This piece is from the Human Rights Watch
http://www.hrw.org/backgrounder/mena/iraq1217bg.htm


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

Related Documents

Background on Iraq and Possible War

HRW policy on Iraq
U.S. Needs to Screen Iraqi Opposition Allies
Genocide in Iraq: The Anfal Campaign Against the Kurds
Endless Torment
The 1991 Uprising in Iraq And Its Aftermath
Human Rights Watch Reports on U.S. Military Actions
Needless Deaths in The Gulf War
More...

The Arab Ba’ath Socialist Party has been in power in Iraq since 1968. Under
the leadership of President Saddam Hussein, who seized power in 1979, the
Iraqi government has committed a vast number of crimes against the Iraqi
people and others, using terror through various levels of police, military,
and intelligence agencies to control and intimidate large segments of the
Iraqi population.

Two Iraqi groups in particular have suffered horrific abuses—the Kurds in
the north, and Shi`a populations in the south. Two decades of oppression
against Iraq’s Kurds and Kurdish resistance culminated in 1988 with a
genocidal campaign, and the use of chemical weapons, against Kurdish
civilians, resulting in over 100,000 deaths. After the 1991 Gulf War, in the
aftermath of a popular uprising in the South, Iraq drained the marsh regions
and sent in the military with tanks to shell and burn villages, causing tens
of thousands of Marsh Arabs, who are Shi`a, to flee to Iran. The Iraqi
military has also used chemical weapons in its war against Iran, committed
serious human rights violations during its occupation of Kuwait, and
committed other crimes.

While Human Rights Watch has long advocated the prosecution of Saddam
Hussein and others for crimes against the Iraqi people and others,1 it takes
no position on the advisability or legitimacy of the use of force against
Iraq or the goal of removing Saddam Hussein. See “Human Rights Watch Policy
on Iraq,” http://hrw.org/campaigns/iraq/hrwpolicy.htm. As the possibility of
armed conflict and a possible transition increases in Iraq, however, it is
necessary to consider how such crimes should be brought to justice.

This policy paper discusses:

the need for justice;
principles that should be met regarding any future form of justice to
redress the most serious crimes committed by the Iraqi authorities;
justice mechanisms that best further those principles;
complementary measures to promote justice and accountability in Iraq; and
other considerations relevant to justice and accountability.
The paper concludes that:

there is a clear need for justice for the people of Iraq achieved through an
effective tribunal;
any form of justice must be impartial, fair, independent, and capable of
being established in a timely fashion; and
the creation of an international tribunal for Iraq is the mechanism most
likely to advance those principles.
An international tribunal for Iraq, however, need not necessarily replicate
the models of the International Criminal Tribunals for the former Yugoslavia
and Rwanda (ICTY and ICTR), but might be more focused in duration and scope.

This paper addresses justice mechanisms for the individuals most responsible
for serious violations of international humanitarian and human rights law
committed in Iraq. It does not address in any detail the separate question
of what additional mechanism will be necessary to address the criminal
complicity of estimated thousands of government agents and officials, or to
bring reconciliation to the people of Iraq after decades of brutal, divisive
rule by Saddam Hussein.


I. THE NEED FOR JUSTICE IN IRAQ
Saddam Hussein and others, including, but not limited to, members of
Hussein's inner circle, members of the Revolutionary Command Council, and
senior and upper-middle level members of the Iraqi military, security, and
intelligence forces are responsible for a vast number of crimes that
constitute genocide, war crimes, and crimes against humanity. The victims of
such crimes include up to 290,000 persons who have been “disappeared” since
the late 1970s, many of whom are believed to have been killed.

