Cite as 7 Cal. Crim. Law Rev. 1

Pincite using paragraph numbers, e.g. 7 Cal. Crim. Law Rev. 1, ¶11

¶1“Decades of lies and intimidation could not make the Iraqi people love their oppressors or desire their own enslavement.”[1]

-President George W. Bush, May 1, 2003 

I. Introduction

          ¶2Although the Bush administration began Operation Iraqi Freedom with the pretext of searching for weapons of mass destruction,[2] the operation ultimately liberated a nation that spent decades under a dictatorial regime. For at least the past twenty to thirty years, the Iraqi people,[3] including the Kurds, lived as victims of their own government. Saddam Hussein and his regime victimized the Iraqi people through torture, execution, and deportation. As President Bush stated in his address on May 1, 2003, America is “pursuing and finding leaders of the old regime, who will be held to account for their crimes.”[4] After United States troops captured Hussein on December 13, 2003,[5] President Bush declared, “now the former director of Iraq will face the justice he denied to millions.”[6]   

¶3On January 9, 2004, the United States officially declared Saddam Hussein a prisoner of war and indicated that it will turn him over to a special court established by the Iraqi Governing Council under the direction of the Coalition Provisional Authority.[7] Yet, prosecution in this forum fails to ensure proof of guilt beyond a reasonable doubt as required by Article 14 of the International Covenant on Civil and Political Rights and does not prohibit the death penalty. Further, such prosecution requires the application of Iraqi criminal law and procedure where otherwise unarticulated in the governing statute..[8] This might allow Hussein to twist the laws he implemented to his advantage. Consequently, this Article focuses on alternative fora for jurisdiction over Hussein, recommends an ad hoc international criminal tribunal that does not provide for the death penalty, and examines Hussein’s liability for genocide against the Kurds and crimes against humanity.

¶4This Article will explore and catalogue the international case against Hussein for injuries inflicted on the Iraqis and the Kurds before the war began. Although the focus will remain primarily on Saddam Hussein, much of the rationale also applies to other regime participants. Part II begins with a historical overview of the Iraqi peoples’ oppression and focuses on the consequences of Hussein’s decisions and orders. Part III reviews different jurisdictional options including a national trial by Iraq, prosecution in the United States, the International Criminal Court, and an international ad hoc tribunal akin to those established in Rwanda and Yugoslavia. This Part ultimately recommends that Hussein’s prosecution take place in an international ad hoc tribunal situated in Iraq. The Security Council, under its Chapter VII authority, may establish an ad hoc criminal tribunal to prosecute Hussein for committing or participating in crimes against humanity and genocide. Part IV discusses Iraq’s international legal obligations including treaties and United Nations membership requirements. Part V examines the legal ramifications of Hussein’s genocide campaign against the Kurds and applies the relevant elements to Hussein’s actions. It also addresses the limited arguments that Hussein’s defense counsel could raise. Part VI applies international principles concerning crimes against humanity to Saddam Hussein’s most flagrant crimes against the Iraqi citizens.[9]

II. A History of Oppression

¶5Formerly part of the Ottoman Empire, Iraq obtained its independence from British occupation in 1932. Several ethnic groups comprise Iraq’s total population of 24,683,313: Arabs form 75% to 80% of the population; Kurds comprise 15% to 20% of the population, and Turkomans and Assyrians make up the remainder of the population.[10] The Kurds have occupied the northern mountainous regions of Iraq since the 12th century when the world referred to the region as “Kurdistan.”[11] Because the Kurds lived in the mountains, separated from the main cities in Iraq, they developed their own distinct culture and language. Despite their geographical and cultural separation, the Kurds did not enjoy political independence. From the 16th to early 20th century, the Ottoman and Persian Empires ruled the Kurds.[12] Although the Kurds briefly experienced a year of independence in 1946 by forming their own republic, the Iraqi regime controlled Kurdish territory for the vast majority of the 20th century.[13] Since the 1920s, the Kurds have struggled for independence by staging various unsuccessful revolts.[14] These revolts led to Iraqi government attempts to quash the rebellion and ultimately exterminate the Kurds through the Anfal campaigns.

A. The Anfal Campaigns

¶6Iraqis used the name Anfal, or “the spoils,” to refer to a series of staged military actions against the Kurds of northern Iraq. The Ba’ath Party formed a complex power structure; full comprehension of Hussein’s control of the anti-Kurdish campaigns requires a basic grasp of its components. The highest executive body was the RCC  over which Hussein exercised ultimate power as Chairman.[15] The RCC controlled a number of regionally based committees including the Northern Affairs Committee where Hussein served as secretary until around 1970. He eventually delegated that power to his cousin Ali Hassan al-Majid.[16] Prior to Hussein’s rise to dictator, he served as the RCC member in charge of “Kurdish affairs.”[17] Before he went into hiding, Saddam Hussein also served as the commander-in-chief for the armed forces, President of the Republic of Iraq, and Secretary General of the Ba’ath Party.

¶7In May of 1992 and March of 1993, Human Rights Watch, an international human rights organization, facilitated the shipment of eighteen tons of official Iraqi government documents to the United States. The Kurds uncovered these documents during their 1991 uprising. The prosecutor in Saddam Hussein’s trial may rely on these documents as evidence of Hussein’s participation and oversight of the campaign against the Kurds. Other evidence might consist of eyewitness accounts and forensic evidence obtained by the Middle East Watch in collaboration with Physicians for Human Rights. The Kurds recovered the majority of the following accounts and documents from the offices of Iraq’s internal intelligence agency, the General Security Directorate (“secret police”).

¶8The plight of the Kurds at the hands of Hussein’s regime began well before the first Gulf War. Beginning in 1985, Hussein’s plan to address “Kurdish affairs” formed a systematic program of destruction for Kurdish villages through chemical weapons and military force, subsequent relocation of the Kurds in concentration camps, and summary executions upon arrival. In 1988, Iraqi forces killed as many as 182,000 Kurds and destroyed at least 4,000 Kurdish villages.[18]

¶9Until 1988, no government had ever used chemical weapons against its own people.[19] Under the Chemical Weapons Convention governments may not use chemical weapons under any circumstances.[20] Yet, Hussein’s regime used mustard and nerve gas against at least sixty villages and the town Halabja. This offensive aimed to terrorize the Kurdish civilian population, flush villagers from their homes, and ultimately capture, relocate, and kill them.[21] The gas attack in Halabja alone killed 5,000 people and prompted approximately 80,000 people to flee to Iran.[22] One survivor of a chemical attack on Birjinni stated that he observed, “‘white, black and then yellow [clouds of smoke], rising about fifty or sixty yards into the air in a column. Then the column began to break up and drift. It drifted down into the valley and then passed through the village. Then we smelled the gas.’”[23] At first, “‘it smelled of apples and something sweet,’” but then “‘it became bitter.’”[24] As a result of the attacks, those exposed to the gases experienced vomiting, blindness, and painful swellings under their arms.[25]

¶10Once it finished using chemical and conventional bombing, the army and domestic militia dynamited and bulldozed Kurdish villages.[26] The Iraqi army destroyed at least 703 Kurdish villages in 1987 alone.[27] After the armies razed the village of Serkand Khailani, officials arrested most of the villagers and later subjected the leaders to beatings with cables, suspensions from ceiling hooks, and electric shocks to the earlobes.[28] Some of those arrested were executed.[29] Others were sent to the collective camps.[30] The Iraqi government painstakingly videotaped and documented a number of these events.[31]

¶11To serve as a lesson to others, President Hussein approved a special plan for dealing with Kurds in the Marsh areas.[32] The plan entailed poisoning, bombing, and burning the homes of friends and relatives of subversives in the Marsh areas.[33] It also included an economic blockade to more efficiently “‘limit provision of their daily living needs’” by diminishing food supplies, banning fish sales, and banning goods.[34] To date, no official documents have been found concerning these camps. However, various agencies recorded testimony of the incarcerated Kurdish people, and at least one letter from Amn Suleimaniyeh[35] to the director of security of the Autonomous Region exists.[36] This letter documents the execution of nineteen people for “being found in prohibited areas” and forty-seven for being “subversives sentenced to death by the Revolutionary Court.”[37] It also notes the deportation of 9,030 people sent to the “Popular Army camp in the governate of al-Ta’mim.”[38]

