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Iraq: Attempts To Indict Saddam Face Grave Challenges

  • Charles Recknagel

The regime of Saddam Hussein has frequently been accused of crimes against humanity, and a U.S.-backed effort is under way to bring top officials to trial. In the second part of a three-part series, RFE/RL correspondent Charles Recknagel looks at the challenges of collecting evidence against Iraq's leaders.

Prague, 24 February 2000 (RFE/RL) -- The campaign to indict Iraqi President Saddam Hussein for war crimes is hoping to use the relatively new field of international human rights law to bring him and his deputies to justice.

But as organizers gather evidence, they are very much aware that they must find their own way, because there are relatively few precedents to guide them.

The number of international war crimes trials held to date can still be counted on just one hand. The most notable are the trials of Nazi officials after the Second World War, and the current UN tribunals for Rwanda and Bosnia.

That makes gathering evidence against Baghdad's top officials a minefield of difficult-to-answer questions. What kind of evidence will be enough to persuade UN members to create a tribunal? And what kind of evidence will such a tribunal accept to convict the suspects?

Rend-Rahim Francke heads the Iraq Foundation in Washington, D.C., one of the five groups cooperating in the indictment campaign. She told RFE/RL that the international community itself is still in the process of defining what constitutes solid evidence of war crimes and crimes against humanity.

"Creating an integrated and solid case is something that is very complicated. You have the examples of the Yugoslav tribunal, you have the model of the Rwanda tribunal, all of these took a long time to set up. And as they were set up they began, and they still are, in fact, creating the legal requirements and framework [to operate under]. All of this is very new in the international legal community, and I could probably say that even the tribunals that have been already set up are works in progress."

The answers to what constitutes legally admissible evidence of crimes against humanity is emerging only as a body of precedents -- that is successfully prosecuted cases -- gradually builds up with each new tribunal.

Organizers of the indictment campaign say they are in close contact with lawyers involved in the war crimes tribunal for former Yugoslavia, which sits in The Hague. They are also consulting closely with such pioneers in the field as Spanish judge Baltasar Garzon, who issued an indictment prompting the arrest of former Chilean dictator Augusto Pinochet in Britain in October 1998.

But even with such expert advice, the case against Saddam soon enters territory no other tribunals have previously encountered.

First and foremost is the difficulty of compiling evidence from impartial sources -- the most solid evidence in international courts of law.

Francke says that in Iraq, unlike in Bosnia and Rwanda, there are few witnesses, such as international observers, who saw crimes against humanity and were not in themselves party to the conflict.

"In both Yugoslavia and Rwanda, you had international organizations on the ground when fighting was taking place and some of these atrocities were committed. In Iraq, you have no such international presence. Additionally, in both Yugoslavia and Rwanda international NGOs, [non-governmental organizations], have been able to go in and do some fact-finding on the ground. In Iraq, this is not possible."

That puts a heavy burden on the indictment campaign to screen the evidence it collects to ensure it meets very high standards for reliability. The campaign will have to do that by corroborating evidence through as many sources as possible.

Organizers say that they will seek to build a picture of Saddam's crimes against his own citizens and those of neighboring states through eyewitness accounts, the regime's own documents, videotapes and even aerial photography of sites like mass graves when such images are available. Francke says:

"One of the ways that we are trying to do it is through aerial photography. We are also trying to do it through decrees, or Iraqi government documents, that refer to certain activities that are going on ... and reports that have a fairly high level of reliability, [which are] usually brought out by people who leave Iraq or who manage to get reports out of Iraq."

One of the areas in which the group is seeking evidence of crimes against humanity is Baghdad's use of chemical and suspected biological weapons against Kurds in northern Iraq starting in 1987. Some 5,000 to 7,000 civilians are believed to have died in an attack on the city of Halabjah in 1988.

Tens of thousands more Iraqi-Kurds died during a six-month search-and-destroy operation in 1988, which was code-named Al-Anfal and targeted civilians and guerillas. The Baghdad regime said it attacked its Kurdish citizens for "sympathizing" with Iran during the 1980 to 1988 Iran-Iraq war.

The indictment effort is also collecting evidence of crimes against Iraq's majority Shiite population, which rose up against Saddam in the wake of the Gulf War of 1990-91. Thousands of Shiite civilians were killed by the use of Iraqi airpower before Western powers imposed a no-fly zone over the south of the country. Saddam also used airpower to punish the Kurds, who revolted at the same time in the north, before a no-fly zone was imposed there.

The organizations are also compiling evidence of arbitrary arrest and torture of opponents of the regime throughout Iraq. Outside Iraq, they are looking at mass executions of Kuwaitis during Baghdad's occupation of the emirate in 1990.

Many participants believe that if the indictment campaign reaches court, it will be of historic legal significance.

That is because the success of the lawyers building the case against Saddam depends not only on their ability to follow existing legal precedents -- which are few -- but also to extrapolate new principles to cover new situations.

And that process, in turn, will help to expand the slowly growing body of law available for indicting and convicting other mass violators of human rights in the future.

(The third part of this three-part series looks at what Western governments could do to increase the campaign's chances of success.)