Human rights organizations and independent monitors have had almost no
access to government-controlled areas of Iraq, limiting the amount of
evidence that has been gathered about some of the serious violations of
international humanitarian and human rights law committed by the Iraqi
government. However, the evidence that has been gathered about some of the
crimes—particularly the “Anfal campaign” against the Kurds (discussed
below)—is of sufficient quality to stand up in legal proceedings. Human
Rights Watch was able to obtain access to eighteen tons of Iraqi government
documents seized by Kurds from Iraqi police, security, and intelligence
headquarters during March 1991, which were airlifted to Washington and
analyzed. Among those documents were official orders showing genocidal
intent. In addition, Human Rights Watch, in collaboration with Physicians
for Human Rights, uncovered several mass graves, interviewed hundreds of
Anfal survivors, and published a detailed account of the Anfal genocide.2
Through Human Rights Watch’s examination of select Iraqi government
documents, we have identified more than 115 military and civilian officials
who may have criminal responsibility regarding the genocidal Anfal campaign
and the counterinsurgency campaign that culminated in the Anfal. Although
existing evidence about other serious human rights crimes and violations
such as those ongoing against the Marsh Arabs and southern Shi`a populations
is more limited, indications are that these campaigns are similarly
centrally organized. A change in government in Iraq—a step that could open
the way to a comprehensive accountability exercise—may give access to a vast
amount of information about those crimes.

Attacks against the Iraqi Kurds. The government’s notorious attacks on the
Iraqi Kurds have come in phases. Between 1977 and 1987, some 4,500-5,000
Kurdish villages were systematically destroyed and their inhabitants
forcibly removed and made to live in “resettlement camps.”

Commencing in the spring of 1987, thousands of Iraqi Kurds were killed
during chemical and conventional bombardments.

From February to September 1988, the Iraqi government launched the official
“Anfal” campaign, during which Iraqi troops swept through the highlands of
Iraqi Kurdistan rounding up everyone who remained in government-declared
“prohibited zones.” More than 100,000 Kurds, mostly men and boys, were
trucked to remote sites and executed.3

The use of chemical weapons reached a peak in March 1988; in the town of
Halabja alone, where a documented 3,200 people are believed to have died
from chemical gas attacks, and the actual number may be more than 5,000.

The killings constitute acts of genocide. The killings, forcible and
arbitrary transfer of populations, and chemical weapons attacks amount to
crimes against humanity.

Forced expulsion of ethnic minorities from Kirkuk. Since 1991, Iraqi
authorities have forcibly expelled over 120,000 Kurds, Turcomans and
Assyrians from their homes in the oil-rich region of Kirkuk and neighboring
towns and villages. The systematic forcible transfer of the population—a
process referred to by the authorities as “Arabization”— has been
accompanied by the resettling of Arab families brought from southern Iraq to
replace those evicted. This policy continues to be implemented.

Repression of the Marsh Arabs and other Shi`a. During the early years of the
Iran-Iraq war, the Iraqi government arrested thousands of Shi`a Muslims on
the charge of supporting the 1979 revolution in Iran. Many have
“disappeared” or remain unaccounted for; others died under torture or were
executed. This campaign was followed by the forced expulsion of over half a
million Shi`a during the 1980s to Iran, after the separation out of many
male family members. These men and boys, estimated to number between
50,000-70,000, were arrested and imprisoned indefinitely without charge;
most remain unaccounted for.

After the Gulf War, in southern Iraq, members of the Shi`a majority rose up
in revolt against the Iraqi leadership. In response, thousands of Shi`a
including hundreds of clerics and their students, were imprisoned without
charge or “disappeared” in state custody. Hundreds were summarily executed.
Many Shi`a shrines and institutions were demolished by government forces. In
the southeast, after tens of thousands of Shi`a Muslim civilians, army
deserters, and rebels, primarily from the cities of Basra, al-Amara, and
al-Nasiriyya, sought precarious shelter in remote areas of the marshes that
straddle the Iranian border, Iraq’s military and security forces shelled and
launched military raids against them. The raids caused thousands of
so-called “Marsh Arabs” to flee to Iran and many others to become internally
displaced within Iraq.4

Many of these attacks against the Shi`a amount to crimes against humanity.