          ¶12Interviews with survivors revealed the conditions and treatment at the camps. Upon arrival, guards divided men and women into separate camps and searched them.[39] One man, after being beaten with sticks and electric cables, was hung from a ceiling fan and scorched with hot steel.[40] Prisoners used cans for bowel movements, ate soup filled with leftover bones and oil, and often received no food at all.[41]

¶13Convoys carried the Kurds from the camps out into the country for execution by firing squad.[42] At least six people survived.[43] One of the survivors stated: “[i]n place of the handcuffs, the guards used a length of string to tie the twenty-eight prisoners in a single line by their left hands. The men were ordered to stand facing a freshly dug trench, just long enough to accommodate the twenty-eight bodies as they fell.”[44] A gravedigger working in the Kurdish area of Northern Iraq stated, “‘I must have buried 600 or maybe up to 1,000 people—all killed by the secret police between 1985 and 1989. Sometimes they were peshmerga, sometimes women, sometimes children. Sometimes they’d been tortured.’”[45]

          ¶14A number of government documents prohibiting human life in designated areas of the Kurdish countryside confirm the truth behind these statements. Hussein’s cousin, Ali Hassan al-Majid signed one personal directive, numbered 28/3650, which stated “[w]ithin their jurisdiction, the armed forces must kill any human being or animal present within these areas. They are totally prohibited.”[46] Hussein also targeted Shi’a Muslims after the March 1991 uprising, where he publicly stated that the participating Shi’a Muslims should be shot for treason.[47] Even before these directives, guards shot around 150 men and boys at al-Mahawil Garrison.[48] Guards threw others from the top floor of a hospital, drowned them, dragged them through the streets, or left them hanging from electricity poles to terrorize the locals.[49] In their attempts to retake the cities involved in the 1991 uprising, loyalist forces used helicopters to attack unarmed civilians, arrested or shot civilians, and executed young men in the streets and in hospitals.[50]

          ¶15In 1998, the New York Times reported that Hussein executed at least 1,500 people in one year for “political reasons.”[51] Hussein’s son, Qusay Hussein, ordered the executions as part of a prison-cleansing campaign. The Husseins then required the family members of the executed prisoners to pay for the bullets before they could claim and bury the bodies.[52] In many ways, the methodical calculation of costs and benefits without regard for human dignity resembles that of Adolph Hitler in ordering the extermination of the Jews. Hussein’s method of conducting the Anfal campaigns by defining the Kurds as the target, concentrating them in one area, and executing them fits the pattern used by the Nazis.[53]

B. Alternative “Justice”

1. A Lack of Judicial Process

¶16Hussein did not, however, limit his disregard for human life to the Kurds. He established a court system for all Iraqis that provided few opportunities for fair hearings and multiple occasions for excessive punishment. Trials in Iraq were often conducted before “special courts” and were always conducted in camera.[54] Hussein employed military officers and civil servants who lacked judicial training and the autonomy necessary to make impartial judgments.[55] The regime sometimes restricted aid from attorneys or government-appointed lawyers until the actual trial date.[56] In April of 2001, a “special court” sentenced four people to life in prison for simply “attempting to form a political grouping.”[57]

¶17The Iraqi government frequently arrested both the people suspected of anti-government activities and their families.[58] Officials arrested a retired medical doctor and his brother-in-law in March of 2001 simply to pressure his wife, also a doctor, to return to Iraq.[59] On July 26, 2002, several of the United Nations Special Rapporteurs addressed a letter to the Iraqi government requesting information on two individuals who reportedly engaged in “terrorist acts” inside Iraq.[60] The letter stated, “it is feared that their confessions [on national television] may have been extracted under duress and that televised statements may have an impact upon the fairness of their trial.” [61] The Rapporteurs expressed further concern that the men were “at risk of being sentenced to death and executed.”[62] They received no response. The Report also stated that no positive developments occurred in relation to missing persons.[63]

2. Punishments

¶18On June 5, 1994, Iraq’s highest executive body, the RCC published a series of decrees in the official Iraqi newspaper, Al-Jumhuriya, which required amputations and brandings as punishments for at least 30 crimes.[64] Saddam Hussein signed each of the decrees in his position as Chairman of the RCC.[65] In 2000, Hussein and his officials reportedly began using tongue amputation to punish people who criticized him or his family.[66] Guards allegedly performed such an amputation on July 17, 2000 in front of a large crowd.[67] Hussein’s decrees prescribed the death penalty for car theft, counterfeiting, smuggling cars or drilling machines, organizing a group of two or more persons for procurement purposes, falsifying military service documents, and stealing (when committed by a member of the armed forces or government employee).[68]

          ¶19A report by the United Nations’ Special Rapporteur stated that the government executed forty-three prisoners on February 3, 2000.[69] Thirty were reportedly executed for theft, two for drug trafficking, and eleven for affiliation with the political opposition.[70] In this same report, the Special Rapporteur stated that he was:

of the opinion that Iraq continues to be in violation of its obligations under the International Covenant on Civil and Political Rights, if only because of the sheer numbers of executions that are taking place and what appear to be extrajudicial executions on political grounds and in the absence of a due process of law.[71]

¶20In December of 2000, the United Nations General Assembly issued a Resolution strongly condemning Saddam Hussein and his government for “systematic, widespread and extremely grave violations of human rights and of international humanitarian law.”[72] The condemnation extended to suppressions of fundamental freedoms, the widespread use of the death penalty in violation of the ICCPR (International Covenant on Civil and Political Rights), arbitrary executions, widespread and systematic torture, and the prescription of cruel and inhuman punishments.[73] In his “leadership” capacities, Hussein committed countless human rights violations.[74]

¶21Numerous current reports continue to document human rights violations by Saddam Hussein and Iraqi officials.[75] Up until “Operation Iraqi Freedom,” the United Nations delegated a Special Rapporteur to report on the humanitarian situation in Iraq. Unfortunately, this did little to alleviate the situation.

III. Jurisdictional Options

          ¶22Before reaching the merits of the case, one must consider which courts could validly exercise jurisdiction over Saddam Hussein’s prosecution. Four primary potential fora exist: (1) Iraqi national courts, (2) United States federal courts asserting universal jurisdiction, (3) the International Criminal Court through special appointment by the Security Council, or (4) an ad hoc tribunal set up by the United Nations Security Council. The jurisdictional decision will play a major role in determining both applicable law and procedural constraints.

A. Trial by the Iraqi Citizens

          ¶23Since most of Hussein’s crimes occurred in Iraq and against the Iraqi people, Iraq retains territorial jurisdiction. The accessibility of physical evidence, victims, and witnesses makes Iraqi courts seem like a sensible jurisdiction. A trial in Iraq may promote healing and reconciliation for victims of the regime. However, heads of state, such as Saddam Hussein, may avoid rigorous prosecution in their own territories by scare tactics, force, and an ability to manipulate the law. Additionally, it could take a considerable amount of time for a viable government capable of running the national courts to emerge. As evidenced by the number of insurgencies in Iraq after the capture of Hussein, a number of his supporters still exist.

¶24Even with the installation of a new Iraqi government, it could take years for the government to create a workable court system. Once the new regime begins, the likelihood of a fair trial by a new government attempting to purge the old leadership would be slim. Many proposed leaders of the new government lived in exile under Saddam Hussein’s rule and may view his trial as a unique opportunity for retaliation. For Hussein to receive the “justice he denied to millions,”[76] a neutral judge, or panel of judges, should preside over his trial.

B. National Prosecution by the United States

¶25Theoretically, United States courts provide a second option for prosecution. Domestic courts can invoke universal jurisdiction to prosecute Iraqi officials.[77] Yet, according to the concept of immunity for acts committed by heads of state while in office, the United States court might find Hussein substantively liable but procedurally immune.

