The Bush administration's frustration with a decade of increasingly porous sanctions against Iraq has led to active consideration of military action. Yet one alternative has yet to be seriously tried -- indicting Saddam Hussein for his many atrocities, particularly the 1988 genocide against Iraqi Kurds.
As deposed Yugoslav President Slobodan Milosevic discovered, indictment for grave abuses can delegitimize a dictator and undermine his grasp on power. Even if Saddam escapes arrest, his indictment for heinous crimes would demonstrate that Iraq's desire for normal international relations is a pipe dream so long as Saddam is at the helm. That would weaken Saddam's support among the many governments that have been lining up for years to do commercial deals with him in anticipation of an end to sanctions. It would also encourage Iraqi officials to overthrow him.
Unfortunately, governmental cowardice and opportunism have stymied past attempts to indict Saddam, as Human Rights Watch learned during its intensive efforts to bring him to justice in the 1990s. At the top of any indictment should be Saddam's 1988 genocidal Anfal campaign against Iraqi Kurds, described by Jeffrey Goldberg in this week's New Yorker. Named after a Koranic verse justifying pillage of the property of infidels, the Anfal campaign unfolded as the 1980-88 Iran-Iraq war was winding down. Iraqi Kurds had taken advantage of Saddam's preoccupation with Iran to seize control of parts of mountainous northern Iraq. But as soon as Iraqi troops could be withdrawn from the Iranian front, Saddam shifted them to the north.
Several thousand Kurdish villages were destroyed, forcing residents to live in appalling camps. In at least 40 cases, Iraqi forces under Saddam's cousin, Ali Hassan al-Majid, used chemical weapons to kill and chase Kurds from their villages. Then, during the Anfal campaign from February to September 1988, Iraqi troops swept through the highlands of Iraqi Kurdistan rounding up everyone who remained in government-declared "prohibited zones." Some 100,000 Kurds, mostly men and boys, were trucked to remote sites and executed. Only seven are known to have escaped.
The full scope of the Anfal horror became known only after Saddam's defeat in the Gulf War. The Iraqi military's withdrawal from the region in October 1991 after the imposition of a no-fly zone made it feasible for the first time in years for outsiders to reach the area.
Human Rights Watch investigators took advantage of this opening to enter northern Iraq and document Saddam's crimes. Some 350 witnesses and survivors were interviewed. Mass graves were exhumed. And Kurdish rebels were convinced to hand over some 18 tons of documents that they had seized during the brief post-war uprising from Iraqi police stations. These documents were airlifted to Washington, where Human Rights Watch researchers poured through this treasure trove of information about the inner workings of a ruthless regime.
With this extraordinarily detailed evidence of genocide, Human Rights Watch launched a campaign to bring Saddam to justice. At the time the U.N. Security Council was creating special tribunals for Rwanda and the former Yugoslavia, but there was no consensus for similar action on Iraq. France and Russia, each with extensive business interests in Iraq, threatened to wield their veto. China, worried about analogies to its treatment of Tibetans, was disinclined to support an International Criminal Tribunal for Iraq. With no International Criminal Court then in the works, and the Pinochet option of exercising universal jurisdiction in national courts not yet widely recognized, the prospect of criminal prosecution was remote.
Human Rights Watch thus turned to the only available remedy -- a civil suit before the International Court of Justice in The Hague, commonly known as the World Court. The relevant U.N. treaty -- the Convention on the Prevention and Punishment of the Crime of Genocide -- assigned the World Court the task of adjudicating disputes under the treaty. We hoped for a declaratory judgment that the Iraqi government had committed genocide, damages for the survivors, and an order that the perpetrators be prosecuted.
The problem was that only governments can bring suit before the World Court. Washington was a logical first choice, and ultimately the Clinton administration endorsed the case. But restrictions in the U.S. ratification of the Genocide Convention stood in the way of a successful suit.
Human Rights Watch staff then circled the globe trying to convince another government to bring the suit. None would. At best, a couple of governments said they would join a coalition to bring the case, but only on the condition that at least one European government joined as well. Several European governments gave the matter serious consideration, but in the end none would take the plunge.
There were many reasons for this reluctance, some stated openly, others only hinted at. Governments feared the loss of business opportunities when Iraq emerged from U.N. sanctions. They feared a loss of influence in the Middle East for suing an Arab state. They feared terrorist retaliation by Iraqi agents. And they feared the expense of bringing the lawsuit (although offers were made to raise the funds).
This frustrating experience highlighted the importance of an International Criminal Court -- that is, a global tribunal that does not depend on the political courage of individual governments or the vagaries of consensus among the veto-wielding members of the U.N. Security Council. But the ICC will apply only to crimes that are committed after the treaty takes effect in several weeks. Many governments are ratifying the ICC treaty as an insurance policy against future Saddams. But the court cannot act retroactively on a crime such as the Anfal genocide.
The best option remains Security Council action to establish an International Criminal Tribunal for Iraq, since the council would be free to grant the tribunal jurisdiction over past crimes. But council action depends on overcoming the veto of Russia, France and China. To date, that obstacle has been insurmountable, although no effort has been made in the post-Sept. 11 climate.
Saddam could also be prosecuted by any government that has given its courts universal jurisdiction for the crime of genocide, although in this case the actions of a single government would probably carry less weight than the pronouncements of an international court. Finally, one or more governments could sue in the World Court for a declaration that Iraq had committed genocide.
Regardless of the approach, formal condemnation of Saddam for such a heinous crime would signal definitively to Iraqis and Saddam's international sympathizers that he is beyond the pale -- not simply because of the threat he poses to others, but also because he has flouted the most basic norms on the treatment of his own people. That delegitimization would not guarantee his ouster, but it would certainly help build consensus that he is unfit to govern, and thus that something must be done to end his rule.