. Page 4-Friday;November 30, 1979--The Michigan Daily
A method to
prosecute
international
criminals
It had become clearer in recent days
that there is no way to secure the safe
release of the American hostages held
in the United States embassy in
Teheran unless we do something to
acknowledge and establish the respon-
sibility of the Shah for crimes against
the Iranian people.
The broader issue is how to deal with
deposed tryants-General Somoza, Idi
Amin, Pol Pot, Emperor Bokassa
I-who are living comfortably in exile.
BUT THE SERIOUSNESS of the
issue has never, been underscored as it
has by the current crisis in Iran. The
answer, I believe, is to establish some
mechanism in international society to
assess the criminal responsibility of the
Shah.
Such a mechanism could be brought
into being if the minimum political will
existed. In other words, there are no
legal or moral obstacles that block such
action, provided only that the United
States and Iran stand aside and
allow such -a process to come into
being.
One of the great ideas after World
War II was the notion that even heads of
state and top government leaders
should be held criminally responsible
for their gross violations of inter-
national law. As a result, war crimes
trials were organized at Nuremberg
and Tokyo, the surviving German and
Japanese leaders prosecuted and, when
convicted, punished, in some cases by
death.
THE UNITED STATES was centrally
associated with this Nuremberg ex-
periment. Our government at the time
insisted, over Soviet and British objec-
tions, that an orderly, judicial method
be relied upon to deal with the
irresistable popular demands for some
kind of retribution. After the trials, the
United States led the way in having the
United Nations as a whole adopt the
Nuremberg Principles as guiding rules
of international law. And throughout
this experience, our leaders, including
the distinguished American prosecutor
former Supreme Court justice Robert
Jackson, insisted that the law is laid
down at Nuremberg included a promise
to the future that similar behavior by
rulers and their cohorts would meet
with a similar fate.
We now know that the Nuremberg
promise has not been kept.
In the case of the Shah, it is possible,
and I think desirable, to establish a
mechanism for assessing his criminal
responsibility within the framework of
the United Nations.
THE PROCEDURE I have in mind
can be outlined to indicate its substan-
ce as a first step, a neutral delegation
(say, Algeria or Venezuela) in the
General Assembly or Security Council
could introduce a resolution authorizing
the Secretary General of the United
Nations to appoint a Commission of
Inquiry composed of distinguished
jurists drawn from neither Iran nor the
United States.
This commission would have two
broad functions. First of all, it would
receive evidence of the Shah's alleged
criminality and make a, preliminary
assessment as to whether there existed
a reasonable basis for supposing the
Shah guilty of gross violations against
international law and crimes gainst the
Iranian people. If the answer of the
Commission were affirmative, as is
certainly likely, then it would proceed
to its second task, that of proposing the
establishment of a special Tribunal-an
operative legal framework for the trial
of the Shah.
The Commission would issue a report
containing its findings and recommen-
dations, calling upon the United
Nations to act accordingly. At this
point, supposing an affirmative
recommendation, the United Nations
would constitute a special Tribunal. It
could, perhaps, conceivably use the
facilities and even the personnel of the
international Court of Justice, tge so-
called World Court that sits mainly idle
in the quiet Dutch city of the Hague.
By Richard Falk
The World Court is now limited to
deciding legal disputes between
sovereign states.
THERE ARE, at least, three prac-
tical problems with this two-step
procedure: securing the participation
of the Shah, determining the applicable
body of law and enforcing the final
decision.
It is highly unlikely that the Shah
would agree to participate in his own
defense. Indeed, who ever heard of an
accused war criminal voluntarily
agreeing to appear before a court or
accepting the consequences? The two-
step procedure outlined here could be
THE PROBLEM of applicable law is
mainly a technical matter of
prescribing for the commission and
Tribunal the legal criteria to use in its
work. At Nuremberg, three categories
of crimes'were relied upon, specified in
advance: Crimes Against Peace, War
Crimes, and Crimes Against Humanity.