¶26Under the principle of universal jurisdiction,[78] any state, regardless of its direct involvement in the conflict or offense, may prosecute “certain offenses recognized by the community of nations as of universal concern, such as . . . genocide, war crimes, and perhaps certain acts of terrorism.”[79] Behind the principle of universal jurisdiction lies the theory that genocide, crimes against humanity, and war crimes not only violate international law but also offend the whole of humanity.[80] Ideally all states would work both collectively and individually to prosecute violators. Universal jurisdiction invoked by individual states furthers several important goals: attaining justice for victims,[81] deterring future human rights abuses through public prosecutions of senior officials,[82] demonstrating international concern and collective responses toward human rights violations,[83] and protecting the sanctity of ordered society.[84]

¶27A number of treaties concerning drug-trafficking,[85] hijacking,[86] aircraft terrorism,[87] hostages,[88] torture,[89] apartheid,[90] and attacks on diplomats[91] expressly include the right to invoke universal jurisdiction. Universal jurisdiction endows every state with jurisdiction over a limited category of crimes such as piracy and slave trading.[92] The list of crimes subject to universal jurisdiction continues to expand.[93] As one United States court observed, “nations have begun to extend jurisdiction to . . . crimes considered in the modern era to be as great a threat to the well-being of the international community as piracy.”[94]

¶28Despite an increasing willingness to invoke universal jurisdiction, the United States must overcome certain procedural hurdles before prosecuting. United States domestic law includes international law,[95] and international law recognizes universal jurisdiction for certain offenses such as piracy, war crimes, and genocide.[96] However, a person cannot be tried in a United States federal court for an international crime unless Congress first adopts a statute defining and punishing the offense.[97] For the United States to prosecute Hussein three things must occur: (1) Congress must have enacted statutes to punish genocide and crimes against humanity, (2) the prosecutor must avoid the obstacle of immunity for heads of state, and (3) Colin Powell must deflect international criticism that prosecution represents the victors’ “justice” for the vanquished.

¶29Congress banned genocide in 18 U.S.C. § 1091.[98] This codification simply recognized the accepted practice of using universal jurisdiction to punish genocide.[99] Israel first used universal jurisdiction in the Eichmann case to prosecute Eichmann for executing Hitler’s “final solution” during World War II.[100] In its opinion convicting him, the Nuremburg Tribunal stated that some offenses against the whole of humanity are so grave that “the judicial and legislative organs of every country [need] to give effect to its criminal interdictions and to bring the criminals to trial.”[101]

¶30The United States accepted this principle in approving Israel’s request for the extradition of Demjanjuk.[102] The federal district court decided that Israel had jurisdiction to try Demjanjuk since “[i]nternational law provides that certain offenses may be punished by any state because the offenders are ‘common enemies of all mankind and all nations have an equal interest in their apprehension and punishment.”[103] As a party to the United Nations, which affirmed the Nuremberg Tribunal for punishing “persecutions on political, racial, or religious grounds” regardless of whether offenders acted “as individuals or as members of organizations,” the United States implicitly recognizes genocide as a crime against all of mankind.[104]

¶31Congress did not explicitly pass a statute forbidding crimes against humanity, but some statutes and court opinions indicate Congressional consent. Acquiescence may be inferred from the Alien Tort Claims Act[105] and the Torture Victim Protection Act of 1991.[106] The Alien Tort Claims Act provides that “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[107] As such, a victim of crimes against humanity could sue on claims of assault or battery arising from the incident. Federal courts held that this statute confers subject-matter jurisdiction when an alien sues for a tort committed in violation United States treaties or international law.[108]

¶32The Torture Victim Protection Act reinforces the widely held view that customary international law forbids torture.[109] As a party to the United Nations Convention against Torture, which requires parties to facilitate the punishment of torture through their municipal law,[110] the United States has an obligation to bring violators of the Convention to justice.[111] Because the Convention adds to customary international law’s prohibition on torture and requires parties to fulfill their obligations regardless of the perpetrator’s nationality, the Convention essentially provides for universal jurisdiction.[112] Thus, the United States could legitimately exercise jurisdiction to prosecute genocide and crimes against humanity in federal court.

¶33Impediments to American prosecution arise in light of conflicting views on immunity for heads of state such as Saddam Hussein.[113] Under the concept of state immunity, the offender may be substantively liable, but procedurally immune before the courts of other countries. Tensions between the Pinochet case,[114] authored by the House of Lords in London, and the more recent Yerodia case,[115] adjudicated by the International Court of Justice, illustrate two divergent approaches to state immunity.

¶34In deciding to extradite Senator Pinochet to Spain for crimes committed while acting as the head of state in Chile, the House of Lords examined Pinochet’s alleged immunity based on both the grave nature of the underlying crime, and on an implied waiver of immunity within the United Nations Convention against Torture.[116] Six Law Lords reached the general conclusion that Pinochet’s immunity dissipated because of torture’s status as a “serious international crime,” established by either jus cogens or international treaty.[117] Under this approach, United States courts could adjudicate Hussein’s acts of genocide and crimes against humanity since those crimes would also amount to “serious international crimes.”

¶35Lord Saville employed a theory of implied waiver of immunity based on an assumption that the United Nations Convention against Torture abrogated Pinochet’s immunity per se.[118] Although Iraq has not signed the Convention’s treaty, it did sign the International Covenant on Civil and Political Rights (ICCPR),[119] which outlaws a number of crimes against humanity. In addition, Lord Phillips, in his opinion, decided that because national jurisdiction over universal crimes was such a new creation, traditional immunities did not apply.[120] Accordingly, the United States could attempt to prosecute Hussein under both of these rationales.

¶36The legal bar to national jurisdiction arises in the Yerodia case, which examined the legality of an arrest warrant for Abdulaye Yerodia, the Minister of Foreign Affairs in the Congo.[121] The majority in the Yerodia case cast doubt on two major principles from the Pinochet case: (1) whether a customary international law norm actually emerged to abrogate immunity for “serious international crimes”; and (2) whether national courts could prosecute officials under circumstances similar to those in Pinochet.[122] In its opinion, the majority refused to waive immunity for incumbent officers, and stated that it could not “deduce . . . that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity.”[123]

¶37When the International Court of Justice subsequently listed four circumstances where courts could prosecute high officials internationally, it excluded the circumstances of the Pinochet prosecution.[124] Acceptable conditions for abrogating immunity for officials included the following circumstances: (1) when an official is charged in his or her own country and tried under the laws of that country, (2) when the official’s own state waives sovereign immunity, (3) when the official commits the acts “prior or subsequent to his or her period of office,” or “during that period of office in a private capacity,” or, finally, (4) when the official is prosecuted before an international court such as the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), and the International Criminal Tribunal for Rwanda (“ICTR”), or the International Criminal Court(“ICC”).[125] Since Saddam Hussein committed genocide and crimes against humanity while acting as head of state and Iraq has not waived immunity, the only court with jurisdiction under this analysis would be the ICC or an ad hoc tribunal set up by the Security Council that would resemble the ICTR and the ICTY.

          ¶38Although the Congress enacted legislation enabling United States federal courts to prosecute genocide and crimes against humanity based on universal jurisdiction, Hussein’s immunity as head of state bars national prosecution. American courts could focus on the Pinochet case rather than the Yerodia case; however, given the public nature of such a trial, this selective focus might compromise the legitimacy of a conviction. At the recommendation of the International Court of Justice, only an ad hoc tribunal set up by the United Nations Security Council, or the ICC could legitimately abrogate Hussein’s official head of state immunity for acts committed while in office.

C. The International Criminal Court

          ¶39In light of the Yerodia case, the ICC appears ideal for prosecution of Saddam Hussein.[126] However, jurisdictional limitations will foreclose this option unless the Security Council (1) fulfills its obligation to enforce its own resolutions through the ICC and (2) applies the enabling statute retroactively (as was done in the Nuremberg Tribunal). History and difficult negotiations surrounding the text of the Rome Statute, the ICC’s enabling statute, indicate that an ex post facto application of the ICC is unlikely to occur.

¶40On July 17, 1998, 120 countries adopted the text of the Rome Statute, which entered into force on July 1, 2002.[127] Article 11 of the statute limits the court’s jurisdiction to crimes committed after it entered into force and applies only to states who acquiesce, or “sign-on,” to the statute.[128] Although Hussein committed human rights violations throughout his dictatorship, many of his overt acts occurred during the 1980s, before the statute even existed. Additionally, but not surprisingly, Iraq has not signed the Rome Statute.[129] Article 13, however, allows the United Nation’s Security Council, under its Chapter VII power, to refer crimes to the ICC.[130]

          ¶41In reality, the Security Council’s powers remain the same. The Council implemented tribunals in both Rwanda and Yugoslavia.[131] Theoretically, Iraq is no different. The difference lies in the forum as the ICC, rather than as an ad hoc tribunal. In 1991, the Security Council issued Resolution 688 that stated that it was “[g]ravely concerned by the repression of the Iraqi civilian population” and “[d]eeply disturbed by the magnitude of human suffering.”[132] Consequently, it insisted that Iraq “allow immediate access by international humanitarian organizations,” and requested the Secretary-General “pursue his humanitarian efforts in Iraq” and “use all the resources at his disposal, including those of the relevant United Nations agencies, to address urgently the critical needs of the refugees and displaced Iraqi population.”[133] Although the Council laid the groundwork for intervention, for the ICC to exercise jurisdiction, the Council would need to not only refer Saddam Hussein to the ICC for trial, but also undermine the key principle of non-retroactivity.

