Justice For Iraq
A Human Rights Watch Policy Paper
December 2002 (Farsi)
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.
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.
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.
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.
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.
Military Trials
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.
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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