The burden of the charges against the
Shah involve Crimes Against Humanity
in the context where no war existed. In
the Nuremberg Principles, Crimes
Against Humanity are defined as
follows: murder, extermination, en-
slavement and other inhuman acts done
against any civilian population or per-
secution on political, racial or religious
"In the case of the Shah, it is possible, and I think
desirable, to establish a mechanism for assessing
his criminal responsibility within the famework of
the United Nations.''
of criminal conduct to cover plundering
for private gain the public wealth of a
country, possibly called Crimes Against
Public Wealth.
This last category is important in the
case of the Shah where a main line of
allegation is illegal removal of dollars
of Iranian public wealth and the
existence of economic corruption as a
pervasive feature of government. The
challenge here is for the Commission to
find a satisfactory way to formulate
standards without engaging in retroac-
tive law-making.
The final issue is that of law-
enforcement. How will the punishment
be imposed? What's the point of such a
procedure if these is no reliable means
to extract the punishment? In essence,
I believe, the value of this procedure is
to give the Iranian people an opportunity
to tell their story in a definitive way. It
would, in effect, legitimate their rage
over the treatment of the former Shah
as an individual deserving of sym-
pathy.
THE TRIBUNAL COULD also, if so
inclined, call upon domestic legal in-
stitutions, including courts, to give ef-
fect to findings that included that the
Shah's assets were criminally
acquired.
More substantial than these technical
problems are some political problems.
There is, first of all, an American
sensitivity about having the trial of the
Shah expose the United States role and
that of its embassy in putting and
keeping the Shah in power between 1953
and 1979. Such sensitivity must be
balanced off against the lives of the
hostages, the threats of military inter-
vention and the isolation of the United
Staes in the Moslem world.
ANOTHER CONCERN is whether
this procedure will satisfy the leaders
in Iran, the students at the embassy and
Ayatollah Khomeini. We can never be
sureuntil such an initiative is tested.
There are indications of a favorable
response, including statements by two
leading members of Ayatollah
Khomeni's inner circle, Abolhassan
Bani-Sadr, the acting foreign minister,
and Sadegh Ghotbzadeh, the influential
head of the Iranian Radio and
Television. They have both suggested
other problems would go away, in=
cluding the holding of the hostages and
the enemy, if some partial procedure
under United Nations auspices could be
agreed upon.
In the end, the question is one of com-
peting considerations about the drift of
world order. I am convinced that the
lesser risk at this time involves
creating some procedure for the ex-
posure and public punishment of
deposed tryants for their crimes of
state.
The issue of political will is crucial.
Whether the leaders of Iran and the
United States, now locked in a death
embrace, have the imagination and the
courage to disengage is the ultimate
question. Iran would relinquish its
literal claim for the physical body of the
Shah and the application of Islamic law
in exchange for satisfying their most
fundamental and principle., demand
that the responsibility of the Shah for
crimes against the Iranian people be
established for all to see: The United
States would achieve its fundamental
and principled demand that all
hostages be released while
relinquishing its refusal to allow
inquiry into the criminality of the
Shah's rule.
Despite difficulties, and international,
mechanism for investigating crimes of
state be deposed rulers seems like an
idea whose time has come. And no bet-
ter context than the present anguish
over the fate of the hostages,.of world
peace and of the Shah is likely to occur
for a long time.
Richard Falk wrote this piece fdr
the Pacific News Service.
flexible on this matter. It could invite
the Shah to appear, and failing this it
could urge the government in whose
country the Shah was resident to
cooperate with the United Nations
procedure by turning him over through
some type of extradition process.
In all probability, however, the
government would interpose the
sovereign right to grant asylum to
political leaders of foreign countries.