General repression, large-scale “disappearances,” and other crimes. In
addition to abuses particularly aimed at the Kurds and Shi`a Muslims, the
Iraqi people under Saddam Hussein have suffered a consistent pattern of
gross violations of internationally recognized human rights, including
political imprisonment, torture, and summary and arbitrary executions. In
addition, a ubiquitous network of security services and informants has
suppressed independent civilian institutions and terrorized the Iraqi
population into virtual silence. Torture techniques have included hangings,
beatings, rape, and burning suspects alive. Thousands of Iraqi political
detainees have died under torture.

There have also been a staggering number of “disappearances”—believed to
range between 250,000-290,000. In addition to the 50,000-70,000 Shi’a cases
described above, and the 100,000 Kurdish victims, “disappearances” have
included:

An estimated 8,000 Barzani males removed from resettlement camps in Iraqi
Kurdistan in 1983;


10,000 or more males said to have been separated from Feyli Kurdish families
deported to Iran during the 1980s;


Shi`a Muslim clerics and their students from al-Najaf and Karbala;


Over 600 Kuwaitis and third country nationals who disappeared after their
arrest during the occupation of Kuwait (discussed below);


Members of other targeted groups, including communist and other leftist
groups; Kurdish, Assyrian, and Turcoman opposition groups; out-of-favor
Ba'athists; and the relatives of persons in these groups.
The widespread and systematic practice of “disappearance” amounts to a crime
against humanity.

The use of chemical weapons during the Iran-Iraq war. Iraq used chemical
weapons extensively, starting in 1983-1984, during the Iran-Iraq war. It is
estimated that some twenty thousand Iranians were killed by mustard gas, and
the nerve agents tabun and sarin.5 Both Iran (1929) and Iraq (1931) are
parties to the Geneva Protocol that prohibits the use of asphyxiating,
poisonous, or other gases, and of all analogous liquids, materials, or
devices, as well as the use of bacteriological methods of warfare.6 The use
of asphyxiating, poisonous, and other prohibited gases is a war crime.

Occupation of Kuwait and related abuses. During Iraq’s occupation of Kuwait
in 1990-1991, Iraqi forces committed systematic and gross abuses of human
rights. During the initial takeover of Kuwait, hundreds of persons were
killed or wounded and thousands detained. Iraqi soldiers and militia
committed countless acts of theft, rape and assault on civilians, as well as
summary executions, “disappearances,” and torture. Human Rights Watch
believes that many acts committed by Iraqi agents during Iraq’s occupation
of Kuwait constitute war crimes and crimes against humanity.

Thus, there is clearly a need for justice for crimes committed by the Iraqi
authorities in Iraq and neighboring countries.

The importance of justice for Iraq cannot be over-emphasized. Should crimes
such as those discussed above go without prosecution, or should perpetrators
find their way into a new government in Iraq, the stage would be set for
such crimes to be repeated. As discussed below, in order to provide
foundation for a government that respects fundamental human rights, the most
serious criminal offenses must be prosecuted. Amnesties for such crimes
would not only contravene international law, but would fail to provide such
a foundation.


II. PRINCIPLES REGARDING ANY FORM OF JUSTICE
Any justice mechanism for Iraq must adhere to certain recognized principles:
it must be impartial, independent, and fair. It must also be capable of
being established in a timely manner. While these principles should apply to
all judicial institutions, for purposes of this paper, Human Rights Watch
assumes that the primary focus will be on trying those who are most
responsible (probably senior and upper middle level officials) for the worst
crimes perpetrated by the Iraqi authorities, and that the crimes prosecuted
would be genocide, war crimes, and crimes against humanity. Additional
mechanisms will no doubt be necessary to address other human rights
violations.

The need for impartiality

Any tribunal must be impartial and appear to be impartial. Thus, it is
important that such a mechanism not dispense, or appear to dispense,
“victor’s justice.” That term is particularly frequently used by critics of
the International Military Tribunals at Nuremberg and Tokyo, the former of
which was constituted solely by victorious allies after World War II. While
those tribunals were innovative at the time and provided the foundation for
the creation of the ICTR, ICTY, and International Criminal Court, the field
of international justice has evolved since 1945-46, and any tribunal for
Iraq must not return to those examples as models. Where domestic courts are
unwilling or unable to prosecute, as would be the case in Iraq (see
discussion below), crimes such as genocide and crimes against humanity are
most appropriately tried before an international tribunal or a mixed
national-international tribunal.

