Putting Saddam Hussein on Trial

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

Though only a fraction of the captured Iraqi documents have thus far been examined and translated, the evidence so far is extremely damning. An order signed by Ali Hasan al-Majid and dated June 3, 1987, names parts of the Kurdish countryside in which there had been more than a thousand villages and authorizes summary execution of anyone found in them. “Within their jurisdiction,” the order says, “the armed forces must kill any human being or animal present within these areas. They are totally prohibited.” Other directives, issued over the next few days, relay this order, word for word, down the chain of command. An order from Ali Hasan al-Majid on June 20, 1987, provided more detailed instructions, including the following:

1. The corps commanders shall carry out sporadic bombardments using artillery, helicopters and aircraft, at all times of the day or night in order to kill the largest number of persons present in those prohibited zones, keeping us informed of the results:
2. All persons captured in those villages shall be detained and interrogated by the security services and those between the ages of 15 and 70 shall be executed after any useful information had been obtained from them, of which we should be duly notified.

The document states that copies were to go to a large number of officials,⁵ each of whom was told that it was “For information and action within your respective fields of jurisdiction. Keep us informed.”⁶

As the list of people who were sent Ali Hasan al-Majid’s directives makes clear, and as we know from Raul Hilberg and other historians of the Nazi destruction of the Jews, a large bureaucratic organization may be required to carry out genocide, not least to dispose of the bodies. At Auschwitz, the Nazis used crematoria. Several survivors described to Middle East Watch how the Iraqis used a desert site to which many thousands of Kurds were transported and then murdered with machine-guns; their bodies were dumped in trenches which were then covered over by bulldozers. This was the method used by the Iraqis during their 1988 campaign against the Kurds called “Anfal,” a word in the Koran that means booty seized from the infidels (although most Kurds, like their persecutors, are Sunni Muslims).

One survivor of the death trenches is Faraj, who was forty-two years old when Middle East Watch interviewed him in Iraqi Kurdistan in 1992.⁷ His story is typical of those of the men who were taken to the site where the mass executions took place and, by chance and circumstance, lived to tell the tale. Faraj lived with his wife and children in a village in the vicinity of Qader Karem. He dodged the draft when he became eligible in 1968 but was included in a general amnesty in 1975 following the defeat of the two-year-long revolt led by Mullah Mustafa Barzani, a famous Kurdish leader backed by Iran, the United States, and Israel. In April 1987, his village was one of seventy to one hundred Kurdish villages destroyed in an army campaign. He moved to another village about two and a half hours away by car and built a new house there rather than move to a town or one of the resettlement complexes where his family could have obtained compensation for the destruction of their house. The village to which he moved was under the control of Kurdish guerrillas known as pesh merga.

The troops carrying out the Anfal campaign came to the village on April 9 or 10, 1988. Since Faraj and his five brothers heard the government was announcing an amnesty in Qader Karem, they surrendered to Kurdish troops who were part of the Iraqi armed forces. The army held them, along with thousands of other men—members of pesh merga, deserters, draft dodgers, and civilians from controlled villages—in a camp at Aliawa. Then the army brought in a fleet of civilian minibuses and took them to Chamchamal, where they were questioned about their connections with the guerrillas but were not given anything to eat or drink. After two or three hours, they were driven on to Topzawa—the main holding center on the way to the killing site where they saw many large halls filled with the elderly, women, and children, as well as men. After being questioned again, they were put in a large hall where they received no food or water.

Late the next night, guards came and read out the names of many of the men and ordered them to go to yet another hall. Faraj was one of those whose name was called, while his five brothers, whom he never saw again, stayed behind. The next morning, they were put into large green vehicles, holding fifty or sixty men, without windows; a guard was in the back, separated from the prisoners only by a railing. Some of the men were put in smaller white vehicles. They drove from morning to dusk, most of the time on paved roads, but on a dirt road at the end. Then the vehicle stopped, the guard inside jumped out and two or three guards came in and started pulling out prisoners. Faraj was pulled out without his shoes, which he had taken off because of the heat. He could hear gunfire nearby. The guards used the men’s waist scarves to tie their hands behind their backs; they blindfolded them with their head scarves and told them to walk. Certain he was to be executed, Faraj recited from the Koran.

After they hobbled for about sixty feet down a slight incline, the guards told them to lie down on their backs. He could hear a bulldozer. Then he heard automatic weapons fire and could tell by a heavy groan that the man next to him had been hit. Faraj pulled his hands loose and moved his blindfold to find that he was in a shallow trench filled with dead bodies, many lying on top of each other. When the guards moved away, he climbed out and began to run. Dogs followed him, but he chased them away with stones.

In the morning, he found a dirt road and started heading toward what seemed a city. When he passed a military base, he saw soldiers waving him away and pointing in the direction of another dirt road. He met an old shepherd, an Iranian Kurd it turned out, who told him he was in a place called Ramadi, where the shepherd lived in a large housing development. He asked why Faraj had no shoes; Faraj said he had been in a car accident and that all his papers were in the car. The shepherd told him how to get into the development without passing a check-point. Once there he found a family that gave him food and told him how to go to Baghdad. When he arrived in the city he found a neighborhood frequented by Kurdish truck drivers and, with their help, he reached safety in territory controlled by Kurdish guerrillas.

The forensic scientists who went to the region for Middle East Watch and Physicians for Human Rights were not able to go to Ramadi, the site survivors like Faraj have identified as where they escaped from trenches filled with bodies. Ramadi remains under the control of the Iraqi government. Bodies could be exhumed only in the territory that is now under Kurdish control Though many Kurds were killed by Iraqi forces in Kurdistan, the available testimony indicates that the numbers killed in groups were much smaller than those at Ramadi.