          ¶42Because many states accepted the Rome Statute because of its non-retroactive stance, a retroactive application may cause these states to rethink their acquiescence to the ICC. Sensitive diplomatic issues may also arise since the United States refused to become a party to the ICC.[134] The ICC imposes no obligations on non-party states. As it currently stands, Iraq need not comply with ICC orders, extradite individuals, or supply evidence.[135] Tensions between the United States and the United Nations over the war with Iraq could lead to a jurisdictional fight to prosecute. This would be particularly unfortunate in light of the necessity for unified international action.

¶43Even though the ICC does not provide a viable forum for prosecution, its principles and law will likely influence those applied to Hussein’s trial regardless of where it takes place.[136] The ICC’s Statute of Rome is the most recent and widely accepted codification of international criminal law. These statutes assume individual responsibility for crimes against the entire international community.[137] In creating the Statute, its multi-national drafters relied on principles established in the ITCY, ITCR, Genocide Convention, Nuremberg Charter, and customary international law. As a result, any prosecution of Hussein should refer to this codification to conduct a trial that the majority of countries would view as fair and just. 

D. Ad Hoc Tribunal

          ¶44The ad hoc tribunal provides the fourth and best option for Hussein’s prosecution. Under its Chapter VII powers, the United Nations Security Council may establish an ad hoc international criminal tribunal after it determines a threat to international peace and security.[138] The Security Council instituted ad hoc tribunals for Yugoslavia (ICTY)[139] and for Rwanda (ICTR).[140] The Council fashioned these tribunals after the International Military Tribunal, which was created by a treaty rather than by the United Nations. These tribunals survived challenges to the Security Council’s power to create them under Articles 39 and 40 of the United Nations Charter.[141] The tribunals may exert subject-matter jurisdiction over both crimes against humanity, genocide, and war crimes. To ensure consistency, the same appellate body hears appeals from both the ICTY and the ICTR.

          ¶45Tribunals simply apply existing law. The ICTY Statute requires that it apply only that “part of conventional international humanitarian law which has beyond all doubt become part of customary international law . . . .”[142] If the Security Council creates a tribunal for Iraq, the law would not apply ex post facto since it already existed as customary law and would resemble the ICTY and ICTR statutes. A tribunal would also avoid the problem of retroactivity in the ICC. Accordingly, to avoid challenges to the legitimacy of the prosecution, the Council should establish an International Criminal Tribunal for Iraq (ICTI) that parallels those of the ICTY and the ICTR. The same appellate body hearing appeals from the ICTY and ICTR could handle appeals for the ICTI. Although the United States has demonstrated hostility toward ad hoc tribunals in the past,[143] diplomatic and legal impediments to prosecution of Hussein in other courts may encourage United States’ agreement. The ICTI would allow the victims of the regime to attend and testify in Hussein’s trial since it would occur in Iraq as well as provide the legal expertise for a trial of this magnitude. In fact, the Iraqi National Congress proposed and drafted a statute for this type of United Nations ad hoc tribunal to try Saddam Hussein and the Iraqi Ba’athist leadership.[144] Since many of Iraq’s new leaders may come from this National Congress, the new leadership may also request an ad hoc tribunal.

          ¶46Even though both the ICTY and the ICTR survived challenges to the Security Council’s power to create them, Hussein could still attempt a jurisdictional argument to prevent prosecution. Because the judges employed by the tribunals also rule on the validity of the tribunal’s establishment, Hussein could claim that the proceeding was not fair and impartial. Allowing judges to make appellate decisions concerning their own employment may be a conflict of interest.[145] Hussein’s difficulty in asserting this defense would be the lack of any other court to hear his challenge. Alternatively, conducting the ad hoc tribunal in Iraq would provide for the close proximity of witnesses,[146] promote reconciliation by allowing victims to attend the trials, and would ensure a more impartial trial than would a trial by either the Iraqi citizens or the new regime. Therefore, the ad hoc tribunal presents the best forum for jurisdiction.

III. Iraq’s International Obligations

          ¶47Should the ICTI survive Hussein’s jurisdictional challenge, it could enforce Iraq’s treaty commitments as well as its commitments under current customary international law. Hussein’s commission of genocide and crimes against humanity violated numerous human rights treaties signed by Iraq. As of December 9, 2002, Iraq accepted the terms of the following treaties: the International Covenant on Economic, Social and Cultural Rights (CESCR), which Iraq signed on January 25, 1971;[147] the International Covenant on Civil and Political Rights (ICCPR), which Iraq also signed on January 25, 1971;[148] the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), signed on January 14, 1970;[149] the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), signed on August 13, 1986;[150] and the Convention on the Rights of the Child, signed on June 15, 1994.[151] As a member of the United Nations, Iraq has an additional “obligation to promote and protect human rights and fundamental freedoms” and to abide by the “obligations [it has] undertaken” by signing human rights treaties.[152] Like other states, Iraq must comply with customary law regardless of treaty ratification status.[153]

          ¶48The Restatement of Foreign Relations Law helps clarify obligations under customary international law. Iraq would violate customary international law if, as a matter of state policy, it practiced, encouraged or condoned:

(a) genocide,

(b) slavery or slave trade,

(c) the murder or causing the disappearance of individuals,

(d) torture or other cruel, inhuman, or degrading treatment or punishment,

(e) prolonged arbitrary detention,

(f) systematic racial discrimination, or

(g) a consistent pattern of gross violations of internationally recognized human rights.[154]

Sections (a)-(f) are considered jus cogens, or peremptory norms to which all countries must adhere.[155] According to the Vienna Convention on Treaty interpretation, an international agreement or reservation that attempted to derogate from those norms would be void.[156]

IV. Genocide Against the Kurds

A. Evolution of Genocide from Customary International Law

¶49As a peremptory norm of international law, any act of genocide would be illegal regardless of Iraq’s international obligations. Raphael Lemkin, a Polish law professor, first coined the term “genocide” in 1944, and intended it to signify “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves.”[157] After World War II, the Allies formed the London Agreement, which included the Nuremberg Charter.[158] The Allies used this agreement to prosecute the Nazis for crimes against humanity, war crimes, and crimes against peace. Since the Nuremberg indictments did not specifically include genocide, prosecutors charged defendants with “deliberate and systematic genocide” under the larger heading of crimes against humanity.[159] The tribunal did not convict any defendants directly or solely on this charge.[160] The Nuremberg Tribunals applied charges of crimes against humanity retroactively since the drafters considered those crimes part of customary international law.[161]

¶50Allied Control Council Law No. 10 (Control Council Law) built on Nuremberg’s first mention of genocide.[162] Becoming effective in 1945, it provided a broader definition of crimes against humanity that allowed for prosecutions of genocide under its opening phrase, “including, but not limited to.” Two American courts, prosecuting crimes against humanity under their authority as an Allied occupation zone, applied this Control Council Law and convicted several defendants of genocide.[163] These trials of Josef Alstötter, Ulrich Greifelt, and others led to convictions based on participation “in the crime of genocide” and involvement in a systematic program of genocide[164] aimed at “the destruction of foreign nations and ethnic groups.”[165] These American trials, along with genocide trials in Poland,[166] propelled and prompted the international community to adopt a multilateral treaty on genocide that entered into effect in 1951.[167]

¶51This multilateral treaty, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), to which Iraq acceded on January 20, 1959, defined genocide in Article II as:

Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;[168]

(c) Deliberately inflicting on the group conditions of life calculated to bring about its 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.[169]         

To convict Hussein of genocide he must have “committed” one or more of the above forbidden acts against members of a protected group with the intent to destroy, in whole or in part, that group.[170] Hussein did not have to perform the acts himself. Instead, under Article III of the Genocide Convention, acts punishable under the treaty include “genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; [and] complicity in genocide.”[171] Thus, if Hussein specifically ordered or even turned a blind eye to any of these acts, his failure to act would constitute genocide under the Genocide Convention. The International Court of Justice, the ITCY and ITCR statutes, as well as the International Criminal Court statute all follow the Convention’s definition and its general elements. 

