Saddam Hussein’s regime has long been one of the world’s worst human rights violators. But the international community largely ignored Iraq’s record of human rights abuse — brutal repression of internal dissent, atrocities during the eight-year war with Iran — until after Hussein crossed the red line by sending his forces into Kuwait. Even since 1990, evidence of human rights violations has been marshaled solely to score political points or justify military action, and not to hold a vicious regime accountable for its crimes.

Two sets of ignored and downplayed events stand out in Iraq’s human rights record before 1990. One is the repeated use of chemical weapons, against Iranian forces from 1983 until 1988, and against Kurdish fighters and civilians inside Iraq in 1987 and 1988. The other is the systematic slaughter of rural Kurds — men only in the areas of the Kurdish autonomous region, and men, women and children around the Kirkuk oil fields marked for Arabization — during the eight Anfal operations of February-September 1988. The multiple uses of chemical weapons were war crimes; the Anfal campaign was a genocide. These events were known to varying degrees when they occurred, or very shortly afterward. The United Nations sent a total of eight missions to Iran and Iraq between 1984 and 1988 to investigate separate allegations of Iraq’s use of chemical weapons, and each time reported unequivocal evidence of the use of chemical weapons. In each case, Iraq appeared to be the offender. [1] As a result of these reports, the UN Security Council passed four resolutions from 1986 to 1988. While referring to reports of chemical weapons use, these resolutions did not identify Iraq as the perpetrator, nor even the Kurds as victims. Only after the Gulf war was the newly defeated Iraq publicly named as the culprit.

Reports of atrocities against Iraqi Kurds began to leak out once Hussein’s cousin, ‘Ali Hasan al-Majid, launched a stepped-up campaign to crush the Kurdish rebellion, following his appointment as head of the Ba’th Party in the north in March 1987. Kurds told of chemical attacks on several villages and the removal of many other villages’ populations to vast resettlement camps near the Kurdish urban centers. After February 1988, reports surfaced of the horrific depredations known as the Anfal campaign. The Iraqi chemical attack on the large town of Halabja, which caused at least 4,000 to 5,000 deaths, became known to the international public within days of its March 16 occurrence thanks to the government of Iran, which immediately airlifted journalists into the town. [2]

Gathering the Evidence

Information on Iraqi crimes committed before 1990 was plentiful, but the international community completely lacked the political will to bring the responsible Iraqis to justice. Now information on these crimes, as well as those committed during and since the Gulf war, is even more abundant, but attempts to hold Hussein and his regime accountable may also founder.

Iraq’s invasion of Kuwait in August 1990 and the ensuing Gulf war constituted the first major international armed conflict of the post-Cold War era. Following civil uprisings in the north and south, Iraqi forces withdrew from the majority of Kurdish-populated areas in northern Iraq in October 1991. Previously, only the rare courageous journalist (like Gwynne Roberts), US Congressional staffer (like Peter Galbraith), or relief worker (like those of Medico International) had been able to slip stealthily into northern Iraq as guests of the Kurdish rebels. Now, under the protection of the victorious allies’ Operation Provide Comfort, relief workers, journalists and human rights investigators, as well as a flood of long-exiled Kurds eager to see their relatives, are able to drive across the border from Turkey without serious impediment. Unhindered access to Iraqi Kurdistan meant that for the first time in decades independent researchers could begin to document and publicize the regime’s many crimes. Human Rights Watch spent some six months collecting testimonies from survivors of the Anfal campaign and another two years studying 18 metric tons of Iraqi government documents that the Kurds had captured during the short-lived uprising of March 1991 and made available to the Senate Foreign Relations Committee. The objective was to gather sufficient evidence to charge the Iraqi leadership with war crimes, crimes against humanity and genocide.

This first serious attempt to hold the regime accountable coincided with the emergence of the post-Cold War idea of universal human rights that superceded any notion of national sovereignty, the idea that gross violations of human rights are anybody’s business. This idea gained currency as internal (often ethnically based) conflicts — in Somalia, Bosnia, Rwanda and elsewhere — produced horrendous atrocities, giving rise to international criminal tribunals for the former Yugoslavia and Rwanda. Later in the decade, the idea of universal human rights spurred efforts to set up an International Criminal Court, and the successful assertion of universal jurisdiction for human rights crimes with the arrest in Britain of the former Chilean dictator, Augusto Pinochet.

