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As arguably the most important war crimes proceedings since Nuremberg, the trials of Saddam Hussein are likely to constitute a "Grotian Moment" -- defined as a legal development that is so significant that it can create new customary international law or radically transform the interpretation of treaty-based law. This Website features key documents related to the Iraqi High Tribunal, answers to frequently asked questions, and expert debate and public commentary on the major issues and developments related to the trials of Saddam Hussein and other former Iraqi leaders.

Experts Debate the Issues

November 2nd, 2006

Dujail Issue #44: What to Look for in the Dujail Trial Judgment

What to Look For in the Dujail Trial Judgment By Professor Michael P. Scharf

The long-awaited first judgment of the Iraqi High Tribunal (IHT) is scheduled to be issued on Sunday, November 5, 2006. According to Article 23 of the IHT Statute, the Trial Chamber�s judgment must reflect a majority decision of the five Trial Chamber judges, it must be issued in writing, and dissenting opinions shall be appended. Whether the IHT process is ultimately viewed as legitimate will be determined largely by the quality and substance of this historic legal opinion. This piece previews the most important issues that are likely to be resolved in the Dujail judgment.

1. Look for the IHT�s disposition of the pre-trial motions challenging the jurisdiction and legitimacy of the Tribunal.

The IHT has been severely criticized for neither conducting preliminary hearings on procedural matters nor producing written opinions on such matters. Presumably these will be dealt with in the judgment of the Tribunal in accordance with Iraqi legal tradition. It will be extremely interesting to see how the Tribunal responds to the Defense arguments that the IHT is not a legitimate judicial body. In particular, the Defense has asserted that the creation of the IHT by an Occupying Power (the United States) violates the Geneva Conventions, while the Prosecution responded by arguing out that Iraqi�s democratically-elected National Assembly subsequently approved the Tribunal�s Statute in August 2005, thereby giving the Tribunal legitimacy. The defense also argued that the prosecution of Saddam Hussein in an Iraqi Court is barred by head of state immunity under Iraqi law, while the Prosecution countered that the Iraqi National Assembly legitimately revoked such immunity by approving the Statute of the IHT in August 2005.

It will also be interesting to see if/how the judgment deals with defense complaints that the Presiding Judge, Ra�uf Abdel-Rhaman, was biased due to alleged past membership in an anti-Ba�athist organization and should have been removed. Similarly, it will be interesting to see if/how the judgment addresses the defendants� claims that they were physically abused while in custody, as under international precedent such abuse could constitute a ground for dismissal of the case.

The judgment may also address Defense arguments that certain rulings by the IHT denied the defendants a fair trial. Specifically, the judgment is likely to address the propriety of waiting until half-way through the trial to announce the detailed charges, the practice of frequently expelling defense counsel and defendants from the courtroom for disruptive behavior, the use of court-appointed counsel when the Defense Counsel were boycotting the proceedings or were expelled from the courtroom, and the Tribunal�s refusal to permit the Defense to call a number of their remaining witnesses.

2. Look for the IHT�s findings of fact and conclusions of law related to the charges against the eight co-defendants

The Tribunal�s judgment will analyze whether the various acts carried out by the Ba�ath Regime, which were described in the testimony and documents admitted into evidence during the trial, constitute crimes against humanity. These acts included the shelling and strafing of the town of Dujail by helicoptor gunships; the destruction of the town�s homes, water supplies, and orchards; rounding up 399 townspeople, including young children, for interrogation; employing torture and causing the deaths of 50 people during interrogation; ordering 148 people summarily tried en masse before the Revolutionary Court; and ordering all of these people executed after the trial which lasted a single session. To establish crimes against humanity under Article 12 of the IHT Statute, there must be proof of widespread and systematic mistreatment, torture, and/or killings of civilians.

One of the most important aspects of the judgment may be how the Tribunal deals with the issue of document authenticity. The trial turned out to be much more document-based than was anticipated. Some of the most important documents included Saddam�s order for the execution of the Dujail townspeople, and his order that Medals of Honor be awarded to the security forces involved in their apprehension and interrogation. The Defense has challenged the authenticity of these and other documents, and argued that the court-appointed experts who affirmed Saddam�s signature on them cannot be trusted as independent because they all have links to Iraq�s interior ministry. In particular, the defense strenuously argued that the document indicating that Saddam Hussein approved the execution of people under the age of eighteen was forged. Similarly, the judgment will need to address the Defense claims that certain witnesses were offered money and/or threatened with bodily harm by the chief prosecutor to give false testimony.

