COLUMN ONE : Obeying the Rules of Warfare : The U.S. wants to avoid being accused of waging a barbaric campaign against Iraq. Meanwhile, it is amassing evidence that Hussein has violated international standards of wartime behavior.

As allied air forces fly thousands of bombing missions and ground troops stand ready for combat, scores of U. S. military lawyers are on hand to make sure the rules of war are obeyed in the Persian Gulf.

Meanwhile, in Washington, officials are compiling data that, should the opportunity arise, could be used as evidence of war crimes against Iraqi President Saddam Hussein and his lieutenants.

Although inevitably overshadowed by the fury of battle, the laws of warfare are playing both a symbolic and practical role in the Gulf War.

Lawyers from all branches of the service are on the scene rendering advice on how to tailor battle plans to minimize civilian casualties, how to properly treat enemy prisoners of war, how to conform to the law of the sea and how to prepare and negotiate international agreements. A Pentagon legal specialist noted last week that the lawyers confer almost daily with officials in the United States about bombing-target lists.

This detailed attention to the laws of war arises in the aftermath of the Vietnam War and the My Lai massacre, in which scores of Vietnamese civilians were killed by U. S. Army troops. Now, every member of the military receives some training in the legal aspects of war that relate to their duties. Combat troops carry cards reminding them how to treat prisoners.

“Marines do not harm enemies who surrender. They must disarm them and turn them over to their superiors. Marines do not kill or torture prisoners. Marines collect and care for the wounded, whether friend or foe,” one such card reads.

“The military was accused of acting barbarously in Vietnam and is determined not to be accused again,” said Tom Farer, professor of international law and international relations at American University. “And this is a case where being right and being prudent coincide. If we were seen as being the butchers of Iraqi citizens, the coalition (opposing Iraq) would crumble. The war is unpopular with a lot of Arabs, and if we could be accused of fighting in a particularly ruthless way, we’d have a problem.”

Adds a Defense Department lawyer who spoke on condition of anonymity: “The increased emphasis comes from our experience in previous conflicts. We’re keenly aware of the negative effects that can occur to the war effort when there are violations of the laws of war.”

U. S. officials for months have been assembling reports on apparent violations of international law by Iraqi leaders. Criminal investigators monitor television and newspaper accounts, as well as seeking leads from other sources.

Eventually, potential witnesses will be interviewed--their statements preserved in videotape or written depositions--for use as evidence in any proceedings that are held, the Pentagon lawyer said.

Ample Precedent

The repeated warnings by U. S. officials that Hussein may one day be held accountable in a court of law may seem premature at this early stage of the war. But international law experts say there is both ample precedent and abundant evidence to support a Nuremberg-like war-crimes trial for the Iraqi leader and his commanders.

Iraq’s coercion, humiliation and use of prisoners of war as human shields all would violate the Geneva Conventions, authorities say. The rape, looting and other mistreatment of Kuwaiti civilians, unbridled hostage-taking after the invasion, unprovoked missile attacks on Israeli and Saudi civilian areas and the waging of a “war of aggression”--a primary charge against Nazi leaders after World War II--all would violate international law, as would the first-use of chemical weapons.

While a war-crimes trial would raise a host of political and legal questions, experts say that it also could provide an apt conclusion to a war that has relied on United Nations resolutions for its legal underpinings and that has been cited by President Bush and others as key to establishing a “new world order.”

“What we should think about is leaving behind a searing lesson of the cost of this kind of behavior,” said Phillip R. Trimble, a former State Department legal adviser and now a law professor at UCLA. “The way to bring it home is to exact punishment on the actual human beings involved.”

Said Edwin M. Smith, professor of law and international relations at USC: “The importance of this event for the future of the United Nations is incredibly high. We have the U. N. system working the way (its founders) in 1946 contemplated it would work.”

Although the battlefield and the courtroom are worlds apart, legal experts stress that obeying international agreements governing battle need not impair the effort of war.

“Most military officials would agree there is nothing in the Geneva Conventions that is incompatible with military necessity,” said Dina Shelton, visiting professor of international law at Stanford University. “They can do everything they need to do militarily and still conform to the law.”

Nor is observing certain rules of warfare anything particularly new or the mere creation of what Farer called “pointy-headed 19th-Century diplomats.”

Authorities point out that accepted customs and laws of war can be traced back for centuries. Religious attitudes substantially influenced the development of rules of war. And customs varied widely, with some practices--such as plundering a city--being considered acceptable at some times, but not permissible at others.

In biblical times, soldiers were forbidden from harming people who sought refuge in places of worship, nor could they destroy fruit-bearing trees in enemy territory. In the 11th Century, church councils barred warfare on certain days and the harming of priests, women and merchants, upon penalty of excommunication. In the Age of Chivalry, knights were bound by an ethical code requiring them to be courteous to enemies and barring them from war against the weak and helpless. Medieval warriors also were prohibited from poisoning wells used by the civilian population.

By the late 19th and 20th centuries, the customs and unwritten rules of warfare had become codified in a series of international agreements and it was formally accepted in the world community that violations of the rules of war could be punished as war crimes if guilt was established in a fair trial.

Prosecuted Individuals

In the United States, the prosecution of individuals for war crimes under military law is similarly well-established, ranging from the murder conviction of Confederate Army Capt. Henry Wirz, superintendent of the infamous Andersonville Prison during the Civil War, to the murder conviction of Lt. William L. Calley in the deaths of 22 villagers in the My Lai incident. (Capt. Ernest L. Medina also was charged but was acquitted.)

