Cite as 7 Cal. Crim. Law Rev. 1
Pincite using paragraph numbers,
e.g. 7 Cal. Crim. Law Rev. 1, ¶11
¶1“Decades
of lies and intimidation could not make the Iraqi people love their oppressors
or desire their own enslavement.”
-President
George W. Bush, May 1, 2003
¶2Although
the Bush administration began Operation Iraqi Freedom with the pretext of
searching for weapons of mass destruction,
the operation ultimately liberated a nation that spent decades under a
dictatorial regime. For at least the past twenty to thirty years, the Iraqi
people,
including the Kurds, lived as victims of their own government. Saddam Hussein
and his regime victimized the Iraqi people through torture, execution, and
deportation. As President Bush stated in his address on May 1, 2003, America is
“pursuing and finding leaders of the old regime, who will be held to account
for their crimes.” After United States troops
captured Hussein on December 13, 2003,
President Bush declared, “now the former director of Iraq will face the
justice he denied to millions.”
¶3On
January 9, 2004, the United States officially declared Saddam Hussein a prisoner
of war and indicated that it will turn him over to a special court established
by the Iraqi Governing Council under the direction of the Coalition Provisional
Authority.
Yet, prosecution in this forum fails to ensure proof of guilt beyond a
reasonable doubt as required by Article 14 of the International Covenant on
Civil and Political Rights and does not prohibit the death penalty. Further,
such prosecution requires the application of Iraqi criminal law and procedure
where otherwise unarticulated in the governing statute..
This might allow Hussein to twist the laws he implemented to his advantage.
Consequently, this Article focuses on alternative fora for jurisdiction over
Hussein, recommends an ad hoc international criminal tribunal that does not
provide for the death penalty, and examines Hussein’s liability for genocide
against the Kurds and crimes against humanity.
¶4This
Article will explore and catalogue the international case against Hussein for
injuries inflicted on the Iraqis and the Kurds before the war began. Although
the focus will remain primarily on Saddam Hussein, much of the rationale also
applies to other regime participants. Part II begins with a historical overview
of the Iraqi peoples’ oppression and focuses on the consequences of
Hussein’s decisions and orders. Part III reviews different jurisdictional
options including a national trial by Iraq, prosecution in the United States,
the International Criminal Court, and an international ad hoc tribunal akin to
those established in Rwanda and Yugoslavia. This Part ultimately recommends that
Hussein’s prosecution take place in an international ad hoc tribunal situated
in Iraq. The Security Council, under its Chapter VII authority, may establish an
ad hoc criminal tribunal to prosecute Hussein for committing or participating in
crimes against humanity and genocide. Part IV discusses Iraq’s international
legal obligations including treaties and United Nations membership requirements.
Part V examines the legal ramifications of Hussein’s genocide campaign against
the Kurds and applies the relevant elements to Hussein’s actions. It also
addresses the limited arguments that Hussein’s defense counsel could raise.
Part VI applies international principles concerning crimes against humanity to
Saddam Hussein’s most flagrant crimes against the Iraqi citizens.
¶5Formerly
part of the Ottoman Empire, Iraq obtained its independence from British
occupation in 1932. Several ethnic groups comprise Iraq’s total population of
24,683,313: Arabs form 75% to 80% of the population; Kurds comprise 15% to 20%
of the population, and Turkomans and Assyrians make up the remainder of the
population. The Kurds have occupied
the northern mountainous regions of Iraq since the 12th century when the world
referred to the region as “Kurdistan.”
Because the Kurds lived in the mountains, separated from the main cities in
Iraq, they developed their own distinct culture and language. Despite their
geographical and cultural separation, the Kurds did not enjoy political
independence. From the 16th to early 20th century, the Ottoman and Persian
Empires ruled the Kurds.
Although the Kurds briefly experienced a year of independence in 1946 by forming
their own republic, the Iraqi regime controlled Kurdish territory for the vast
majority of the 20th century.
Since the 1920s, the Kurds have struggled for independence by staging various
unsuccessful revolts.
These revolts led to Iraqi government attempts to quash the rebellion and
ultimately exterminate the Kurds through the Anfal campaigns.
¶6Iraqis
used the name Anfal, or “the spoils,” to refer to a series of staged
military actions against the Kurds of northern Iraq. The Ba’ath Party formed a
complex power structure; full comprehension of Hussein’s control of the
anti-Kurdish campaigns requires a basic grasp of its components. The highest
executive body was the RCC over
which Hussein exercised ultimate power as Chairman.
The RCC controlled a number of regionally based committees including the
Northern Affairs Committee where Hussein served as secretary until around 1970.
He eventually delegated that power to his cousin Ali Hassan al-Majid.
Prior to Hussein’s rise to dictator, he served as the RCC member in charge of
“Kurdish affairs.”
Before he went into hiding, Saddam Hussein also served as the commander-in-chief
for the armed forces, President of the Republic of Iraq, and Secretary General
of the Ba’ath Party.
¶7In
May of 1992 and March of 1993, Human Rights Watch, an international human rights
organization, facilitated the shipment of eighteen tons of official Iraqi
government documents to the United States. The Kurds uncovered these documents
during their 1991 uprising. The prosecutor in Saddam Hussein’s trial may rely
on these documents as evidence of Hussein’s participation and oversight of the
campaign against the Kurds. Other evidence might consist of eyewitness accounts
and forensic evidence obtained by the Middle East Watch in collaboration with
Physicians for Human Rights. The Kurds recovered the majority of the following
accounts and documents from the offices of Iraq’s internal intelligence
agency, the General Security Directorate (“secret police”).
¶8The
plight of the Kurds at the hands of Hussein’s regime began well before the
first Gulf War. Beginning in 1985, Hussein’s plan to address “Kurdish
affairs” formed a systematic program of destruction for Kurdish villages
through chemical weapons and military force, subsequent relocation of the Kurds
in concentration camps, and summary executions upon arrival. In 1988, Iraqi
forces killed as many as 182,000 Kurds and destroyed at least 4,000 Kurdish
villages.
¶9Until
1988, no government had ever used chemical weapons against its own people.
Under the Chemical Weapons Convention governments may not use chemical weapons
under any circumstances.
Yet, Hussein’s regime used mustard and nerve gas against at least sixty
villages and the town Halabja. This offensive aimed to terrorize the Kurdish
civilian population, flush villagers from their homes, and ultimately capture,
relocate, and kill them.
The gas attack in Halabja alone killed 5,000 people and prompted approximately
80,000 people to flee to Iran.
One survivor of a chemical attack on Birjinni stated that he observed,
“‘white, black and then yellow [clouds of smoke], rising about fifty or
sixty yards into the air in a column. Then the column began to break up and
drift. It drifted down into the valley and then passed through the village. Then
we smelled the gas.’”
At first, “‘it smelled of apples and something sweet,’” but then
“‘it became bitter.’” As a result of the
attacks, those exposed to the gases experienced vomiting, blindness, and painful
swellings under their arms.
¶10Once
it finished using chemical and conventional bombing, the army and domestic
militia dynamited and bulldozed Kurdish villages.
The Iraqi army destroyed at least 703 Kurdish villages in 1987 alone.
After the armies razed the village of Serkand Khailani, officials arrested most
of the villagers and later subjected the leaders to beatings with cables,
suspensions from ceiling hooks, and electric shocks to the earlobes.
Some of those arrested were executed.
Others were sent to the collective camps.
The Iraqi government painstakingly videotaped and documented a number of these
events.
¶11To
serve as a lesson to others, President Hussein approved a special plan for
dealing with Kurds in the Marsh areas.
The plan entailed poisoning, bombing, and burning the homes of friends and
relatives of subversives in the Marsh areas.
It also included an economic blockade to more efficiently “‘limit provision
of their daily living needs’” by diminishing food supplies, banning fish
sales, and banning goods.
To date, no official documents have been found concerning these camps. However,
various agencies recorded testimony of the incarcerated Kurdish people, and at
least one letter from Amn Suleimaniyeh
to the director of security of the Autonomous Region exists.
This letter documents the execution of nineteen people for “being found in
prohibited areas” and forty-seven for being “subversives sentenced to death
by the Revolutionary Court.”
It also notes the deportation of 9,030 people sent to the “Popular Army camp
in the governate of al-Ta’mim.”
¶12Interviews
with survivors revealed the conditions and treatment at the camps. Upon arrival,
guards divided men and women into separate camps and searched them.
One man, after being beaten with sticks and electric cables, was hung from a
ceiling fan and scorched with hot steel.
Prisoners used cans for bowel movements, ate soup filled with leftover bones and
oil, and often received no food at all.
¶13Convoys
carried the Kurds from the camps out into the country for execution by firing
squad.
At least six people survived.
One of the survivors stated: “[i]n place of the handcuffs, the guards used a
length of string to tie the twenty-eight prisoners in a single line by their
left hands. The men were ordered to stand facing a freshly dug trench, just long
enough to accommodate the twenty-eight bodies as they fell.”
A gravedigger working in the Kurdish area of Northern Iraq stated, “‘I must
have buried 600 or maybe up to 1,000 people—all killed by the secret police
between 1985 and 1989. Sometimes they were peshmerga, sometimes women, sometimes
children. Sometimes they’d been tortured.’”