3. Look for the IHT�s analysis of theories of liability

To justify a conviction, the IHT must explain how each of the eight defendants can be held criminally responsible for the alleged crimes. Under principles of direct responsibility and command responsibility, the IHT is likely to find that Saddam Hussein and his half-brother Barzan Ibrahim (former head of the Makhubarat intelligence agency) are criminally responsible either for issuing orders (to attack the city, to round up hundreds of townspeople for interrogation, to try them before the Revolutionary Court, and to order their execution), or for failing to prevent or punish subordinates for unlawful acts (such as destroying the Dujail water supply, burning down the orchards, and/or torturing and killing the DuJail detainees).

Under the precedent of the Nuremberg-era Alstoetter Case, defendant Awad al-Bandar (the head of Saddam�s Revolutionary Court) might be held responsible if the Tribunal concludes that he ordered the executions of the Dujail defendants knowing that the Dujail trial was patently unfair and that his court was being used as part of a systematic attack against the civilian population of Dujail. The IHT�s judgment will need to address the defense witness testimony that the proceedings before the Revolutionary Court were fair under the circumstances. If it convicts al-Bandar, the IHT will likely spell out in detail those attributes of a fair trial that were lacking in the Revolutionary Court case against the Dujail townspeople. The irony here is that the IHT itself has been accused of violating many of those fair trial principles in the handling of the Dujail and Anfal trials.

To warrant a conviction of the three lesser known co-defendants -- Mizhar Abdullah Ruwayyid, Abdullah Kazim Ruwayyid, Ali Dayih and Mohammed Azawi Ali � the IHT must explain how the evidence proves these informers knew or should have known that a crime against humanity would befall the neighbors on whom they informed. Many experts believe that the IHT will acquit some or all of the lesser known co-defendants.

4. Look for the IHT response to the �war on terrorism defense�

The Tribunal�s judgment will examine the Defense argument that the Defendants� actions were lawful based on the necessity to combat/suppress the terrorists and insurgents operating in Dujail who tried to assassinate Saddam. Related to this is the question of whether comparisons between the Ba�ath Regime�s actions in 1982 and the way the United States has conducted its current war on terrorism (namely by attacking towns in Afghanistan and Iraq and imprisoning suspects at Abu Ghraib and Guantanamo Bay) are legally relevant. If the Tribunal concludes that such comparisons are legally relevant, look for its analysis of whether American actions are distinguishable from the Bath Party�s actions in terms of necessity, proportionality, and treatment of subordinates who committed crimes. This may well be the most important part of the Tribunal�s judgment. To the extent that it propounds on where the line must be drawn in what a government can legitimately do in responding to terrorism, the IHT precedent will have significance well beyond the situation in Iraq.

5. Look for how the IHT handles the question of the death penalty.

Finally, in the case of convictions, the judgment will address the issue of whether the death penalty is the appropriate sentence for any or all of the defendants, in light of the relative gravity of the crimes charged, the defendants� position in the hierarchy of power, and their personal involvement in the crimes. Some experts are concerned that a death sentence for Saddam could ignite a full-blown civil war, while others are convinced that the sooner he is �removed from the scene� the sooner peace can take hold in Iraq. Victims groups, on the other hand, do not want to see the death penalty implemented in a way that prevents Saddam Hussein from standing trial and facing his accusers in the ongoing Anfal case and in the Marsh Arab case which is scheduled to begin in 2007. In any event, a death sentence would not be implemented until after the conclusion of the Appeals process, which is likely to take several more months.

--------------------

The Trial Chamber�s judgment will not be the last word on these issues, as both the Defense and the Prosecution are entitled to appeal the judgment to the nine-member Appeals Chamber. Under Article 25 of the IHT Statute, such appeals may be based on errors of law, procedure or fact. Notification of appeal must be made within fifteen days of the judgment. Submission of briefs and oral arguments follow thereafter. The decision of the Appeals Chamber may not be rendered until spring 2007.

For more information about the Iraqi High Tribunal, see the new book by Michael P. Scharf and Gregory McNeal, �Saddam on Trial: Understanding and Debating the Iraqi High Tribunal,� which is now available from Carolina Academic Press: http://www.cap-press.com/books/1625 ($27.95 � ships within two days).

Posted @ 11:50 AM | Experts Debate the Issues: The Anfal Trial | 1 Comment | 0 Trackbacks

August 22nd, 2006

"Lessons from the Saddam Trial" now available online

Case Western Reserve University School of Law
Frederick K. Cox International Law Center War Crimes Research Symposium

�Lessons from the Saddam Trial�
Friday, October 6, 2006
Case School of Law
Now available for free online viewing

Billed by the international media as the �real trial of the century,� the televised proceedings in the first case before the Iraqi High Tribunal were punctuated by gripping testimony of atrocities, controversial judicial rulings, assassinations of defense counsel, resignation of judges, scathing outbursts, allegations of mistreatment by the defendants, hunger strikes, and even underwear appearances. Was it a mistake to try Saddam in Baghdad before a panel of Iraqi judges? Was the Iraqi High Tribunal a legitimate judicial institution? Were the proceedings fundamentally fair? Did the judges react properly to the defendant�s attempts to derail the proceedings? Was the media coverage of the trial comprehensive and accurate? And what are the lessons for future war crimes trials? These questions will be addressed in a unique day-long symposium, one week before the judges announce their verdict in the Dujail Trial.