Human Rights Watch believes that the composition of the judges will be
crucial in ensuring impartiality. The bench should include judges who are
truly representative of the international community—including, for example,
judges from Muslim countries—and not solely judges from countries that go to
war against Iraq.

The need for fairness

Any tribunal created to try the accused must operate fairly. It must respect
fundamental norms of procedural and substantive due process required under
international law, including the rights of the accused as enshrined in
international human rights law.  These include, at a minimum: the
presumption of innocence; the right to a fair and public hearing within a
reasonable period of time; the right to be informed promptly, in a language
the accused understands, of the nature of and reasons for the charges; the
right of the accused to defend himself or herself in person or through legal
assistance of his or her own choice; if the accused is indigent, the right
to have counsel appointed; the right to examine witnesses; and the right to
appeal. Important to ensuring fairness will be the holding of primarily open
and public hearings.

The need for an independent tribunal

Any tribunal created must be independent. As described in greater detail
below, this would not be true if the tribunal were controlled by a new
government in Iraq, or by any coalition or individual countries that
participate in a possible war against Iraq. The prosecutors and judges must
have full independence, and appear to be capable of acting independently.

The need for a timely and effective tribunal

Without compromising the above requirements of impartiality, fairness, and
independence, the international community should also strive to ensure that
justice is administered in a timely and effective manner. In order to
achieve a timely and effective justice process, it is important that justice
mechanisms be established as soon as possible, and that the cases against
suspects proceed at a reasonable speed. The interests of the victims as well
as the rights of the defendants will be best served by a timely and
effective justice mechanism.


III. MECHANISMS THAT BEST FURTHER THESE PRINCIPLES
Human Rights Watch believes that the only realistic justice options for Iraq
are an international tribunal or a mixed national-international tribunal.
Either of these mechanisms could systematically examine the multitude of
serious crimes committed by the Iraqi authorities. As described below, other
options that might be considered, such as military tribunals or prosecutions
in domestic Iraqi courts, would be fundamentally inadequate to the task,
while other international mechanisms, such as the International Criminal
Court and third-country prosecutions, could complement but not replace an
international tribunal.

Of the two approaches—creating an international tribunal or creating a mixed
national-international tribunal—Human Rights Watch believes that an
international tribunal is far more likely to be impartial, independent,
fair, and capable of being established in a timely manner.

An international tribunal

Such a tribunal for Iraq could be loosely modeled on the ICTY and ICTR, but
need not follow those models in every respect. For example, it would be
possible for the Security Council to create an international ad hoc tribunal
that lasts only a certain number of years. Similarly, an international ad
hoc tribunal could be given the mandate of dealing with the most serious
cases as a matter of priority.

An international tribunal, staffed with judges from countries from all over
the world, representing different legal systems, would have the greatest
appearance of legitimacy, if the judges represented a true cross-section of
the international community. Such a tribunal could be impartial, and appear
impartial. While countries that participate in any armed conflict against
Iraq might play an important role in advocating and creating such a
tribunal, the tribunal must be independent. Because of the important
experience gained by the international community over the last ten years,
the Security Council could establish an international tribunal for Iraq
fairly quickly.

One of the main criticisms of the current ad hoc tribunals is that they have
been very expensive, costing approximately $80-$100 million each per year.
While cost is a relevant factor, it should be stressed that the ICTY has
been able to be impartial, fair, and independent—the necessary benchmarks
for justice identified above. Lessons the international community has
learned from the establishment of the international tribunals could
contribute to efficiencies in establishing an international tribunal for
Iraq. Iraq also presents a unique opportunity, as it is envisioned that the
extensive oil resources of the country and the region in general will be
used to finance any post-war reconstruction effort. Part of these revenues
could be used to defray the costs of the tribunal.

