Defining Justice

By Dave Johns

The question of genocide

Car bomb victims

Two cases of alleged genocide are expected to come before the Iraqi tribunal: one involving the draining of the marshlands that supported the Marsh Arabs and one to address the Ba’ath regime’s Anfal campaign against the Kurds in rural northern Iraq.

What is genocide?

The Genocide Convention, which was created in 1948, defines the crime as an act committed “with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.” It does not say how widespread the acts must be. The act of genocide is an old practice: The Romans slaughtered the Carthaginians in ancient times; the Ottoman Turks targeted the Armenians during World War I; the Nazis killed millions of Jews during the Holocaust. Prosecutors have found genocide difficult to prove because the law requires that the crimes be perpetrated against an “identifiable, protected” group of people and that the perpetrators possessed “specific intent” to destroy those people. Iraq is a party to the Genocide Convention.

What is the evidence that supports a charge of genocide against Saddam in the case of the Marsh Arabs?

In the 1980s and 1990s, Saddam deliberately drained the wetlands essential to the culture and livelihoods of the Marsh Arab people. After the 1991 Shi’iah uprisings, Saddam accelerated this program of oppression to include bombing raids, torture and mass executions. Of 250,000 Marsh Arabs living in the wetlands in 1991, only 20,000 to 40,000 remain. Saddam’s attorneys are likely to argue that the actions were part of a counterinsurgency operation and that Iraq has a right to aggressively fight insurgency. But as Human Rights Watch has noted, “There is nothing mutually exclusive about counterinsurgency and genocide. Indeed, one may be the instrument used to consummate the other.” Linda Malone, an expert on human rights and national security law at William and Mary, wrote in a blog that she believes Saddam’s draining of the marshes was a form of genocide: “The destruction of the marshland appears … to have been an intentional, slow execution of a group by its government.”

What is the evidence of genocide for the Anfal campaign against the Iraqi Kurds?

Saddam’s Anfal campaign involved the killing and “disappearance” of upward of 100,000 Kurdish men, women and children. They were victimized as a regional population. However, Malone points out that not all Kurds were targeted for persecution. Al–Anfal was limited to the rural areas; major population centers were largely unscathed. The question, she says, will be whether prosecutors can define a clear “protected” group of victims. In terms of intent, Saddam’s lawyers may again refer to Saddam’s interest in quelling insurgency. Saddam accused the Barzani Kurds of treason and said he had every right to put down an insurgency. In 1987, leading up to the Anfal campaign in 1988, Iraqi Kurds were helping Iran in the Iran–Iraq war. Michael Kelly, a professor of international criminal law at Creighton, says the prosecution may be able to undermine this defense with quotes from audiotapes captured by the United States. “Why should I let them live there like donkeys who don’t know anything?” says a man, believed by experts to be “Chemical Ali,” on one of the tapes. “Tell him I will strike. I will strike with chemicals and kill them all. What is the international community going to say? The hell with them and the hell with any other country in the world that objects.”

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