, of course, they are then going to serve the time.
Mr. KLINE. So then they are treated as a criminal in this case, not as a prisoner of war, and their actions will be investigated by a criminal investigation or a special team and a case prepared, just as you would any other criminal in that sense.
Mr. PARKS. If a regular Iraqi soldier commits a war crime, he does not lose his status as a prisoner of war, but he can be prosecuted for his offenses.
Page 61 PREV PAGE TOP OF DOC Mr. KLINE. Okay. Thank you very much. I yield back.
The CHAIRMAN. I thank the gentleman. Mr. Reyes.
Mr. REYES. Thank you, Mr. Chairman. As I was listening to a couple of the other questions pertaining to jurisdiction and protectionMr. Parks, what kind of protection do our soldiers currently have if they are mistreated in places like the Philippines or Colombia?
Mr. PARKS. You are not talking about the Law of War here. It depends, of course, on whose hands they are in. The guerilla movements that you are talking about, of course, are not what are widely known as respecters of the Geneva Convention. In fact, these folks are either criminals or terrorists who would like to use violence for intimidation and things like that. They are unfortunately not going to be looking at the Geneva Conventions for protection if they were to capture U.S. personnel.
Mr. REYES. So what options would we have? Would we have one of the six that my ranking member mentioned, or would we be forced to follow civilian prosecution in the respective country, or what protections do they have?
Mr. PARKS. They have no protections. If you are talking about the protections that they could be provided, they can be provided by their captor. They are at the mercy of their captor. The captor is outside the law.
Mr. REYES. Getting back, let me switch back, given the issue of Iraq being a signatory to the Geneva Convention and all of those things that they are bound by, exactly what measures have we undertaken to make sure that we clarify the Law of War to a population of a country that may not be only highly illiterate, but also uninformed of international law and under the threats of death themselves if they don't comply with the orders that are given by the command?
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Mr. PARKS. I know that in our psychological operations campaigns, we have issued broadcasts to the people of Iraq and we have also dropped millions of leaflets advising that those who are involved in crimes will be held accountable for those crimes. I recognize the Congressman has identified a real dilemma for the individual citizens of Iraq. That it is a kill-or-be-killed-type situation in some cases. It may well be that Saddam is purposely using the civilian population for those things. Regrettably, what he seems to be doing rather than ordering his civilians to torture and murder American prisoners of war, he is in fact using his own civilians as human shields and having them die.
From the fact that we learned of the American female prisoner of war who we rescuedthe fact that we learned of that from an Iraqi civilian who risked his own life to provide that information to the United States Marines so that woman could be rescued, I think, says a lot for the Iraqi people; that they were notbut for this fear that they face, they have, they are not going to dothey are going to do the right thing. But, of course, in many indications they want to make sure that the threat to them is gone.
Mr. REYES. And finally, given again the various options that were set up earlier in the hearing, are there different thresholds of evidence at these different prosecution options for violations of the rules or laws of war? Are there different thresholds?
Mr. PARKS. If you saw my grades in evidence at Baylor Law School, you wouldn't ask that question. I couldn't tell you without going through them and breaking them down. I think they are probably the same. All of our court systems work on roughly the same type of evidentiary rules.
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Mr. REYES. Thank you, Mr. Chairman.
The CHAIRMAN. I thank the gentleman. Mr. Wilson.
Mr. WILSON OF SOUTH CAROLINA. Thank you, Mr. Chairman.
And Colonel Parks, again I just appreciate how thorough your presentation is and it truly is indicative of the professionalism of the JAG officers. I have had the opportunity to take the Law of War courses at the U.S. Army JAG School at Charlottesville. I was impressed by what I learned there, and this has just been a real refresher course today.
As we again look at what is coming up, the Chairman has correctly identified that we have a coalition of over 50 countries that are involved, and you have indicated that in the past there has been an agreement signed for a multinational tribunal and this would be in accordance with statutory authority that we already have; is that correct?
Mr. PARKS. Well, the President has a right to engage in negotiations of various international agreements. I think the issue is going to be whether or not some of our coalition partners would ask us to consider some sort of an international tribunal for all individuals, particular individuals, or those who have committed offenses against one or two of the coalition partners. And the President and the Secretary of State and others would make decisions as to whether or not they wish to enter into that type of agreement and, if so, whether it would extend to all that we might have in our hands, or to certain persons.