Such an international tribunal should be constituted by the United Nations
Security Council, as were the ICTY and ICTR. While countries that initially
occupy Iraq could create international military tribunals, based on the
precedent of the International Military Tribunals at Nuremberg and Tokyo,
such an approach would carry far less legitimacy. Even if a military
tribunal for Iraq were staffed with a diverse panel of judges, there would
still be a clear inference of “victor’s justice,” especially if the
tribunals were established under military law. Military tribunals would lack
the appearance of impartiality and fairness, and would be likely to lack
various recognized due process protections.

A mixed international-national tribunal

A mixed international-national tribunal might also be a viable option,
although that is less clear.

A special tribunal is needed in the current instance precisely because the
Iraqi court system, as currently constituted, is incapable of achieving
accountability for genocide, crimes against humanity, and war crimes. It
seems initially somewhat problematic, therefore, to create a tribunal that
would include judges and prosecutors from that same legal system.

There are two existing models for a mixed international-national tribunal:
(a) a freestanding tribunal, as is now commencing operations in Sierra
Leone; or (b) a panel set up within a country’s existing legal system, as
contemplated for Cambodia, and as is occurring in East Timor’s Special
Panels for Serious Crimes.

Human Rights Watch believes that only the former model—to the extent a mixed
tribunal is contemplated—should be considered for Iraq. Because Iraq’s
current judiciary is not considered an independent authority, but has been
subject to control by Iraq’s Revolutionary Command Council since the late
1960s and early 1970s, it would not provide an independent forum within
which to establish a mixed tribunal.

There are serious concerns, however, as to whether a freestanding mixed
tribunal would be a sound option for Iraq.

The situation in Iraq is different from Sierra Leone. In Sierra Leone, a
fairly independent, British-trained judiciary that was untainted by the
abuses committed by rebel groups continues to exist and enjoy public
legitimacy. While the record of the current government of Sierra Leone is
not entirely free of abuses, cases against government officials are not
anticipated to form a significant portion of the Court’s docket, if any such
cases are brought at all.

In Iraq, by contrast, the judiciary has been deeply compromised. While it
may be possible to identify individual judges who have remained untainted by
over thirty years of Ba’athism, and while other judges may also be available
in exile, the number of such judges and the extent of their preparedness
remain unclear. The Revolutionary Court, State Security Court, and Special
Provisional Court, in particular, have been instruments of repression. Even
as to the remaining civil and criminal courts, there is a history of state
interference. Thus, even after vetting and re-training, it could be
difficult to select qualified judges and prosecutors for the kind of
especially sensitive trials involved. Another concern is whether the Iraqi
population would consider individuals who were part of the legal system
under Saddam Hussein’s presidency to possess the required neutrality, since
in countless instances they would be adjudicating cases involving the Saddam
Hussein government.

The judges and prosecutors of any tribunal must possess high moral
character, impartiality, and integrity, as well as competence in criminal
and/or international law. In addition, the judges and prosecutors of any
mixed tribunal should adequately represent the diversity of Iraqi society.


IV. COMPLEMENTARY MEASURES FOR JUSTICE AND ACCOUNTABILITY
In order to change the culture of impunity in Iraq and provide a solid
foundation for restoring the rule of law and rebuilding civil society, other
mechanisms should be pursued to complement the work of a freestanding
international tribunal. They should not, however, substitute for such a
tribunal.

The International Criminal Court

Any new Iraqi government should be encouraged to ratify the International
Criminal Court Statute so that there is a credible threat of prosecution for
future war crimes, crimes against humanity, and genocide committed in Iraq
or by Iraqis. The ICC could also prosecute any such crimes committed after
July 1, 2002, upon Security Council referral. The ICC does not have the
power to preside over crimes committed before July 1, 2002, a category that
in Iraq includes almost all of the crimes against humanity, acts of
genocide, and the major war crimes identified by Human Rights Watch to date.

A systematic and comprehensive examination of the crimes committed against
the Iraqi people is needed to change the culture of impunity that has
dominated Iraq for so long. For the sake of achieving such a systematic
examination of the crimes, and for the efficient use of judicial resources,
it is advisable to have a newly constituted international tribunal
adjudicate both past crimes and any crimes committed in the upcoming war.