Surveying the Options for Justice

While governments expressed varying degrees of interest, non-governmental groups led the development of two options with respect to Iraq. People close to the Iraqi opposition in exile, joined by British parliamentarians, launched an “indict” campaign in the mid-1990s, advocating an ad hoc criminal tribunal for Iraq modeled on the Rwanda and Yugoslavia tribunals. Human Rights Watch, while supporting the idea of such a tribunal, proposed a lesser option, bringing a case of genocide before the International Court of Justice (ICJ) in The Hague under the 1948 Genocide Convention. The advantage of a tribunal over an ICJ case is that a tribunal has wider scope to adjudicate Iraq’s human rights crimes — including the Anfal genocide — as well as war crimes committed during the Iran-Iraq war and Iraq’s occupation of Kuwait. The distinct disadvantage is that a tribunal requires consensus in the Security Council, and this does not exist. The ICJ option, while limited to the single crime of genocide, circumvented that problem, as any one state signatory to the convention (though not non-state actors, like the Kurds themselves) has the right to petition the ICJ.

From another perspective, the two options were complementary: the tribunal would adjudicate the criminal responsibility of individuals, whereas the ICJ would adjudicate the responsibility of the state of Iraq. A tribunal would aim at punishing the individuals responsible for war crimes, while an ICJ case would propose certain concrete remedies: establishment of the facts, adjudication of the legal consequences of the facts, enforcement of obligations (under the Genocide Convention) to prevent genocide, protective measures and compensation for the victims. [3]

Lamentably,the initially promising ICJ option soon fell victim to the same forces that prevented progress on convening a tribunal. Once Human Rights Watch completed analysis of the results of its genocide research in 1994, the organization searched for a state willing to petition the ICJ and began to lay the legal groundwork for a case, contract-ing the services of legal scholars with ICJ experience. It became clear immediately that one state should not spearhead this effort — the United States. The US was too heavily implicated in the buildup of Iraq in the 1980s, and then the defeat of Iraq in the Gulf war, to be seen by the public as an impartial litigant. Secondly, the US had registered restrictive interpretations of the Genocide Convention (and one significant reservation to it) when it finally submitted its instrument of ratification in 1985. Iraq could be expected to exploit both facts to undermine US credibility. [4]

US Foot-Dragging

A year of discussions with potential applicants followed. Human Rights Watch brought to bear the weight of the evidence it had collected and the arguments formulated by its legal experts, including a draft application. [5] In the end, it was able to identify two governments that were willing, in principle, to bring a case against Iraq, but they agreed only on condition that they be part of a coalition of states that would include at least one significant European government. No major European power would embrace the case. These discussions were off the record, but European states’ reluctance stemmed from three major considerations: 1) sanctions and inspections were already dealing with the Iraq problem; 2) Iraq might retaliate through terrorist attacks; and 3) a potentially lengthy ICJ case would tax the resources of the states’ small legal departments. The first consideration — that an ICJ case was just another way of dealing with the “Iraq problem” — revealed the mindset of international actors at the time. The question for these governments was not: should we bring the Iraqi regime to task for its crimes to provide justice, protection and compensation for its victims, and to deter it (and others like it) from doing further harm? Rather the question was: do we need an additional weapon in our arsenal to induce the regime in Baghdad to collapse? In the end, these governments decided that the status quo was acceptable. A weakened Iraq under Hussein was preferable to a Hussein-less vacuum where regional instability and Iranian intervention might ensue.

This thinking was certainly dominant in the Clinton administration and common among members of Congress. Unfortunately, the role of the US remains paramount in matters concerning Iraq. In 1994, frustrated by futile efforts to find the one European state that might make the difference, Human Rights Watch approached the State Department with the hope of garnering US political support for an ICJ case (though not its direct participation). The request was passed to the State Department’s legal advisor’s office. After a year of back and forth during which Human Rights Watch further refined its reasoning in the case, the legal advisor made two important determinations: 1) there was a genuine case of genocide under the Genocide Convention, and 2) an ICJ case was winnable. This opinion was referred to the Secretary of State, Warren Christopher, who in July 1995 wrote a department-wide memorandum urging the department’s support of the case. In practice, this was supposed to mean that selected US embassies were authorized to approach their host governments to discuss the desirability of their joining the case before the ICJ.

Christopher’s instruction, as far as Human Rights Watch is concerned, was the last thing that happened in its costly, multi-year effort to bring Iraq’s regime to justice. Apparently, some US diplomats (including David Scheffer, aide to Madeleine Albright when she was envoy to the UN, and today the Clinton administration’s ambassador-at-large for war crimes) approached allied governments. But the diplomats expended no real energy and no government joined the club. For all practical purposes, the case died in the mid-1990s.