Page 64 PREV PAGE TOP OF DOC Mr. WILSON OF SOUTH CAROLINA. I thought it was very insightful, you pointing out that if the victims are of a particular nationalityAmerican, British, Australian, Bulgarian, Romanian, Polish, whoever it may be is the victimthat that would possibly establish who might proceed. With the circumstance of there also being a jurisdiction for offenses against Iraqi civiliansin particular, we have run into where the Ba'ath party has officials who have supervised paramilitaryso could that also be part of the war crimes tribunal?
Mr. PARKS. I think there is a possibility that such an offense could be considered. I would like to have more of the facts to sort of nail this down on how we could construct a charge. But I believe that it would be entirely possible that if you had someone who was, in fact, let's say, working with the Fedayeen Saddam; training them and sending others forward, ordering them to place civilians in front of them or shoot civilians if they are trying to flee the cities, that all those things would present a basis for looking at some sort of a war crimes charge.
Mr. WILSON OF SOUTH CAROLINA. Thank you very much. I yield.
The CHAIRMAN. Mr. Meek.
Mr. MEEK. Thank you, Mr. Chairman. Chairman Hunter, I want to thank you and Ranking Member Skelton for putting forth this hearing, because I think that this is really going to shed a lot of light on what is happening right now and how we are going to balance the playing field as it relates to following through enforcement of violations of the different conventions and war crimes.
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I guess I want to kind of go back. You said something a little earlier, Mr. Parks, about guerilla warfare and what is happening in South America. And I have a feeling that some of this is going to play into the Iraq situation, even though Iraq is seen as a theater of war and South America is not. The determination between who is going to be prosecuted under whatif we can at all, because I believe a lot of intimidation is going to play a role in here.
I think a lot of things are going to happen. Using Iraq's Information Minister ''unconventional,'' that could be just as something to set in the minds of our troops to slow us down or, whatever the case may be, have us look a little more carefully at what we are doing. But I think as it relates to coalition forces and keeping those coalition forces intact, what is going on on the ground as it relates to briefing the men and women that are out there in the theater now on how the rules of engagements change? What role does your office play in that, in informing commanders of how they caninform their troops of what they have been trained prior to engagement and what they should know now? I think something that you said that was very, I would say, interesting; that was they have been trainedwell, obviously playing by the rules is not necessarily a quality of individuals that we are fighting against even in Iraq or Afghanistan. How are the troops being informed now?
Mr. PARKS. I am happy to say that my office is not involved in the day-to-day rules of engagement. I, having been an infantry company commander in Vietnam, would hate to have a lawyer in Washington, D.C. telling me how to do my job. My job is to train them initially and give them the basics. I think it is not only my job, but as Congressman Wilson pointed out, it is the other judge advocates
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Mr. MEEK. I am sorry, Mr. Parks. I want you to hold your thought. Don't misinterpret what I was saying there. The last thing you want to do is hear from a lawyer from Washington about what you should do. I am talking about in the minds of the troops as they are out there, they have been trained on what they can do and what they want to do and what they should engage in; what is legal and what may get them in trouble.
So I am just saying that, as it relates to the commanders, you may not know what they are sharing with these troops right now. I know right now it is win the war. But I wanted toI mean, you could stop right there as it relates to your office informing them. I am just talking about, there has to be some discussion with some of the folks or there is no discussion at all.
Mr. PARKS. Perhaps I was being too long-winded, because I was going to get to that.
Mr. MEEK. I am sorry.
Mr. PARKS. No. No. No. You get me wound up on some of these sometimes and I could go on forever. I think we are saying the same thing. And I can go back again to my personal experience. This is where good commanders make all the difference in the world. The job of the judge advocates in peacetime is to train people on the basic principles of the Law of War. You do not intentionally attack civilians if someone is trying to surrender. You assist them in doing that. If someone is a threat, particularly an enemy soldier, you have a right to engage them.
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What it gets down to is that individual soldierI can sort of give you the basic criteria that I would provide, were I there, and I believe this is how our commanders are acting, and it is you have a right to use deadly force if you have a reasonable belief there is an imminent threat of serious injury or death by the actions that person is taking.