¶14A
number of government documents prohibiting human life in designated areas of the
Kurdish countryside confirm the truth behind these statements. Hussein’s
cousin, Ali Hassan al-Majid signed one personal directive, numbered 28/3650,
which stated “[w]ithin their jurisdiction, the armed forces must kill any
human being or animal present within these areas. They are totally
prohibited.”
Hussein also targeted Shi’a Muslims after the March 1991 uprising, where he
publicly stated that the participating Shi’a Muslims should be shot for
treason.
Even before these directives, guards shot around 150 men and boys at al-Mahawil
Garrison.
Guards threw others from the top floor of a hospital, drowned them, dragged them
through the streets, or left them hanging from electricity poles to terrorize
the locals.
In their attempts to retake the cities involved in the 1991 uprising, loyalist
forces used helicopters to attack unarmed civilians, arrested or shot civilians,
and executed young men in the streets and in hospitals.
¶15In
1998, the New York Times reported that
Hussein executed at least 1,500 people in one year for “political reasons.”
Hussein’s son, Qusay Hussein, ordered the executions as part of a
prison-cleansing campaign. The Husseins then required the family members of the
executed prisoners to pay for the bullets before they could claim and bury the
bodies.
In many ways, the methodical calculation of costs and benefits without regard
for human dignity resembles that of Adolph Hitler in ordering the extermination
of the Jews. Hussein’s method of conducting the Anfal campaigns by defining
the Kurds as the target, concentrating them in one area, and executing them fits
the pattern used by the Nazis.
¶16Hussein
did not, however, limit his disregard for human life to the Kurds. He
established a court system for all Iraqis that provided few opportunities for
fair hearings and multiple occasions for excessive punishment. Trials in Iraq
were often conducted before “special courts” and were always conducted in
camera.
Hussein employed military officers and civil servants who lacked judicial
training and the autonomy necessary to make impartial judgments.
The regime sometimes restricted aid from attorneys or government-appointed
lawyers until the actual trial date.
In April of 2001, a “special court” sentenced four people to life in prison
for simply “attempting to form a political grouping.”
¶17The
Iraqi government frequently arrested both the people suspected of
anti-government activities and their
families. Officials arrested a
retired medical doctor and his brother-in-law in March of 2001 simply to
pressure his wife, also a doctor, to return to Iraq.
On July 26, 2002, several of the United Nations Special Rapporteurs addressed a
letter to the Iraqi government requesting information on two individuals who
reportedly engaged in “terrorist acts” inside Iraq.
The letter stated, “it is feared that their confessions [on national
television] may have been extracted under duress and that televised statements
may have an impact upon the fairness of their trial.” The Rapporteurs expressed
further concern that the men were “at risk of being sentenced to death and
executed.”
They received no response. The Report also stated that no positive developments
occurred in relation to missing persons.
¶18On
June 5, 1994, Iraq’s highest executive body, the RCC published a series of
decrees in the official Iraqi newspaper, Al-Jumhuriya, which required
amputations and brandings as punishments for at least 30 crimes.
Saddam Hussein signed each of the decrees in his position as Chairman of the RCC.
In 2000, Hussein and his officials reportedly began using tongue amputation to
punish people who criticized him or his family.
Guards allegedly performed such an amputation on July 17, 2000 in front of a
large crowd. Hussein’s decrees
prescribed the death penalty for car theft, counterfeiting, smuggling cars or
drilling machines, organizing a group of two or more persons for procurement
purposes, falsifying military service documents, and stealing (when committed by
a member of the armed forces or government employee).
¶19A
report by the United Nations’ Special Rapporteur stated that the government
executed forty-three prisoners on February 3, 2000.
Thirty were reportedly executed for theft, two for drug trafficking, and eleven
for affiliation with the political opposition.
In this same report, the Special Rapporteur stated that he was:
of
the opinion that Iraq continues to be in violation of its obligations under the
International Covenant on Civil and Political Rights, if only because of the
sheer numbers of executions that are taking place and what appear to be
extrajudicial executions on political grounds and in the absence of a due
process of law.
¶20In
December of 2000, the United Nations General Assembly issued a Resolution
strongly condemning Saddam Hussein and his government for “systematic,
widespread and extremely grave violations of human rights and of international
humanitarian law.”
The condemnation extended to suppressions of fundamental freedoms, the
widespread use of the death penalty in violation of the ICCPR (International
Covenant on Civil and Political Rights), arbitrary executions, widespread and
systematic torture, and the prescription of cruel and inhuman punishments.
In his “leadership” capacities, Hussein committed countless human rights
violations.
¶21Numerous
current reports continue to document human rights violations by Saddam Hussein
and Iraqi officials.
Up until “Operation Iraqi Freedom,” the United Nations delegated a Special
Rapporteur to report on the humanitarian situation in Iraq. Unfortunately, this
did little to alleviate the situation.
¶22Before
reaching the merits of the case, one must consider which courts could validly
exercise jurisdiction over Saddam Hussein’s prosecution. Four primary
potential fora exist: (1) Iraqi national courts, (2) United States federal
courts asserting universal jurisdiction, (3) the International Criminal Court
through special appointment by the Security Council, or (4) an ad hoc tribunal
set up by the United Nations Security Council. The jurisdictional decision will
play a major role in determining both applicable law and procedural constraints.
¶23Since
most of Hussein’s crimes occurred in Iraq and against the Iraqi people, Iraq
retains territorial jurisdiction. The accessibility of physical evidence,
victims, and witnesses makes Iraqi courts seem like a sensible jurisdiction. A
trial in Iraq may promote healing and reconciliation for victims of the regime.
However, heads of state, such as Saddam Hussein, may avoid rigorous prosecution
in their own territories by scare tactics, force, and an ability to manipulate
the law. Additionally, it could take a considerable amount of time for a viable
government capable of running the national courts to emerge. As evidenced by the
number of insurgencies in Iraq after the capture of Hussein, a number of his
supporters still exist.
¶24Even
with the installation of a new Iraqi government, it could take years for the
government to create a workable court system. Once the new regime begins, the
likelihood of a fair trial by a new government attempting to purge the old
leadership would be slim. Many proposed leaders of the new government lived in
exile under Saddam Hussein’s rule and may view his trial as a unique
opportunity for retaliation. For Hussein to receive the “justice he denied to
millions,” a neutral judge, or panel
of judges, should preside over his trial.
¶25Theoretically,
United States courts provide a second option for prosecution. Domestic courts
can invoke universal jurisdiction to prosecute Iraqi officials.
Yet, according to the concept of immunity for acts committed by heads of state
while in office, the United States court might find Hussein substantively liable
but procedurally immune.
¶26Under
the principle of universal jurisdiction,
any state, regardless of its direct involvement in the conflict or offense, may
prosecute “certain offenses recognized by the community of nations as of
universal concern, such as . . . genocide, war crimes, and perhaps certain acts
of terrorism.”
Behind the principle of universal jurisdiction lies the theory that genocide,
crimes against humanity, and war crimes not only violate international law but
also offend the whole of humanity. Ideally all states would
work both collectively and individually to prosecute violators. Universal
jurisdiction invoked by individual states furthers several important goals:
attaining justice for victims,
deterring future human rights abuses through public prosecutions of senior
officials, demonstrating
international concern and collective responses toward human rights violations,
and protecting the sanctity of ordered society.
¶27A
number of treaties concerning drug-trafficking,
hijacking, aircraft terrorism, hostages,
torture,
apartheid,
and attacks on diplomats
expressly include the right to invoke universal jurisdiction. Universal
jurisdiction endows every state with jurisdiction over a limited category of
crimes such as piracy and slave trading.
The list of crimes subject to universal jurisdiction continues to expand.
As one United States court observed, “nations have begun to extend
jurisdiction to . . . crimes considered in the modern era to be as great a
threat to the well-being of the international community as piracy.”
¶28Despite
an increasing willingness to invoke universal jurisdiction, the United States
must overcome certain procedural hurdles before prosecuting. United States
domestic law includes international law,
and international law recognizes universal jurisdiction for certain offenses
such as piracy, war crimes, and genocide.
However, a person cannot be tried in a United States federal court for an
international crime unless Congress first adopts a statute defining and
punishing the offense.
For the United States to prosecute Hussein three things must occur: (1) Congress
must have enacted statutes to punish genocide and crimes against humanity, (2)
the prosecutor must avoid the obstacle of immunity for heads of state, and (3)
Colin Powell must deflect international criticism that prosecution represents
the victors’ “justice” for the vanquished.
¶29Congress
banned genocide in 18 U.S.C. § 1091.
This codification simply recognized the accepted practice of using universal
jurisdiction to punish genocide.
Israel first used universal jurisdiction in the Eichmann case to prosecute Eichmann for executing Hitler’s
“final solution” during World War II.
In its opinion convicting him, the Nuremburg Tribunal stated that some offenses
against the whole of humanity are so grave that “the judicial and legislative
organs of every country [need] to give effect to its criminal interdictions and
to bring the criminals to trial.”
¶30The
United States accepted this principle in approving Israel’s request for the
extradition of Demjanjuk.