At decade’s end, the prospects of bringing the regime’s key henchmen to justice were revived by the Pinochet arrest in London. Even if the former Chilean dictator was released on medical grounds more than a year later, his arrest and the legal proceedings it sparked in Britain signaled a new willingness to hold gross violators of human rights accountable for their crimes under the principle of universal jurisdiction. Now it seemed possible to apprehend members of the Iraqi inner circle if one traveled to a country willing and able, under its own laws, to prosecute foreigners for human rights crimes. Such travel becomes more likely as the Iraqi leadership ages and ails, requiring sophisticated medical treatment most readily available in industrialized countries. In August 1999, ‘Izzat Ibrahim al-Duri, a senior Iraqi leader, fled Vienna back to Baghdad as soon as he realized an Austrian member of parliament was trying to start legal action against him. Iraq’s foreign minister Tariq Aziz promptly sent a videotaped speech to substitute for a live appearance at a conference in Rome slated for later that month.

No “Early” Justice

Coincidentally, the demise of UNSCOM in the summer of 1998 and the failure of Operation Desert Fox that December helped supporters of legal action within the Clinton administration to revive interest in an ad hoc tribunal. Following UNSCOM’s withdrawal from Iraq, Congress passed the Iraq Liberation Act against the wishes of the Clintonites, appropriating $97 million to support the Iraqi opposition. A year and a half later, very little of that money had been spent, in part because of State Department foot-dragging and in part because of the hopelessly divided nature of the opposition. But Congress also appropriated an additional $10 million for activities relating to Iraq, and one beneficiary of the relative largesse was the group Indict in London, which was launched in January 1997 and now suddenly was promised a $2 million injection. In July 1999, the first installment permitted Indict to open new offices and start compiling files on indictable Iraqi officials.

Yet the outlook for “early” justice for Iraqi perpetrators of human rights crimes remains bleak. US interest in pursuing judicial remedies is wafer-thin and fluctuates according t how its overall approach toward Iraq is faring. When it looked like the Oil-for-Food arrangement in 1996 might relieve pressure on the regime, for example, there was a frisson of US enthusiasm for a tribunal. Likewise, the protracted Security Council fight in the fall of 1999 over the creation of UNSCOM’s successor agency, UNMOVIC, and the growing public clamor for an end to the stifling economic sanctions have again given leverage to the backers of legal action, as have the indictments against Pinochet and Slobodan Milosevic. “Our ultimate aim is to bring Saddam Hussein to justice,” US Ambassador for war crimes David Scheffer was able to declare in October 1999, for example. [6]

But the past decade has shown that the United States is fighting a war by other means against the Iraqi regime. The US can be expected to shout “Tribunal!” whenever pressure to lift sanctions rises, lest anyone forget how brutal the Iraqi regime is. But as soon as it finds a better way to keep up pressure on Baghdad, the US will again lose interest in the tribunal option, for a tribunal would not yield the primary concrete result it desires. US interest prescribes only the fall of Saddam Hussein; it decidedly does not want the collapse of the regime, the only perceived guarantor of the fragile stability that governs Iraq and the wider region beyond. Potential coup leaders from Hussein’s inner circle are certain to want US assurances that they will not face a tribunal for past crimes should they manage to topple the supreme leader. The real battle is fought on the shores of the Potomac, over policy, not high-minded principles. It looks like the David Scheffers of this world are not close to winning.

Endnotes

[1] “Chemical Weapons Use in Kurdistan: Iraq’s Final Offensive,” Staff report to the Senate Committee on Foreign Relations, US Senate, October 1988.
[2] Agence France Presse reported the event on the same day, the New York Times the next. Foreign journalists flown into Halabja by the Iranian military started reporting on March 22, for example, David Hirst in the Guardian.
[3] See Lori Damrosch, Kurdish Genocide Case, Legal Memorandum for Governments, June 4, 1993, p. 2, note 2, and pp. 22-24. (Files of Human Rights Watch.)
[4] Ibid., pp. 5-7, 14-16, and 21.
[5] Human Rights Watch, “international Court of Justice Application Instituting Proceedings for Protection of Iraqi Kurds under the Genocide Convention,” Draft, July 16, 1993. (Internal document.)
[6] Quoted in US News and World Report, October 25, 1999.

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Joost Hiltermann "Elusive Justice," Middle East Report 215 ( ).
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