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Justice For Iraq
A Human Rights Watch Policy Paper
The Arab Ba’ath Socialist Party has been in power in Iraq since 1968. Under the leadership of President Saddam Hussein, who seized power in 1979, the Iraqi government has committed a vast number of crimes against the Iraqi people and others, using terror through various levels of police, military, and intelligence agencies to control and intimidate large segments of the Iraqi population.
Two Iraqi groups in particular have suffered horrific abuses—the Kurds in the north, and Shi`a populations in the south. Two decades of oppression against Iraq’s Kurds and Kurdish resistance culminated in 1988 with a genocidal campaign, and the use of chemical weapons, against Kurdish civilians, resulting in over 100,000 deaths. After the 1991 Gulf War, in the aftermath of a popular uprising in the South, Iraq drained the marsh regions and sent in the military with tanks to shell and burn villages, causing tens of thousands of Marsh Arabs, who are Shi`a, to flee to Iran. The Iraqi military has also used chemical weapons in its war against Iran, committed serious human rights violations during its occupation of Kuwait, and committed other crimes.
While Human Rights Watch has long advocated the prosecution of Saddam Hussein and others for crimes against the Iraqi people and others,1 it takes no position on the advisability or legitimacy of the use of force against Iraq or the goal of removing Saddam Hussein. See “Human Rights Watch Policy on Iraq,” http://hrw.org/campaigns/iraq/hrwpolicy.htm. As the possibility of armed conflict and a possible transition increases in Iraq, however, it is necessary to consider how such crimes should be brought to justice.
This policy paper discusses:
the need for justice;
principles that should be met regarding any future form of justice to redress the most serious crimes committed by the Iraqi authorities;
justice mechanisms that best further those principles;
complementary measures to promote justice and accountability in Iraq; and
other considerations relevant to justice and accountability.
The paper concludes that:
there is a clear need for justice for the people of Iraq achieved through an effective tribunal;
any form of justice must be impartial, fair, independent, and capable of being established in a timely fashion; and
the creation of an international tribunal for Iraq is the mechanism most likely to advance those principles.
An international tribunal for Iraq, however, need not necessarily replicate the models of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), but might be more focused in duration and scope.
This paper addresses justice mechanisms for the individuals most responsible for serious violations of international humanitarian and human rights law committed in Iraq. It does not address in any detail the separate question of what additional mechanism will be necessary to address the criminal complicity of estimated thousands of government agents and officials, or to bring reconciliation to the people of Iraq after decades of brutal, divisive rule by Saddam Hussein.
I. THE NEED FOR JUSTICE IN IRAQ
Saddam Hussein and others, including, but not limited to, members of Hussein's inner circle, members of the Revolutionary Command Council, and senior and upper-middle level members of the Iraqi military, security, and intelligence forces are responsible for a vast number of crimes that constitute genocide, war crimes, and crimes against humanity. The victims of such crimes include up to 290,000 persons who have been “disappeared” since the late 1970s, many of whom are believed to have been killed.
Human rights organizations and independent monitors have had almost no access to government-controlled areas of Iraq, limiting the amount of evidence that has been gathered about some of the serious violations of international humanitarian and human rights law committed by the Iraqi government. However, the evidence that has been gathered about some of the crimes—particularly the “Anfal campaign” against the Kurds (discussed below)—is of sufficient quality to stand up in legal proceedings. Human Rights Watch was able to obtain access to eighteen tons of Iraqi government documents seized by Kurds from Iraqi police, security, and intelligence headquarters during March 1991, which were airlifted to Washington and analyzed. Among those documents were official orders showing genocidal intent. In addition, Human Rights Watch, in collaboration with Physicians for Human Rights, uncovered several mass graves, interviewed hundreds of Anfal survivors, and published a detailed account of the Anfal genocide.2 Through Human Rights Watch’s examination of select Iraqi government documents, we have identified more than 115 military and civilian officials who may have criminal responsibility regarding the genocidal Anfal campaign and the counterinsurgency campaign that culminated in the Anfal. Although existing evidence about other serious human rights crimes and violations such as those ongoing against the Marsh Arabs and southern Shi`a populations is more limited, indications are that these campaigns are similarly centrally organized. A change in government in Iraq—a step that could open the way to a comprehensive accountability exercise—may give access to a vast amount of information about those crimes.