The federal district court decided that Israel had jurisdiction to try Demjanjuk
since “[i]nternational law provides that certain offenses may be punished by
any state because the offenders are ‘common enemies of all mankind and all
nations have an equal interest in their apprehension and punishment.”
As a party to the United Nations, which affirmed the Nuremberg Tribunal for
punishing “persecutions on political, racial, or religious grounds”
regardless of whether offenders acted “as individuals or as members of
organizations,” the United States implicitly recognizes genocide as a crime
against all of mankind.
¶31Congress
did not explicitly pass a statute forbidding crimes against humanity, but some
statutes and court opinions indicate Congressional consent. Acquiescence may be
inferred from the Alien Tort Claims Act
and the Torture Victim Protection Act of 1991. The Alien Tort Claims
Act provides that “district courts shall have original jurisdiction of any
civil action by an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States.”
As such, a victim of crimes against humanity could sue on claims of assault or
battery arising from the incident. Federal courts held that this statute confers
subject-matter jurisdiction when an alien sues for a tort committed in violation
United States treaties or international law.
¶32The
Torture Victim Protection Act reinforces the widely held view that customary
international law forbids torture.
As a party to the United Nations Convention against Torture, which requires
parties to facilitate the punishment of torture through their municipal law,
the United States has an obligation to bring violators of the Convention to
justice.
Because the Convention adds to customary international law’s prohibition on
torture and requires parties to fulfill their obligations regardless of the
perpetrator’s nationality, the Convention essentially provides for universal
jurisdiction.
Thus, the United States could legitimately exercise jurisdiction to prosecute
genocide and crimes against humanity in federal court.
¶33Impediments
to American prosecution arise in light of conflicting views on immunity for
heads of state such as Saddam Hussein.
Under the concept of state immunity, the offender may be substantively liable,
but procedurally immune before the courts of other countries. Tensions between
the Pinochet case,
authored by the House of Lords in London, and the more recent Yerodia
case,
adjudicated by the International Court of Justice, illustrate two divergent
approaches to state immunity.
¶34In
deciding to extradite Senator Pinochet to Spain for crimes committed while
acting as the head of state in Chile, the House of Lords examined Pinochet’s
alleged immunity based on both the grave nature of the underlying crime, and on
an implied waiver of immunity within the United Nations Convention against
Torture. Six Law Lords reached
the general conclusion that Pinochet’s immunity dissipated because of
torture’s status as a “serious international crime,” established by either
jus cogens or international treaty. Under this approach,
United States courts could adjudicate Hussein’s acts of genocide and crimes
against humanity since those crimes would also amount to “serious
international crimes.”
¶35Lord
Saville employed a theory of implied waiver of immunity based on an assumption
that the United Nations Convention against Torture abrogated Pinochet’s
immunity per se.
Although Iraq has not signed the Convention’s treaty, it did sign the
International Covenant on Civil and Political Rights (ICCPR),
which outlaws a number of crimes against humanity. In addition, Lord Phillips,
in his opinion, decided that because national jurisdiction over universal crimes
was such a new creation, traditional immunities did not apply.
Accordingly, the United States could attempt to prosecute Hussein under both of
these rationales.
¶36The
legal bar to national jurisdiction arises in the Yerodia case, which examined the legality of an arrest warrant for
Abdulaye Yerodia, the Minister of Foreign Affairs in the Congo.
The majority in the Yerodia case cast
doubt on two major principles from the Pinochet
case: (1) whether a customary international law norm actually emerged to
abrogate immunity for “serious international crimes”; and (2) whether
national courts could prosecute officials under circumstances similar to those
in Pinochet.
In its opinion, the majority refused to waive immunity for incumbent officers,
and stated that it could not “deduce . . . that there exists under customary
international law any form of exception to the rule according immunity from
criminal jurisdiction and inviolability to incumbent Ministers for Foreign
Affairs, where they are suspected of having committed war crimes or crimes
against humanity.”
¶37When
the International Court of Justice subsequently listed four circumstances where
courts could prosecute high officials internationally, it excluded the
circumstances of the Pinochet
prosecution.
Acceptable conditions for abrogating immunity for officials included the
following circumstances: (1) when an official is charged in his or her own
country and tried under the laws of that country, (2) when the official’s own
state waives sovereign immunity, (3) when the official commits the acts “prior
or subsequent to his or her period of office,” or “during that period of
office in a private capacity,” or, finally, (4) when the official is
prosecuted before an international court such as the International Criminal
Tribunal for the Former Yugoslavia (“ICTY”), and the International Criminal
Tribunal for Rwanda (“ICTR”), or the International Criminal Court(“ICC”).
Since Saddam Hussein committed genocide and crimes against humanity while acting
as head of state and Iraq has not waived immunity, the only court with
jurisdiction under this analysis would be the ICC or an ad hoc tribunal set up
by the Security Council that would resemble the ICTR and the ICTY.
¶38Although
the Congress enacted legislation enabling United States federal courts to
prosecute genocide and crimes against humanity based on universal jurisdiction,
Hussein’s immunity as head of state bars national prosecution. American courts
could focus on the Pinochet case rather than the Yerodia
case; however, given the public nature of such a trial, this selective focus
might compromise the legitimacy of a conviction. At the recommendation of the
International Court of Justice, only an ad hoc tribunal set up by the United
Nations Security Council, or the ICC could legitimately abrogate Hussein’s
official head of state immunity for acts committed while in office.
¶39In
light of the Yerodia case, the ICC
appears ideal for prosecution of Saddam Hussein.
However, jurisdictional limitations will foreclose this option unless the
Security Council (1) fulfills its obligation to enforce its own resolutions
through the ICC and (2) applies the enabling statute retroactively (as was done
in the Nuremberg Tribunal). History and difficult negotiations surrounding the
text of the Rome Statute, the ICC’s enabling statute, indicate that an ex
post facto application of the ICC is unlikely to occur.
¶40On
July 17, 1998, 120 countries adopted the text of the Rome Statute, which entered
into force on July 1, 2002.
Article 11 of the statute limits the court’s jurisdiction to crimes committed after
it entered into force and applies only
to states who acquiesce, or “sign-on,” to the statute.
Although Hussein committed human rights violations throughout his dictatorship,
many of his overt acts occurred during the 1980s, before the statute even
existed. Additionally, but not surprisingly, Iraq has not signed the Rome
Statute. Article 13, however,
allows the United Nation’s Security Council, under its Chapter VII power, to
refer crimes to the ICC.
¶41In
reality, the Security Council’s powers remain the same. The Council
implemented tribunals in both Rwanda and Yugoslavia.
Theoretically, Iraq is no different. The difference lies in the forum as the ICC,
rather than as an ad hoc tribunal. In 1991, the Security Council issued
Resolution 688 that stated that it was “[g]ravely concerned by the repression
of the Iraqi civilian population” and “[d]eeply disturbed by the magnitude
of human suffering.”
Consequently, it insisted that Iraq “allow immediate access by international
humanitarian organizations,” and requested the Secretary-General “pursue his
humanitarian efforts in Iraq” and “use all
the resources at his disposal, including
those of the relevant United Nations agencies, to address urgently the
critical needs of the refugees and displaced Iraqi population.”
Although the Council laid the groundwork for intervention, for the ICC to
exercise jurisdiction, the Council would need to not only refer Saddam Hussein
to the ICC for trial, but also undermine the key principle of non-retroactivity.
¶42Because
many states accepted the Rome Statute because of its non-retroactive stance, a
retroactive application may cause these states to rethink their acquiescence to
the ICC. Sensitive diplomatic issues may also arise since the United States
refused to become a party to the ICC.
The ICC imposes no obligations on non-party states. As it currently stands, Iraq
need not comply with ICC orders, extradite individuals, or supply evidence. Tensions between the
United States and the United Nations over the war with Iraq could lead to a
jurisdictional fight to prosecute. This would be particularly unfortunate in
light of the necessity for unified international action.
¶43Even
though the ICC does not provide a viable forum for prosecution, its principles
and law will likely influence those applied to Hussein’s trial regardless of
where it takes place.
The ICC’s Statute of Rome is the most recent and widely accepted codification
of international criminal law. These statutes assume individual responsibility
for crimes against the entire international community.
In creating the Statute, its multi-national drafters relied on principles
established in the ITCY, ITCR, Genocide Convention, Nuremberg Charter, and
customary international law. As a result, any prosecution of Hussein should
refer to this codification to conduct a trial that the majority of countries
would view as fair and just.
¶44The
ad hoc tribunal provides the fourth and best option for Hussein’s prosecution.
Under its Chapter VII powers, the United Nations Security Council may establish
an ad hoc international criminal tribunal after it determines a threat to
international peace and security.
The Security Council instituted ad hoc tribunals for Yugoslavia (ICTY)
and for Rwanda (ICTR).
The Council fashioned these tribunals after the International Military Tribunal,
which was created by a treaty rather than by the United Nations. These tribunals
survived challenges to the Security Council’s power to create them under
Articles 39 and 40 of the United Nations Charter.
The tribunals may exert subject-matter jurisdiction over both crimes against
humanity, genocide, and war crimes. To ensure consistency, the same appellate
body hears appeals from both the ICTY and the ICTR.
