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Experts Debate the Issues: The Dujail Trial

September 22nd, 2005

Issue #6: Did the Anfal Operations constitute Genocide?

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

Perhaps: By Linda Malone**1

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

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

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

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about is physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.
**5
Article 3 of the Convention makes the international crime punishable.**6

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

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

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

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

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

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

Notes:

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

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

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

**4 Memo, note 1.

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

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

**7 Memo, note 1

**8 See supra note 1.

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

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

 

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While trying to prove that genocide occurred in Iraq is inevitably an exhausting process, it is essential to how Saddam Hussein, and his co-defendants, will be remembered throughout history. While the defense may raise issues contesting the intent of Saddam’s regime to commit genocide, there appears to be sufficient evidence that what transpired during the Anfal Campaign constituted genocide under Article II of the Genocide Convention.

As stated by Professor Sharf, the defense may raise two alternative defenses to the charge of genocide relating to the need for an “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such” as stated in Genocide Convention. Since the Genocide Convention does not view acts directed towards political groups or opponents of the regime as acts of genocide, if the defense proves that the acts taken during the Anfal campaign were directed not specifically at the Kurdish population but rather at one of these two excluded groups, the genocide charge may not stick. First, the defense could argue that the Anfal Campaign was a counterinsurgency movement against two main groups of Kurdish people who were attempting to overthrow Saddam’s government with the help of Iran. In support of this, they could point to the fact that many of the Kurdish people who cooperated with Saddam’s regime and accepted deportation to the southern part of Iraq were not further harmed. Secondly, the defense could argue that the Campaign was a result of the Kurdish claim that the large amounts of oil located in northern Iraq belonged to the Kurds. Saddam’s regime could have seen these claims as a threat and acted for the purposes of ensuring that the oil reserves belonged to the Iraqi government. As evidence of this, the defense could point to the fact that the Anfal Campaign did not target the Kurdish population as a whole throughout Iraq, but only the Kurds who lived in northern Iraq, the site of the large oil reserves.

While the defenses above provide a potentially compelling argument, I do believe that they are enough to discourage a conviction by the Iraqi High Tribunal on the crime of genocide. First, it is important to note that the Genocide Convention states that in order to be convicted of genocide, you must intend to destroy the ethnic group “in whole or in part”. Therefore, the fact that the Anfal Campaign did not target all of the Kurdish population does not, in and of itself, exclude the accused from being prosecuted for genocide. The fact that anywhere between 2,000 and 4,000 villages were destroyed, approximately 100,000 deaths occurred (most of which were believed to be non-combatants), and up to 500,000 were forced from their homes into “collective towns” as a result of the campaign seems to me to satisfy the requirements for genocide using either the quantitative or the qualitative methods mentioned in the above article. Secondly, while the defense may try to claim the campaign was an attempt to stop a movement to overthrow the government or to secure oil reserves, summarily killing members of the Kurdish population, many of whom were noncombatants (including women and children) and completely obliterating towns, leaving them virtually uninhabitable, does not conform itself to such a claim. Lastly, I think it’s important to point out the findings of the judges of a Dutch court who tried Frans Van Anraat. Anraat was an individual charged and subsequently convicted of war crimes relating to supplying the raw materials needed in creating the chemical weapons used against the Kurds in Iraq. While the Dutch court did not convict Frans Van Anraat of genocide, the judges did find that genocide against the Kurdish people did take place during the Anfal Campaign. While the IHT is not by any means bound by the ruling of the Dutch court, its findings would serve to lend legitimacy to any similar ruling found by the Iraqi High Tribunal. For the reasons stated, I believe that the arguments that may be raised by the defense contesting the intent to destroy the Kurdish people “as such” should be rejected by the Iraqi High Tribunal and Saddam and his co-defendants should be convicted of genocide so that there is no question as to the magnitude of the atrocities that took place during the Anfal Campaign.

Posted by Global Perspectives Student on 02/02/2008 @ 07:45 PM

Even if Prosecutors at the Iraqi High Tribunal follow the advice about gathering evidence of genocidal intent offered by Linda Malone, prosecutors will be hard-pressed to prove the charge of genocide in the Anfal campaign. Although 100,000 Kurdish men, women, and children were killed in the Anfal campaign, proving genocide is a difficult task due to the definition of genocide. The crime of genocide as defined by the Genocide Convention requires both a conduct element and a mens rea element. The conduct element requires mass killings or other serious actions such infliction of bodily harm. The mens rea element requires “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” With respect to the Kurds, there will be no question that the prosecution would be able to satisfy the conduct element of the crime since so many Kurds were killed in a specific geographic area. However, the mens rea element of the crime will be far more challenging to prove. There is no question that Kurds are an ethnic group due to their distinct language and culture.
What will be challenging for prosecutors to prove is that Saddam had the specific intent to destroy the Kurds. As Professor Scharf pointed out, there are two other reasons that Saddam’s defense can argue that have nothing to do with hatred of Kurds. First, the two main Kurdish parties united to attempt to topple Saddam’s government. Saddam’s lawyers could argue that the purpose of the Anfal campaign was to punish the Kurds for trying to topple the Saddam government. The fact that Kurdish nationalist that accepted deportation to southern Iraq were not persecuted supports Saddam’s defense. Second, the parts of northern Iraq where the Kurds lived contain massive quantities of oil that Saddam’s government wanted. There is evidence that the Anfal campaign targeted only oil-rich parts of northern Iraq. These two arguments will make it very difficult for prosecutors to prove the case of genocide against Saddam.
Despite the difficulty in proving the charge of genocide, the significance of Anfal campaign cannot be underestimated even though Saddam has already been executed. An acquittal on the charge of genocide would leave the world disappointed with the Iraqi High Tribunal and questioning whether it provided any “justice” since the Anfal campaign has been labeled as “genocide” by non-governmental organizations like Human Rights Watch for years.