Attacks against the Iraqi Kurds. The government’s notorious attacks on the Iraqi Kurds have come in phases. Between 1977 and 1987, some 4,500-5,000 Kurdish villages were systematically destroyed and their inhabitants forcibly removed and made to live in “resettlement camps.”
Commencing in the spring of 1987, thousands of Iraqi Kurds were killed during chemical and conventional bombardments.
From February to September 1988, the Iraqi government launched the official “Anfal” campaign, during which Iraqi troops swept through the highlands of Iraqi Kurdistan rounding up everyone who remained in government-declared “prohibited zones.” More than 100,000 Kurds, mostly men and boys, were trucked to remote sites and executed.3
The use of chemical weapons reached a peak in March 1988; in the town of Halabja alone, where a documented 3,200 people are believed to have died from chemical gas attacks, and the actual number may be more than 5,000.
The killings constitute acts of genocide. The killings, forcible and arbitrary transfer of populations, and chemical weapons attacks amount to crimes against humanity.
Forced expulsion of ethnic minorities from Kirkuk. Since 1991, Iraqi authorities have forcibly expelled over 120,000 Kurds, Turcomans and Assyrians from their homes in the oil-rich region of Kirkuk and neighboring towns and villages. The systematic forcible transfer of the population—a process referred to by the authorities as “Arabization”— has been accompanied by the resettling of Arab families brought from southern Iraq to replace those evicted. This policy continues to be implemented.
Repression of the Marsh Arabs and other Shi`a. During the early years of the Iran-Iraq war, the Iraqi government arrested thousands of Shi`a Muslims on the charge of supporting the 1979 revolution in Iran. Many have “disappeared” or remain unaccounted for; others died under torture or were executed. This campaign was followed by the forced expulsion of over half a million Shi`a during the 1980s to Iran, after the separation out of many male family members. These men and boys, estimated to number between 50,000-70,000, were arrested and imprisoned indefinitely without charge; most remain unaccounted for.
After the Gulf War, in southern Iraq, members of the Shi`a majority rose up in revolt against the Iraqi leadership. In response, thousands of Shi`a including hundreds of clerics and their students, were imprisoned without charge or “disappeared” in state custody. Hundreds were summarily executed. Many Shi`a shrines and institutions were demolished by government forces. In the southeast, after tens of thousands of Shi`a Muslim civilians, army deserters, and rebels, primarily from the cities of Basra, al-Amara, and al-Nasiriyya, sought precarious shelter in remote areas of the marshes that straddle the Iranian border, Iraq’s military and security forces shelled and launched military raids against them. The raids caused thousands of so-called “Marsh Arabs” to flee to Iran and many others to become internally displaced within Iraq.4
Many of these attacks against the Shi`a amount to crimes against humanity.
General repression, large-scale “disappearances,” and other crimes. In addition to abuses particularly aimed at the Kurds and Shi`a Muslims, the Iraqi people under Saddam Hussein have suffered a consistent pattern of gross violations of internationally recognized human rights, including political imprisonment, torture, and summary and arbitrary executions. In addition, a ubiquitous network of security services and informants has suppressed independent civilian institutions and terrorized the Iraqi population into virtual silence. Torture techniques have included hangings, beatings, rape, and burning suspects alive. Thousands of Iraqi political detainees have died under torture.
There have also been a staggering number of “disappearances”—believed to range between 250,000-290,000. In addition to the 50,000-70,000 Shi’a cases described above, and the 100,000 Kurdish victims, “disappearances” have included:
An estimated 8,000 Barzani males removed from resettlement camps in Iraqi Kurdistan in 1983;
10,000 or more males said to have been separated from Feyli Kurdish families deported to Iran during the 1980s;
Shi`a Muslim clerics and their students from al-Najaf and Karbala;
Over 600 Kuwaitis and third country nationals who disappeared after their arrest during the occupation of Kuwait (discussed below);
Members of other targeted groups, including communist and other leftist groups; Kurdish, Assyrian, and Turcoman opposition groups; out-of-favor Ba'athists; and the relatives of persons in these groups.
The widespread and systematic practice of “disappearance” amounts to a crime against humanity.
