Arrest Aidid? Legal Issues Confront U.N. : Justice: Charges against the Somali warlord are being prepared. But trial procedures are unclear.

WASHINGTON —  The United Nations is heading into uncharted legal waters as it seeks to arrest and try Somali warlord Mohammed Farah Aidid on probable charges of attacking peacekeepers, inciting violence and, most important, committing crimes against humanity.

A legal team of specialists on international law, Somali law and war crimes tribunals is already in place in Mogadishu, U.N. officials reported Thursday. But, despite the order of U.N. special representative Jonathan Howe for the arrest of Aidid, officials at U.N. headquarters in New York could not come up with any details about the possible venue and procedure for any trial if the warlord is captured. They said U.N. legal specialists in New York are preparing the procedure.

But Howe, a retired American admiral who is in charge of the U.N. operation in Somalia, did announce that the charges against Aidid could include “crimes against humanity”--the wanton killing of civilians that figured as one of the main charges against Nazi war criminals in the Nuremberg trials after World War II.

This led to speculation that Secretary General Boutros Boutros-Ghali would ask the Security Council to create a special tribunal for Somalia like the one that has been created to try those charged with crimes against humanity in the former Yugoslav republics.

Creating such a tribunal after, rather than before, the arrest of Aidid could cause some legal problems.

“There are a lot of constitutional and legal scholars who would find difficulty with that,” said Richard L. Thornburgh, a former U.N. undersecretary general and former U.S. attorney general. “But let’s face it. This would be a political act. And international law is more politics than law.”

All in all, Thornburgh went on, “These are very, very murky waters.”

Another specialist in international law, Robert K. Goldman, a professor at American University in Washington, laid out the procedure that the United Nations might be able to follow without, in his view, legal difficulty.

“Starvation as a means of combat is clearly prohibited under international law as a crime against humanity,” Goldman said. “This is one of the most clear-cut examples . . . of someone who has used starvation to murder people.”

Goldman said crimes against humanity are treated under international law just like piracy. Any country has the right to try a captured pirate, no matter where the defendant committed the crimes. Goldman said that any country has the same right to try someone accused of crimes against humanity, no matter where those crimes were committed.

He said he sees nothing to prevent the Security Council from creating a tribunal soon to try Aidid and the other warlords when, and if, they are captured.

“This is not a question of an ex post facto (retroactive) law,” he said. “Not at all.”

A senior U.S. official speculated that the United Nations has three choices:

* To arrest Aidid and try him within the feeble Somali legal system.

* To arrest him and hold him until the Somali legal system is strengthened.

* To try him in a U.N. war crimes tribunal.

The Clinton Administration insisted Thursday that it is up to the United Nations to decide. State Department spokesman Mike McCurry told reporters that “it’s within the province of the United Nations to determine the proper venue for bringing Mr. Aidid to justice. . . . So the law enforcement action is at their direction and under their auspices.”

Although the Security Council asked only for the arrest, trial and punishment of those responsible for the ambush that killed 23 Pakistani peacekeepers June 5, Howe appeared to be laying the groundwork for a trial on much broader charges.

In his order for Aidid’s arrest, issued in Mogadishu, Howe said the criminal investigation of the warlord was not complete and that charges under investigation include “crimes against humanity.”

He said it is important to recall that the American and U.N. troops had intervened in Somalia only because of the famine caused by the warlords.

“It must never be forgotten that this intervention was the result of the world’s outrage over the anarchy that a few individuals had inflicted on their country,” he said.