Posted by global student on 04/02/2007 @ 09:28 AM

This morning, Reuters reported that, according to a prosecutor and a court official in Iraq, Saddam Hussein is “expected to face trial as early as next month on charges of ordering genocide against Iraq's Kurdish population in the late 1980s.” (“Saddam genocide trial possible in May,” http://today.reuters.co.uk/news/newsArticle.aspx?type=topNews&storyID=2006-04-02T174541Z_01_GEO251882_RTRUKOC_0_UK-IRAQ-SADDAM-KURDS.xml) It remains to be determined whether the prosecution has the evidence necessary to prove that the 1986-1989 Anfal Operations against the Kurds constituted genocide under international law.

While Ms. Malone’s above assessment does a great job of outlining a basic legal answer to the question here, she only briefly mentions an aspect of the intent, or mens rea, element of genocide that will likely prove very challenging in the upcoming trial - the element requiring proof that the killing was specifically committed because the target was a member of a particular group.

The 1999 Jelisic case (http://www.un.org/icty/jelisic/trialc1/judgement/jel-tj991214e.pdf) sets out criteria that can be used when determining this mens rea element for genocide:
“Genocide is characterized by two “legal ingredients”: (1) the material element of the offense, constituted by one or several acts enumerated in paragraph 2 of Article 4; and (2) the mens rea of the offense, consisting of the special intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such…It is in fact the mens rea which gives genocide its speciality and distinguishes it from an ordinary crime and other crimes against international humanitarian law… ‘The prohibited act must be committed against an individual because of his membership in a particular group and as an incremental step in the overall objective of destroying the group.’”

Thus, what often makes genocide so hard to prosecute is not establishing the numbers of victims, but proving that the reason these people were killed was their membership in a specific group, whatever the religious, ethnic, cultural, etc. classification may be.

In arguing against these charges, Hussein would (for example) merely have to prove that the Kurds in some way constituted a threat to national security to muddy the water for proving genocide – though this argument would not absolve him of liability for other, lesser, war crimes and crimes against humanity.

Finally, to address the poorly-made and besides-the-point concerns registered by the sole other commentator here, there are a number of organizations who have either issued their own estimate of the casualties from the Anfal Operations, or have endorsed those made by Human Rights Watch.
- Amnesty International: In early 1988, during “Operation Anfal” in Iraqi Kurdistan, entire Kurdish families “disappeared” from hundreds of villages after they were rounded up by government forces. Amnesty International collected the names of more than 17,000 people who “disappeared” in this wave, but Kurdish sources put the total at over 100,000. (http://web.amnesty.org/pages/irq-article_6-eng)
- Genocide Watch lists the number of Anfal casualties in the tens of thousands: http://www.genocidewatch.org/genocidetable2005.htm
- “According to an ongoing survey conducted by a team of Kurdish physicians and organized by Gosden and a small advocacy group called the Washington Kurdish Institute, more than two hundred towns and villages across Kurdistan were attacked by poison gas—far more than was previously thought—in the course of seventeen months. The number of victims is unknown, but doctors I met in Kurdistan believe that up to ten per cent of the population of northern Iraq—nearly four million people—has been exposed to chemical weapons.” (“The Great Terror,” by Jeffrey Goldberg, published in the New Yorker on March 23, 2002. http://www.newyorker.com/fact/content/articles/020325fa_FACT1)

Posted by Kathleen Gibson (email) on 04/02/2006 @ 06:18 PM

Is there any proof yet of these "100,000" massacred other than "HRW says so"? So far, contrary to bush & Blair's assertions, only some 5100 remains in mass graves have been found, and those from the 1991 Gulf war (likely the Basra Highway massacre, and as that was committed by US and UK forces, we don't want to go into that too closely).

HRW's own Anfal report says they have found 23 remains.

23.

HRW has also changed their Anfal story 4 times, drastically reducing the death figures each time, and as they bought into the phoney "incubator babies" story in 1991 (among other faux pas) they're just not a group I'd willingly take their word at face value.

Why, if there are 100,000 dead, or "1,000,000" if you watch Fox News, have we not, after 3 years hard looking, found large numbers of remains?

I suspect, just as with the "wmd" and the "Iraq did 911" and the "wood-chipper" and the "ties to al Qaeda" lies, the Anfal campaign is going to turn out to be a whole lot less than it was promoted to be.

Posted by wooster (email) on 10/24/2005 @ 10:56 AM


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