The basis for any prosecutions stemming from the Persian Gulf War could be found in varying forms of international law, most prominently the Geneva Conventions of 1949. The conventions, setting forth strict provisions protecting prisoners, civilians and other noncombatants, have been ratified by almost every country in the world, including Iraq.

Among other things, articles of the conventions say that prisoners of war “may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind” and that prisoners “must at all times be humanely treated” and protected against “violence or intimidation.”

Other provisions declare that prisoners must be kept from areas where they may be exposed to “fire of the combat zone.” Nor may prisoners be used “to render certain points or areas immune from military operations.”

Under provisions of the Geneva Conventions, a serious or “grave breach” of such rules opens the way for the prosecution of violators.

Other aspects of international law that could come into play include a 1925 treaty banning the use of chemical weapons--interpreted by the United States as prohibiting only the first use of such weapons--and a 1973 agreement protecting embassies, diplomatic personnel and their dependents from harm in foreign countries.

Clearly the most recognizable precedent for war-crimes prosecutions is the Nuremberg trial of leaders of the Third Reich before an international military tribunal. Under an international charter, the defendants were charged, among other things, with waging a war of aggression, an offense that was based on the international community’s “renunciation of war” in the Kellogg-Briand Pact of 1928.

Death sentences were imposed on 12 defendants, three received life in prison, four got lesser terms, and three were acquitted. Later, scores of German military leaders, Cabinet ministers, industrialists and other figures were tried before tribunals composed entirely of U.S. judges.

Vaguely Written

Despite these formidable precedents, legal experts are quick to point out that many provisions of international law applying to war crimes are vaguely written and open to challenge and debate. Whether charges are seriously pursued may well depend on the outcome of the war.

“ ‘War crimes’ is a loose term and means different things to different people,” said retired Army Gen. George Prugh, former Judge Advocate General of the U. S. Army and now a member of the International Committee of the American Red Cross. “You have to recognize the reality of all this. It largely depends on who prevails.”

Michael J. Glennon, an international law specialist at UC Davis, acknowledges that the allies could well have been found guilty of needlessly attacking civilian populations during World War II--as in the fire-bombing of Dresden, Germany, and the atomic bomb attacks on Hiroshima and Nagasaki, Japan.

The rules of war may be violated countless times by individual soldiers, as in the mistreatment of prisoners. But what matters, Glennon says, is whether such acts are carried out as a national policy.

“That is what would make Saddam Hussein and his high-level commanders liable in some post-war proceedings,” he said. “These are not low-level officials engaging in rogue-elephant operations.”

Meanwhile, U. S. officials have consistently stressed what they see as the lawful basis for allied attacks on Iraq. Under the United Nations charter, the use of force is permissible in either self-defense or pursuant to a U. N. resolution. The United Nations has found that Iraq’s invasion of Kuwait represented an illegal “act of aggression” and a resolution adopted last November authorizes the use of “all necessary means” to remove Iraq from the occupied land.

The United States, in its stated intent to avoid unnecessary harm to civilians, is following both the recognized international customs and specific military law, Prugh said. An army warfare law, for example, requires that commanders take “all reasonable steps” to avoid losses of lives and property that are disproportionate to a military objective.

By contrast, Iraq’s Scud missile attacks resulting in death and injury to Israeli civilians represent a form of warfare clearly prohibited by the Geneva Conventions, says Stanford’s Shelton. “There was no pretense at all that these missiles were aimed at military targets,” she said.

Assuming victory by the United States and its allies and the survival of Hussein or other Iraqi leaders, a number of questions would then emerge over whether, when and how to proceed with war-crimes trials, authorities say.

Ironically, the threat of a trial in itself might prove a decisive factor in any negotiated political settlement ending the war.

“All the talk about war crimes makes it possible that Saddam Hussein, in effect, could cop a plea,” Glennon said. “He could effectively have the charges dropped in return for stopping the hostilities. This adds a bargaining chip to the process and gives him something to stop the war for.”

Other considerations--such as the risk of antagonizing other Arab nations--might also weigh against prosecuting surviving Iraqi leaders, said John H. Barton, a Stanford law professor. “Whether or not you want to have such a trial will depend a lot on the political factors,” he said. “And, remember, after a war, everything will look different.”

If a trial is to be held, the next question is, who holds it? The most likely forum, experts say, would be an international tribunal backed by the United Nations--the appropriate body to uphold international agreements and punish violators of Security Council resolutions directed at Iraqi aggression.

Another possibility would be legal proceedings conducted by any new government of Iraq against its former leaders. There is precedent for such proceedings--for example, some former Nazi leaders were prosecuted by West Germany after the war--and they could serve to help establish the credibility and independence of a new Iraq.

The least likely prospect, experts say, would be a trial conducted by the U. S. government under a 1986 anti-terrorist statute and a 1984 law against the taking of hostages. Although the United States believes it has far-reaching jurisdiction to enforce such laws for acts beyond its borders, the scope of such a prosecution would be limited to harms done to U. S. citizens and thus would be less effective compared to an international effort.

Whatever the forum, a trial would likely be conducted under procedures familiar to Americans and similar to those used at Nuremberg: Charges would be based on specific violations of international law, defendants would receive legal counsel, and certain standards of evidence and other procedural safeguards would be maintained. In all likelihood, the court would be made up of judges from different countries.

In contrast to Nuremberg, however, it is possible that the maximum penalty would not be death. While the United States and Iraq both maintain capital punishment, most European and many other countries do not--and thus an international trial over Gulf War crimes might not permit the death penalty. “It would be an open question,” says USC’s Smith.

The Los Angeles Times Interview in Opinion is with the chief Nuremberg prosecutor, Telford Taylor.