The use of chemical weapons during the Iran-Iraq war. Iraq used chemical weapons extensively, starting in 1983-1984, during the Iran-Iraq war. It is estimated that some twenty thousand Iranians were killed by mustard gas, and the nerve agents tabun and sarin.5 Both Iran (1929) and Iraq (1931) are parties to the Geneva Protocol that prohibits the use of asphyxiating, poisonous, or other gases, and of all analogous liquids, materials, or devices, as well as the use of bacteriological methods of warfare.6 The use of asphyxiating, poisonous, and other prohibited gases is a war crime.
Occupation of Kuwait and related abuses. During Iraq’s occupation of Kuwait in 1990-1991, Iraqi forces committed systematic and gross abuses of human rights. During the initial takeover of Kuwait, hundreds of persons were killed or wounded and thousands detained. Iraqi soldiers and militia committed countless acts of theft, rape and assault on civilians, as well as summary executions, “disappearances,” and torture. Human Rights Watch believes that many acts committed by Iraqi agents during Iraq’s occupation of Kuwait constitute war crimes and crimes against humanity.
Thus, there is clearly a need for justice for crimes committed by the Iraqi authorities in Iraq and neighboring countries.
The importance of justice for Iraq cannot be over-emphasized. Should crimes such as those discussed above go without prosecution, or should perpetrators find their way into a new government in Iraq, the stage would be set for such crimes to be repeated. As discussed below, in order to provide foundation for a government that respects fundamental human rights, the most serious criminal offenses must be prosecuted. Amnesties for such crimes would not only contravene international law, but would fail to provide such a foundation.
II. PRINCIPLES REGARDING ANY FORM OF JUSTICE
Any justice mechanism for Iraq must adhere to certain recognized principles: it must be impartial, independent, and fair. It must also be capable of being established in a timely manner. While these principles should apply to all judicial institutions, for purposes of this paper, Human Rights Watch assumes that the primary focus will be on trying those who are most responsible (probably senior and upper middle level officials) for the worst crimes perpetrated by the Iraqi authorities, and that the crimes prosecuted would be genocide, war crimes, and crimes against humanity. Additional mechanisms will no doubt be necessary to address other human rights violations.
The need for impartiality
Any tribunal must be impartial and appear to be impartial. Thus, it is important that such a mechanism not dispense, or appear to dispense, “victor’s justice.” That term is particularly frequently used by critics of the International Military Tribunals at Nuremberg and Tokyo, the former of which was constituted solely by victorious allies after World War II. While those tribunals were innovative at the time and provided the foundation for the creation of the ICTR, ICTY, and International Criminal Court, the field of international justice has evolved since 1945-46, and any tribunal for Iraq must not return to those examples as models. Where domestic courts are unwilling or unable to prosecute, as would be the case in Iraq (see discussion below), crimes such as genocide and crimes against humanity are most appropriately tried before an international tribunal or a mixed national-international tribunal.
Human Rights Watch believes that the composition of the judges will be crucial in ensuring impartiality. The bench should include judges who are truly representative of the international community—including, for example, judges from Muslim countries—and not solely judges from countries that go to war against Iraq.
The need for fairness
Any tribunal created to try the accused must operate fairly. It must respect fundamental norms of procedural and substantive due process required under international law, including the rights of the accused as enshrined in international human rights law. These include, at a minimum: the presumption of innocence; the right to a fair and public hearing within a reasonable period of time; the right to be informed promptly, in a language the accused understands, of the nature of and reasons for the charges; the right of the accused to defend himself or herself in person or through legal assistance of his or her own choice; if the accused is indigent, the right to have counsel appointed; the right to examine witnesses; and the right to appeal. Important to ensuring fairness will be the holding of primarily open and public hearings.
The need for an independent tribunal
Any tribunal created must be independent. As described in greater detail below, this would not be true if the tribunal were controlled by a new government in Iraq, or by any coalition or individual countries that participate in a possible war against Iraq. The prosecutors and judges must have full independence, and appear to be capable of acting independently.
The need for a timely and effective tribunal
Without compromising the above requirements of impartiality, fairness, and independence, the international community should also strive to ensure that justice is administered in a timely and effective manner. In order to achieve a timely and effective justice process, it is important that justice mechanisms be established as soon as possible, and that the cases against suspects proceed at a reasonable speed. The interests of the victims as well as the rights of the defendants will be best served by a timely and effective justice mechanism.