Prosecuting individual cases in other courts under universal jurisdiction

Individual cases against Iraqis can also be prosecuted in the courts of
states that have universal jurisdiction laws. Indeed, one such case, brought
by Iraqi Kurds, is pending in Belgium against Saddam Hussein, alleging
crimes against humanity committed against the Kurds. A similar case is
pending in Denmark against Nizar al-Khazraji, former chief of staff of
Iraq's armed forces, for his suspected involvement in war crimes perpetrated
in Iraq against Kurdish civilians during the 1980-1988 Iran-Iraq war. While
universal jurisdiction remains an option for individual cases, a more
systematic examination of the crimes committed by the Iraqi authorities
would result by consolidating cases before a single tribunal convened for
the purpose.

Creating a Truth Commission

Another mechanism, which could play a vital function in conjunction with
justice mechanisms, is a truth commission. In periods of transition, truth
and justice are important, mutually reinforcing concepts; both are needed as
part of a genuine accountability effort. A divided or fragmented approach to
truth and justice—the notion that a choice could be made between truth and
justice—would not be likely to achieve the “transitional effect” required to
heal the wounds of decades of repression and human rights abuses in Iraq.

Truth commissions are particularly useful where justice mechanisms cannot
realistically be expected to prosecute all of the perpetrators—as likely
will be the case in Iraq. They also are useful in promoting reconciliation.
In addition to creating an historical record, truth commissions may conduct
investigations; take testimony from witnesses, victims, and perpetrators;
recommend the granting of compensation to victims; and recommend reforms
needed to prevent the recurrence of past abuses.

Establishing a truth commission would not absolve new authorities in Iraq of
their duty under international law to prosecute the most heinous crimes.
However, a truth commission could take testimony from lower-level offenders
for minor or lower-level crimes. While HRW believes that no amnesties should
be granted for the international crimes of genocide, war crimes, crimes
against humanity and other serious human rights violations (see below),
consideration could be given to permitting persons who committed minor or
lower-level crimes to receive a pardon upon giving truthful testimony.

The role of Iraqi national courts

Given the state of the Iraqi judiciary (discussed above) it is essential
that that judiciary be reformed to be an independent, impartial, and fair
institution so that, eventually, national courts can prosecute crimes such
as genocide, war crimes, and crimes against humanity. Such reconstruction
should be a priority for the international community in the aftermath of any
war in Iraq. However, since such reconstruction is anticipated to take a
good deal of time, and it would be particularly difficult even for
reconstructed courts to handle extremely sensitive cases early on, national
courts should not be seen as a substitute for an international tribunal. If
an international or mixed tribunal is created, it should have primacy over
such national court prosecutions so that such a tribunal could request the
national courts to defer to its jurisdiction.

Some have proposed the creation of a special domestic tribunal under Iraqi
law, in lieu of an international or mixed international-national tribunal,
to prosecute the most serious crimes of international concern. We believe
this is not a practical option because of (a) the extremely sensitive and
complex nature of prosecutions for genocide, war crimes, and crimes against
humanity; (b) the currently compromised state of the Iraqi judiciary,
including its lack of independence; (c) the need for reform of that
judiciary; and (d) the fact that such reform will take substantial time to
accomplish, during which time retraining will be needed to ensure a capable
and impartial bench.

Military Trials

It is also possible that countries that participate in any use of force in
Iraq would create military tribunals that not only address war crimes that
occur during armed intervention, but also address past crimes of the Iraqi
government. We strongly believe that military tribunals would be an
inappropriate forum for a systematic and thorough examination of past human
rights abuses in Iraq. Military tribunals would not appear impartial; they
would appear biased against the Ba’ath party and current Iraqi officials,
and would create the inference of victor’s justice. Such tribunals would not
be independent, but would be clearly linked to the governments that sponsor
the trials. And, such tribunals would be likely to lack the procedural
guarantees required under international legal standards.