Now, what we are doing is we are telling the commanders, tell your folks how to do this. We do not want innocent Iraqi civilians to die or otherwise be injured. But every commander is also very concerned about the lives of every single one of his men and women. And so they are trying to strike that very delicate balance. Get into Baghdad, win the war, let's not cause undue casualties on either side.
The strong point here is, in fact, those commanders trying to balance that, and then is placing judgment in the hands of those individual soldiers to make that call. I was being somewhat facetious about being a lawyer from Washington and here to help you, but that is exactly what the commanders want, too; they don't want a soldier looking over his or her shoulder to see if they can now fire their weapon. It is a very, very difficult balance. And I can tell you from what I have heard, our commanders are doing a superb job of that.
Mr. MEEK. Mr. Chairman, I want to say that today I received the first letter in my office of a casualty of a young man from my district, 26 years old. I won't mention his name in the committee because I haven't had an opportunity to speak to his wife or family. But I just want to say that I know that many of these families that are losing loved ones, or even loved ones that have been injured in these conflicts, whether it be Iraq or Afghanistan, definitely want the wheels of justice to be able to turn in some manner, so some level of justice for those individuals or justice for the family can be carried out.
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So that was the point of my question because, like I said from my past background, not in the theater of war but just in traditional law enforcement, that is something that law enforcement individuals have to live with every day, what they can do and what they can't do. And as it relates to previous training, Mr. Chairman, and what we are doing now, I have some comfort in what I am hearing from Mr. Parks of what our men and women are being told.
Mr. PARKS. Sir, if I can respond to that. In fact, what I just gave you is the same criteria what I train our law enforcement officers on, too. We have to trust that individual police officer on the street. It is the same standard, the United States Supreme Court standard, a reasonable belief of imminent threat of serious bodily injury or death. And after that, we have to trust the man with his finger on the trigger. And I couldn't agree with the Congressman more.
Mr. MEEK. Thank you, Mr. Parks.
The CHAIRMAN. I want to thank the gentleman for his excellent line of questions, and also I am reminded by Mr. Reyes that the gentleman, Mr. Meek, who has contributed so much to his question has his wife Leslie and Kendrick, Jr. and Lauren in the audience. And thanks for coming by, kids, and watching your daddy work.
Mr. MEEK. I just want to say, if I may, my wife is a lawyer, Mr. Parks.
The CHAIRMAN. Well, you know, we thoughtI am a lawyer myself. I have to admit, and we thought at one point that maybe one of our strike tactics would be parachuting in 100 lawyers right into the Presidential Palace. But thank you very much, Mr. Meek.
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And, Mr. Cole, do you have any further questions?
Mr. COLE. Just one or two, if I may, Mr. Chairman, very quickly. First, Colonel Parks, thank you very much. It has been an extraordinarily instructive testimony, helpful to all of us.
Two quick questions. One, assuming a conviction for violation of the Geneva Convention, is there any appeal process to that? If so, how would that work?
Mr. PARKS. There would beand it is going to depend on the particular court to which the cases are sent. It may vary slightly, but not that much. There would be an appellate process.
Mr. COLE. Okay. And second, in the course, if we find ourselves, as I am sure we will, in criminal prosecutions, we will undoubtedly uncover a great deal of information that is not directly relevant to a violation of the Geneva Conventionmay well be a violation involving Iraqi civilians inside that country, crimes against those people, not directly crimes related to the Geneva Convention in terms of the prosecution of a war. What sort of options do we have, would a court have in a situation like that, or prosecutor have? Could that crime against a civilian be prosecuted under an existing military court? Would that be referred to the appropriate civil authorities in Iraq? How would something like that work?
Mr. PARKS. I think it is perhaps a little premature to look too far down the road as to what the next Iraqi Government would look like. As the Congressman shows from his own interest in Africa, El Salvador, there have been these truth committees where individuals have been allowed to come forward and bring testimony against individuals. And other cases, there have been cases where people have been prosecuted for human rights violations. Those are oftentimes brought within the jurisdiction of the domestic courts of that nation. And in the new Iraq, that might be the most logical place for violations of human rights against the citizens by the previous regime. It would not fall within the jurisdiction of our military courts for war crimes.
