Issue #6: Did the Anfal Operations constitute Genocide?

See also: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 218 (2006).

Perhaps: By Linda Malone**1

The Iraqi constitution recognizes and protects the separate nationality of the Kurdish population within the Iraqi state.**2 Military activities by the Iraqi government conducted from February through September of 1988 ("Operation Anfal") along the Iranian border ("cordon sanitaire"**3) under the leadership of Saddam Hussein, nevertheless targeted certain Kurdish population centers and subjected them to gross violations of human rights.

Estimates from Human Rights Watch indicates that upwards of 100,000 Kurdish men, women, and children were killed by mass executions, chemical attacks against dozens of Kurdish villages, systematic firing squads, the destruction of approximately 2,000 villages near to the border of Iran and elsewhere in Iraq, the destruction of residential structures in civilian areas, looting of civilian property and farm animals, arbitrary arrest of villagers captured in designated "prohibited areas," and mass deportations and relocations from the northern part of Iraq to camps located in non-Kurdish areas of Iraq.**4 These actions not only denied particular groups of Kurdish Iraqis security within Iraq''s borders, but affirmatively victimized them in particular, as a regional population.

Article II of the convention on the Prevention and Punishment of Genocide ("Genocide Convention" or "Convention"), defines genocide:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about is physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.

**5
Article 3 of the Convention makes the international crime punishable.**6

Although it is clear that numerous human rights abuses occurred within the cordon sanitaire, the prosecution of genocide is complicated by the lack of a coordinated national policy by the Iraqi government to persecute the Kurds as a nationality through the territory of Iraq. Indeed, evidence tends to show that people initially placed into relocation centers were subsequently released to their families, and that others who complied with Iraqi Government orders were left unharmed. Indeed, the various Anfal Operations appears somewhat limited to the rural border regions between Iraq and Iran with major population centers remaining mostly unscathed.**7

The Kurds, as a distinct minority nationality within Iraq, should be protected as a group by the Genocide Convention.**8 Likewise, the acts of the Iraqi government in the cordon sanitaire, (mass exterminations, etc.) appear to be actus reus within the definition of genocide.**9 For the actors to be liable for apparent human rights abuses under the Genocide Convention in particular, however, they must have had the specific genocidal "intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such." This is the most difficult analysis because it involves both subjective and objective determinations.

Preliminary to the finding of specific genocidal intent, judges sitting for the Iraqi Tribunal considering cases of genocide will need to first define objectively, the group that was allegedly targeted. In this case, Iraqi Kurds as a national group would clearly be protected groups within the Convention, and may have been victimized "in part." Iraqi Kurds of the cordon sanitaire might also be recognized as an "ethnical" sub-group of the larger Kurdish nationality. Multiple ethnical sub-groups might exist in the region, and this finding might lead to different conclusions of whether smaller groups were targeted "in whole" or "part". Once the group has been defined, judges will assess the specific intent of alleged perpetrators.

The intent must be to destroy the group "in part." The numbers of intended victims must be substantial, either quantitatively or qualitatively. The quantitative analysis might consider a raw numeric total of victims, or a proportional one assessed in relation to the total number of individuals of the group under the control of the perpetrators. The qualitative assessment would focus on whether the target for destruction was picked because of its importance to the group such that its elimination would be likely to destroy the group. It will be for the judges to determine in light of the examples presented by Rwanda and Yugoslavia, whether substantial destruction, either qualitatively or quantitatively, occurred.

Finally, intent must be directed towards the group "as such." That a separate motive exists for the persecution of the group is irrelevant, as long as it is membership in the group that drives the destruction, and that the destruction was committed because of its tendency to destroy the group.

Finding that genocide occurred in Iraq will be an exhaustive consideration of the facts of each case; any consideration of genocidal intent must be carefully considered based on a totality of the circumstances.

Notes:

**1 All information presented in this answer was taken from a Memorandum for the Iraqi Special Tribunal prepared by Dominique Callins, Heather Johnson, and Jennifer Lagerquist in April 2005.

**2 1970 INTERIM CONSTITUTION OF IRAQ, Art. 5 (b) ("The nation of Iraq is formed of two principal nationalities; these are the Arab Nationality and the Kurdish Nationality. This Constitution shall recognize the national rights of the Kurdish nation and the legitimate rights of all minorities within the Unity of Iraq.") The 1990 Interim Constitution of Iraq also confirms the dual Arabic/Kurdish nationality in Iraq. 1990 INTERIM CONSTITUTION OF IRAQ, Art. 5 (b), available at http://www.oefre.unibe.ch/law/icl/iz01000_.html.

**3 This term refers to the establishment of prohibited areas and the relocation of civilians in the interests of creating a buffer zone.

**4 Memo, note 1.

**5 Convention on the Prevention and Punishment of the Crime of Genocide, Dec 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277, reprinted in 32 I.L.M. 117-73, available at http://www.unhchr.ch/html/menu3/b/p_genoci.htm (last visited Feb. 17, 2005) [hereinafter Genocide Convention">.

**6 The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.

**7 Memo, note 1

**8 See supra note 1.

**9 See Genocide Convention, Paras. (a)-(c).

Posted @ 9:26 AM | Experts Debate the Issues: The Dujail Trial