Telford Taylor : Chief Nuremberg Prosecutor Still Ever Alert for War Crimes

Though he will be 83 next month, Telford Taylor greets visitors with the bearing of the brigadier general he was when he stood before the Nuremberg war crimes tribunal as chief prosecutor in 1946. He stands erect, proper, slightly formal. But this tinge of military demeanor is suffused with a vigorous intellectuality, an aggressive pursuit of broader truths and a pleasure at wrestling with moral ambiguity--traits that cling comfortably to his professorial persona.

As the Persian Gulf War begins to weigh on Americans, the graphic film of captured American and British flyers, Iraqi Scud attacks on Israel and the looming threat of widespread bloodshed have fanned concern about Iraq’s violation of the laws of war. A Harvard-trained lawyer who continues to teach constitutional law in New York, Taylor remains the foremost American authority on international law and the conduct of war.

A prolific author--he has written not only on Nuremberg, but has explored the European political landscape in the years before World War II, examined parallels between Nuremberg and the conduct of American troops in Vietnam and scored the Soviet criminal justice system--Taylor lives in a faintly dowdy apartment, a scholar’s home filled with books, a grand piano and sheet music for his beloved clarinet. He lives there with his wife, Toby Barbara Golick, a lawyer, and their two sons; he has three children from a previous marriage.

In his study overlooking Morningside Park on the edge of Columbia University, the proceedings of the Nuremberg trials fill shelf after shelf of bookcases--documents detailing the prosecutions of Nazi war criminals, mass murderers and those who actively supported crimes against peace and humanity. Before settling down to talk, Taylor selects a thick volume, a history of the Geneva conventions governing the rules of war.

Like most Americans, he has been riveted by accounts of the war on television. He has watched, he says, not only as a citizen, but as a legal scholar deeply concerned about the conduct of the Iraqi regime and its treatment of American and coalition prisoners of war. At the same time, he is not unaware of the potential for abuse of the rules of war by coalition forces--although he says the combination of precision technology and a broader adherence to the rule of law by U.S. and coalition forces sharply diminish that concern, at least for now.

Taylor speaks carefully, often using historical precedents to buttress his arguments, occasionally seeking support in the law’s precise wording. With the United States at war for the first time in 15 years, he bemoaned the likelihood that he would not have time to return to his clarinet--he it put aside six months ago to finish writing a book. There will be, he says, little time for such pursuits.

Question: The first thing I wanted to talk about is the appearance--on television and newspapers--of coalition prisoners and their apparent placement at strategic sites--as the Iraqis have said they intend to do. A lot of warnings have been issued to Baghdad demanding adherence to the Geneva conventions governing protection of prisoners of war. Are there specific provisions about this? Can we know whether they have been mistreated?

Answer: . . . . We can start off with the fact that Saddam himself has had them posted there to be shown and asked to talk on television in situations where it looks as if all of them have either been beaten or brought to a very bad state of mind. And that itself is a violation of the Geneva conventions . . . .

It was said that they are planning to take these prisoners and do what they had done with the foreign hostages some months ago: to put them in places likely to be attacked from the air with bombs and therefore posing a considerable danger to them. That is a very much more serious thing.

Now, the Geneva conventions have a history. To get away from this idea that they’re something new, something that has not been thought about, these go back to our Civil War. Until the Civil War, the laws of war had not been written out in any formal way. The idea that prisoners should be handled with civility was in the air and generally regarded from the start of the 19th Century as the right thing to do. Now . . . for the first time, these rules were written down and put into a federal statute in the course of the Civil War, and that happened within a few yards of where you are sitting . . . .

In 1899, when we had the first of the Geneva conventions, that has about 15 paragraphs having to do with prisoners. In 1907, virtually the same things were repeated . . . . In 1929, and again in 1949, there were many, many paragraphs about prisoners in those two conventions. From the very beginning it was made quite clear that prisoners were entitled--could insist, if possible--on being put in a place of safety. Sometimes it’s impossible, but if it was possible, that is what those who had taken them prisoner were called upon to do. And, to the extent that things permit, to be given adequate food and given a decent place to be and especially not put in an area deliberately that would be dangerous . . . .