III. MECHANISMS THAT BEST FURTHER THESE PRINCIPLES
Human Rights Watch believes that the only realistic justice options for Iraq are an international tribunal or a mixed national-international tribunal. Either of these mechanisms could systematically examine the multitude of serious crimes committed by the Iraqi authorities. As described below, other options that might be considered, such as military tribunals or prosecutions in domestic Iraqi courts, would be fundamentally inadequate to the task, while other international mechanisms, such as the International Criminal Court and third-country prosecutions, could complement but not replace an international tribunal.
Of the two approaches—creating an international tribunal or creating a mixed national-international tribunal—Human Rights Watch believes that an international tribunal is far more likely to be impartial, independent, fair, and capable of being established in a timely manner.
An international tribunal
Such a tribunal for Iraq could be loosely modeled on the ICTY and ICTR, but need not follow those models in every respect. For example, it would be possible for the Security Council to create an international ad hoc tribunal that lasts only a certain number of years. Similarly, an international ad hoc tribunal could be given the mandate of dealing with the most serious cases as a matter of priority.
An international tribunal, staffed with judges from countries from all over the world, representing different legal systems, would have the greatest appearance of legitimacy, if the judges represented a true cross-section of the international community. Such a tribunal could be impartial, and appear impartial. While countries that participate in any armed conflict against Iraq might play an important role in advocating and creating such a tribunal, the tribunal must be independent. Because of the important experience gained by the international community over the last ten years, the Security Council could establish an international tribunal for Iraq fairly quickly.
One of the main criticisms of the current ad hoc tribunals is that they have been very expensive, costing approximately $80-$100 million each per year. While cost is a relevant factor, it should be stressed that the ICTY has been able to be impartial, fair, and independent—the necessary benchmarks for justice identified above. Lessons the international community has learned from the establishment of the international tribunals could contribute to efficiencies in establishing an international tribunal for Iraq. Iraq also presents a unique opportunity, as it is envisioned that the extensive oil resources of the country and the region in general will be used to finance any post-war reconstruction effort. Part of these revenues could be used to defray the costs of the tribunal.
Such an international tribunal should be constituted by the United Nations Security Council, as were the ICTY and ICTR. While countries that initially occupy Iraq could create international military tribunals, based on the precedent of the International Military Tribunals at Nuremberg and Tokyo, such an approach would carry far less legitimacy. Even if a military tribunal for Iraq were staffed with a diverse panel of judges, there would still be a clear inference of “victor’s justice,” especially if the tribunals were established under military law. Military tribunals would lack the appearance of impartiality and fairness, and would be likely to lack various recognized due process protections.
A mixed international-national tribunal
A mixed international-national tribunal might also be a viable option, although that is less clear.
A special tribunal is needed in the current instance precisely because the Iraqi court system, as currently constituted, is incapable of achieving accountability for genocide, crimes against humanity, and war crimes. It seems initially somewhat problematic, therefore, to create a tribunal that would include judges and prosecutors from that same legal system.
There are two existing models for a mixed international-national tribunal: (a) a freestanding tribunal, as is now commencing operations in Sierra Leone; or (b) a panel set up within a country’s existing legal system, as contemplated for Cambodia, and as is occurring in East Timor’s Special Panels for Serious Crimes.
Human Rights Watch believes that only the former model—to the extent a mixed tribunal is contemplated—should be considered for Iraq. Because Iraq’s current judiciary is not considered an independent authority, but has been subject to control by Iraq’s Revolutionary Command Council since the late 1960s and early 1970s, it would not provide an independent forum within which to establish a mixed tribunal.
There are serious concerns, however, as to whether a freestanding mixed tribunal would be a sound option for Iraq.
The situation in Iraq is different from Sierra Leone. In Sierra Leone, a fairly independent, British-trained judiciary that was untainted by the abuses committed by rebel groups continues to exist and enjoy public legitimacy. While the record of the current government of Sierra Leone is not entirely free of abuses, cases against government officials are not anticipated to form a significant portion of the Court’s docket, if any such cases are brought at all.
In Iraq, by contrast, the judiciary has been deeply compromised. While it may be possible to identify individual judges who have remained untainted by over thirty years of Ba’athism, and while other judges may also be available in exile, the number of such judges and the extent of their preparedness remain unclear. The Revolutionary Court, State Security Court, and Special Provisional Court, in particular, have been instruments of repression. Even as to the remaining civil and criminal courts, there is a history of state interference. Thus, even after vetting and re-training, it could be difficult to select qualified judges and prosecutors for the kind of especially sensitive trials involved. Another concern is whether the Iraqi population would consider individuals who were part of the legal system under Saddam Hussein’s presidency to possess the required neutrality, since in countless instances they would be adjudicating cases involving the Saddam Hussein government.