Hence, it is highly likely that the United
Nations procedure would have to go
ahead in ansentia. It might consider, in
this circumstance, appointing a counsel
for defense. Such an appointment would
lefif credibility and authority to the out-
come.
grounds, when such acts are done or
such persecution are carried on in
execution or in connection with any
crime against the peace or any war cr-
imes.
The simplest approach would be for
the Commission to reformulate Crimes
Against Humanity by focusing on the
realtionship between ruler and
population in a setting of international
peace.
THE CONTENT OF such crimes
could be informed also by the main in-
ternational instruments dealing with
human rights, including the universal
Declaration of Human Rights. It would
be necessary; I think, to add a category
Letters to the Dail
Ninety Years of Editorial Freedom
Jr
Vol. LXXXX, No. 70
Edited and mana
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News Phone: 764-0552
ged by students at the University of Michigan
I
Korea's future uncertain
E VER SINCE last month's
assassination of President Park
Chung Hee, the future of Korea has
been shrouded in a cloud of mystery.
No one from the current ruling
military leaders to the country's
political wizards has been able to
securely predict the nation's future
course. The signs have often been con-
tradictory.
Consider the bewildering develop-
ments. The interim government
headed by acting president Choi Kyu
Hah has privately extended several
olive branches to the opposition. Many
of the political prisoners held by the
former dictator, Park, have been
quietly released. Those signs of con-
ciliation gave the impression to
liberals in Korea that the government
is determined to erase the image of'
repressiveness incurred by the Park
dictatorship.
These hopes for change in one of the
region's less tolerant regimes quickly
dissipated when government forces
detained 96 people after an anti-gover-
nment meeting at the Young Women's
Christian Association building in Seoul
last Saturday.
It was the familiar scene-so clearly
etched in the minds of many Korean
dissidents-of the government closing
off any channel of disagreement. And
if that wasn't enough, the government
gave the people an encore Wednesday
when authorities arrested 100 people,
mainly Christian students who had
gathered at a downtown building to
mark the 10th anniversary of a
Christian youth fellowship group.
Finally, the Martial Law Command,
in power since Park's assassination,
announced sentences of two to five
years in prison for 20 student and
worker leaders of the demonstrations
in Pusan and Masan, less than two
months ago, in which 1,563 were
detained.
The source of the latest round of
discontent stems from the acting
government's decision to first choose
an interim president next month under
regulations of the old constitution, and
then revise the document. By choosing
this route, the government hats left it-
self wide open, and rightfully so, to the
charge that the people have again been
neglected from selecting their own
leader. Authorities counter- that the
new leader-expected to be Kim Jong
Pil-would only be in power tem-
porarily until the constitution is
revised. That would then force a new
election.-it
But, as dissidents say, it could take
months, maybe years, before a new
constitution is established. In the
meantime, a president elected by the
ruling, and not by the populace, would
lead the nation.
To the Editor: Reading
Last week on November 14th a
poetry reading took place.
featuring two groups, one from
Northville State Hospital and the
other from the Turner Clinic.
What impressed me the most was
the genuine openness of these two
groups. As one of the creative
writing group leaders I had been
quite aware of the participants'
willingness to reveal and share
deep personal moments. But I
was truly struck by everyone's
courage and joy in reading their
memorabilia, ideas, dreams,
thoughts and hopes to an un-
familiar audience, that being
those who attended in the Pendle-
Jon Room.
Certainly, it is a courageous act
to not merely reveal, but to write
about one's self. And then to
publicly share one's writingnis a
second act of courage which thir-
teen people so admirably demon-
strated.
Unforgettable and poignant to
me are the two dynamics that
filled the room. One was the in-
terest, respect, and pleasure that
both groups felt toward one
another as both sponsored
readers at an event as well as
people who haveeused writing as
a medium for intense personal
expression. And the other
dynamic, between the audience
and the readers, was a deep sense
of engagement, a mutual
. acknowledgement of the fun-
damental human need to express,
to share and to reach out.
