Anfal Issue #1: The Significance of the Anfal Campaign Indictment

(Formerly Issue #37)

Prosecuting Anfal: Applying the Lessons from other tribunals
By Michael A. Newton

The April 4, 2006 referral of the Anfal case for trial in the Iraqi High Criminal Court is a sign of a maturing institution that is willing to confront the most difficult cases and apply the most modern jurisprudence. The Anfal case will encompass a series of military campaigns directed against Kurdish civilians from February to August 1988. (see http://www.rightsmaps.com/html/anfalbeg.html for maps of the sequential campaigns). Saddam Hussein appointed Ali Hassan Al-Majid as the Head of the Northern Bureau Command through Revolutionary Command Council Decree 160 in March 1987, and the campaign against Kurds began the next year. Saddam and six other senior Ba’athists are charged with destroying between 2,000 and 4,000 Kurdish villages, including Qala Dizeh which had 70,000 residents. As many as 100,000 Kurds died during Anfal, almost entirely non-combatants, while an equal number disappeared, and another 500,000 were forced into hastily constructed and barren concrete “collective towns.” According to the Institute for War and Peace Reporting, Iraqi forces used chemical weapons against civilians in at least 40 separate attacks. Paraphrasing Justice Jackson’s assessment of the International Military Tribunal at Nuremberg, “no history of the era of Iraq under Ba’athist rule will be ‘entitled to authority’ if it ignores the factual and legal conclusions that will be presented in open court in the IHT.”[ Report to the President by Mr. Justice Jackson (7 Oct 1946) in American Journal of International Law, No. 49, 1955, pp. 44,49">

An accurate and comprehensive record of the history associated with the Anfal will be one of the most important long-term legacies of the High Criminal Court. Justice Jackson also wrote that: “We have documented from German sources the Nazi aggressions, persecutions, and atrocities with such authenticity and in such detail that there can be no responsible denial of these crimes in the future and no tradition of martyrdom of the Nazi leaders can arise among informed people.” However, the prosecution of the Anfal campaign is an ambitious undertaking that would stretch the resources and capacity of almost any judicial body around the world. Properly trying the Anfal case will be a major accomplishment and a validation of the vision that justice is best served by an Arabic speaking court undertaken by Iraqi judges on behalf of the Iraqi people. To that end, the Trial Chamber should consider three ways of balancing the right of the defense and the need for the Iraqi people to witness a full trial based on the facts adduced in open court, with the potential for judicial paralysis and exhaustive inefficiency that could seriously undermine other important cases.

1) Prior to the beginning of the trial, the judges should work to develop and publish a binding trial calendar applicable to both the defense and prosecution. The establishment of such a trial schedule would have the collateral benefit of giving due notice to the defense team before trial of the intended scope of trial evidence. As a result, no defense delays should be granted during the trial except those perhaps based on a showing of very good cause. The result would be to minimize the disruptions and delays inherent in such a difficult and emotionally charged case. To prevent the Anfal trial from becoming a confusing quagmire, court officials should carefully weigh the balance between documentary evidence, witness testimony, and sworn affidavits in building the case. In the context of the ICTY, Rule 73bis was adopted to assist the Trial Chamber in adjudicating extremely complex factual and legal campaigns similar to the Anfal case. Under the ICTY Rule, the Trial Chamber may hold a Pre-Trial conference to specify (i) the number of witnesses the Prosecutor may call; and (ii) the time available to the Prosecutor for presenting evidence. In addition, the Trial Chamber may specify a discrete number of crime sites or incidents related to the charges in respect of which evidence may be presented by the Prosecutor. Limiting the scope of testimony implicates the important interests of the victims across Iraq, and should be reached only after evaluation of the relevant circumstances, including the scope of crimes during Anfal, as well as their classification and nature, the places where they are alleged to have been committed, their scale and the need to be reasonably representative of the entire pattern of criminality.