The judges and prosecutors of any tribunal must possess high moral character, impartiality, and integrity, as well as competence in criminal and/or international law. In addition, the judges and prosecutors of any mixed tribunal should adequately represent the diversity of Iraqi society.
IV. COMPLEMENTARY MEASURES FOR JUSTICE AND ACCOUNTABILITY
In order to change the culture of impunity in Iraq and provide a solid foundation for restoring the rule of law and rebuilding civil society, other mechanisms should be pursued to complement the work of a freestanding international tribunal. They should not, however, substitute for such a tribunal.
The International Criminal Court
Any new Iraqi government should be encouraged to ratify the International Criminal Court Statute so that there is a credible threat of prosecution for future war crimes, crimes against humanity, and genocide committed in Iraq or by Iraqis. The ICC could also prosecute any such crimes committed after July 1, 2002, upon Security Council referral. The ICC does not have the power to preside over crimes committed before July 1, 2002, a category that in Iraq includes almost all of the crimes against humanity, acts of genocide, and the major war crimes identified by Human Rights Watch to date.
A systematic and comprehensive examination of the crimes committed against the Iraqi people is needed to change the culture of impunity that has dominated Iraq for so long. For the sake of achieving such a systematic examination of the crimes, and for the efficient use of judicial resources, it is advisable to have a newly constituted international tribunal adjudicate both past crimes and any crimes committed in the upcoming war.
Prosecuting individual cases in other courts under universal jurisdiction
Individual cases against Iraqis can also be prosecuted in the courts of states that have universal jurisdiction laws. Indeed, one such case, brought by Iraqi Kurds, is pending in Belgium against Saddam Hussein, alleging crimes against humanity committed against the Kurds. A similar case is pending in Denmark against Nizar al-Khazraji, former chief of staff of Iraq's armed forces, for his suspected involvement in war crimes perpetrated in Iraq against Kurdish civilians during the 1980-1988 Iran-Iraq war. While universal jurisdiction remains an option for individual cases, a more systematic examination of the crimes committed by the Iraqi authorities would result by consolidating cases before a single tribunal convened for the purpose.
Creating a Truth Commission
Another mechanism, which could play a vital function in conjunction with justice mechanisms, is a truth commission. In periods of transition, truth and justice are important, mutually reinforcing concepts; both are needed as part of a genuine accountability effort. A divided or fragmented approach to truth and justice—the notion that a choice could be made between truth and justice—would not be likely to achieve the “transitional effect” required to heal the wounds of decades of repression and human rights abuses in Iraq.
Truth commissions are particularly useful where justice mechanisms cannot realistically be expected to prosecute all of the perpetrators—as likely will be the case in Iraq. They also are useful in promoting reconciliation. In addition to creating an historical record, truth commissions may conduct investigations; take testimony from witnesses, victims, and perpetrators; recommend the granting of compensation to victims; and recommend reforms needed to prevent the recurrence of past abuses.
Establishing a truth commission would not absolve new authorities in Iraq of their duty under international law to prosecute the most heinous crimes. However, a truth commission could take testimony from lower-level offenders for minor or lower-level crimes. While HRW believes that no amnesties should be granted for the international crimes of genocide, war crimes, crimes against humanity and other serious human rights violations (see below), consideration could be given to permitting persons who committed minor or lower-level crimes to receive a pardon upon giving truthful testimony.
The role of Iraqi national courts
Given the state of the Iraqi judiciary (discussed above) it is essential that that judiciary be reformed to be an independent, impartial, and fair institution so that, eventually, national courts can prosecute crimes such as genocide, war crimes, and crimes against humanity. Such reconstruction should be a priority for the international community in the aftermath of any war in Iraq. However, since such reconstruction is anticipated to take a good deal of time, and it would be particularly difficult even for reconstructed courts to handle extremely sensitive cases early on, national courts should not be seen as a substitute for an international tribunal. If an international or mixed tribunal is created, it should have primacy over such national court prosecutions so that such a tribunal could request the national courts to defer to its jurisdiction.