          ¶52Even if Iraq had not acceded to the Convention, as a party to the United Nations, it must uphold certain basic human rights found in the preamble to the United Nations Charter. The preamble states that members of the United Nations aim to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person.”[172] Genocide derogates from this general principle by disregarding the value of human life.

B. Genocide against The Kurds: The Anfal Campaigns

           ¶53Rather than reaffirming human rights, a number of documents and testimonials show that Hussein, through his own acts and the acts of others, attempted to annihilate the Kurdish segment of the Iraqi population. Because Hussein served as the RCC’s member in charge of “Kurdish affairs,” President of the Republic of Iraq, and Secretary General of the Ba’th Party, he is liable under the principle of command responsibility for ordering official acts. He specifically ordered, directed, and appointed his cousin, Ali Hassan al-Majid, “Chemical Ali,” to implement a comprehensive campaign against the Kurds which resulted in: (1) concentration camps, (2) mass summary executions, (3) widespread use of chemical weapons against the city of Halabja and dozens of Kurdish villages, and (4) complete destruction of Kurdish villages, which government documents described as “burned, destroyed, demolished, and purified.”[173] In the words of Al-Majid, the Iraqi government took these steps “to solve the Kurdish problem and slaughter the saboteurs.”[174] “Saboteurs” refers to the Kurdish guerrillas and civilian sympathizers. When first ordered by Hussein to quiet the “Kurdish rebellion,” Al-Majid said “What am I supposed to do with them, these goats? . . . Take good care of them? No, I will bury them with bulldozers.”[175] This symbolized the beginning of the Anfal Campaigns.[176] Although initially believed dead, coalition forces captured Al-Majid, or “Chemical Ali,” on August 21, 2003.[177] Consequently, he may also face prosecution in an ad hoc tribunal.

          ¶54Although President Hussein vested many of the powers for handling “Kurdish affairs” to his cousin, he involved himself personally in the operational aspects of Anfal through his position as president of the republic.[178] After “redrawing the map of Iraqi Kurdistan,” which demonstrated his premeditation to commit genocide, approximately 5,000 to 8,000 Barzani[179] males “disappeared.”[180] As President, Saddam Hussein stated, “[t]hey betrayed the country and they betrayed the covenant . . . we meted out stern punishment to them and they went to hell.”[181] Although these acts occurred over the past twenty years, genocide is not subject to a statute of limitations.[182] Any act of genocide violates Iraq’s obligations under the ICCPR to respect and promote the right to life.[183]

          ¶55To convict Hussein of genocide, the prosecutor must prove, beyond a reasonable doubt, that Hussein killed the Kurds, caused them serious bodily or mental harm, deliberately inflicted conditions of life calculated to bring about the their physical destruction, imposed measures intended to prevent Kurdish births, or forcibly transferred Kurdish children to another group.[184] The Kurds must also qualify as a national, ethnical, racial, or religious group, and the prosecutor must prove that Hussein intended to destroy them in whole or in part.[185]

1. Concentration Camps

          ¶56Hussein’s design of the Kurdish concentration camps inflicted conditions so severe that they would meet the Genocide Convention’s requirement that the perpetrator establish an environment “calculated to bring about [the group’s] physical destruction in whole or in part.”[186] In Prosecutor v. Akayesu, ICTR interpreted Article II(c) of the Genocide Convention as requiring the subjection of “a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services.”[187] Conditions in Kurdish camps met these requirements, as well as the Convention’s requirements for “causing serious bodily or mental harm to members of the group,” under Article II (b). In the Eichmann case, the District Court of Jerusalem stated that bodily or mental harm can be caused by “enslavement, starvation, deportation and persecution . . . and by their detention in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation, deprivation of their rights as human beings, and to suppress them and cause them inhumane suffering and torture.”[188]

¶57It will be difficult to prosecute Hussein for this phase of the genocide without conclusive documentation of his knowledge of the camps.[189] The tribunal may infer Hussein’s intent, on a case-by-case basis from the material evidence so long as this evidence establishes a consistent pattern of conduct.[190] Although the ad hoc tribunal may impute the requisite knowledge from Hussein’s numerous official positions, he could argue that he lacked all knowledge because he designated both power and authority over the camps to Chemical Ali.

2. Summary Executions

          ¶58The Ba’ath Party itself established the principle of “collective implication” in the executions.[191] The Party insisted that its members form part of the firing squads.[192] For example, when Saddam Hussein assumed his presidency, he forced two dozen senior Ba’ath officials to confess to charges of treason.[193] He then ordered the other senior officials to execute them on television to demonstrate their new loyalty to Hussein.[194] On June 20, 1987, another document issued by the Northern Bureau Command with the seal of the RCC (which Hussein chairs) endorsed a policy of mass murder and incitement to pillage. It directed:

4. The corps commanders shall carry out random bombardments using artillery, helicopters and aircraft, at all times of the day or night in order to kill the largest number of persons present in those prohibited zones, keeping us informed of the results.

 

5. All persons captured in those villages shall be detained and interrogated by the security services and those between the ages of 15 and 70 shall be executed after any useful information has been obtained from them, of which we should be duly notified.[195]

Al-Majid signed the document and forwarded it to numerous branches including the Chairmen of the Legislative and Executive Councils and Party Intelligence.[196] Under the Genocide Convention, summary and targeted executions constitute intentionally “killing members of the group” because they meet the ICTR requirement of “homicide with the intent to cause death.”[197] The prosecution could prove the requisite mens rea and premeditation by using documents exchanged between Al-Majid and Hussein, as well as government videotapes of massive executions.[198]

3. Widespread Use of Chemical Weapons

          ¶59The Iraqi regime kept meticulous records and routinely videotaped chemical weapons attacks on civilians as well as executions and village clearances.[199] Having cameras ready to videotape the attacks demonstrates premeditation.[200] Saddam Hussein murdered about 100,000 Kurds with chemical weapons.[201] Under Article II (b) of the Genocide Convention, acts of chemical destruction resulting in death constitute genocide in that they meet the definitions of “killing members of the group” and “causing serious bodily and mental harm to members of the group.”[202]

         ¶60As the ICTR noted in Prosecutor v. Kayishema and Ruzindana, the tribunal should interpret the meaning of “serious bodily harm” and “serious mental harm” on a “case-by-case basis, using a common sense approach.”[203] According to the ICTR, “causing serious bodily harm” “could be construed to mean harm that seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses.”[204] Acts of “serious mental harm” likewise includes “acts of bodily or mental torture, inhumane or degrading treatment, rape, sexual violence, and persecution.”[205] The chemicals may have caused a lasting effect on the Kurds; however, the effects need not prove indelible or permanent for successful prosecution.[206]

4. Complete Destruction of Kurdish Villages

          ¶61Destruction of Kurdish homes, crops, and livestock by the Iraqi government exhibited Hussein’s desire to inflict conditions that would bring about the Kurds’ physical destruction. The United Nations Special Rapporteur made numerous inquiries to Hussein asking for explanations of orders directing the execution of wounded civilians and the razing of certain neighborhoods.[207] He sent no response. A government document titled “Registry of Eliminated Villages” contained the names and locations of a large number of eliminated villages.[208] The ICTR Chamber reasoned that systematically expelling people from their homes would satisfy the requisite actus reus of Article II(c) of the Genocide Convention.[209] 

C. The Kurds as an Ethnic Group and Hussein’s Intent to Destroy

          ¶62For Hussein’s actions to qualify as genocide against the Kurds, the Kurds must qualify as a national, ethnic, racial, or religious group.[210] In addition, Saddam Hussein must have intended to destroy them in whole or in part.[211] The Kurds form a distinct ethnic group; they developed their own culture with a unique Kurdish style of dress and they speak their own language.[212] They lived in the northern mountainous region of Iraq for thousands of years—the region was even designated “Kurdistan” in the 12th century.[213] The ICTR, in Prosecutor v. Akayesu,[214] stated that the term “ethnic group” is “used to refer to a group whose members speak the same language and/or have the same culture.”[215] The Kurds have both their own language and their own distinct culture, thus they qualify as an ethnic group for the purposes of the Genocide Convention.