What Saddam has done, or said would be done, are plainly gross violations of the Geneva conventions, which, of course, among others, he for his country signed and accepted.

Q: What violations of the accords can you see at this point?

A. Basically parading prisoners and putting them up for exhibition--obviously against their will. It would have been extraordinary if they wanted to be called up in the situation they were in. You may remember that the British prisoner was all but falling down in a faint.

Now we have to go a little slow on that. Airplanes fly very fast now. and to get out of a plane if it is going to crash has become very much more difficult than it used to be. And it can often be the fact that if you have to bail out of a very fast flying airplane you may get your head or other things hit on the way out . . . . But there was a similarity about the beatings around the faces that suggested, at least to me, that there had been more to it than simply the bailout. But one doesn’t know for sure.

Then the things that they then said--and said, I thought, in a way that clearly betokened that they wanted to say it in a way that their families and others would say, “That’s not the way he talks.” They were trying to talk in a way that would indicate to home that, “Of course, this is not what he intended to say.” To parade them, to put questions to them, to call on them to talk about such things is a violation of the laws of war. It is not as serious a thing as deliberately putting them in places of danger--what they said they would do next.

Q: Several leaders, including President Bush and (British) Prime Minister John Major, have threatened, or alluded to the convocation of a war crimes tribunal after the war. Who has the international authority to pursue these trials , and what conduct do you see as constituting war crimes on the part of Iraqis? For example, during the Third Reich, criminal acts included crimes against peace and against humanity. Can you make similar assessments now?

A: To some extent. You mention crimes against peace--which is aggressive attacks on other countries. And of course with Kuwait, that is exactly what they have done . . . . Then the two other things we have been talking about, the treatment of the prisoners in those two ways would also be chargeable under war crimes. So all those things would be possible. It would seem to me obvious and easily provable charges.

You started by asking how this would be done. How could you get a tribunal to handle this. In the first place, those prisoners include British, American, Kuwaiti and Italian, if I recall. With respect to what has been done to each of those, that country would be entitled to take those who had been responsible for the handling of each of those prisoners and try them before a military court martial.

That might be one way and that could have been done after World War II--but it wasn’t. It wasn’t the sole thing done. We had the military tribunal which at Nuremberg set up by the leading powers of Europe and the United States. Their action . . . was then adhered to and approved by 19 other countries--so it had a very broad international base.

So after the Nuremberg trial was over, the United Nations, which in the meantime had been created in 1945, passed a statement approving what had been done at Nuremberg, and that included the crimes against peace. And as a matter of fact, President Bush, the main thing he has urged to the country as the prime reason for doing what he is doing is the fact that this was an aggressive war on the part of Iraq . . . .

These military courts are not the only thing. When we set up the Nuremberg courts, the United Nations was just aborning and was in no situation to take action as we did in 1945. But by now, you have had the United Nations for a long time and if you asked me what I believe would be the best way to do it--if there are to be trials, or a trial--is that it should be done under the umbrella of the United Nations. They should decide who the judges should be, what the charges should be, etc., etc.

There’s one particular reason why I think that would be better than what we did at Nuremberg. The tribunal at Nuremberg was given jurisdiction only after crimes by the Axis countries in Europe. They would have had no jurisdiction if Germans had come in and said: All right, we’ve done a lot of bad things, but look what the Americans did here, look what the British did there--and come up with a lot of evidence that we had also been guilty of war crimes. They would have had no jurisdiction to hear it. In other words, it was a one-way street. The only people who could be tried were Germans and Italians . . . .

When you are dealing with crimes against peace, and a war has ended, it’s always seemed to me that there ought to be jurisdiction for crimes available if the victors have committed them as well as if the losers have committed them.

Q: Among the coalition forces, are there types of behavior that would border on or be in the area of war crimes?