Some have proposed the creation of a special domestic tribunal under Iraqi law, in lieu of an international or mixed international-national tribunal, to prosecute the most serious crimes of international concern. We believe this is not a practical option because of (a) the extremely sensitive and complex nature of prosecutions for genocide, war crimes, and crimes against humanity; (b) the currently compromised state of the Iraqi judiciary, including its lack of independence; (c) the need for reform of that judiciary; and (d) the fact that such reform will take substantial time to accomplish, during which time retraining will be needed to ensure a capable and impartial bench.
It is also possible that countries that participate in any use of force in Iraq would create military tribunals that not only address war crimes that occur during armed intervention, but also address past crimes of the Iraqi government. We strongly believe that military tribunals would be an inappropriate forum for a systematic and thorough examination of past human rights abuses in Iraq. Military tribunals would not appear impartial; they would appear biased against the Ba’ath party and current Iraqi officials, and would create the inference of victor’s justice. Such tribunals would not be independent, but would be clearly linked to the governments that sponsor the trials. And, such tribunals would be likely to lack the procedural guarantees required under international legal standards.
V. OTHER CONSIDERATIONS RELEVANT TO JUSTICE AND ACCOUNTABILITY
The need for prosecutions
It is crucial that the crimes of genocide, crimes against humanity, and war crimes be prosecuted. Not only would it contravene international law not to prosecute such crimes, but the failure to prosecute would: (a) send a message to would-be perpetrators that culpability for such crimes is of little importance or can be bargained away; and (b) fail to establish a sound basis for reestablishing the rule of law and civil society inside Iraq.
Human Rights Watch knows of no single transition process that has collapsed due to demands for justice. On the other hand, transitions have collapsed where amnesties have been too broadly granted, such as in Sierra Leone. If Iraq is to become a state that is respectful of fundamental human rights, it must prosecute, at minimum, those responsible for the most serious crimes under international law.
The jurisdiction of any tribunal established for Iraq should be broad enough to cover crimes committed during any military intervention. If fighting takes place, it should be made clear from the very beginning that all violations of the laws of war will be dealt with and in particular all war crimes without exception will be prosecuted.
There is great potential for war crimes and other serious abuses during military intervention. Any form of justice pursued in Iraq should take account both of the massive crimes committed since Saddam Hussein's Ba'ath party came to power, as well as crimes committed by any party during any past or future military intervention in Iraq. An early, pre-conflict commitment to pursuing justice for potential crimes committed during war in Iraq, by friends and foes alike, would have a serious deterrent effect on all parties.
The fact that thousands of persons conceivably could fall within the jurisdiction of such a tribunal should not be a reason to limit the scope of its jurisdiction ahead of time. A prosecutor would obviously prosecute only those most culpable, and those against whom the evidence was strong. Because many of the Iraqi government’s crimes were committed long ago, many victims have “disappeared,” and the general difficulty of gathering sufficient credible evidence, only a fraction of the crimes would likely actually be prosecuted.
Avoiding amnesties or conditioning them upon truth-telling before a TRC
No interim government, or state or coalition of states waging war in Iraq, should grant amnesties for war crimes, genocide, crimes against humanity, or other grave human rights violations. If amnesties are eventually agreed upon by a new or interim government for minor crimes, the better practice is to condition such amnesties on individual perpetrators appearing before a truth commission and participating in truth-telling.
Prosecutorial discretion, rather than a blanket amnesty, should be the means by which the practical impossibility of prosecuting all offenders is best addressed. Individualized decisions on whether or not to prosecute best ensure that those responsible for the most reprehensible criminal offenses are brought to justice. A broad-brush amnesty for serious crimes can only undermine the establishment of the rule of law.
Prosecuting far enough down the chain of command responsibility so the culture of impunity is changed
Serious consideration needs to be given to how far down the chain of military and civilian command prosecutions should occur. Prosecution only of persons at the very top levels likely would not sufficiently change the existing culture of impunity, and would fail to address numerous middle-level commanders who have participated in genocide. While justice efforts at the Sierra Leone Special Court, for example, likely will focus on the fifteen or so persons who bear the greatest responsibility,7 the number in Iraq likely would be significantly higher, given the complicity of almost the entire top command of the Iraqi army in massive crimes against humanity, genocide, and war crimes.