¶45Tribunals
simply apply existing law. The ICTY Statute requires that it apply only that
“part of conventional international humanitarian law which has beyond all
doubt become part of customary international law . . . .”
If the Security Council creates a tribunal for Iraq, the law would not apply ex
post facto since it already existed as customary law and would resemble the
ICTY and ICTR statutes. A tribunal would also avoid the problem of retroactivity
in the ICC. Accordingly, to avoid challenges to the legitimacy of the
prosecution, the Council should establish an International Criminal Tribunal for
Iraq (ICTI) that parallels those of the ICTY and the ICTR. The same appellate
body hearing appeals from the ICTY and ICTR could handle appeals for the ICTI.
Although the United States has demonstrated hostility toward ad hoc tribunals in
the past,
diplomatic and legal impediments to prosecution of Hussein in other courts may
encourage United States’ agreement. The ICTI would allow the victims of the
regime to attend and testify in Hussein’s trial since it would occur in Iraq
as well as provide the legal expertise for a trial of this magnitude. In fact,
the Iraqi National Congress proposed and drafted a statute for this type of
United Nations ad hoc tribunal to try Saddam Hussein and the Iraqi Ba’athist
leadership.
Since many of Iraq’s new leaders may come from this National Congress, the new
leadership may also request an ad hoc tribunal.
¶46Even
though both the ICTY and the ICTR survived challenges to the Security
Council’s power to create them, Hussein could still attempt a jurisdictional
argument to prevent prosecution. Because the judges employed by the tribunals
also rule on the validity of the tribunal’s establishment, Hussein could claim
that the proceeding was not fair and impartial. Allowing judges to make
appellate decisions concerning their own employment may be a conflict of
interest.
Hussein’s difficulty in asserting this defense would be the lack of any other
court to hear his challenge. Alternatively, conducting the ad hoc tribunal in
Iraq would provide for the close proximity of witnesses,
promote reconciliation by allowing victims to attend the trials, and would
ensure a more impartial trial than would a trial by either the Iraqi citizens or
the new regime. Therefore, the ad hoc tribunal presents the best forum for
jurisdiction.
¶47Should
the ICTI survive Hussein’s jurisdictional challenge, it could enforce Iraq’s
treaty commitments as well as its commitments under current customary
international law. Hussein’s commission of genocide and crimes against
humanity violated numerous human rights treaties signed by Iraq. As of December
9, 2002, Iraq accepted the terms of the following treaties: the International
Covenant on Economic, Social and Cultural Rights (CESCR), which Iraq signed on
January 25, 1971;
the International Covenant on Civil and Political Rights (ICCPR), which Iraq
also signed on January 25, 1971;
the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD),signed on January 14, 1970;
the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),
signed on August 13, 1986;
and the Convention on the Rights of the Child, signed on June 15, 1994.
As a member of the United Nations, Iraq has an additional “obligation to
promote and protect human rights and fundamental freedoms” and to abide by the
“obligations [it has] undertaken” by signing human rights treaties.
Like other states, Iraq must comply with customary law regardless of treaty
ratification status.
¶48The
Restatement of Foreign Relations Law helps clarify obligations under customary
international law. Iraq would violate customary international law if, as a
matter of state policy, it practiced, encouraged or condoned:
(a)
genocide,
(b)
slavery or slave trade,
(c)
the murder or causing the disappearance of individuals,
(d)
torture or other cruel, inhuman, or degrading treatment or punishment,
(e)
prolonged arbitrary detention,
(f)
systematic racial discrimination, or
(g)
a consistent pattern of gross violations of internationally recognized human
rights.
Sections
(a)-(f) are considered jus cogens, or
peremptory norms to which all countries must adhere.
According to the Vienna Convention on Treaty interpretation, an international
agreement or reservation that attempted to derogate from those norms would be
void.
¶49As
a peremptory norm of international law, any act of genocide would be illegal
regardless of Iraq’s international obligations. Raphael Lemkin, a Polish law
professor, first coined the term “genocide” in 1944, and intended it to
signify “a coordinated plan of different actions aiming at the destruction of
essential foundations of the life of national groups, with the aim of
annihilating the groups themselves.”
After World War II, the Allies formed the London Agreement, which included the
Nuremberg Charter.
The Allies used this agreement to prosecute the Nazis for crimes against
humanity, war crimes, and crimes against peace. Since the Nuremberg indictments
did not specifically include genocide, prosecutors charged defendants with
“deliberate and systematic genocide” under the larger heading of crimes
against humanity.
The tribunal did not convict any defendants directly or solely on this charge.
The Nuremberg Tribunals applied charges of crimes against humanity retroactively
since the drafters considered those crimes part of customary international law.
¶50Allied
Control Council Law No. 10 (Control Council Law) built on Nuremberg’s first
mention of genocide.
Becoming effective in 1945, it provided a broader definition of crimes against
humanity that allowed for prosecutions of genocide under its opening phrase,
“including, but not limited to.” Two American courts, prosecuting crimes
against humanity under their authority as an Allied occupation zone, applied
this Control Council Law and convicted several defendants of genocide.
These trials of Josef Alstötter, Ulrich Greifelt, and
others led to convictions based on participation “in the crime of genocide”
and involvement in a systematic program of genocide
aimed at “the destruction of foreign nations and ethnic groups.”
These American trials, along with genocide trials in Poland,
propelled and prompted the international community to adopt a multilateral
treaty on genocide that entered into effect in 1951.
¶51This
multilateral treaty, the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide (Genocide Convention), to which Iraq acceded on January 20,
1959, defined genocide in Article II as:
Any
of the following acts committed with intent to destroy, in whole or in part, a
national, ethnic, 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 its 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.
To convict
Hussein of genocide he must have “committed” one or more of the above
forbidden acts against members of a protected group with the intent to destroy,
in whole or in part, that group.
Hussein did not have to perform the acts himself. Instead, under Article III of
the Genocide Convention, acts punishable under the treaty include “genocide;
conspiracy to commit genocide; direct and public incitement to commit genocide;
attempt to commit genocide; [and] complicity in genocide.”
Thus, if Hussein specifically ordered or even turned a blind eye to any of these
acts, his failure to act would constitute genocide under the Genocide
Convention. The International Court of Justice, the ITCY and ITCR statutes, as
well as the International Criminal Court statute all follow the Convention’s
definition and its general elements.
¶52Even
if Iraq had not acceded to the Convention, as a party to the United Nations, it
must uphold certain basic human rights found in the preamble to the United
Nations Charter. The preamble states that members of the United Nations aim to
“reaffirm faith in fundamental human rights, in the dignity and worth of the
human person.”
Genocide derogates from this general principle by disregarding the value of
human life.
¶53Rather
than reaffirming human rights, a number of documents and testimonials show that
Hussein, through his own acts and the acts of others, attempted to annihilate
the Kurdish segment of the Iraqi population. Because Hussein served as the
RCC’s member in charge of “Kurdish affairs,” President of the Republic of
Iraq, and Secretary General of the Ba’th Party, he is liable under the
principle of command responsibility for ordering official acts. He specifically
ordered, directed, and appointed his cousin, Ali Hassan al-Majid, “Chemical
Ali,” to implement a comprehensive campaign against the Kurds which resulted
in: (1) concentration camps, (2) mass summary executions, (3) widespread use of
chemical weapons against the city of Halabja and dozens of Kurdish villages, and
(4) complete destruction of Kurdish villages, which government documents
described as “burned, destroyed, demolished, and purified.”
In the words of Al-Majid, the Iraqi government took these steps “to solve the
Kurdish problem and slaughter the saboteurs.”
“Saboteurs” refers to the Kurdish guerrillas and civilian sympathizers. When
first ordered by Hussein to quiet the “Kurdish rebellion,” Al-Majid said
“What am I supposed to do with them, these goats? . . . Take good care of
them? No, I will bury them with bulldozers.”
This symbolized the beginning of the Anfal Campaigns.
Although initially believed dead, coalition forces captured Al-Majid, or
“Chemical Ali,” on August 21, 2003.
Consequently, he may also face prosecution in an ad hoc tribunal.
¶54Although
President Hussein vested many of the powers for handling “Kurdish affairs”
to his cousin, he involved himself personally in the operational aspects of
Anfal through his position as president of the republic.
After “redrawing the map of Iraqi Kurdistan,” which demonstrated his
premeditation to commit genocide, approximately 5,000 to 8,000 Barzani
males “disappeared.”
As President, Saddam Hussein stated, “[t]hey betrayed the country and they
betrayed the covenant . . . we meted out stern punishment to them and they went
to hell.” Although these acts
occurred over the past twenty years, genocide is not subject to a statute of
limitations.
Any act of genocide violates Iraq’s obligations under the ICCPR to respect and
promote the right to life.
¶55To
convict Hussein of genocide, the prosecutor must prove, beyond a reasonable
doubt, that Hussein killed the Kurds, caused them serious bodily or mental harm,
deliberately inflicted conditions of life calculated to bring about the their
physical destruction, imposed measures intended to prevent Kurdish births, or
forcibly transferred Kurdish children to another group. The Kurds must also
qualify as a national, ethnical, racial, or religious group, and the prosecutor
must prove that Hussein intended to destroy them in whole or in part.