          ¶63When Saddam Hussein appointed his cousin, Ali Hassan al-Majid, to extinguish the Kurds, Hussein exhibited the requisite intent to annihilate this ethnic group. One observer stated of Al-Majid, “‘[h]e was stupid and only carrying out Saddam Hussein’s orders.’”[216] Documented exchanges between Al-Majid and Saddam Hussein make it clear that Hussein knew and approved of Al-Majid’s work.[217] Besides a jurisdictional challenge, claiming that Hussein did not act with the requisite intent may be his best defense to genocide. Accordingly, he could allege that he simply moved or deported the Kurds without intending to destroy them. Hussein’s act of designating the power to Al-Majid works in Hussein’s favor. He may claim that because he delegated all the power and authority for dealing with the Kurds to Al-Majid, Al-Majid acted without Hussein’s approval or knowledge. Although the court could still infer knowledge through command responsibility, the prosecution may find it more difficult to establish intent through this theory.

¶64Because Iraq acceded to the Genocide Convention on January 20, 1959, the crime of genocide existed in the form of a treaty and as customary international law during the 1980s when the majority of the above acts occurred. Accordingly, no significant legal barriers, such as an ex post facto application of the law, exist for prosecuting Saddam Hussein for genocide. Plentiful evidence exists to convict him for conspiracy to commit genocide,[218] direct and public incitement to commit genocide,[219] or complicity in genocide.[220]

¶65Despite the mounting evidence against him, Hussein’s defense attorneys may rely on a number of mitigating factors. Hussein did attempt to unite the Kurds and the Iraqi people to create a state with a unique national identity. To create this state, Hussein spent significant financial resources to recover artifacts and piece together Iraq’s cultural history.[221] He was the first Iraqi leader to visit the Kurdish region.[222] In fact, not until the United States, Iran, and Israel contributed resources to promote the Kurdish insurgency in the 1970s did Hussein begin the Anfal campaigns. Not only did the United States help ignite the conflict, it removed sanctions from Iraq in 1982 and shared military intelligence with Iraq during the Iran-Iraq war.[223] This union culminated in 1984 when, despite Iraq’s use of chemical weapons on Iranians, the Regan administration sent Donald Rumsfeld to Iraq to strengthen ties with Saddam Hussein and to offer additional intelligence and money. When the United States eventually incited Kurdish rebellion but failed to support it in 1991, Saddam Hussein squelched the rebellion with a widespread massacre of the Shi’ites. Consequently, Hussein’s attorneys may try to bring the United States in as a co-conspirator and deflect attention away from Hussein’s acts and toward discovering exactly what the United States knew.

V. Crimes against Humanity Committed in Iraq

          ¶66Saddam Hussein did not end his struggle to maintain power with Anfal campaigns or the Kurdish people. As head of the RCC, Hussein personally signed decrees condoning torture, deportation, unfair trials, amputations, and branding against his own people. Because many of these actions qualify as crimes against humanity, the ICTI prosecutor may indicate and prosecute Hussein for these acts.

A. Evolution of Crimes against Humanity

¶67Like genocide, as the name “crimes against humanity” suggests, these crimes offend the whole of humanity and, consequently, the ICTR and ICTY considers them international crimes. A Baptist minister first coined the phrase “crimes against humanity,” in an 1890 letter to the United States Secretary of State.[224] However, the 1945 Nuremberg trials first defined and prosecuted defendants for crimes against humanity.[225] The Nuremberg Charter substantively removed state immunity for crimes against humanity, and described these crimes as:

Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal whether or not in violation of the domestic law of the country where perpetrated.[226]

Hussein did not have to personally commit these acts since “[l]eaders, organizers, instigators, and accomplices, participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”[227] Approval by the United Nation’s General Assembly to use this definition to prosecute heads of state chipped away at traditional immunity and helped solidify the introduction of crimes against humanity into international law.[228]

          ¶68Unlike genocide, definitions for crimes against humanity vary. The Tokyo Charter in Article 5(c) resembled the Nuremberg Charter, but did not include persecutions on religious grounds.[229] Allied Control Council Law No. 10, Article 2, broadened the concept of crimes against humanity in its definition by including the words “not limited to” and by specifically adding “imprisonment, torture, [and] rape.”[230] Furthermore, the ICTR and ICTY defined crimes against humanity differently from both former definitions and from one another. A prosecutor in the ICTY may prosecute “murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds, and other inhumane acts” only when committed in armed conflict and directed against a civilian population.[231] The ICTR, on the other hand, allows the prosecutor to prosecute when the accused “committed [acts] as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.”[232] Though the ICTY does not specify the need for a “widespread or systematic attack,” it interpreted the phrase “civilian population” to include this requirement.[233]

¶69In the International Criminal Court, relevant portions of Article 7 similarly define crimes against humanity to include murder, “[d]eportation or forcible transfer of [a] population,” “[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious . . . or other grounds,” “[i]mprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law,” and torture. For any of these acts to qualify as crimes against humanity the perpetrator must commit them as “part of a widespread or systematic attack directed against a civilian population” and have knowledge of the attack’s systematic nature. Crimes against humanity may occur during peacetime or war.[234] Like the ICTR, the Rome Statute employs the qualification “widespread or systematic attack” which broadens its jurisdiction and makes these requirements alternatives. This mirrors the most recent approach taken by the ICTY in Prosecutor v. Tadić.[235] The ICTR, while it does not use an either/or approach, defined the term “widespread” as “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.”[236] The court interpreted “systematic” as “thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources.”[237]

B. Basic Elements Pertinent To All Crimes against Humanity

¶70Regardless of the precise language used in any one statute, the prosecution must establish the same five elements under Article 5 of the ICTY, Article 3 of the ICTR, and Article 7 of the ICC to prove Hussein’s guilt. These elements include: (1) the occurrence of an “attack”; (2) a link or “nexus” between Saddam Hussein’s action or inaction and the attack; (3) the attack’s “widespread or systematic” nature; (4) the attack’s target as a civilian population; and finally, (5) that Hussein’s knowledge of the attacks fulfills the requisite mens rea.[238]

¶71Hussein conducted several “attacks” by deporting the Kurds, depriving Iraqi citizens of fundamental liberties, and by torturing Iraqi citizens.[239] These instances qualify as attacks because the term concerns the mistreatment of civilians including the state’s own population.[240] The ICTY, in Prosecutor v. Nikolic, listed several factors relevant for determining whether an attack occurred against a civilian population.[241] In its list, the court examined “whether summary arrests, detention, torture and other crimes have been committed,” and “whether massive transfers of civilians to camps have taken place.”[242] Similarly, the ICTR, in Prosecutor v. Akayesu, stated, “the act must be inhumane in nature and character, causing great suffering or serious injury to body or to mental or to physical health.”[243] These factors remain particularly relevant in the Iraqi situation where the government transferred Kurds to camps, summarily arrested them,[244] detained them,[245] and tortured Iraqi civilians.[246] Each of these actions constitutes an attack; thus, the first element is satisfied.