A: There are some that might be applicable. But I would have to tell you first that essentially there are no laws of war for aerial warfare. Of course, in 1899, there were none. And in 1907, it was still in the cradle. It developed rapidly in World War I, and there was an effort made to adopt some rules for aerial warfare but nobody signed it.

Much more recently, in 1977, there was a big gathering which could have come up with additions to the Geneva conventions and the representatives that were there produced some very important and, I thought, good rules for aerial warfare. But we have refused to sign it; the British have refused to sign it . . . .

Q: Coalition spokesman have said the technology for their bombs and missiles is so good that the result is pinpoint attacks that avoid civilian centers, targeted at military sites. But Iraqi missile attacks on Israel--which is not a member of the coalition--use Scuds, which are not guided, but simply lobbed in like a long-distance hand-grenade at civilian population centers. Is that a violation of the Geneva accords or the laws of war?

A: Good question. As far as I know Iraq has not declared war against Israel. They gave no warning. I mean, they said they were, but they never made any formal declaration of war, and that in itself is forbidden. You’re supposed to give due warning that you’re going to strike. So that is a crime, although I wouldn’t say one of the worst. I don’t know if those missiles would count as aerial combat or not. If it’s aerial combat--as I say, we don’t really have any laws of war. If it’s more like a gun that’s being fired from the ground that you can make it like artillery, why then yes, firing guns at non-protected places is a crime.

Q: Given what we’ve seen of Hussein’s intransigence in the face of other forms of international pressure--the embargo, for example--does it make any difference that people are talking about war crimes?

A: Well we have a lot of other people involved in this. I would hate to see the United States say: He’s done all these things. Now let’s go and kill all the Iraqis. I think we want to keep our own skirts clean.

As to whether it makes much difference to the Iraqis, who can say? There were some who thought a little bit ago that this would be a very quick affair, that we would be able to end this thing without a lot of warfare that would kill a lot of Iraqis. But we don’t know. It’s much too soon to say.

Q: With Iraq’s destruction of Kuwaiti oil fields comes the possibility of catastrophic environmental damage. Could war crimes be expanded to include damage to the environment?

A: The Geneva conventions, I think most of them, begin with a reminder that they are not supposed to be conclusive. In other words, this comes from the fact that until the middle of the 19th Century, it was all a matter that was agreed on generally, but was not written up in any formal way. (Taylor reads from the book he is holding.) “. . . in cases not included in the regulations adopted by them, populations and belligerents remain under the protection and empire of principles of international law as they result from the usages established between civilized nations and the laws of humanity and the requirements of the public conscience.” This is from the 1899 Geneva Convention . . . . So this is not supposed to be all the limitations that are placed on war . . . .

Q: There are suggestions that the question of war - crimes trials is an arena that should be left to the Arabs themselves.

A: Circumstances might run in that direction.

Q: In many cases, international law is simply ignored when it is convenient to ignore it. What expectations do you have that international jurisprudence over criminal acts is ever going to be anything more than a modest afterthought to military solutions to international crises?

A: Well, these laws of war didn’t get started to be nice. They started because armies could not maneuver unless they stopped living off the land and killing all the farmers and getting everything out of the cities and it was bad for business . . . .

I have a wonderful letter from Tallyrand to Napoleon explaining to him what a wonderful thing it is to have all these laws of war: “Look, we’ve had a lot of wars. But we’ve kept up all the commercial traffic, sea commerce, all because of the laws of war.”

It’s a little bit like automobiles and the speed limit. I’m for the speed limit even though I sometimes break it. But I’m damned sure that if there were no speed limits, people would drive even faster than they do. Almost all criminal law that amounts to anything is based on the willingness of people to obey it. If most people don’t obey it, it crumbles very rapidly . . . .

And I would say, therefore, that people are aware of the laws of war and that you don’t kill all of the people that you have taken prisoner. Yeah, they’re (the Geneva conventions) damn well worth it.