¶56Hussein’s
design of the Kurdish concentration camps inflicted conditions so severe that
they would meet the Genocide Convention’s requirement that the perpetrator
establish an environment “calculated to bring about [the group’s] physical
destruction in whole or in part.”
In Prosecutor v. Akayesu, ICTR
interpreted Article II(c) of the Genocide Convention as requiring the subjection
of “a group of people to a subsistence diet, systematic expulsion from homes
and the reduction of essential medical services.”
Conditions in Kurdish camps met these requirements, as well as the
Convention’s requirements for “causing serious bodily or mental harm to
members of the group,” under Article II (b). In the Eichmann
case, the District Court of Jerusalem stated that bodily or mental harm can be
caused by “enslavement, starvation, deportation and persecution . . . and by
their detention in ghettos, transit camps and concentration camps in conditions
which were designed to cause their degradation, deprivation of their rights as
human beings, and to suppress them and cause them inhumane suffering and
torture.”
¶57It
will be difficult to prosecute Hussein for this phase of the genocide without
conclusive documentation of his knowledge of the camps.
The tribunal may infer Hussein’s intent, on a case-by-case basis from the
material evidence so long as this evidence establishes a consistent pattern of
conduct. Although the ad hoc
tribunal may impute the requisite knowledge from Hussein’s numerous official
positions, he could argue that he lacked all knowledge because he designated
both power and authority over the camps to Chemical Ali.
¶58The
Ba’ath Party itself established the principle of “collective implication”
in the executions.
The Party insisted that its members form part of the firing squads.
For example, when Saddam Hussein assumed his presidency, he forced two dozen
senior Ba’ath officials to confess to charges of treason.
He then ordered the other senior officials to execute them on television to
demonstrate their new loyalty to Hussein.
On June 20, 1987, another document issued by the Northern Bureau Command with
the seal of the RCC (which Hussein chairs) endorsed a policy of mass murder and
incitement to pillage. It directed:
4.
The corps commanders shall carry out random 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.
5.
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 has been obtained from them, of which we should be
duly notified.
Al-Majid signed
the document and forwarded it to numerous branches including the Chairmen of the
Legislative and Executive Councils and Party Intelligence.
Under the Genocide Convention, summary and targeted executions constitute
intentionally “killing members of the group” because they meet the ICTR
requirement of “homicide with the intent to cause death.”
The prosecution could prove the requisite mens
rea and premeditation by using documents exchanged between Al-Majid and
Hussein, as well as government videotapes of massive executions.
¶59The
Iraqi regime kept meticulous records and routinely videotaped chemical weapons
attacks on civilians as well as executions and village clearances.
Having cameras ready to videotape the attacks demonstrates premeditation.
Saddam Hussein murdered about 100,000 Kurds with chemical weapons.
Under Article II (b) of the Genocide Convention, acts of chemical destruction
resulting in death constitute genocide in that they meet the definitions of
“killing members of the group” and “causing serious bodily and mental harm
to members of the group.”
¶60As
the ICTR noted in Prosecutor v. Kayishema
and Ruzindana, the tribunal should interpret the meaning of “serious
bodily harm” and “serious mental harm” on a “case-by-case basis, using a
common sense approach.”
According to the ICTR, “causing serious bodily harm” “could be construed
to mean harm that seriously injures the health, causes disfigurement or causes
any serious injury to the external, internal organs or senses.”
Acts of “serious mental harm” likewise includes “acts of bodily or mental
torture, inhumane or degrading treatment, rape, sexual violence, and
persecution.” The chemicals may have
caused a lasting effect on the Kurds; however, the effects need not prove
indelible or permanent for successful prosecution.
¶61Destruction
of Kurdish homes, crops, and livestock by the Iraqi government exhibited
Hussein’s desire to inflict conditions that would bring about the Kurds’
physical destruction. The United Nations Special Rapporteur made numerous
inquiries to Hussein asking for explanations of orders directing the execution
of wounded civilians and the razing of certain neighborhoods.
He sent no response. A government document titled “Registry of Eliminated
Villages” contained the names and locations of a large number of eliminated
villages.
The ICTR Chamber reasoned that systematically expelling people from their homes
would satisfy the requisite actus reus
of Article II(c) of the Genocide Convention.
¶62For
Hussein’s actions to qualify as genocide against the Kurds, the Kurds must
qualify as a national, ethnic, racial, or religious group. In addition, Saddam
Hussein must have intended to destroy them in whole or in part. The Kurds form a
distinct ethnic group; they developed their own culture with a unique Kurdish
style of dress and they speak their own language.
They lived in the northern mountainous region of Iraq for thousands of
years—the region was even designated “Kurdistan” in the 12th century.
The ICTR, in Prosecutor v. Akayesu,
stated that the term “ethnic group” is “used to refer to a group whose
members speak the same language and/or have the same culture.”
The Kurds have both their own language and their own distinct culture, thus they
qualify as an ethnic group for the purposes of the Genocide Convention.
¶63When
Saddam Hussein appointed his cousin, Ali Hassan al-Majid, to extinguish the
Kurds, Hussein exhibited the requisite intent to annihilate this ethnic group.
One observer stated of Al-Majid, “‘[h]e was stupid and only carrying out
Saddam Hussein’s orders.’”
Documented exchanges between Al-Majid and Saddam Hussein make it clear that
Hussein knew and approved of Al-Majid’s work.
Besides a jurisdictional challenge, claiming that Hussein did not act with the
requisite intent may be his best defense to genocide. Accordingly, he could
allege that he simply moved or deported the Kurds without intending to destroy
them. Hussein’s act of designating the power to Al-Majid works in Hussein’s
favor. He may claim that because he delegated all the power and authority for
dealing with the Kurds to Al-Majid, Al-Majid acted without Hussein’s approval
or knowledge. Although the court could still infer knowledge through command
responsibility, the prosecution may find it more difficult to establish intent
through this theory.
¶64Because
Iraq acceded to the Genocide Convention on January 20, 1959, the crime of
genocide existed in the form of a treaty and as customary international law
during the 1980s when the majority of the above acts occurred. Accordingly, no
significant legal barriers, such as an ex
post facto application of the law, exist for prosecuting Saddam Hussein for
genocide. Plentiful evidence exists to convict him for conspiracy to commit
genocide, direct and public
incitement to commit genocide,
or complicity in genocide.
¶65Despite
the mounting evidence against him, Hussein’s defense attorneys may rely on a
number of mitigating factors. Hussein did attempt to unite the Kurds and the
Iraqi people to create a state with a unique national identity. To create this
state, Hussein spent significant financial resources to recover artifacts and
piece together Iraq’s cultural history.
He was the first Iraqi leader to visit the Kurdish region.
In fact, not until the United States, Iran, and Israel contributed resources to
promote the Kurdish insurgency in the 1970s did Hussein begin the Anfal
campaigns. Not only did the United States help ignite the conflict, it removed
sanctions from Iraq in 1982 and shared military intelligence with Iraq during
the Iran-Iraq war.
This union culminated in 1984 when, despite Iraq’s use of chemical weapons on
Iranians, the Regan administration sent Donald Rumsfeld to Iraq to strengthen
ties with Saddam Hussein and to offer additional intelligence and money. When
the United States eventually incited Kurdish rebellion but failed to support it
in 1991, Saddam Hussein squelched the rebellion with a widespread massacre of
the Shi’ites. Consequently, Hussein’s attorneys may try to bring the United
States in as a co-conspirator and deflect attention away from Hussein’s acts
and toward discovering exactly what the United States knew.
¶66Saddam
Hussein did not end his struggle to maintain power with Anfal campaigns or the
Kurdish people. As head of the RCC, Hussein personally signed decrees condoning
torture, deportation, unfair trials, amputations, and branding against his own
people. Because many of these actions qualify as crimes against humanity, the
ICTI prosecutor may indicate and prosecute Hussein for these acts.
¶67Like
genocide, as the name “crimes against humanity” suggests, these crimes
offend the whole of humanity and, consequently, the ICTR and ICTY considers them
international crimes. A Baptist minister first coined the phrase “crimes
against humanity,” in an 1890 letter to the United States Secretary of State.
However, the 1945 Nuremberg trials first defined and prosecuted defendants for
crimes against humanity.
The Nuremberg Charter substantively removed state immunity for crimes against
humanity, and described these crimes as:
Murder,
extermination, enslavement, deportation, and other inhumane acts committed
against any civilian population, before or during the war, or persecutions on
political, racial, or religious grounds in execution of or in connection with
any crime within the jurisdiction of the Tribunal whether or not in violation of
the domestic law of the country where perpetrated.
Hussein did not
have to personally commit these acts since “[l]eaders, organizers,
instigators, and accomplices, participating in the formulation or execution of a
common plan or conspiracy to commit any of the foregoing crimes are responsible
for all acts performed by any persons in execution of such plan.”
Approval by the United Nation’s General Assembly to use this definition to
prosecute heads of state chipped away at traditional immunity and helped
solidify the introduction of crimes against humanity into international law.
¶68Unlike
genocide, definitions for crimes against humanity vary. The Tokyo Charter in
Article 5(c) resembled the Nuremberg Charter, but did not include persecutions
on religious grounds.