¶72The second element, the nexus between the acts of Hussein and the attacks, is detailed in each specific act’s section below. However, within each section two things must be established: (1) the “commission” of the act (deportation, deprivation, torture) that furthered the attack against the Iraqi people (including the Kurds), and (2) Saddam Hussein’s knowledge that these orders/acts constituted part of the greater “attack.”[247] A single act, such as issuing a decree, suffices so long as it is part of the larger attack.[248]

¶73The Iraqi population satisfies the third requirement that Hussein carry out the attack on “a civilian population.” As Iraqis living under Hussein’s regime, they possess the requisite characteristic of a geographically self-contained group of people.[249] In some ways, the breadth of the Iraqi population as a target also satisfies the fourth element of a “widespread or systematic attack.” To qualify as a widespread or systematic attack, the action “need not be committed at the same time and place as the attack or share all of the features of the attack,” however, “it must, by its characteristics, aims, nature, or consequence objectively form part of the discriminatory attack.”[250] Hussein’s actions fulfill both requirements since the Iraqi population comprises a large number of victims and Hussein,[251] in his power as president, orchestrated a systematic governmental attack against them.[252]

¶74Finally, the prosecutor must establish, beyond a reasonable doubt, that Saddam Hussein possessed mens rea that demonstrated he knew about the attack.[253] As interpreted by the ICTR, Hussein must have “actual or constructive knowledge of the broader context of the attack, meaning that [Hussein] must known that his act(s) is part of a widespread or systematic attack on a civilian population and pursuant to some kind of policy or plan.”[254] To establish intent for certain acts, the ICC requires the perpetrator to either “mean to cause that consequence,” or be “aware that it will occur in the ordinary course of events.”[255] “Knowledge” is similar, but for purposes of the Rome Statute, it means “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.”[256] Mental elements requiring that Hussein knew about the widespread or systematic attack, do not require proof that he knew everything about the attack, or even that he knew the precise details of plans.[257] The prosecutor may satisfy these elements by a simple indication that the Hussein intended to “further such an attack.”[258]

¶75The prosecutor may have the most difficulty proving the mens rea element. For the most part, crimes against humanity are not strict liability crimes. Article 28 of the ICC provides guidance by discussing a form of constructive knowledge for trying “superiors” such as Saddam Hussein. Hussein could be held criminally responsible for crimes against humanity committed by his subordinates. These subordinates would include the Iraqi military or any type of Iraqi security force. Hence, Hussein may be liable for failing to “exercise control properly over such subordinates” in three situations: (1) where Hussein either knew, or “consciously disregarded” information, such as United Nations or Human Rights reports indicating that his subordinates were either committing or about to commit such crimes; (2) where the crimes “concerned activities that were within [his] effective responsibility and control”; or (3) where Hussein failed to take all “necessary and reasonable measures” within his power to stop the acts from being committed, or alternatively, failed to “submit the matter to the competent authorities for investigation and prosecution.”[259] The ICC’s position, requiring that a superior knew or should have known, differs from an earlier position taken by the United States Supreme Court which applied a standard just short of strict liability to a Japanese Commanding General.[260]

C. Saddam Hussein’s Crimes against Humanity      

1. Deportation or Forcible Transfer of the Kurdish Population

          ¶76The prosecutor may address the majority of Saddam Hussein’s actions against the Kurds under the Genocide Convention. However, the Convention does not address deportation, which constitutes a distinct crime against humanity. The United Nations General Assembly expressed concern over the “forced displacement of hundreds of thousands of Iraqi civilians,” “the destruction of Iraqi towns and villages,” and “the fact that tens of thousands of displaced Kurds have had to take refuge in camps and shelters in the north of Iraq.”[261]

¶77Customary international law recognizes deportation as a crime against humanity, as does Article 6(c) of the Nuremberg Charter, Article 5(d) of the ICTY, Article 3(d) of the ICTR, and in Allied Control Council Law No. 10. In addition, the ICCPR states, “no one shall be arbitrarily deprived of the right to enter his own country.”[262] To convict Hussein of deporting the Kurdish population, he must have used expulsion or other types of coercion to forcibly transfer or deport one or more persons into another State or place.[263] “Population,” as interpreted by the ICTY in the Tadic case, “impl[ies] crimes of a collective nature and thus exclude single or isolated acts which . . . do not rise to the level of crimes against humanity.”[264] The Iraqi regime’s displacement of hundreds of thousands of Iraqi civilians qualifies as more than a single or isolated act. “Forcibly” does not denote only physical force, but may also encompass threats or types of coercion caused by creating a coercive environment or by using “fear of violence, duress, detention, psychological oppression or abuse of power.”[265] Hussein appears to have forcibly deported the Kurds. He issued an order concerning Kurdish villages that stated, “within their jurisdiction, the armed forces must kill any human being or animal present within these areas. They are totally prohibited.”[266]

          ¶78In addition to a forcible deportation, the displaced persons must have been “lawfully present” in the area prior to being moved.[267] “Lawful” probably refers first to national law, but where a national law severely contradicts an international law, as in the Iraqi situation, then “lawful” should refer to an international principle.[268] Otherwise, dictators such as Hussein could circumvent this element by enforcing self-interested laws like Iraqi directive 28/3650 that prohibited human life in over 1,000 Kurdish villages.[269] Prior to this directive, the Kurds lawfully inhabited these areas for more than a thousand years.[270] Strictly interpreting “lawful” as national law where it would allow dictators to legislate their way out of criminal conduct contradicts principles in the Nuremburg Charter.[271]

          ¶79As commander-in-chief of Iraq’s armed forces and as Chairman of the RCC, Hussein condoned the deportation of over 400,000 Iraqi citizens (including Kurds) holding valid Iraqi passports.[272] Hussein’s personal responsibility for the purges began with his accession to power in which he deported or executed several Shi’ite clerics.[273] Evidence exists to support Hussein’s knowledge, both actual and constructive, of the forced deportation of non-Arabs in Hussein’s Arabization campaign. United Nations Special Rapporteur Max van der Stoel submitted numerous reports to the United Nations that detailed instances of forced relocations and wrote various letters to Hussein and the Iraqi government requesting evidence of cessation.[274] If nothing else, these letters put Hussein on notice of violations by subordinates. Hence, his defense would have difficulty establishing his ignorance. The discovery phase of any prosecution may uncover additional documents actually signed by Hussein.

2. Arbitrary and Severe Deprivation of Physical Liberty

          ¶80The list of crimes against humanity does not end with Kurdish deportation. Hussein also imprisoned Iraqi citizens and deprived them of their physical liberty through arbitrary arrests, detentions, unfair trials, long prison sentences, branding, amputation, and excessive use of the death penalty. The ICTR, the ICTY, and the Allied Control Council Law No. 10 prohibit excessive and unjust imprisonment in their instruments. Previous statutes include the term “other severe deprivation of physical liberty.” This phrase has emerged as a “catch all” provision for borderline types of confinement that may not fit within other definitions but nonetheless rises to the level of a crime against humanity. Article 9 of the ICCPR requires government to ensure certain due process rights including prohibition against arbitrary arrests or detentions, prompt information concerning charges, timely trials, and court proceedings within a reasonable time.[275] Similarly, Article 14 of the ICCPR entitles everyone to a “fair and public hearing by a competent, independent and impartial tribunal established by law.”[276]

¶81The Rome Statute of the International Criminal Court and the ICTY require the prosecutor to establish three general elements before convicting Hussein for unlawfully imprisoning or severe depriving Iraqis of physical liberty.[277] First, the prosecutor must prove, beyond a reasonable doubt, that Hussein imprisoned or otherwise deprived one or more persons of their physical liberty.[278] Second, the prosecutor must establish that Hussein’s conduct was severe enough to breach the fundamental rules of international law by arbitrarily depriving the Kurds of their liberty.[279] “Fundamental” refers to the nature of the violation, not whether the accused complied with every procedure available in international law.[280] “Arbitrarily” means that no legal basis can be invoked to justify the deprivation of liberty and that the individual did not benefit from the due process of law.[281] Third, the prosecutor must prove that Hussein knew about the imprisonments and deprivations and was aware of their severity.[282] The ICTY interpreted this third element to mean “the accused, or a person or persons for whom the accused bears criminal responsibility [performed the act] with the intent to deprive the individual arbitrarily of his or her physical liberty or in the reasonable knowledge that is act or omission is likely to cause arbitrary deprivation of physical liberty.”[283]

¶82Despite signing the ICCPR,[284] in which Iraq purports to guarantee its citizens “a fair and public hearing by a competent, independent and impartial tribunal established by law,”[285] Hussein deprived a number of Iraqi citizens of their due process rights in several ways. Little or no due process exists in Iraqi courts.[286] The government conducts trials in camera, before “special courts,”[287] allows military officers and even civil servants (all of whom lack judicial training and the necessary autonomy for impartial judgments) to preside over trials,[288] and often limits legal aid to the actual trial date.[289]