Posted @ 4:55 AM | Experts Debate the Issues: The Anfal Trial | 3 Comments | 0 Trackbacks

August 21st, 2006

Anfal Issue #2: Will Saddam Live to Hear the Verdict in the Anfal Trial?

Maybe � by Kevin Jon Heller

In his excellent and provocative post on the Anfal trial (#37), Michael Scharf says that �(s)ince the Anfal case is scheduled to begin immediately after the close of the Dujail trial (while the Dujail verdict is being appealed to the Appeals chamber of the IHT), this means that whatever the Dujail verdict, Saddam Hussein will be available to face his accusers in the Anfal trial.� A close examination of the relevant Iraqi law, however, indicates otherwise. Saddam may well live to see the Anfal trial, which is scheduled to begin today, August 21st � but if he does, it will almost certainly be because of politics, not law.

The IHT Trial Chamber is expected to deliver its verdict in the Dujail case on October 16th. Assuming that Saddam is sentenced to death � a safe assumption � that verdict would be automatically reviewed by the Court of Cassation; Paragraph 254(A) of the Iraqi Code of Criminal Procedure (ICCP) specifically provides that �(i)f the Criminal Court has issued a sentence of death or life imprisonment, it must send a file on the case to the Court of Cassation within ten days of the issue of the judgement, so that it can be reviewed for cassation, even if an appeal has not been lodged.�

The Court of Cassation would thus have Saddam�s case file by October 26th. It would not, however, immediately begin its review. ICCP � 254(B) provides that �(t)he Court of Cassation accepts statements submitted by the accused and those involved in the case before it issues its decision.� The ICCP is silent on how long the defense and the prosecution would have to submit those statements, but it is reasonable to assume that they would be due within 30 days of the Trial Chamber�s verdict � ICCP � 252(A) requires all petitioners to the Court of Cassation (prosecution and defense alike) to file their petitions within that time-frame.

At the latest, then, the Court of Cassation would begin its review of the Dujail verdict on November 16th. It is impossible to know precisely how long the Court would take to complete its review; Iraqi criminal law does not impose a time limit. There is no reason to believe, however, that the Court�s deliberations would be protracted; indeed, the Chief Prosecutor in the Dujail case, Jaafar al-Moussawi, has told Newsweek that because the Court has no backlog of cases, the review �would only take days.�

Even if al-Moussawi is being overly optimistic, the Court of Cassation should reach a decision by the end of 2006. At that point, assuming that the Court upheld Saddam�s death sentence, the judgment would become final not long after January 31, 2007 � ICCP � 266(A) gives the convicted person 30 days to request correction of a legal error in a Court of Cassation decision.

Once Saddam�s death sentence became final, it would have to be carried out within 30 days. The IHT Statute is explicit on this point: Article 27(2) provides that �(t)he punishment must be executed within 30 days of the date when the judgment becomes final and non-appealable.�

Even a generous interpretation of Iraqi criminal law, in short, leads to the conclusion that Saddam would be executed no later than March 1, 2006 � little more than six months after the Anfal trial began. That simply is not enough time to complete the Anfal trial, which Michael Newton has described as �an ambitious undertaking that would stretch the resources and capacity of almost any judicial body around the world.� His assessment is sound; the Anfal trial includes charges of genocide in addition to war crimes and crimes against humanity, and genocide � to quote Michael Scharf � is �the worst crime known to humankind, and� the hardest crime to prove.� Indeed, the much less complicated Dujail trial will have lasted more than ten months by the time the Trial Chamber hands down its verdict.

The conclusion is thus inescapable: if the IHT follows the law, Saddam will not live to see a verdict in the Anfal trial. There is more than a touch of irony in this; although ICCP � 286 traditionally gave the President of Iraq the authority to commute a death sentence, that provision was superseded by Article 27(1) of the IHT Statute, which specifically provides that �(n)o authority, including the President of the Republic, may grant a pardon or mitigate the punishment issued by the Court.� By enacting Article 27, the Iraqi government not only placed Iraq in violation of its obligations under Article 6(4) of the ICCPR, which requires States to guarantee that �(a)mnesty, pardon or commutation of the sentence of death may be granted in all cases,� it eliminated the one legal mechanism that it could have used to avoid executing Saddam prematurely.