Allied Control Council Law No. 10, Article 2, broadened the concept of crimes
against humanity in its definition by including the words “not limited to”
and by specifically adding “imprisonment, torture, [and] rape.”
Furthermore, the ICTR and ICTY defined crimes against humanity differently from
both former definitions and from one another. A prosecutor in the ICTY may
prosecute “murder, extermination, enslavement, deportation, imprisonment,
torture, rape, persecutions on political, racial and religious grounds, and
other inhumane acts” only when committed in armed conflict and directed
against a civilian population.
The ICTR, on the other hand, allows the prosecutor to prosecute when the accused
“committed [acts] as part of a widespread or systematic attack against any
civilian population on national, political, ethnic, racial or religious
grounds.” Though the ICTY does not
specify the need for a “widespread or systematic attack,” it interpreted the
phrase “civilian population” to include this requirement.
¶69In
the International Criminal Court, relevant portions of Article 7 similarly
define crimes against humanity to include murder, “[d]eportation or forcible
transfer of [a] population,” “[p]ersecution against any identifiable group
or collectivity on political, racial, national, ethnic, cultural, religious . .
. or other grounds,” “[i]mprisonment or other severe deprivation of physical
liberty in violation of fundamental rules of international law,” and torture.
For any of these acts to qualify as crimes against humanity the perpetrator must
commit them as “part of a widespread or systematic attack directed against a
civilian population” and have knowledge of the attack’s systematic nature.
Crimes against humanity may occur during peacetime or war.
Like the ICTR, the Rome Statute employs the qualification “widespread or
systematic attack” which broadens its jurisdiction and makes these
requirements alternatives. This mirrors the most recent approach taken by the
ICTY in Prosecutor v. Tadić. The ICTR, while it does
not use an either/or approach, defined the term “widespread” as “massive,
frequent, large scale action, carried out collectively with considerable
seriousness and directed against a multiplicity of victims.”
The court interpreted “systematic” as “thoroughly organized and following
a regular pattern on the basis of a common policy involving substantial public
or private resources.”
¶70Regardless
of the precise language used in any one statute, the prosecution must establish
the same five elements under Article 5 of the ICTY, Article 3 of the ICTR, and
Article 7 of the ICC to prove Hussein’s guilt. These elements include: (1) the
occurrence of an “attack”; (2) a link or “nexus” between Saddam
Hussein’s action or inaction and the attack; (3) the attack’s “widespread
or systematic” nature; (4) the attack’s target as a civilian population; and
finally, (5) that Hussein’s knowledge of the attacks fulfills the requisite mens rea.
¶71Hussein
conducted several “attacks” by deporting the Kurds, depriving Iraqi citizens
of fundamental liberties, and by torturing Iraqi citizens.
These instances qualify as attacks because the term concerns the mistreatment of
civilians including the state’s own population.
The ICTY, in Prosecutor v. Nikolic,
listed several factors relevant for determining whether an attack occurred
against a civilian population.
In its list, the court examined “whether summary arrests, detention, torture
and other crimes have been committed,” and “whether massive transfers of
civilians to camps have taken place.”
Similarly, the ICTR, in Prosecutor v.
Akayesu, stated, “the act must be inhumane in nature and character,
causing great suffering or serious injury to body or to mental or to physical
health.”
These factors remain particularly relevant in the Iraqi situation where the
government transferred Kurds to camps, summarily arrested them,
detained them,
and tortured Iraqi civilians.
Each of these actions constitutes an attack; thus, the first element is
satisfied.
¶72The
second element, the nexus between the acts of Hussein and the attacks, is
detailed in each specific act’s section below. However, within each section
two things must be established: (1) the “commission” of the act
(deportation, deprivation, torture) that furthered the attack against the Iraqi
people (including the Kurds), and (2) Saddam Hussein’s knowledge that these
orders/acts constituted part of the greater “attack.”
A single act, such as issuing a decree, suffices so long as it is part of the
larger attack.
¶73The
Iraqi population satisfies the third requirement that Hussein carry out the
attack on “a civilian population.” As Iraqis living under Hussein’s
regime, they possess the requisite characteristic of a geographically
self-contained group of people.
In some ways, the breadth of the Iraqi population as a target also satisfies the
fourth element of a “widespread or systematic attack.” To qualify as a
widespread or systematic attack, the action “need not be committed at the same
time and place as the attack or share all of the features of the attack,”
however, “it must, by its characteristics, aims, nature, or consequence
objectively form part of the discriminatory attack.”
Hussein’s actions fulfill both requirements since the Iraqi population
comprises a large number of victims and Hussein,
in his power as president, orchestrated a systematic governmental attack against
them.
¶74Finally,
the prosecutor must establish, beyond a reasonable doubt, that Saddam Hussein
possessed mens rea that demonstrated
he knew about the attack.
As interpreted by the ICTR, Hussein must have “actual or constructive
knowledge of the broader context of the attack, meaning that [Hussein] must
known that his act(s) is part of a widespread or systematic attack on a civilian
population and pursuant to some kind of policy or plan.”
To establish intent for certain acts, the ICC requires the perpetrator to either
“mean to cause that consequence,” or be “aware that it will occur in the
ordinary course of events.”
“Knowledge” is similar, but for purposes of the Rome Statute, it means
“awareness that a circumstance exists or a consequence will occur in the
ordinary course of events.”
Mental elements requiring that Hussein knew about the widespread or systematic
attack, do not require proof that he knew everything
about the attack, or even that he knew the precise details of plans.
The prosecutor may satisfy these elements by a simple indication that the
Hussein intended to “further such an attack.”
¶75The
prosecutor may have the most difficulty proving the mens rea element. For the most part, crimes against humanity are not
strict liability crimes. Article 28 of the ICC provides guidance by discussing a
form of constructive knowledge for trying “superiors” such as Saddam
Hussein. Hussein could be held criminally responsible for crimes against
humanity committed by his subordinates. These subordinates would include the
Iraqi military or any type of Iraqi security force. Hence, Hussein may be liable
for failing to “exercise control properly over such subordinates” in three
situations: (1) where Hussein either knew, or “consciously disregarded”
information, such as United Nations or Human Rights reports indicating that his
subordinates were either committing or about to commit such crimes; (2) where
the crimes “concerned activities that were within [his] effective
responsibility and control”; or (3) where Hussein failed to take all
“necessary and reasonable measures” within his power to stop the acts from
being committed, or alternatively, failed to “submit the matter to the
competent authorities for investigation and prosecution.”
The ICC’s position, requiring that a superior knew or should have known,
differs from an earlier position taken by the United States Supreme Court which
applied a standard just short of strict liability to a Japanese Commanding
General.
¶76The
prosecutor may address the majority of Saddam Hussein’s actions against the
Kurds under the Genocide Convention. However, the Convention does not address
deportation, which constitutes a distinct crime against humanity. The United
Nations General Assembly expressed concern over the “forced displacement of
hundreds of thousands of Iraqi civilians,” “the destruction of Iraqi towns
and villages,” and “the fact that tens of thousands of displaced Kurds have
had to take refuge in camps and shelters in the north of Iraq.”
¶77Customary
international law recognizes deportation as a crime against humanity, as does
Article 6(c) of the Nuremberg Charter, Article 5(d) of the ICTY, Article 3(d) of
the ICTR, and in Allied Control Council Law No. 10. In addition, the ICCPR
states, “no one shall be arbitrarily deprived of the right to enter his own
country.” To convict Hussein of
deporting the Kurdish population, he must have used expulsion or other types of
coercion to forcibly transfer or deport one or more persons into another State
or place.
“Population,” as interpreted by the ICTY in the Tadic case, “impl[ies] crimes of a collective nature and thus
exclude single or isolated acts which . . . do not rise to the level of crimes
against humanity.”
The Iraqi regime’s displacement of hundreds of thousands of Iraqi civilians
qualifies as more than a single or isolated act. “Forcibly” does not denote
only physical force, but may also encompass threats or types of coercion caused
by creating a coercive environment or by using “fear of violence, duress,
detention, psychological oppression or abuse of power.”
Hussein appears to have forcibly deported the Kurds. He issued an order
concerning Kurdish villages that stated, “within their jurisdiction, the armed
forces must kill any human being or animal present within these areas. They are
totally prohibited.”
¶78In
addition to a forcible deportation, the displaced persons must have been
“lawfully present” in the area prior to being moved.
“Lawful” probably refers first to national law, but where a national law
severely contradicts an international law, as in the Iraqi situation, then
“lawful” should refer to an international principle.
Otherwise, dictators such as Hussein could circumvent this element by enforcing
self-interested laws like Iraqi directive 28/3650 that prohibited human life in
over 1,000 Kurdish villages.
Prior to this directive, the Kurds lawfully inhabited these areas for more than
a thousand years.
Strictly interpreting “lawful” as national law where it would allow
dictators to legislate their way out of criminal conduct contradicts principles
in the Nuremburg Charter.
¶79As
commander-in-chief of Iraq’s armed forces and as Chairman of the RCC, Hussein
condoned the deportation of over 400,000 Iraqi citizens (including Kurds)
holding valid Iraqi passports.
Hussein’s personal responsibility for the purges began with his accession to
power in which he deported or executed several Shi’ite clerics.