2) Secondly, the Trial Chamber in the Anfal case should consult with the Dutch judges who recently tried the case against Frans Van Anraat. On December 23, 2005, a court in Amsterdam convicted Van Anraat of complicity in war crimes and sentenced him to 15 years imprisonment for providing the raw materials for the chemical weapons used against Kurdish civilians. The Dutch court obtained personal jurisdiction over the defendant after he fled Iraq following the end of the regime, but acquitted him of genocide on the basis that there was insufficient evidence to establish that he knew of the genocidal intent of the regime. The IHT Statute mirrors other tribunals in requiring any conviction for the crime of genocide to be based on a specific intent to destroy the Kurdish population in whole or in part. Significantly, the Dutch court held that the overall campaign amounted to genocide against Kurds. Both Saddam Hussein and Ali Hassan Al-Majid are charged with genocide, while all of the accused are charged with war crimes committed during an armed conflict not of an international character and crimes against humanity. Review of the Van Aanrat trial, and its presentation of evidence would prove instructive for the judges and perhaps indicate other sources of relevant evidence that should be presented during the Anfal trial.


3) Finally, in considering the judicial plan for presenting the evidence in the Anfal case in a fair and efficient manner, the Trial Chamber should consider that it “may admit any evidence which it deems to have probative value.” [Rule of Procedure 59(Third)"> NGOs and other organizations around the world have compiled a veritable mountain of evidence related to Anfal. For example, Human Rights Watch obtained audio tapes from inside Iraq that document key conversations between the defendants in the Anfal case and has made some of them public. [http://www.hrw.org/campaigns/iraq/chemicalali.htm , see [http://www.hrw.org/reports/1994/iraq/APPENDIX.htm#TopOfPage for other documentary evidence">. In one audio tape, Ali Hassan Al-Majid comments on Iraqi Kurds and exclaims: “I will kill them all with chemical weapons! Who is going to say anything? The international community? *#*@ them! The International community and those who listen to them.” [See “ Statement by Tom Malinowski to the Senate Governmental Affairs Committee on Prosecuting Iraq War crimes,” Human Rights Watch, April 10, 2003">. Tribunal officials should pursue such additional evidence provided that they can be satisfied of its authenticity and any other circumstance that might shed doubt on its reliability. The Trial Chamber should specifically issue opinions for each piece of evidence considered from other sources that specify the criteria of Rule 59 (Fifth) of the Court Rules.

The Anfal trial will be one of the most visible and challenging trials in the history of the Iraqi High Criminal Court, just as the campaign in 1988 scarred Iraqi society. The Trial Chamber should proceed in a calibrated manner to ensure the needs of justice while preserving the long term record in a way that does justice to those Kurdish civilians whose remains have been found in the mass graves of the north.

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An Ambitious but Risky Move
By Michael P. Scharf

As the Dujail trial was nearing an end, on April 4, 2006, the Iraqi High Tribunal announced the referral of its second case to the Trial Chamber. The case concerns the Anfal campaign, a series of eight military operations launched against the Northern Kurds in 1988, which resulted in an estimated 100,000 deaths. (See also Issue #6).

The IHT had been criticized for beginning with the Dujail Case, which involved 150 casualties, rather than the far more weighty Anfal case, whose casualty figures were 100 times greater. Since many experts were opining that Saddam would be promptly executed following the verdict in the Dujail trial, comparisons were made to the 1931 trial of Chicago mob boss Al “Scarface” Capone, who was prosecuted for tax evasion rather than for the thousands of murders he orchestrated in a series of gang wars in the 1920s. While Saddam might pay the ultimate price for Dujail, his victims would be robbed of seeing him face justice for his much greater atrocities.

The announcement of the Anfal referral changed all that. Since the Anfal case is scheduled to begin immediately after the close of the Dujail trial (while the Dujail verdict is being appealed to the Appeals chamber of the IHT), this means that whatever the Dujail verdict, Saddam Hussein will be available to face his accusers in the Anfal trial.

The Anfal referral is important in a second respect. The IHT announced that Saddam and his co-defendants, including Ali Hassan Al-Majid (“Chemical Ali”), would be charged with the crime of genocide. Genocide has been called “the crime of crimes.” It is the worst crime known to humankind, and it is the hardest crime to prove. Charging Saddam with genocide suggests that his atrocities rank with those committed by Adolf Hitler, Pol Pot, Idi Amin, and Slobodan Milosevic.

The problem, however, is that it will be extremely difficult to prove the genocide charge in relation to the Anfal campaign, and thus there is a great risk that Saddam will be acquitted, leaving the world to wonder whether he was no more than a petty thug as opposed to a genocidal dictator, after all.

