In a public break with the US, British Foreign Secretary Robin Cook today submitted a draft parliamentary bill supporting the rapid establishment of an International Criminal Court (ICC) in which to try major war criminals and violators of human rights. The British move to secure the ICC’s ratification in Parliament contrasts sharply with the Clinton administration’s recalcitrance on the ICC. The US continues to insist on protecting its own nationals from prosecution by the ICC–even at the cost of watering down the court’s mandate. At the same time, the US is once again loudly urging the use of international courts to prosecute Iraqi leaders on war crimes charges, a decade after Iraq’s invasion of Kuwait.

US Policy Under Pressure

The US response to the ICC displays its preference for ad hoc policies on war crimes and crimes against humanity. In the case of Iraq, the administration is mainly reacting to political pressure, rather than waging a committed campaign to achieve justice. Building and presenting a case against Iraqi leaders would certainly be difficult. But the checkered history of US calls to prosecute the Iraqi leadership bespeaks the fluctuating fortunes of US policy on Iraq, rather than the genuine difficulties of enforcing international justice.

With a presidential election imminent, the administration wants to fend off criticism from the right, mainly from Republicans in Congress, who complain that the Clinton administration has done little to implement the Iraq Liberation Act–granting extensive aid to Iraqi oppposition groups–passed by Congress in 1998. Both George W. Bush and Al Gore have adopted hawkish positions on Iraq to distance themselves from current policy. The US may also be assuming a newly proactive stance on human rights to deflect growing criticism of the humanitarian impact of economic sanctions on Iraq. The most recent bluster from the State Department on August 2 coincided with a national mobilization of anti-sanctions activists in Washington on August 5-7.

History of Foot-Dragging

Immediately after the Gulf war, President Bush promoted the idea of a war crimes tribunal, but after the initial statement, action was stalled. The Bush administration even delayed the release of a judge advocate general’s report on Iraqi war crimes, based on work by US Army war crimes investigators and lawyers in Kuwait after liberation. The report was not published until President Clinton was in office.

The Clinton administration periodically raised the possibility of a war crimes tribunal but nothing more than rhetoric resulted. Successive US administrations protested that the anticipated resistance of other permanent UN Security Council members, especially Russia and China, blocked them from pursuing a tribunal more vigorously. In fact, neither country used its veto to prevent the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), despite the close links between Russia and Serbia. The ICTY in the Hague–a court established outside the country in which the crimes were perpetrated–would be the most likely model for a tribunal on Iraq.

The war crimes proposal took on new life in the US only in the late 1990s, as the impasse over Iraqi policy in the Security Council intensified and US policy on economic sanctions came under attack. Ironically, the chances of achieving Security Council consensus on establishing a tribunal probably diminished as the rift over sanctions policy widened. Nonetheless, in May 1998 David Scheffer, US Ambassador-at-Large for War Crimes Issues, called for “focusing renewed attention on Saddam Hussein and the senior members of his regime.”

During 1998 the Senate allocated a total of $3 million to the International Campaign to Indict War Criminals (INDICT) to compile evidence supporting the indictment of individual Iraqi officials for war crimes. INDICT, launched in London in January 1997, aimed to persuade the international community to set up an international tribunal to try members of the Iraqi regime for genocide and war crimes.

Progress has been slow, though INDICT now says it has built cases against several leading figures in the government. Eyewitness testimony is hard to secure, particularly because witnesses fear retaliation against themselves or their families. Up to now, the actual US financial contribution is said to amount only to about $500,000. On August 2, 2000, Scheffer announced that a total of six non-governmental organizations were now involved in developing and publicizing war crimes material. These included the Washington-based Iraq Foundation and the Human Rights Alliance as well as INDICT.

Independent Efforts

The US effort has no connection with the UN human rights machinery. Max van der Stoel, the UN Special Rapporteur on Iraq until early this year, began years ago to identify the responsibilities of individual members of the regime for human rights crimes. As early as 1994, he had named Saddam Hussein and Ali Hasan al-Majid as responsible for war crimes and crimes against humanity committed under their commands.

Investigators have obtained two large bodies of documentary material on abuses since the Gulf war. One consists of material gathered by US forces in Kuwait after the Iraqi retreat. Scheffer announced on August 2 that “we have begun to declassify and make available through the Iraq Foundation the first of many documents captured by American forces during the liberation of Kuwait.” When asked how long ago this declassification process started–given that the documents have long been in US government hands–Scheffer responded vaguely that the process had been going on “for at least a year or more.”

The other body of evidence documents the brutal 1988 Anfal campaign against the Kurds. It consists of material seized by the Kurdish political parties from Iraqi security facilities in northern Iraq after government forces withdrew in 1991. Some of these documents remained in Kurdish hands, but several tons of documents were transported to the US by Human Rights Watch, with US government assistance. Human Rights Watch then collated and translated tons of them, making them publicly available.

The Iraqi regime could have been pursued for its long-standing human rights abuses in venues besides a war crimes tribunal. Human Rights Watch advanced a second proposal: to file a case of genocide–relating to the Anfal campaign–in the International Court of Justice in the Hague. But advocates were unable to muster a large enough group of states to bring the case. In 1999 and 2000 Human Rights Watch, as part of its call to lift non-military sanctions on Iraq, joined the campaign for an international tribunal similar to those for Rwanda and the former Yugoslavia.

Shades of Pinochet

States that are signatories to the relevant human rights conventions have, in theory, universal jurisdiction with respect to crimes against humanity, genocide and war crimes, and torture. If implemented, national law can allow cases to be brought against members of abusive governments who travel abroad. Regime members may be deterred from traveling abroad if there is a real chance that prosecutions will be initiated. The US evidently views this legal mechanism as an attractive opportunity to “maintain pressure” on the Iraqi regime, and the Clinton administration has been urging other states to pursue this course. A year ago the threat of legal action forced a top Iraqi leader, Izzat Ibrahim al-Duri, to leave Vienna before getting the medical treatment he had come for, and a few weeks later deputy prime minister Tariq Aziz decided to send a videotaped address rather than attend a political meeting to which he’d been invited in Rome. This summer Jordan reportedly asked al-Duri to leave Amman when he showed up there for treatment.

Since the Gulf war, the US has used the blatant human rights abuses of the Iraqi regime, stretching back to the 1970s, to gain political or moral high ground, but refrained from pursuing decisive action against the perpetrators. Whenever its increasingly isolated policy on Iraq hits difficult patches, the US increases the volume of its rhetoric. But Washington’s recalcitrance toward the ICC suggests the US is no more determined now than before to try seriously to bring Iraqi war criminals to justice.

How to cite this article:

Sarah J Graham-Brown "Politics, Not Policy," Middle East Report Online, August 25, 2000.

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