Gulf War I: The Legality of Prosecuting Existing Iraqi Ba’ath Party in Response to Kuwait’s Deceased Captives

This paper analyzes and describes the role of international law in prosecuting international crimes committed during and after wartime, in general, and in the territories of Kuwait and Iraq during the invasion by the latter (Gulf War I), in particular. Through these approaches, I will identify the importance of international criminal and humanitarian laws’ mandates in trying existing Ba’ath commanders who had ordered, aided, abetted, and/or neglected their duties over their forces in which this conduct resulted in the death of Kuwait’s captives. In light of this analysis, I propose the establishment of an ad hoc tribunal to try and punish these perpetrators as a corollary initiative laid out on the United Nations’ obligations, and as a consequence to the Security Council resolution to liberate Kuwait. This paper will consist of four parts. The first part will illustrate the background of the Iraqi invasion of Kuwait and the liberation initiative led by the US and the UN (Operation Desert Storm) to free Kuwait from that invasion. The second and third parts’ approaches will analyze and criticize the legality of both: the Iraqi invasion of Kuwait, on the one hand, and the US-UN intervention to liberate Kuwait, on the other hand. Consequently, all of these proponents will lead to the development of a test to create an ad hoc criminal tribunal to try and punish the existing Ba’ath regimes who have violated international law by not keeping Prisoners of War (POWs) safe and unharmed. In conclusion, this paper is an attempt to achieve informative and analytic frameworks to argue why the UN should create an ad hoc tribunal and how this mechanism can be accomplished.