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Putting Saddam Hussein on Trial

Crimes Against Humanity and the Transition from Dictatorship to Democracy Congress, May 25, 1993

Report issued by the Executive Council of the Iraqi National

Though the United States long supported Saddam Hussein in order to challenge the regional ambitions of Khomeini’s Iran, George Bush compared the Iraqi dictator to Hitler when it came time to rally support for Desert Storm. A mountain of evidence now suggests that while this comparison was off the mark in extent it was not inaccurate in kind.

By now we have detailed knowledge of the crimes of Saddam Hussein and his associates against their fellow Iraqis. They include the systematic practice of extreme torture, often with fatal consequences. Saddam Hussein’s is the only government ever to use lethal chemical weapons against its own citizens; it did so as part of a longterm campaign against the Kurds, in which some four thousand of their villages were completely destroyed, many toward the end of the Iraq-Iran War in 1987–1988. The government also carried out heavy and indiscriminate retaliation against Shiite communities that took part in the March 1991 uprising at the close of the Gulf War, including attacks on their holiest sites and their hospitals. (During the uprising both Shiites and Kurds committed their own terrible abuses against suspected government agents.) Trying to combat insurgency in southern Iraq the government also deliberately devastated the marshlands; much of the territory of an ancient people with a distinctive way of life has become uninhabitable.

Such a list leaves out Saddam Hussein’s crimes during the wars he began against Iran, in which he also used chemical weapons, and against Kuwait; his departing act, one without any military purpose, was to set fire to Kuwait’s oil fields, and to release huge quantities of oil into the Persian Gulf.

In June 1992, some two hundred dissident Iraqi Kurds, Shiites, Sunnis, Christians, and others met in Vienna to draw up a program of action against the Saddam Hussein government; perhaps the best known among them was Kanan Makiya, the architect-turned-writer who published Republic of Fear under the pseudonym Samir al-Khalil at a time when he considered it too dangerous to use his own name. (Makiya’s most recent book, Cruelty and Silence, criticizes the failure of Arab intellectuals and politicians to speak out against Saddam Hussein’s atrocities.)1 The members of the group in Vienna announced that they aimed to replace the regime of Saddam Hussein with “a constitutional, parliamentary, democratic order based upon political pluralism and the peaceful transfer of power through elections based upon the sovereignty of law.” Another resolution called on the United Nations Security Council to bring Saddam Hussein and his top associates to trial for crimes against humanity.

In May, the body that was formed the previous year in Vienna, the Executive Council of the Iraqi National Congress, published Crimes Against Humanity and the Transition from Dictatorship to Democracy, which presents some of the gross violations of human rights committed by the Iraqi regime. It contains drafts of indictments against Saddam Hussein, his cousin, Defense Minister Ali Hasan al-Majid, who conducted the genocidal campaign against the Kurds (whom they refer to as “Ali Chemical”) and twenty-five other top officials, whose particular crimes are described in detail. The book reproduces some documents captured from Iraqi security offices during the March 1991 uprisings, in which orders are given for mass summary executions and other crimes. The book also proposes a charter for a tribunal to conduct the trials of these officials.

Reading this book as well as documents collected by Middle East Watch, one finds a very strong moral and legal case for convening an international criminal tribunal to try Saddam Hussein, Ali Hasan al-Majid, and their confederates. The prospect that a tribunal will actually take place however, is remote, even though the Security Council has recently taken a large step toward holding accountable other leaders who are responsible for crimes against humanity. On May 25, without dissent, the council approved a plan submitted by Secretary-General Boutros Boutros-Ghali to establish an international criminal tribunal to try those accused of such crimes in the wars that have taken place since 1991 in the former Yugoslavia. As I write, judges and a prosecutor are being recruited by the Secretary-General’s office. This would be the first international criminal court since those at Nuremberg and Tokyo following World War II that prosecuted the top German and Japanese war criminals.

Formidable obstacles stand in the way of such a tribunal. It would first have to gain custody of the responsible Serb leaders, and it is unclear how this would be done. Such people as Slobodan Milosevic can be expected to demand that any prosecution be dropped in exchange for an agreement to a peace plan, or simply to defy the authority of a tribunal. If a tribunal can be convened to deal with the former Yugoslavia, moreover, this still does not significantly improve the possibility that the Security Council would sponsor other tribunals. Though proposals for a permanent international criminal tribunal have been made since Nuremberg, and have been discussed extensively by international lawyers, such ideas have never had much support because too many governments fear that they or their allies might find themselves in the dock. China, a permanent member of the Security Council, will block with its veto power any trial in which it would be called to account for crimes against humanity in Tibet, or in which such current or former allies as the Khmer Rouge in Cambodia or the military rulers of Burma are to be prosecuted for their crimes.

But establishing a tribunal to try those responsible for crimes by the Iraqi regime would lend weight to arguments that, since additional ad hoc tribunals are being convened, the time for a permanent tribunal has arrived. Leaders in many capitals would be dismayed by this prospect and it might conceivably have an effect on their behavior.2

A more promising way to obtain international judicial review of at least some of the crimes of Saddam Hussein has been suggested by Middle East Watch, a Human Rights Watch division, which is preparing a case for the International Court of Justice in The Hague (the “World Court”) accusing Iraq of genocide against the Kurds. The court is not a criminal tribunal and, even though the purpose of the Genocide Convention, to which Iraq is a party, is both to prevent and punish genocide, the court could not order criminal penalties. A genocide case against Iraq could only be brought before the court by a government that is also a party to the Genocide Convention. The court’s most important powers in such a case would be (1) to issue a ruling that genocide did in fact take place; (2) to issue an order enjoining Iraq from continuing the genocide; and (3) to order compensation.