For example, as mentioned above, Human Rights Watch’s examination of select Iraqi government documents has revealed more than 115 military and civilian officials who may have criminal responsibility regarding the genocidal Anfal and the counterinsurgency campaign that culminated in the Anfal. That number would substantially increase if it were to include those most responsible for: other crimes against the Kurds; crimes against the Marsh Arabs and other Shi`a; “disappearances” and other comparable crimes involving other segments of the Iraqi population; the use of chemical weapons and other war crimes committed in the Iran-Iraq War; and war crimes and crimes against humanity committed incident to the occupation of Kuwait. While the number of potential indictees is large, it is finite.
The need to prevent retaliation
Long delays in delivery of justice could lead to a rise in vigilante justice or private retribution. In order to prevent this, justice mechanisms should be established as soon as possible consistent with meeting the fundamental requirements of fairness, impartiality, and independence. Furthermore, Iraqi authorities and the international community must make clear that vigilantism will be punished, and prosecute such crimes. Other remedies including compensation for victims may need to be considered.
Preventing defectors from escaping prosecution
Regardless of which justice mechanism is chosen, it could be anticipated that as the current government falls, individuals who may be among those most responsible for serious crimes under international law will switch loyalty from Saddam Hussein to any state or coalition of states that go to war with Iraq. While that should not be discouraged, any such defectors should not be promised immunity from prosecution. Indeed, defectors who have previously fled and are responsible for heinous crimes should be held to account.8
Abolishing the death penalty under Iraqi law
Human Rights Watch stands in firm opposition to the death penalty, which violates fundamental human rights. If there is a change of government in Iraq, the new government would have a unique opportunity to set an example in rejecting the death penalty, thereby marking a sharp break from the practices of the Saddam Hussein government. The death penalty should not be an available punishment before either a special tribunal—such as an international or mixed-international tribunal—nor under Iraqi law.
Creating vetting mechanisms
Any interim government will have to devise appropriate lustration mechanisms to ensure that persons responsible for serious crimes under international law do not remain in office, or as part of any reformed military or police force. Appropriate checks on lustration should be in place, however, to ensure at least minimum due process.
1 See, e.g., Kenneth Roth, Indict Saddam, Wall St. Journal, Mar. 22, 2002; Human Rights Watch letter to U.N. Security Council calling for restructuring of the economic embargo on Iraq and trial of Iraqi leaders for war crimes, Jan. 4, 2002, available at http://www.hrw.org/press/2000/01/iraq-ltr.htm; Human Rights Watch letter to King Abdullah urging him to detain Izzat Ibrahim al-Duri, Aug. 18, 1999, available at http://www.hrw.org/press/1999/aug/ltr-king.htm.
2 See Human Rights Watch/Middle East, Genocide in Iraq: The Anfal Campaign Against the Kurds (New York: Human Rights Watch, 1993); Iraq’s Crime of Genocide: The Anfal Campaign Against the Kurds (New Haven: Yale University Press, 1995).
3 For a detailed history of the Anfal campaign, see Human Rights Watch/Middle East, Iraq’s Crime of Genocide: The Anfal Campaign Against the Kurds (New Haven: Yale University Press, 1995).
4 For additional information regarding the Marsh Arabs, see Human Rights Watch/Middle East, Endless Torment: the 1991 Uprising in Iraq and its Aftermath (New York: Human Rights Watch, 1992).
5 Iraq's Weapons of Mass Destruction - The assessment of the British Government, PART 3: Iraq Under Saddam Hussein, Sept. 14, 2002, ¶ 16, available at http://www.pm.gov.uk/output/Page6123.asp. See also United Nations Security Council, “Report of the Mission Dispatched By The Secretary-General To Investigate Allegations Of The Use Of Chemical Weapons In The Conflict Between The Islamic Republic Of Iran and Iraq,” (New York: United Nations, 1986) S/17911.
6 Julian Perry Robinson and Jozef Goldblat, Chemical Weapons I, Stockholm International Peace Research Institute, Fact Sheet (May 1984).
7 Indeed, the prosecution of fifteen or so persons in Sierra Leone is expected to leave many heinous crimes there unexamined by the Special Court.
8 Human Rights Watch, “U.S. Needs to Screen Iraqi Opposition Allies: Denmark's Charges Against Iraqi General Welcomed” (press release), November 21, 2002 (discussing case against former chief of staff of Iraq's armed forces).
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