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Mr. COLE. I ask that question, make that point, only to make the larger point: while we are concerned, obviously, first and foremost, with crimes committed against American men and women in uniform, we have got a concern also in other places. I hope that is not lost in these proceedings. We are just as interested that justice be done across the board, not just where our own combatants are concerned.
With that, I yield back the balance of my time.
The CHAIRMAN. I thank the gentleman and the ranking member, Mr. Skelton, who really is the driving force behind this hearing, and who has a great background, giving the hearing a lot of value. He is raised for a follow-up question.
Mr. SKELTON. Thank you, Mr. Chairman.
I have just one question, Mr. Parks. Obviously you are quite familiar with the statutes, the three particular statutes which you have discussed: the court marshal, the commission, and the Federal court. Of the alleged atrocities that you have seen or with which you are familiar, do you have any recommendations for this committee in changing or adding to or modifying existing law as it now exists?
Mr. PARKS. I do not see any necessity to change anything in the law. I think the law in each of those options gives us adequate remedy against the individuals. And particularly in the case of Iraq, we are in an international armed conflict. All the Law of War and all of our statutory bases are built on that traditional international armed conflict between two or more governments. It gets more difficult when you are in something less than that type of a conflict. I think this system we have is tailor-made for the type of offense that is we are looking at, and I cannot recommend any changes that would really improve the system.
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Mr. SKELTON. Thank you very much.
The CHAIRMAN. I thank the gentleman. And, sir, you have done an extraordinary job of informing the committee and this is obviously an issue on which there is great bipartisan concern and support for what I would call a full accounting and full justice.
And I think it is important for Iraqi officers who are now considering their future, the future beyond the next 20 or 30 days, that there is a system for accounting, that they will be held accountable, and that the punishments for war crimes range the gamut from incarceration up through and including execution, and that those executions have been carried out. And, further, that people who feel that they can put themselves far beyond the reach of the United States and the allies have in the past found that that is not true. And I am thinking about the Afghan theater and the surprise that must have occurred in some of the terrorist units of the al Qaeda when at 10,000 feet elevation, they saw the soldiers of the First Mountain Division coming over the rise, killing them in their rifle pits.
We can reach almost anyone on this planet. And I think that it is very clear that we will have a certain amount of energy in pursuing those especially who have abused American POWs or abused American soldiers in any way and committed any war crimes. So I think it would be good judgment on the part of Iraqi officers to ensure their own future by complying with the Rules of War that the gentleman has laid out.
Mr. SKELTON. Would the gentleman yield?
Page 72 PREV PAGE TOP OF DOC The CHAIRMAN. I would be happy to.
Mr. SKELTON. I think, Mr. Chairman, you made history. To my knowledge, this is the first time a hearing of this nature has ever been held by this committee. I think it is very, very important that it have been done. Thank you.
The CHAIRMAN. Well, I thank the gentleman.
And, Mr. Parks, thank you for your extraordinary expertise and your contribution to our country.
Mr. PARKS. Thank you, sir.
The CHAIRMAN. And before we go, we have got Mr. Steadman, who is our professional staff member, a new professional staff member who is brand new here. But I was for a short period of time in a mediocre capacity with the 173rd Airborne Brigade. My own company commander, Jim Marrison, who in an extraordinary capacity served that brigade is in the audience. But Mr. Steadman was in the brigade for four years, the legendary 173rd. They made a combat jump in Iraq. And anytime a staff member has his old unit make a combat jump, he gets to ask a question. So, Ken, you earned it. Does Mr. Steadman have any questions?
Mr. STEADMAN. Thank you, Mr. Chairman, Mr. Ranking Member, but at this particular time I wish to defer to precedent and not ask any questions.
The CHAIRMAN. Okay. Any final remarks you would like to make, Mr. Parks?
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Mr. PARKS. Just one follow-up on one comment that the Chairman made. That was the threat of sending 500 lawyers into the Presidential Palace. There are probably more than 500 Army, Marine Corps, Air Force, and Navy judge advocates in the theater of operations, and two of them have in fact been wounded in combat, one Army and one Marine. So we do have a brigade of lawyers, and I am sure that does terrify Saddam Hussein. Thank you, sir.
The CHAIRMAN. I thank the gentleman. And the hearing is concluded.
[Whereupon, at 3:05 p.m., the committee was adjourned.]