-Paula Rubenstein
Poetry
To the Daily;
Howard Witt began his
November 16th Daily article-"A
Pedant's Dilemma"-by quoting
copyrighted material without
permission. Not that he would
have had an opportunity to
request permission, since he did
not trouble himself to speak to
anyone involved in the reading.
Apparently he does not share our
group' s orientation toward
writing as an impetus to
dialogue, rather than monologue.
No doubt it is due to this that he
failed to be able to place the event
into any meaningful context for
his readers. Worse yet, Howard's
article conveys no recognizable
sense of the people who were in-
volved. How could he? He was
apparently too involved in what
he was going to write to have
time to discuss his reactions with
any of us.
Furthermnre. althoueh the
typical ward. Then perhaps he
might be able to see other dimen-
siona to the meaning of the
reading to the people involved
and to other potential audiences
and amateur writing groups. For,
though these people do not have
the literary talents that Howard
is fortunate enough to possess,
they are able to write with con-
siderably more feeling and
humaneness than he has demon-
strated in his artice.
I hope Howard will learn to be a
more feeling, caring writer, and
that those interested in using
writing outsideof academic set-
tings will come to the conference
entitled "The Human Uses of the
Humanities" on January 14th at
Rackham,
-Paul L. Bail, Ih.D.
' The Dead
To the Daily
Mr. Smith levels some outwar-
dly coherent criticism of the
Grateful Dead concert occurring
Saturday night. However, as is
often the case with Daily
reviewers, Smith is so tied up in
the act of the deep personal
statement that he never attains a
level of real insight. We will grant
him the following externalities:
Jerry Garcia is getting old, there
were numerous strange and
uninhibited things done by the
audience, and the songs were
long. Acting the observer, one
cannot avoid the externalities,
but it is no great act of obser-
vation to comment on the ob-
vious. Mr. Smith, as is quite ob-
vious in his review, did not go to
this concert with the purpose to,
see, but merely to confirm those
things that he had already
- decided he would see.
Those of us that traveled to
Crisler that night not carrying
the outcome neatly determined in
our heads were not disappointed.
The vast majority of the packed
arena responded en-
thusiastically, clapping, dancing,
and singing along with a band
that needs only to rely on the
strength and depth of their sound.
Apparently, Smith cannot think
of anything substantial to write
about the music itself. He can
only fabricate trashy metaphors
relating the experience to "sit-
ting quietly for four hours and
having somebody steadily tapaon
your forehead with a rubber
mallet." What insight! Smith's
review typifies the Daily's or-
namental style of criticism:
Don't worry about what you have
to say, just make sure it looks
good.
Sitting comfortably in his
vacuum of self-righteousness,
Mr. Smith rages against the
history ofathe late sixties using
the Dead as hisdartboard. Here
he is at his weakest. Garcia and
crew have confronted reality,
consider for example, keyboard
player Ron McI errnan's tragic
death in 1973. People who see.,
things like that don't just turn
their heads and forget. All of
those poor unstable lost souls of,
the sixties that frighten Mr.
Smith so much do not reject what'
they lived through. They have not:
shunned the reality of the past;
they have absorbed experience.
and learned, be it that a mortar
can take off your arm or that a
dirty needle can make you die.
Those painted faces at the con-
cert were no illusion and the loud
cheering did not creep in from a'-
nitrous buzz.
Some of us attended our first
Grateful Dead concert on Satur-
day not knowing what to expect-
and now we understand the im
provisational flow of their music
much better. Call us Dead Heads
if you like, not because we have
even the slightest interest in rap-
ping with Jerry about "space andl
time and stuff," but because we
strongly appreciate the gifted
and versatile musicmanship of,-,
Garcia and company.We wonder
what drug Mr. Smith was on
when he attended the concert;
surely something that makes the
head swell so much and inhibits
the visual and audio senses so
profoundly is not the kind of thing
one would want to mess with of-
ten.
Mark Kunkel,
David Fischer
Andy Baum,
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