Evidence exists to support Hussein’s knowledge, both actual and constructive,
of the forced deportation of non-Arabs in Hussein’s Arabization campaign.
United Nations Special Rapporteur Max van der Stoel submitted numerous reports
to the United Nations that detailed instances of forced relocations and wrote
various letters to Hussein and the Iraqi government requesting evidence of
cessation.
If nothing else, these letters put Hussein on notice of violations by
subordinates. Hence, his defense would have difficulty establishing his
ignorance. The discovery phase of any prosecution may uncover additional
documents actually signed by Hussein.
¶80The
list of crimes against humanity does not end with Kurdish deportation. Hussein
also imprisoned Iraqi citizens and deprived them of their physical liberty
through arbitrary arrests, detentions, unfair trials, long prison sentences,
branding, amputation, and excessive use of the death penalty. The ICTR, the ICTY,
and the Allied Control Council Law No. 10 prohibit excessive and unjust
imprisonment in their instruments. Previous statutes include the term “other
severe deprivation of physical liberty.” This phrase has emerged as a “catch
all” provision for borderline types of confinement that may not fit within
other definitions but nonetheless rises to the level of a crime against
humanity. Article 9 of the ICCPR requires government to ensure certain due
process rights including prohibition against arbitrary arrests or detentions,
prompt information concerning charges, timely trials, and court proceedings
within a reasonable time.
Similarly, Article 14 of the ICCPR entitles everyone to a “fair and public
hearing by a competent, independent and impartial tribunal established by
law.”
¶81The
Rome Statute of the International Criminal Court and the ICTY require the
prosecutor to establish three general elements before convicting Hussein for
unlawfully imprisoning or severe depriving Iraqis of physical liberty.
First, the prosecutor must prove, beyond a reasonable doubt, that Hussein
imprisoned or otherwise deprived one or more persons of their physical liberty.
Second, the prosecutor must establish that Hussein’s conduct was severe enough
to breach the fundamental rules of international law by arbitrarily depriving
the Kurds of their liberty.
“Fundamental” refers to the nature of the violation, not whether the accused
complied with every procedure available in international law.
“Arbitrarily” means that no legal basis can be invoked to justify the
deprivation of liberty and that the individual did not benefit from the due
process of law.
Third, the prosecutor must prove that Hussein knew about the imprisonments and
deprivations and was aware of their severity.
The ICTY interpreted this third element to mean “the accused, or a person or
persons for whom the accused bears criminal responsibility [performed the act]
with the intent to deprive the individual arbitrarily of his or her physical
liberty or in the reasonable knowledge that is act or omission is likely to
cause arbitrary deprivation of physical liberty.”
¶82Despite
signing the ICCPR,
in which Iraq purports to guarantee its citizens “a fair and public hearing by
a competent, independent and impartial tribunal established by law,”
Hussein deprived a number of Iraqi citizens of their due process rights in
several ways. Little or no due process exists in Iraqi courts.
The government conducts trials in camera,
before “special courts,”
allows military officers and even civil servants (all of whom lack judicial
training and the necessary autonomy for impartial judgments) to preside over
trials, and often limits legal
aid to the actual trial date.
¶83The
prosecutor should be able to establish Hussein’s knowledge of the deprivations
of due process and resulting imprisonments. The families of victims and
officials from the United Nations sent letters directly to Saddam Hussein and
the Iraqi Government.
These letters, combined with visits by the United Nations Special Rapporteur of
the Commission on Human Rights provide evidence of Hussein’s knowledge. The
Rapporteur may have based his visit to Iraq, in part, on allegations of the lack
of fair trials and the suppression of freedom of expression and association.
His report stated that the Government of Iraq continued to disregard its
obligations under Articles 9 and 14 of the ICCPR.
These articles prohibit arbitrary arrest and detention as well as entitle
citizens to a fair and pubic hearing by a competent, independent and impartial
tribunal. The report expressed
concern about long detentions without charges, the lack of access to lawyers,
non-public trials, death sentences in absentia, and the lack of an appellate
body to review decisions.
¶84The
ICTR and ICTY prohibit acts that are inhumane in nature and character that are
not specifically included in their particular instruments, but are “of
comparable seriousness” and “comparable gravity” to the enumerated acts.
As the ICTR noted in Prosecutor v.
Kayishema and Ruzindana, “[t]hese will be acts or omissions that
deliberately cause serious mental or physical suffering or injury or constitute
a serious attack on human dignity.
The Prosecution must prove a nexus between the inhumane act and the great
suffering or serious injury to mental or physical health of the victim.”
The ICTI should determine whether an act constitutes an inhumane act “on a
case-by-case basis.”
In the ICTR, the inhumane act or omission must “(a) [b]e directed against
member(s) of the civilian population; (b) [t]he perpetrator must have
discriminated against the victim(s), on one or more of the enumerated
discriminatory grounds; (c) [t]he perpetrator’s act or omission must form a
part of a widespread or systematic attack and the perpetrator must have
knowledge of this attack.”
In Prosecutor v. Kayishema and Ruzindana,
the ICTR acknowledged, “a third party could suffer serious mental harm by
witnessing acts committed against other, particularly against family or
friends.” The ICTR held that the
defendant act of decapitation, castration, and piercing a skull with a spike
constituted “other inhumane acts” in Prosecutor v. Niyitegeka.
¶85The
ICTY’s interpretation of “other inhumane acts” varies slightly from that
of the ICTR. The tribunal in Prosecutor v.
Vasilijevic required that the prosecutor establish the following elements
for “other inhumane acts:”
(i) the occurrence of an act or
omission of similar seriousness to the other enumerated acts under the Article;
(ii) the act or omission caused serious mental or physical suffering or injury
or constituted a serious attack on human dignity; and (iii) the act or omission
was performed deliberately by the accused or a person or persons for whose acts
and omissions he bears criminal responsibility.
To assess the
seriousness of an act, the tribunal should consider the factual circumstances,
the context in which the act or omission occurred, the personal circumstances of
the victim including his or her age, sex, and health, as well as the physical,
mental, and moral effects on the victim.
The tribunal may also consider the long-term effects of the act or omission on
the victim.
¶86Hussein
signed a number of decrees mandating branding and amputations as punishments for
Iraqi citizens.
The tribunal may need to consider each branding or amputation on a case-by-case
basis, but may also take Iraq’s other international obligations into
consideration when determining whether these acts constitute an inhumane act.
Article 7 of the ICCPR, a “fundamental” rule of law to which Iraq is a
party, states, “[n]o one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.”
Although the general comments to the ICCPR do not explicitly list the treatments
considered degrading, the comments forbid acts that cause either mental or
physical suffering. Branding and amputations would most likely qualify as
“excessive chastisement ordered as a punishment for a crime or as an educative
or disciplinary measure.”
The ICCPR permits no derogation from Article 7. Hussein, as the primary sponsor
and promulgator this punishment seems to have violated this treaty. Because
Hussein signed the decrees, the prosecutor should have little difficulty
establishing Hussein’s knowledge of the decrees and their potential effects on
Iraqi citizens. Consequently, the ICTI may convict him of “other inhumane
acts.”
¶87Saddam
Hussein also signed an order instituting the death penalty for all deserters and
draft evaders and gave it retroactive application. This retroactive
application even contravenes the Iraqi Penal Code, which states in Article 1,
“[n]o act or omission shall be penalized except in accordance with a
legislative provision under which the said act or omission is regarded as a
criminal offense at the time of its
occurrence.”
Article 6(2) of the ICCPR also forbids excessive use of the death penalty, and
states “[i]n countries which have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance with the law
in force at the time of the commission of the crime and not contrary to the
provisions of the present Covenant.”
¶88These
decrees promoting widespread use of the death penalty not only conflict with
fundamental rules of international law, but also violate Hussein’s agreement
under the ICCPR. The deprivation of life for minor offenses such as theft, drug
trafficking, and affiliation with political opposition, breach Article 6 of the
ICCPR. Hussein’s signatures on the documents show that he not only consented
to the decrees, but also ordered them himself. The Special Rapporteur’s
reports and requests for additional information alerted Hussein to the severity
of the situation, yet Hussein refused to provide additional information and
actually issued more decrees. Although Hussein’s actions breached Iraq’s
treaties, for the ICTI to hold Hussein personally liable, these breaches must
constitute “other inhumane acts.” Like the analysis for branding and
amputations, the ICTI would need to examine the circumstances for each instance
in which Hussein’s officials actually carried out the death penalty for minor
violations on a case-by-case basis. The families of the victims will most likely
be able to fill in these details, and additional evidence may emerge during the
trial.
¶89The
ICTY,
ICTR, and Allied Control
Council Law No. 10 all expressly list torture as a crime against humanity. Interestingly, neither
the Nuremberg nor the Tokyo Charters specified torture as a crime against
humanity, however, it would still have qualified as an “inhumane act.”
Article 7(2)(e) of the Rome Statute defines “torture” as “the intentional
infliction of severe pain or suffering, whether physical or mental, upon a
person in custody or under the control of the accused; except that torture shall
not include pain or suffering arising only from, inherent in or incidental to,
lawful sanctions.”
