Saddam’s trial: playing the genocide card

The coalition is trying to win back some moral authority in Iraq by uttering the G-word.

David Chandler

Topics Politics

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Six months ago the trial in Iraq of Saddam Hussein began. Charges were brought against Saddam and other regime officials for the torture, forced expulsion and murder of over 140 Shia Muslim residents of the town of Dujail, in response to a failed assassination attempt that took place there in 1982. The Iraqi court looks like being close to concluding the Dujail trial – and the tribunal has the authority to order Saddam’s execution if he is found responsible for these alleged crimes against humanity.

However, on 4 April the tribunal announced that it intends to indict Saddam for genocide. Saddam and six other former Ba’athist leaders are accused of going beyond legitimate military counterinsurgency in their 1988 Anfal campaign against independence-minded Kurdish militias. That campaign was designed to clear Kurds from the sensitive Iranian border area of northern Iraq in the final months of the Iran-Iraq war of 1980-1988. Why is it that the Iraqi special tribunal, which was set up under the occupation with US and British support, has decided that the Saddam show must go on?

It is unlikely that the extension of the trial will do much to bolster the current regime’s domestic standing. The trial has already deteriorated into a farce. There has been general international disappointment with the proceedings. Three of the five original judges have been replaced; the chief prosecutor Rizgar Amin resigned; and two defence lawyers have been assassinated and a third has fled the country in fear of his life. Media coverage has focused on Saddam’s tirades against the court.

Indeed, Saddam appears to be thriving on Iraqis’ disillusionment with the faltering government of President Jalal Talabani. The Dujail proceedings concerning the deaths of over 140 Shias look like small beer compared with the daily carnage in present-day Iraq (1). Saddam’s accusations that it is the present Shia-dominated regime ‘that kills thousands in the street and tortures them’ gives a public voice to Sunni resentment of the Shia-dominated interior ministry, which is widely linked to extra-judicial killings of Sunnis. Bringing in additional trials, even for genocide, will make little difference to ordinary Iraqis who are much more concerned with the daily struggle for survival than the fate of the former president (2).

Putting Saddam on trial for genocide has less to do with the domestic standing of the government than the concerns of its international supporters. The initial arguments justifying the Iraq war – the evidence of weapons of mass destruction or Saddam’s alleged links with al-Qaeda – have been discredited. Post-war claims that the US occupation and regime change could pave the way for Iraq’s bright democratic future have also been discredited. There would appear to be only one card left to play to justify the ongoing costs of the US-led Iraqi adventure: genocide.

Authorities are playing the genocide card to try to get the trial back on track, to introduce some gravitas into the proceedings. Once Saddam joins the rapidly growing number of former heads of state charged or indicted with genocide, the hope is that no matter how bad the present-day situation is in Iraq, the decision to go to war will be seen as morally justified. It is the desire of the US and UK governments to minimise the political fallout from their Iraqi intervention that is driving the legal process against Saddam. This makes the indictment of genocide against Saddam an act of international politics rather than merely the domestic act of an Iraqi court. Indeed, indictments of previous regime leaders for genocide are increasingly becoming a fallback charge made to cast retrospective legitimacy on acts of Western intervention (3).

Former Yugoslav President Slobodan Milosevic’s crimes of genocide were consistently back-dated, with the accusations of genocide in Bosnia being added 10 years after the events concerned to reinforce the flimsiness of the Kosovo indictments issued during the US-led bombing campaign (4). The indictment of Saddam for genocide in the Anfal campaign also reflects the political needs of the present. At the time of the events nearly 20 years ago, the USA in particular (at that stage supporting Iraq in the war against Iran) was keen to play down accusations of human rights abuses against the Kurds. Indeed, the USA initially suggested that the gas attack against Halabja, part of the same campaign (although likely to be subject to a separate trial), was the responsibility of Iran rather than Iraq (5).

Michael Scharf, the leading US legal adviser to the Iraqi judges in the Saddam trial, argues that the genocide case against Saddam won’t be easy to prove (6), despite the large number of Kurdish victims of the Anfal campaign (up to 200,000 deaths, according to human rights groups). This is because a number of issues could undermine the case, including the military context of the Kurdish separatist links with Iran, which would make Anfal a military rather than purely ethnic campaign. The tribunal will therefore have to deal with defence arguments relating to the ‘sparing of Kurdish villagers, the killing of non-Kurds and potentially legitimate military goals and economic aims’, as well as the ‘Tu Quoque’ (‘You Also’) defence that the Iraqi actions were just as justified in international law as US military actions to put down insurgency in postwar Iraq, which also resulted in the destruction of towns and villages and numerous deaths (7).

The difficulties of establishing the charge of genocide have not stopped American and British advisers from arguing that the accusation of genocide makes this trial ‘one of the most important court cases of all time’ (8). It would seem that, as with the Milosevic indictments, it is the charge of genocide that is important, rather than the lengthy and less than predictable court proceedings that will follow. The Hague tribunal was bogged down by the political need to indict Milosevic for genocide, with little consideration for the legal consequences, and it appears that the Saddam trial may go the same way.

It seems that, since the end of the Cold War, military victories for Western powers, such as those gained in the wars against Yugoslavia and Iraq, no longer guarantee that the intervening states can take the moral or political spoils usually associated with military success. These wars ‘of choice’ were not fought for national interests or survival, and appeared to lack the clear political goals traditionally associated with military struggle.

The attempts to enhance the moral or political purpose of these military actions, by rerunning the conclusion of the Second World War with tribunals for war crimes and genocide, therefore have made little impact. In this context, attempts to use the genocide card may further discredit the legal proceedings against Saddam rather than help the beleaguered governments of Bush and Blair.

David Chandler is professor of international relations at the Centre for the Study of Democracy, University of Westminster, London.

(1) Saddam trial: whose ‘demons’ are they anyway?, by David Chandler

(2) Mussab al-Khairallah, Saddam to face trial for genocide attacks on Kurds, Guardian, 5 April 2006

(3) David Chandler, International Justice, New Left Review, No.6, November-December 2000; see also The “Butcher of the Balkans”?, The Crime of “Joint Criminal Enterprise” and the Milosevic Indictments: amended draft Expert Witness Report for the International Criminal Tribunal for the former Yugoslavia (ICTY) at The Hague’, 13 March 2006 [pdf]

(4) John Laughland, Criminal proceedings: The case against Slobodan Milosevic would never have held up in a proper court of law, Guardian, 14 March 2006

(5) Stephen C. Pelletiere, A War Crime Or an Act of War?, New York Times, 31 January 2003; Nathaniel Hurd and Glen Rangwala, U.S. Diplomatic and Commercial Relationships with Iraq, 1980 – 2 August 1990’, 12 December 2001

(6) According to the 1948 Geneva Convention, genocide is defined as ‘acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group’

(7) Anthony Deutsch, Saddam Genocide Charge Hard to Prove, Guardian, 4 April 2006; see also Michael Scharf, Can the Defendants Raise the “Tu Quoque” Defense?, Grotian Moment: The Saddam Hussein Trial Blog, Issue No.20, 22 November 2005

(8) Michael Scharf, Is the Saddam Hussein Trial one of the most important court cases of all time?, Grotian Moment: The Saddam Hussein Trial Blog, Issue No.10, 5 October 2005.

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