Though these may seem relatively mild punishments, such a decision by the World Court would be of historic significance. It would be the first time since the Genocide Convention was passed by the UN in 1948 that the court would invoke it by determining that a particular regime had committed genocide. By condemning Saddam Hussein and his associates as those responsible,3 it would make it more likely that the international community would establish a criminal tribunal to see that the Iraqi leaders are subjected to penal sanctions.

It would also strengthen the resolve of the UN Security Council to maintain protection for the Kurds, which has become a matter of urgent importance. During the past two years, Iraqi Kurdistan has been a United Nations security zone protected by the UN from the rule of Saddam Hussein. The Kurds suffer from food shortages because of an Iraqi embargo and because their farmlands are still infested with land mines. But they have been able to establish their own state within a state and they have elected their own parliament. Their de facto state controls a wide diagonal strip across the northeastern portion of the country and includes the cities of Dohuk, Erbil, and Sulaimaniya, but not the oil-rich town of Kirkuk where Kurds had traditionally made up the largest ethnic group.

The Kurds are protected now by fewer than two hundred lightly armed UN guards—so lightly armed that they have been compared to parking lot attendants—whose presence has nevertheless kept Saddam Hussein’s forces at bay. If there were an open attack on these guards, the US-led alliance that defeated Iraq would sharply retaliate. However, because of the UN’s financial difficulties, some UN officials have suggested that it might not be able to maintain the guards in Kurdistan. That could well be disastrous for the Kurds; their government might fall apart and Saddam Hussein’s efforts to exterminate them would probably resume. A finding of genocide by the World Court would almost certainly ensure that the funds will be produced, the UN guards kept in place, and Kurdish self-rule and a degree of safety maintained. It would also call attention to the Kurds’ urgent needs for economic assistance. According to a report in The Independent of August 22,

An engineering consultant sent to northern Iraq last month has warned its battered, overloaded electrical grid may not survive the winter. Breakdowns are causing power cuts and UN sanctions [on Iraq, which in turn has imposed its own sanctions on Kurdistan] make spare parts impossible to obtain. Roads have not been repaired, bridges are still broken. Schools are open, but not equipped. Recently re-established herds are dwindling because of cuts and delays in vaccination programmes. “Foot and mouth disease has been sweeping through the area in the last month,” says Mike Jordan, an agriculturalist. “In some places 60 percent of herds are infected—goats as well as cows.”

Meanwhile, “the United National has received only $244 million of the $420 million it wanted for the year and has cut its expatriate staff by half.”

That a genocide case may be brought before the World Court and might succeed has been made possible by the Kurds’ uprising in March 1991 at the end of the Gulf War. When they briefly took over Iraqi security offices in a number of cities, Kurdish guerrilla groups captured huge quantities of documents in which the Iraqis described in detail their own abuses against the Kurds. In May 1991, Middle East Watch brought to the United States 847 boxes of such documents seized by one of the groups that led the uprising, the Patriotic Union of Kurdistan. Those documents are now being laboriously examined and translated by Middle East Watch researchers. With Kurdistan protected by UN guards, researchers from Middle East Watch have been able to spend several months there taking testimony from survivors of mass executions by the Iraqis. Along with Physicians for Human Rights, they have arranged for forensic scientists to exhume the remains of some of the victims to identify them and determine when and how they were killed.

Middle East Watch plans to present this documentary, testimonial, and forensic evidence to various governments that might be plaintiffs in a suit for genocide against Iraq before the International Court of Justice. The unique circumstances have made it possible to assemble a stronger case than at any time since the Genocide Convention was passed. It is therefore particularly urgent to undertake the extensive and costly research effort that is required to bring a convincing case before the court.4

  1. 1

    Published by Norton and reviewed in these pages on May 27, 1993.

  2. 2

    Among the special circumstances that led the Security Council to establish a tribunal for the former Yugoslavia were the need to do something to compensate for the dismal failure of the UN to halt the carnage and the fact that the wars in Croatia and Bosnia-Herzegovina met the legal definition of international armed conflicts since the states of Croatia, Bosnia, and Yugoslavia were all internationally recognized when abuses took place. Under international law, crimes committed during international conflicts may be “grave breaches” of the Geneva Convention, or war crimes. Accordingly, the legal case for bringing those responsible for these crimes before an international tribunal is particularly strong.

    The crimes committed by Saddam Hussein against Iraqis, or by the Khmer Rouge against Cambodians or by SLORC against Burmese, could not legally be prosecuted as war crimes by an international tribunal. They would have to be prosecuted in accordance with the principle established at Nuremberg of trying those who have committed crimes against humanity, a broader principle than the rationale of the war crimes tribunal for the former Yugoslavia. The precedent set by the Security Council’s action in the case of the former Yugoslavia does not have as sweeping implications for a large number of countries as would establishment of the tribunal called for by the Iraqi National Congress to try Saddam Hussein.

  3. 3

    The decision by the International Court of Justice on April 8 in Bosnia-Herzegovina’s case against Yugoslavia (Serbia and Montenegro) was a preliminary ruling calling on Yugoslavia to prevent genocide, but not a finding that genocide has actually taken place.

  4. 4

    Two reports that discuss the evidence assembled to date are: “The Anfal Campaign in Iraqi Kurdistan: The Destruction of Koreme,” written by Kenneth Anderson and published by Middle East Watch and Physicians for Human Rights, January 1993; and “Genocide in Iraq: The Anfal Campaign Against the Kurds,” written by George Black and published by Middle East Watch, August 1993.

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