V. OTHER CONSIDERATIONS RELEVANT TO JUSTICE AND ACCOUNTABILITY
The need for prosecutions

It is crucial that the crimes of genocide, crimes against humanity, and war
crimes be prosecuted. Not only would it contravene international law not to
prosecute such crimes, but the failure to prosecute would: (a) send a
message to would-be perpetrators that culpability for such crimes is of
little importance or can be bargained away; and (b) fail to establish a
sound basis for reestablishing the rule of law and civil society inside
Iraq.

Human Rights Watch knows of no single transition process that has collapsed
due to demands for justice. On the other hand, transitions have collapsed
where amnesties have been too broadly granted, such as in Sierra Leone. If
Iraq is to become a state that is respectful of fundamental human rights, it
must prosecute, at minimum, those responsible for the most serious crimes
under international law.

The jurisdiction of any tribunal established for Iraq should be broad enough
to cover crimes committed during any military intervention. If fighting
takes place, it should be made clear from the very beginning that all
violations of the laws of war will be dealt with and in particular all war
crimes without exception will be prosecuted.

There is great potential for war crimes and other serious abuses during
military intervention. Any form of justice pursued in Iraq should take
account both of the massive crimes committed since Saddam Hussein's Ba'ath
party came to power, as well as crimes committed by any party during any
past or future military intervention in Iraq. An early, pre-conflict
commitment to pursuing justice for potential crimes committed during war in
Iraq, by friends and foes alike, would have a serious deterrent effect on
all parties.

The fact that thousands of persons conceivably could fall within the
jurisdiction of such a tribunal should not be a reason to limit the scope of
its jurisdiction ahead of time. A prosecutor would obviously prosecute only
those most culpable, and those against whom the evidence was strong. Because
many of the Iraqi government’s crimes were committed long ago, many victims
have “disappeared,” and the general difficulty of gathering sufficient
credible evidence, only a fraction of the crimes would likely actually be
prosecuted.

Avoiding amnesties or conditioning them upon truth-telling before a TRC

No interim government, or state or coalition of states waging war in Iraq,
should grant amnesties for war crimes, genocide, crimes against humanity, or
other grave human rights violations. If amnesties are eventually agreed upon
by a new or interim government for minor crimes, the better practice is to
condition such amnesties on individual perpetrators appearing before a truth
commission and participating in truth-telling.

Prosecutorial discretion, rather than a blanket amnesty, should be the means
by which the practical impossibility of prosecuting all offenders is best
addressed. Individualized decisions on whether or not to prosecute best
ensure that those responsible for the most reprehensible criminal offenses
are brought to justice. A broad-brush amnesty for serious crimes can only
undermine the establishment of the rule of law.

Prosecuting far enough down the chain of command responsibility so the
culture of impunity is changed

Serious consideration needs to be given to how far down the chain of
military and civilian command prosecutions should occur. Prosecution only of
persons at the very top levels likely would not sufficiently change the
existing culture of impunity, and would fail to address numerous
middle-level commanders who have participated in genocide. While justice
efforts at the Sierra Leone Special Court, for example, likely will focus on
the fifteen or so persons who bear the greatest responsibility,7 the number
in Iraq likely would be significantly higher, given the complicity of almost
the entire top command of the Iraqi army in massive crimes against humanity,
genocide, and war crimes.

For example, as mentioned above, Human Rights Watch’s examination of select
Iraqi government documents has revealed more than 115 military and civilian
officials who may have criminal responsibility regarding the genocidal Anfal
and the counterinsurgency campaign that culminated in the Anfal.  That
number would substantially increase if it were to include those most
responsible for: other crimes against the Kurds; crimes against the Marsh
Arabs and other Shi`a; “disappearances” and other comparable crimes
involving other segments of the Iraqi population; the use of chemical
weapons and other war crimes committed in the Iran-Iraq War; and war crimes
and crimes against humanity committed incident to the occupation of Kuwait.
While the number of potential indictees is large, it is finite.

