måndag, december 20, 2010

The Concept of Genocide and the Anfal Campaign

I am writing the introduction to a book on the Anfal campaign where I am discussing the legal aspects and whether the event should be characterized as genocide. Below is a draft of the text. I would appreciate all comments.The text will be published in Swedish as well as in English.

The Concept of Genocide and the Anfal Campaign

The Anfal Campaign was a series of attacks conducted by the Iraqi Army against the Kurdish people in Northern Iraq. The campaign was the culmination of the efforts of the Iraqi regime to quell the Kurdish aspiration of greater autonomy and independence. The use of chemical weapons resulted in the death of estimated 50 000 to 100 000 civilians. The question is whether the Anfal campaign was merely an counter-insurgency operation or also genocide.

International authorities in the field, such as professor William Schabas, has in his comments to the Anfal campaign and the subsequent trial described the attacks in terms of genocide. However, there are still reasons to investigate why the Anfal campaign should be characterized as a genocide and not only as war crimes or crimes against humanity. Following the U.S.-led invasion of Iraq 2003 seven persons were put on trial before an Iraqi special tribunal. Saddam Hussein was one of the seven accused, but his participation in the trial which was terminated through his execution, a punishment was the result of his conviction in an other trial at the same tribunal. The Tribunal decided in its judgment from 24 June 2007 that the accused were quilty of genocide. Three of the accused were sentenced to death, two were sentenced to life imprisonment and one was acquitted.

The same campaign also resulted in a criminal case before Dutch courts. The court of the Hague sentenced on 23 December 2005 the Dutch businessman Frans van Anraat for having sold raw materials for the production of chemical weapons to Iraq. The Court established that the Anfal campaign constituted genocide. Van Anraat was sentenced for war crimes but the Court did not find it proven that the accused was an accomplice to the genocide. The Court of Appeal of The Hague was more cautious in its judgement on 25 October 2007. The Court of Appeal held that although there were strong indications of genocidal intent amongst the Iraqi leadership, the assessment required a more thorough investigation. Regardless, the Court of Appeal held the fact did not reveal that Van Anraat disposed of the information from which he could have deduced the possible genocidal intent of the principle perpetrators.

The starting point for a discussion on genocide is the definition given by the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) adopted by the United Nations General Assembly 1948, which entered into force 1951 and has been ratified by more than 140 states. The convention’s definition of genocide has been repeated in the statutes of the International Criminal Tribunals for the former Yugoslavia (ICTY), Rwanda (ICTR) and the Rome Statute of the International Criminal Court (ICC).

The International Court of Justice has said that the prohibition of genocide “assuredly” is peremptory norm (jus cogens) of public international law. The definition has been used in verbatim or in parts in domestic criminal codes, where the statute of the Iraqi special tribunal is an example with an explicit reference and reiteration of the definition of the Genocide Convention.

It follows from article II of the Genocide Convention that certain, enumerated acts constitute genocide if committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. Such acts may for example consist of killing members from one of the four abovementioned protected groups. Systematic and widespread killing of people could also be characterized as a crime against humanity. The element that differentiates genocide from crimes against humanity is the requirement of the special intent to destroy, in whole or in part, one of the four protected groups. Intent is a mental element which relates to the perpetrator’s mind and thus there are often significant difficulties to prove that a perpetrator had the intent to destroy, in whole or in part, a protected group. The accused argued before the Iraqi special tribunal that they did not possess such an intent. Instead their goal was to guarantee public security, i.e. to suppress an insurgency. If the Tribunal would have accepted the line of reasoning presented by the defendants, crimes committed during the Anfal campaign could at most be characterized as crimes against humanity, and if committed in the context of an armed conflict, as war crimes. These are serious crimes, but the characterization as genocide carries a particular seriousness and responsibility.

The Iraqi special tribunal established with references to case law from the ICTY and ICTR that the Kurds are an ethnical or national group and thus a protected group covered by the scope of the Genocide Convention. The Tribunal rejected the defendants’ argument that the alleged acts were legitimate as part of counter-insurgency operations. The Tribunal reached this conclusion based upon, inter alia, the fact that the attacks were not only against fighters (Peshmarga) but also targeted civilians with chemical weapons. The judgement was also based on an audio tape where the main defendant Ali Hasan Al-Majid described Kurds as second class citizens which considered to be a proof of the existence of his discriminatory intent against the Kurds as a national or ethnic group. In the recordings he explained that he would attack the Kurds for several days and cause them “high casualties”. The Tribunal also
found other evidence as elements to prove the murder as genocide, including the repetitiveness, harmonization and systemization of the attacks. The attack with chemical weapons was only the culmination of attach against the Kurdish population, other parts of the genocide consisted of exposing the Kurdish community to starvation, dislocation of civil inhabitants and other harsh living conditions.

Considering the cases mentioned above and the evidence presented in these cases the conclusion is that the Anfal campaign should be characterized as genocide. The trial against Al-Majid and his accomplices have as the trials before the ICTY and the ICTR targeted high ranking criminals. It would be desirable that soldiers and other leaders in the medium level of hierarchy who participated in the Anfal campaign are also investigated and brought to trial following the example of domestic courts in Bosnia and Rwanda.

4 kommentarer:

Anonym sa...

Hej Mark, Är ny läsare av din blogg. Jättebra skrivet och (som kurd och juriststudent) instämmer jag självklart i ditt resonemang och din slutsats. Har tyvärr ingen annan kritik. Kommer denna text publiceras på svenska?

Mark Klamberg sa...

Roligt att du uppskattade texten. Den svenska versionen finns här. Ska skicka iväg texterna till tryck imorgon.

Anonym sa...

Bra artikel. Håller med din slutsats, Anfal kampanjen kan klassificeras som folkmord. Dock har jag lite frågor som kanske ligger utöver. Du skriver som avslutning att du gärna ser att soldater och mitten befäl ställs inför rätta för folkmord och inte enbart högre befäl. Min fråga är om och i vilken omfattning det behövs bevisas att även dessa hade avsikt och eventuellt viste om avsikten att utrota delar eller hela populationen för att dömas för folkmord?

Mark Klamberg sa...

Svaret på din fråga är ja. Åklagaren måste visa att även de av lägre rang hade insikt om att deras gärningar var en del av ett folkmord och att de handlade uppsåtligen för att de ska kunna dömas för nämnda brott.

Nu är jag ingen expert på irakisk straffprocessrätt, men i internationella domstolar är det samma beviskrav, oavsett rang, dvs bortom rimligt tvivel.