None of this, of course, means that we will never see a verdict in the Anfal trial. But it does mean that, if we do, it will be because the IHT decided that justice for Saddam�s Kurdish victims was more important than the rule of law. An understandable trade, to be sure � but one that would bode ill for the future of the Iraqi judicial system.

Posted @ 8:59 AM | Experts Debate the Issues: The Anfal Trial | 5 Comments | 0 Trackbacks

April 16th, 2006

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

(Formerly Issue #37)

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

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

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

Prior to the beginning of the trial, the judges should work to develop and publish a binding trial calendar applicable to both the defense and prosecution. The establishment of such a trial schedule would have the collateral benefit of giving due notice to the defense team before trial of the intended scope of trial evidence. As a result, no defense delays should be granted during the trial except those perhaps based on a showing of very good cause. The result would be to minimize the disruptions and delays inherent in such a difficult and emotionally charged case. To prevent the Anfal trial from becoming a confusing quagmire, court officials should carefully weigh the balance between documentary evidence, witness testimony, and sworn affidavits in building the case. In the context of the ICTY, Rule 73bis was adopted to assist the Trial Chamber in adjudicating extremely complex factual and legal campaigns similar to the Anfal case. Under the ICTY Rule, the Trial Chamber may hold a Pre-Trial conference to specify (i) the number of witnesses the Prosecutor may call; and (ii) the time available to the Prosecutor for presenting evidence. In addition, the Trial Chamber may specify a discrete number of crime sites or incidents related to the charges in respect of which evidence may be presented by the Prosecutor. Limiting the scope of testimony implicates the important interests of the victims across Iraq, and should be reached only after evaluation of the relevant circumstances, including the scope of crimes during Anfal, as well as their classification and nature, the places where they are alleged to have been committed, their scale and the need to be reasonably representative of the entire pattern of criminality.
Secondly, the Trial Chamber in the Anfal case should consult with the Dutch judges who recently tried the case against Frans Van Anraat. On December 23, 2005, a court in Amsterdam convicted Van Anraat of complicity in war crimes and sentenced him to 15 years imprisonment for providing the raw materials for the chemical weapons used against Kurdish civilians. The Dutch court obtained personal jurisdiction over the defendant after he fled Iraq following the end of the regime, but acquitted him of genocide on the basis that there was insufficient evidence to establish that he knew of the genocidal intent of the regime. The IHT Statute mirrors other tribunals in requiring any conviction for the crime of genocide to be based on a specific intent to destroy the Kurdish population in whole or in part. Significantly, the Dutch court held that the overall campaign amounted to genocide against Kurds. Both Saddam Hussein and Ali Hassan Al-Majid are charged with genocide, while all of the accused are charged with war crimes committed during an armed conflict not of an international character and crimes against humanity. Review of the Van Aanrat trial, and its presentation of evidence would prove instructive for the judges and perhaps indicate other sources of relevant evidence that should be presented during the Anfal trial.
Finally, in considering the judicial plan for presenting the evidence in the Anfal case in a fair and efficient manner, the Trial Chamber should consider that it �may admit any evidence which it deems to have probative value.� [Rule of Procedure 59(Third)"> NGOs and other organizations around the world have compiled a veritable mountain of evidence related to Anfal. For example, Human Rights Watch obtained audio tapes from inside Iraq that document key conversations between the defendants in the Anfal case and has made some of them public. [http://www.hrw.org/campaigns/iraq/chemicalali.htm , see [http://www.hrw.org/reports/1994/iraq/APPENDIX.htm#TopOfPage for other documentary evidence">. In one audio tape, Ali Hassan Al-Majid comments on Iraqi Kurds and exclaims: �I will kill them all with chemical weapons! Who is going to say anything? The international community? *#*@ them! The International community and those who listen to them.� [See � Statement by Tom Malinowski to the Senate Governmental Affairs Committee on Prosecuting Iraq War crimes,� Human Rights Watch, April 10, 2003">. Tribunal officials should pursue such additional evidence provided that they can be satisfied of its authenticity and any other circumstance that might shed doubt on its reliability. The Trial Chamber should specifically issue opinions for each piece of evidence considered from other sources that specify the criteria of Rule 59 (Fifth) of the Court Rules.

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

An Ambitious but Risky Move By Michael P. Scharf

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

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

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

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

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

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

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

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

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

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

Response by Mark A. Drumbl

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

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

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

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

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

Posted @ 7:59 AM | Experts Debate the Issues: The Anfal Trial | 3 Comments | 0 Trackbacks

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Experts Debate the Issues: The Anfal Trial

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