In May and June 1992, scientists exhumed bodies in Koreme, a village in the far north of Iraq about fifty kilometers from the Turkish border. Before 1988, the village had about 150 families, or about 750 people, who lived in houses of mud brick, concrete brick, and limestone, some of them with electricity. The village had a two-room school and a mosque and, because the land nearby was rich, Koreme was prosperous. Today, the survivors who have returned to the village live in lean-to shelters and tents. The many remaining land mines make farming difficult.

The villagers of Koreme were sympathetic to the pesh merga and at times provided them with food and other support, and some Koreme men served fifteen-day stints of active duty and then returned to tend their fields; but there was no military base in the village, either for the guerrillas or the government. Nevertheless, the Iraqi army made a number of attacks on the village, which was nearly burned to the ground in 1963, long before Saddam Hussein came to power. It was attacked again in the late 1960s; Koreme suffered artillery and air bombardment in 1986 and 1987, forcing the villagers to seek refuge in caves in the banks of nearby ravines. These caves were their homes by day; at night, they ventured out to farm in the fields.

By August 8, 1988, when the Iraq-Iran War came to an end, the Anfal campaign forces were getting close to Koreme and, having heard what had happened elsewhere in the region, some families began to walk toward the Turkish border, a desperate decision since they knew they would not be welcome as refugees in Turkey. They were particularly frightened by reports of Iraq’s poison gas attacks. The bombardment of Koreme itself began on August 23 and 24, 1988, and another 250 of Koreme’s residents who remained in the caves decided to flee. They set off on the morning of August 27 and soon encountered many others from nearby villages who were also trying to reach the Turkish border, including some who had escaped gas attacks on their villages.

The people from Koreme did not get very far. The Iraqi army encircled them and cut off the road to the border. By the evening of August 27, with rumors circulating that an amnesty was to take effect, the villagers turned back. They reached the outskirts of Koreme by the afternoon of August 28, and were immediately captured by Iraqi troops. Some of the men and boys were separated from the others and made to form a line, squatting on their heels while the rest of the villagers were led away over a hill. One boy was allowed to go free when an argument broke out over whether he was twelve or thirteen, and another boy who was carrying his baby sister was also released.

Thirty-three men and boys were left in the line. No identities were checked. After a lieutenant used his portable radio to call for instructions, the soldiers were ordered to shoot. Several soldiers fired additional shots as coups de grâce as the bodies lay on the ground, and then left without burying the dead. Astonishingly, six of the men and boys survived, possibly because some of the soldiers deliberately missed. Some were wounded, but managed to crawl away when the soldiers left. The villagers who had been ordered to walk over the hill heard the shots but were unable to return to bury the dead: they were taken away to a fort at the nearby town of Mengish, where many people from other villages were also held, and from there to a fort at Dohuk. Some died at these places from lack of food or water or from beatings and, along the way, another twenty-six men and boys from Koreme were separated from the rest of the villagers, loaded onto trucks, and never seen again. These included a number of boys who had seemed too young for the initial execution line.

The bodies of those killed by the firing squad at Koreme were apparently buried by troops between one and three weeks after they died. Their remains were dropped in shallow pits where they were exhumed four years later; with the help of information from surviving relatives, they were identified by a seven-member team from Middle East Watch and Physicians for Human Rights.

Though no government has yet come forward to act as the plaintiff or lead plaintiff against Iraq in a genocide case before the International Court of Justice, the chances seem good that such a suit will be filed before the end of 1993. The evidence that a government would have to rely on to prove to the court that genocide took place is only now being assembled in a form that can be submitted to the potential plaintiffs.

Previous efforts to find a plaintiff for a genocide case against the Khmer Rouge did not succeed; but the argument for a suit against Iraq for the slaughter of the Kurds is stronger in at least one crucial respect. Under the 1948 convention, the crime of genocide requires an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” Though the scale of killing by the Khmer Rouge was far greater than Saddam Hussein’s in Kurdistan, it was never clear in Cambodia that the intent of Pol Pot and his associates was to wipe out a particular racial, religious, or ethnic group. It is true that the Khmer Rouge wanted to destroy the urban intelligentsia, a category with which the Genocide Convention does not deal. But Saddam Hussein, Ali Hasan al-Majid, and their associates unmistakably intended to murder an ethnic group, the Kurds, because they were Kurds. That they succeeded in killing—according to Kurdish estimates—no more than about 180,000 Kurds during the Anfal campaign does not mitigate the genocidal intent of the campaign; and to have slaughtered that many persons appears to meet the test of magnitude that is implicit in the concept of genocide.

A central concern of the human rights movement in recent years has been the difficulty of holding accountable the officials who have been responsible for crimes against humanity. During the transition from military dictatorship to civilian democratic government in Argentina, for example, local and international human rights groups took part in the effort to identify and prosecute those responsible for more than 9,000 abductions by the armed forces, the murder of the victims, and the clan-destine disposal of the bodies. The struggle for accountability concentrated first on truth—that is, disclosure and acknowledgment of such crimes; and second, with only small success so far, on justice—that is, judicial condemnation and punishment of those responsible at the highest level for the most serious crimes.

Though we cannot be optimistic about the prospects for convening an international criminal tribunal to bring Saddam Hussein, Ali Hasan al-Majid, and their henchmen to justice, we should not underestimate the value of showing that they deserve to be brought to trial. In compiling the evidence against them, and publishing a careful and scrupulous report on their crimes against humanity, and in framing indictments against twenty-seven officials, the Iraqi National Congress has advanced the cause of truth. That cause will advance further if an appropriate plaintiff takes up the case of the Kurds before the International Court of Justice and the evidence allows the court to rule that the Iraqi regime committed genocide. A determination of genocide by the World Court would be a historic event in the quest to establish international standards of justice.