The 1948 Genocide Convention defines genocide as mass killing and other similar actions “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” It is significant that the drafters of the Genocide Convention deliberately excluded acts directed against “political groups,” or “opponents of the regime” from the definition of Genocide. This exclusion was due to the fact that the Convention was drafted during the height of the cold war, during which the Soviet Union and other totalitarian governments feared that they would face interference in their internal affairs if genocide was defined to include such acts. Thus, history has not labeled the murder of four million Russians in Stalin’s purges (1937-1953) or of five million Chinese in Mao’s Cultural Revolution (1966-1976) as acts of genocide.

With their distinct language and culture, the Iraqi Kurds obviously constitute an ethnic group under the Genocide Convention. Moreover, the large number of victims in a distinct geographic area is more than sufficient for a finding of genocide. The challenge for the Tribunal will be finding the necessary “specific intent” to destroy the Kurds “as such” -- in other words for no predominant reason other than because they are Kurds. As described below, there are two alternative theories, having nothing to do with ethnocentrism, xenophobia, or hatred of Kurds, for why Saddam ordered the Anfal operations.

First, in 1986, the two main Kurdish parties, the KDP and PUK, united with the help of Iran (which was then at war with Iraq), to attempt to topple Saddam’s government. Thus, the Anfal campaign may have been aimed at punishing the Kurds for their acts of treason and at suppressing the continuing threat of an Iranian-backed insurgency. It is noteworthy that Kurds who cooperated with Iraqi officials, dissociated themselves from Kurdish nationalists, and accepted deportation to southern Iraq, were not otherwise persecuted.

Second, parts of Kurdistan in northern Iraq contained vast quantities of oil that Saddam’s government desired. The Kurdish claims to these oil fields in the 1980s would have been perceived as a significant threat that required a response. It is significant in this regard that the Anfal campaign did not target all Kurdish populated towns throughout Iraq, just those in oil-rich Kurdistan in northern Iraq, and that the people killed in the Anfal campaign included non-Kurds, as well as Kurds, who refused to vacate the targeted towns.

These motivations would not absolve Saddam for liability for crimes against humanity and war crimes (for using chemical weapons and indiscriminately killing mass numbers of Kurdish civilians). But if the Tribunal concludes that the Anfal operations predominantly reflected Saddam’s intent to retaliate against the Kurds for treason, to suppress insurgency, or to gain access to oil, Saddam must be acquitted of the genocide charge. Thus, the genocide charge represents an ambitious but risky move for the Tribunal.

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Response by Mark A. Drumbl

The "riskiness" of the Anfal genocide charge can be seen from a different light, as well. Michael Scharf is right to point out that there may be a risk that an acquittal on genocide charges might diminish the expressive value of the trial by leaving a historical footprint of Saddam as "just" a thug and not a genocidal mastermind. However, there also is a risk that a conviction on the charge of genocide might further dilute the heinousness of the purported "crime of all crimes."

To be sure, this discussion is entirely speculative, as I do not have a sense of the precise nature of the evidence that the Prosecutor will adduce. It may well be that there is evidence that solidly meets the dolus specialis of genocide in the case of the Anfal campaign against the Kurds. However, it seems to me that the prosecution of Saddam on genocide forms part of a trend in international criminal law toward what appears to be a more flexible and capacious understanding of genocide.

One example of this trend is from the International Criminal Tribunal for the Former Yugoslavia, whose 2004 Appeals Chamber decision in the Krstic Case confirmed that the slaughter of 7,000 Bosnian Muslim men and boys in Srebrenica was related to the intended destruction of the Srebrenica Bosnian Muslims as a target group which, in turn, was connected to the intended destruction of the protected group, namely Bosnian Muslims. Another example might be the draft instruments of the Extraordinary Chambers for Cambodia which, to the best of my knowledge, are minded to have jurisdiction to prosecute genocide.

As the threshold for genocide may lower, the crime of genocide may become more blurred with certain crimes against humanity such as persecution and extermination. This may permit capture of a broader number of perpetrators as "genocidaires" but, as well, may obscure the singularly heinous nature of genocide as the most reprehensible of the major international crimes.

I appreciate that this may be a somewhat technical discussion to the Kurdish population that was so victimized by Saddam, but individual prosecutions of individual defendants must be placed in the context of their overall effects on the structures of international criminal law.

Posted @ 7:59 AM | Experts Debate the Issues: The Anfal Trial