¶83The prosecutor should be able to establish Hussein’s knowledge of the deprivations of due process and resulting imprisonments. The families of victims and officials from the United Nations sent letters directly to Saddam Hussein and the Iraqi Government.[290] These letters, combined with visits by the United Nations Special Rapporteur of the Commission on Human Rights provide evidence of Hussein’s knowledge. The Rapporteur may have based his visit to Iraq, in part, on allegations of the lack of fair trials and the suppression of freedom of expression and association.[291] His report stated that the Government of Iraq continued to disregard its obligations under Articles 9 and 14 of the ICCPR.[292] These articles prohibit arbitrary arrest and detention as well as entitle citizens to a fair and pubic hearing by a competent, independent and impartial tribunal.[293] The report expressed concern about long detentions without charges, the lack of access to lawyers, non-public trials, death sentences in absentia, and the lack of an appellate body to review decisions.[294]

3. “Other Inhumane Acts”: Excessive Punishments & Excessive Use of the Death Penalty

¶84The ICTR and ICTY prohibit acts that are inhumane in nature and character that are not specifically included in their particular instruments, but are “of comparable seriousness” and “comparable gravity” to the enumerated acts.[295] As the ICTR noted in Prosecutor v. Kayishema and Ruzindana, “[t]hese will be acts or omissions that deliberately cause serious mental or physical suffering or injury or constitute a serious attack on human dignity.[296] The Prosecution must prove a nexus between the inhumane act and the great suffering or serious injury to mental or physical health of the victim.”[297] The ICTI should determine whether an act constitutes an inhumane act “on a case-by-case basis.”[298] In the ICTR, the inhumane act or omission must “(a) [b]e directed against member(s) of the civilian population; (b) [t]he perpetrator must have discriminated against the victim(s), on one or more of the enumerated discriminatory grounds; (c) [t]he perpetrator’s act or omission must form a part of a widespread or systematic attack and the perpetrator must have knowledge of this attack.”[299] In Prosecutor v. Kayishema and Ruzindana, the ICTR acknowledged, “a third party could suffer serious mental harm by witnessing acts committed against other, particularly against family or friends.”[300] The ICTR held that the defendant act of decapitation, castration, and piercing a skull with a spike constituted “other inhumane acts” in Prosecutor v. Niyitegeka.[301]

¶85The ICTY’s interpretation of “other inhumane acts” varies slightly from that of the ICTR. The tribunal in Prosecutor v. Vasilijevic required that the prosecutor establish the following elements for “other inhumane acts:”

(i) the occurrence of an act or omission of similar seriousness to the other enumerated acts under the Article; (ii) the act or omission caused serious mental or physical suffering or injury or constituted a serious attack on human dignity; and (iii) the act or omission was performed deliberately by the accused or a person or persons for whose acts and omissions he bears criminal responsibility.[302]

To assess the seriousness of an act, the tribunal should consider the factual circumstances, the context in which the act or omission occurred, the personal circumstances of the victim including his or her age, sex, and health, as well as the physical, mental, and moral effects on the victim.[303] The tribunal may also consider the long-term effects of the act or omission on the victim.[304]

¶86Hussein signed a number of decrees mandating branding and amputations as punishments for Iraqi citizens.[305] The tribunal may need to consider each branding or amputation on a case-by-case basis, but may also take Iraq’s other international obligations into consideration when determining whether these acts constitute an inhumane act. Article 7 of the ICCPR, a “fundamental” rule of law to which Iraq is a party, states, “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[306] Although the general comments to the ICCPR do not explicitly list the treatments considered degrading, the comments forbid acts that cause either mental or physical suffering. Branding and amputations would most likely qualify as “excessive chastisement ordered as a punishment for a crime or as an educative or disciplinary measure.”[307] The ICCPR permits no derogation from Article 7. Hussein, as the primary sponsor and promulgator this punishment seems to have violated this treaty. Because Hussein signed the decrees, the prosecutor should have little difficulty establishing Hussein’s knowledge of the decrees and their potential effects on Iraqi citizens. Consequently, the ICTI may convict him of “other inhumane acts.”

          ¶87Saddam Hussein also signed an order instituting the death penalty for all deserters and draft evaders and gave it retroactive application.[308] This retroactive application even contravenes the Iraqi Penal Code, which states in Article 1, “[n]o act or omission shall be penalized except in accordance with a legislative provision under which the said act or omission is regarded as a criminal offense at the time of its occurrence.”[309] Article 6(2) of the ICCPR also forbids excessive use of the death penalty, and states “[i]n countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant.”[310]

¶88These decrees promoting widespread use of the death penalty not only conflict with fundamental rules of international law, but also violate Hussein’s agreement under the ICCPR. The deprivation of life for minor offenses such as theft, drug trafficking, and affiliation with political opposition, breach Article 6 of the ICCPR. Hussein’s signatures on the documents show that he not only consented to the decrees, but also ordered them himself. The Special Rapporteur’s reports and requests for additional information alerted Hussein to the severity of the situation, yet Hussein refused to provide additional information and actually issued more decrees. Although Hussein’s actions breached Iraq’s treaties, for the ICTI to hold Hussein personally liable, these breaches must constitute “other inhumane acts.” Like the analysis for branding and amputations, the ICTI would need to examine the circumstances for each instance in which Hussein’s officials actually carried out the death penalty for minor violations on a case-by-case basis. The families of the victims will most likely be able to fill in these details, and additional evidence may emerge during the trial.

4. Torture

          ¶89The ICTY,[311] ICTR,[312] and Allied Control Council Law No. 10 all expressly list torture as a crime against humanity.[313] Interestingly, neither the Nuremberg nor the Tokyo Charters specified torture as a crime against humanity, however, it would still have qualified as an “inhumane act.” Article 7(2)(e) of the Rome Statute defines “torture” as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.”[314] Furthermore, under the ICC, torture need not be carried out for a particular purpose to constitute a crime against humanity.[315] The absence of a need for a particular purpose differs from requirements in the Torture Convention.[316] Since Iraq is not a party to the Torture Convention, those principles would not strictly apply. However, Iraq is a party to the ICCPR which states in Article 7, “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[317] The general comments to the ICCPR allow no derogations or justifications from this article, which seems to make government parties strictly liable.[318]

         ¶90To convict Saddam Hussein of torture in a tribunal with a statute similar to the Rome Statute, ICTY, or ICTR the prosecutor must meet several elements. First, Hussein or his guards must have inflicted severe mental or physical suffering on a person or persons in Hussein’s control or custody.[319] Second, Hussein or his officials must have intended to inflict, by act or omission the mental or physical pain.[320] Finally, Hussein or his officials must have aimed their actions or omissions “at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating on any ground, against the victim or a third person.”[321] Torture cannot have occurred only as a result of “lawful sanctions.” No indication exists as to whether “lawful” refers to national or international law. However, in order for this element to make any sense when applied to a state actor such as Saddam Hussein, it must indicate international law.

 ¶91The ICCPR’s 1992 general comments to Article 7 make clear Saddam Hussein’s duty to the Iraqi people. They state in part, “[i]t is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited in article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.”[322] “The text of article 7 allows of no limitation.”[323] No justifications or extenuating circumstances may be used as an excuse for any reason. In this regard, the Committee noted that “it is not sufficient for the implementation of article 7 to prohibit such treatment or to make it a crime.”[324] The prohibition extends to acts that cause both physical and mental suffering.[325] It also extends to prolonged solitary confinement.[326] Amnesties for committing torture do not comport with the duties in the ICCPR, and contradict the duty of the States to investigate all such acts.[327]

¶92By knowingly promoting and tolerating torture in Iraq, Hussein violated his duty under the ICCPR, and the prosecutor could convict him under the ICTY or ICTR statutes. In his official capacity, prisoners are effectively under his control, and, under the ICCPR, no sanctions allowing torture may be “lawful.” Thus, the ICTI may convict Hussein of torturing prisoners in an ad hoc tribunal. Iraq may also face sanctions in a proceeding, possibly in the International Court of Justice, that strictly determines Iraq’s compliance with the ICCPR treaty.

IV. Conclusion

          ¶93For all of the Iraqi citizens to begin a peaceful new government, they should be allowed to participate in justice system that permits them to voice their collective experiences before a knowledgeable judge. An ad hoc tribunal, instituted by the United Nations Security Council’s Chapter VII power, provides the best option for prosecuting Saddam Hussein and for promoting reconciliation. Ensuring that Hussein receives a fair trial will set valuable legal precedent for both the international and the Iraqi community. Justice brought about by the ICTI should play an integral role in rebuilding Iraqi sovereignty and in promoting a solid state of democracy after years of internal turmoil.