Furthermore, under the ICC, torture need not be carried out for a particular
purpose to constitute a crime against humanity.
The absence of a need for a particular purpose differs from requirements in the
Torture Convention.
Since Iraq is not a party to the Torture Convention, those principles would not
strictly apply. However, Iraq is a party to the ICCPR which states in Article 7,
“[n]o one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.”
The general comments to the ICCPR allow no derogations or justifications from
this article, which seems to make government parties strictly liable.
¶90To
convict Saddam Hussein of torture in a tribunal with a statute similar to the
Rome Statute, ICTY, or ICTR the prosecutor must meet several elements. First,
Hussein or his guards must have inflicted severe mental or physical suffering on
a person or persons in Hussein’s control or custody. Second, Hussein or his
officials must have intended to inflict, by act or omission the mental or
physical pain.
Finally, Hussein or his officials must have aimed their actions or omissions
“at obtaining information or a confession, or at punishing, intimidating or
coercing the victim or a third person, or at discriminating on any ground,
against the victim or a third person.”
Torture cannot have occurred only as a result of “lawful sanctions.” No
indication exists as to whether “lawful” refers to national or international
law. However, in order for this element to make any sense when applied to a
state actor such as Saddam Hussein, it must indicate international law.
¶91The
ICCPR’s 1992 general comments to Article 7 make clear Saddam Hussein’s duty
to the Iraqi people. They state in part, “[i]t is the duty of the State party
to afford everyone protection through legislative and other measures as may be
necessary against the acts prohibited in article 7, whether inflicted by people
acting in their official capacity, outside their official capacity or in a
private capacity.”
“The text of article 7 allows of no limitation.”
No justifications or extenuating circumstances may be used as an excuse for any
reason. In this regard, the Committee noted that “it is not sufficient for the
implementation of article 7 to prohibit such treatment or to make it a crime.”
The prohibition extends to acts that cause both physical and mental suffering.
It also extends to prolonged solitary confinement.
Amnesties for committing torture do not comport with the duties in the ICCPR,
and contradict the duty of the States to investigate all such acts.
¶92By
knowingly promoting and tolerating torture in Iraq, Hussein violated his duty
under the ICCPR, and the prosecutor could convict him under the ICTY or ICTR
statutes. In his official capacity, prisoners are effectively under his control,
and, under the ICCPR, no sanctions allowing torture may be “lawful.” Thus,
the ICTI may convict Hussein of torturing prisoners in an ad hoc tribunal. Iraq
may also face sanctions in a proceeding, possibly in the International Court of
Justice, that strictly determines Iraq’s compliance with the ICCPR treaty.
¶93For
all of the Iraqi citizens to begin a peaceful new government, they should be
allowed to participate in justice system that permits them to voice their
collective experiences before a knowledgeable judge. An ad hoc tribunal,
instituted by the United Nations Security Council’s Chapter VII power,
provides the best option for prosecuting Saddam Hussein and for promoting
reconciliation. Ensuring that Hussein receives a fair trial will set valuable
legal precedent for both the international and the Iraqi community. Justice
brought about by the ICTI should play an integral role in rebuilding Iraqi
sovereignty and in promoting a solid state of democracy after years of internal
turmoil.
(a)
Basic offense.--Whoever,
whether in time of peace or in time of war, in a circumstance described in
subsection (d) and with the specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial, or religious group as such--
(1)
kills members of that group;
(2)
causes serious bodily injury to members of that group;
(3)
causes the permanent impairment of the mental faculties of members of the
group through drugs, torture, or similar techniques;
(4)
subjects the group to conditions of life that are intended to cause the
physical destruction of the group in whole or in part;
(5)
imposes measures intended to prevent births within the group; or
(6)
transfers by force children of the group to another group;
or
attempts to do so, shall be punished as provided in subsection (b).
(b)
Punishment for basic offense.--The
punishment for an offense under subsection (a) is--
(1)
in the case of an offense under subsection (a)(1) where death results, by
death or imprisonment for life and a fine of not more than $1,000,000, or
both; and
(2)
a fine of not more than $1,000,000 or imprisonment for not more than twenty
years, or both, in any other case.
(c)
Incitement offense.--Whoever
in a circumstance described in subsection (d) directly and publicly incites
another to violate subsection (a) shall be fined not more than $500,000 or
imprisoned not more than five years, or both.
(d)
Required circumstance for offenses.--The
circumstance referred to in subsections (a) and (c) is that--
(1)
the offense is committed within the United States; or
(2)
the alleged offender is a national of the United States (as defined in
section 101 of the Immigration and Nationality Act (8
U.S.C. 1101)).
(e)
Non-applicability of certain limitations.--Notwithstanding
section
3282 of this title, in the case of an offense under subsection (a)(1),
an indictment may be found, or information instituted, at any time without
limitation.
See Statute
of the International Tribunal of the Former Yugoslavia, Annex, art. 4, U.N.
Doc. S/25704, reprinted in 32
I.L.M. 1159, 1193, adopted pursuant to S.C. Res. 827, U.N. SCOR, 48th
Sess., 3217th mtg. at 1-2, U.N. Doc. S/RES/827 (1993)[hereinafter ICTY
Statute]; Statute of the International Tribunal for Rwanda, S.C. Res. 955,
U.N. SCOR, 49th Sess., 3453rd mtg., Annex, art. 2, U.N. Doc. S/RES/955
(1994), reprinted in 33 I.L.M.
1598, 1602 [hereinafter ICTR Statute].
Report of the Secretary General Pursuant to Paragraph 2 of Security Council
Resolution 808, P 29, U.N. Docs. S/25704, S/25704/Corr.1 (1993), reprinted
in 2 Virginia Morris
& Michael Scharf, An Insider's Guide to the International Criminal
Tribunal for the Former Yugoslavia 8
(1995), available at http://www.un.org/icty/basic/statut/S25704.htm
(last visited February 16, 2004). The fluid nature of international law and
the lack of agreement on points of customary law may make it difficult for
the ICTY to apply this rough statutory guide that incorporates customary
international law.
2 Trial of the Major War Criminals Before the International Military
Tribunal 45-46 (1947) (indictment, Count Three), available
at http://www.yale.edu/lawweb/avalon/imt/proc/count3.htm (last visited
Apr. 21, 2004).
3 M. Cherif Bassiouni, International
Criminal Law 127 (Transnational Publishers 1987) (summarizing
dispositions and outcomes of the Nuremberg Trial).
The Anfal Campaign was organized into eight stages, however for the purposes
of this Article, similar genocidal acts will be examined collectively.
Allied Control Council Law supra note
162
. The entire section reads:
Atrocities
and Offences, including, but not limited to, murder, extermination,
enslavement, deportation, imprisonment, torture, rape, or other inhumane
acts committed against any civilian population or persecutions on political,
racial or religious grounds in execution or in connection with any crime
within the jurisdiction of the Tribunal, whether or not in violation of the
domestic laws of the country where perpetrated.
See Prosecutor v. Naletilic and
Martinovic, Case No. IT-98-34, para. 247 (ICTY Trial Chamber, Mar. 31,
2003).
“Article 5(i) of the
Statute (other inhumane acts) is a residual clause, which applies to acts
that do not fall within any of other sub-clause of Article 5 of the Statute
but are sufficiently similar in gravity to the other enumerated crimes.”
Inhumane acts are “acts or omissions intended to cause deliberate mental
or physical suffering to the individual. As constituting crimes against
humanity, these acts must also be widespread or systematic.” Id.
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, para. 153 (ITCR
Trial Chamber, May 21, 1999). “[T]o
find an accused responsible for [third party suffering] under crimes against
humanity, it is incumbent on the Prosecutor to prove the mens rea on
the part of the accused.” Id. “[I]nhumane
acts are . . . those which deliberately cause serious mental
suffering.” Id. The mens rea is
“the intention to inflict serious mental suffering on the third party, or
where the accused knew that his act was likely to cause serious mental
suffering and was reckless as to whether such suffering would result.” Id. Consequently, “if at the time of the act, the accused was
unaware of the third party bearing witness to his act, then he cannot be
held responsible for the mental suffering of the third party.” Id.
Prosecutor v. Kunarac, Kovac and
Vokovic, Case No. IT-96-23 & IT-96-23/1, para. 142 (Appeals
Chamber, June 12, 2002); Prosecutor v. Akayesu, Case No. ICTR-96-4-T, para.
593-95 (ICTR Trial Chamber, Sept. 2, 1998). The Chamber, in Prosecutor
v. Semanza noted that no “public official requirement exists.
In
Akayesu, the Trial Chamber relied on the definition of torture found
in the . . . Convention Against Torture . . . . The ICTY Appeals Chamber has
since explained that while the definition contained in the Convention
Against Torture is reflective of customary international law . . . , it is
not identical to the definition of torture as a crime against humanity. [T]he
ICTY Appeals Chamber has confirmed that, outside the framework of the
Convention Against Torture, the ‘public official’ requirement is not a
requirement under customary international law in relation to individual
criminal responsibility for torture as a crime against humanity.
Case
No. ICTR-97-20, para. 342-43 (ICTR Trial Chamber, May 15, 2003). Thus,
the Chamber rejected the ‘public official’ requirement.