The need to prevent retaliation

Long delays in delivery of justice could lead to a rise in vigilante justice
or private retribution. In order to prevent this, justice mechanisms should
be established as soon as possible consistent with meeting the fundamental
requirements of fairness, impartiality, and independence. Furthermore, Iraqi
authorities and the international community must make clear that vigilantism
will be punished, and prosecute such crimes. Other remedies including
compensation for victims may need to be considered.

Preventing defectors from escaping prosecution

Regardless of which justice mechanism is chosen, it could be anticipated
that as the current government falls, individuals who may be among those
most responsible for serious crimes under international law will switch
loyalty from Saddam Hussein to any state or coalition of states that go to
war with Iraq. While that should not be discouraged, any such defectors
should not be promised immunity from prosecution. Indeed, defectors who have
previously fled and are responsible for heinous crimes should be held to
account.8

Abolishing the death penalty under Iraqi law

Human Rights Watch stands in firm opposition to the death penalty, which
violates fundamental human rights. If there is a change of government in
Iraq, the new government would have a unique opportunity to set an example
in rejecting the death penalty, thereby marking a sharp break from the
practices of the Saddam Hussein government. The death penalty should not be
an available punishment before either a special tribunal—such as an
international or mixed-international tribunal—nor under Iraqi law.

Creating vetting mechanisms

Any interim government will have to devise appropriate lustration mechanisms
to ensure that persons responsible for serious crimes under international
law do not remain in office, or as part of any reformed military or police
force. Appropriate checks on lustration should be in place, however, to
ensure at least minimum due process.





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

1 See, e.g., Kenneth Roth, Indict Saddam, Wall St. Journal, Mar. 22, 2002;
Human Rights Watch letter to U.N. Security Council calling for restructuring
of the economic embargo on Iraq and trial of Iraqi leaders for war crimes,
Jan. 4, 2002, available at http://www.hrw.org/press/2000/01/iraq-ltr.htm;
Human Rights Watch letter to King Abdullah urging him to detain Izzat
Ibrahim al-Duri, Aug. 18, 1999, available at
http://www.hrw.org/press/1999/aug/ltr-king.htm.

2 See Human Rights Watch/Middle East, Genocide in Iraq: The Anfal Campaign
Against the Kurds (New York: Human Rights Watch, 1993); Iraq’s Crime of
Genocide: The Anfal Campaign Against the Kurds (New Haven: Yale University
Press, 1995).

3 For a detailed history of the Anfal campaign, see Human Rights
Watch/Middle East, Iraq’s Crime of Genocide: The Anfal Campaign Against the
Kurds (New Haven: Yale University Press, 1995).

4 For additional information regarding the Marsh Arabs, see Human Rights
Watch/Middle East, Endless Torment: the 1991 Uprising in Iraq and its
Aftermath (New York: Human Rights Watch, 1992).

5 Iraq's Weapons of Mass Destruction - The assessment of the British
Government, PART 3: Iraq Under Saddam Hussein, Sept. 14, 2002, ¶ 16,
available at http://www.pm.gov.uk/output/Page6123.asp. See also United
Nations Security Council, “Report of the Mission Dispatched By The
Secretary-General To Investigate Allegations Of The Use Of Chemical Weapons
In The Conflict Between The Islamic Republic Of Iran and Iraq,” (New York:
United Nations, 1986) S/17911.

6 Julian Perry Robinson and Jozef Goldblat, Chemical Weapons I, Stockholm
International Peace Research Institute, Fact Sheet (May 1984).

7 Indeed, the prosecution of fifteen or so persons in Sierra Leone is
expected to leave many heinous crimes there unexamined by the Special Court.

8 Human Rights Watch, “U.S. Needs to Screen Iraqi Opposition Allies:
Denmark's Charges Against Iraqi General Welcomed” (press release), November
21, 2002 (discussing case against former chief of staff of Iraq's armed
forces).







_________________________________________________________________
The new MSN 8: advanced junk mail protection and 2 months FREE*
http://join.msn.com/?page=features/junkmail

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface
at: http://maelstrom.stjohns.edu/archives/gambia-l.html
To contact the List Management, please send an e-mail to:
[log in to unmask]

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~