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APPENDIX 5

Memorandum:

The Elements of Crimes Against Humanity Applied to

the Destruction of Koreme

Human Rights Watch ("HRW") understands the legal elements of crimes against humanity, applied to events described in the foregoing report "The Destruction of Koreme During the Anfal Campaign, "(The Destruction of Koreme") as follows.

Elements of Crimes Against Humanity

Crimes against humanity are defined as1:

(i) Such crimes as murder, extermination, enslavement, and deportation, and other similarly inhumane acts; or

(ii) persecutions on political, racial, or religious grounds, but which are of a nature not less serious than the foregoing crimes described in (i);

(iii) committed against any civilian population whether in conformity with or in violation of domestic law governing such civilians; and

(iv) committed on a mass scale.2

Crimes Against Humanity and the Destruction of Koreme

It is evident that events described in "The Destruction of Koreme" qualify as crimes within the meaning of elements (i)-(iii) above: the inhabitants of Koreme and Birjinni were murdered, the case of the men of Koreme by firing squad at their own village; they were exterminated, including extermination with chemical weapons; and they were deported to the camps of Jeznikam and Beharke, on ethnic grounds. Large numbers of men and boys from Koreme were forcibly disappeared while in the custody of the Iraqi security agents and have never reappeared, which HRW finds to be murder by any other name. Thus element (i) is met, and because, moreover, they suffered them in the course of persecutions on racial grounds -- for being Kurds -- the persecution element (ii) is also met.3

Element (iii) of the definition of crimes against humanity establishes that it is legally irrelevant, in defining the crime, that the victims were Iraqi civilians and that their crimes were committed under color of Iraqi domestic law.

The "Mass Scale" Requirement

Accordingly, the only element left to be met for events described in "The Destruction of Koreme" to qualify as crimes against humanity is element (iv), that they have been committed on a mass scale. HRW takes no position on the question of how few crimes committed in the pursuit of elements (i)-(iii) are required to constitute a "mass scale" within the definition of crimes against humanity. HRW has no reason to do so because the crimes undertaken by the Anfal campaign were so vast thatthey render any determination of a minimal level superfluous.

Although "The Destruction of Koreme" makes only passing reference to the full extent of the Anfal campaign, HRW has in its files hundreds of interviews conducted by its investigators demonstrating beyond any reasonable doubt the destruction of thousands of Kurdish villages, and the murder, forcible disappearance, extermination by chemical weapons, extermination by chemical weapons, or forcible resettlement of hundreds of thousands of Kurds. These interviews will be summarized in future Middle East Watch reports, but HRW is wholly satisfied, as a matter of law, that the "mass scale" requirement of crimes against humanity has been met.

It should be noted that "The Destruction of Koreme" does not take a position on whether genocide occurred in Iraqi Kurdistan, although the report observes that MEW's investigations are steadily leading to that conclusion. The reason for this circumspection with respect to genocide is that genocide requires a specific intent to destroy a protected group "in whole or in part...as such."4 Proving such intent requires more than the limited findings required to prove crimes against humanity.

HRW believes the evidence is clear that such crimes as murder, disappearance, and deportation took place in the course of ethnic persecution against the Kurds of Iraq on a mass scale sufficient to meet the threshold of crimes against humanity. The other elements of crimes against humanity being met, HRW concludes that the crimes described in "The Destruction of Koreme" constitute crimes against humanity within the meaning of customary international law.5

1 This definition is adapted from article 6(c) of the Charter of the International Military Tribunal (the "Nuremberg Tribunal"), art. 6(c), as amended by the Berlin Protocol, 59 Stat. 1546, 1547 (1945), E.A.S. No. 472, 82 U.N.T.S. 284 (the "Nuremberg Charter"), which reads as follows:

The definition in the text above takes into account limiting interpretations of certain terms by the Nuremberg Tribunal, as well as other Allied war crimes tribunals interpreting similar language following the end of World War II, and so is narrower than the article 6(c) definition. See generally Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of Prior Regime," 100 Yale L.J. 2537, 2585 (1991) ("Orentlicher"); Bassiouni, "International Law and the Holocaust," 9 Cal. West. Int'l. L.J. 201 (1979); Schwelb, "Crimes Against Humanity," 23 Brit. Y.B. Int'l. L. 178 (1946); and Clark, "Crimes Against Humanity," The Nuremberg Trial and International Law, ed. Ginsburgs and Kudriartser (1990) ("Clark"). For general accounts of crimes against humanity in the historical context of the Nuremberg trials, see generally Taylor, The Anatomy of the Nuremberg Trials, Alfred A. Knopf, 1992; Tusa and Tusa, The Nuremberg Trial, Atheneum, 1984; Smith, The Road to Nuremberg, Basic Books, 1981; and Conot,Justice at Nuremberg, Harper & Row, 1983.

2 In the opinion of HRW, the definition of crimes against humanity does not include a necessary connection to war, meaning that it is possible for crimes against humanity to occur in times of peace. It is the view of HRW that the Nuremberg Tribunal's refusal to adjudicate alleged crimes against German nationals by the German government prior to the outbreak of war in 1939 was by reason of the Nuremberg Tribunal's understanding of the limits of its jurisdiction under the Nuremberg Charter, and not because it understood crimes against humanity, as an international crime, to exist by definition solely in time of war. A tribunal otherwise competent to hear crimes against humanity is therefore not disabled solely on the ground that the acts alleged as crimes against humanity did not occur in connection with war. The so-called "war-nexus" is thus not included in the definition of crimes against humanity given in the text above.

In support of the view that the "war-nexus" is either no longer legally relevant or was, at the time of the Nuremberg Tribunal, jurisdictional only and not definitional, see Orentlicher at 2590; Clark at 195-6; and the Fourth Report on the Draft Code of Offences Against the Peace and Security of Mankind by Mr. Doudou Thiam, 38 U.N. GAOR C.4 at 56, U.N. Doc. A/CN.4/398 (1986) D. Thiam "the separation of crimes against humanity from war crimes has now become absolute. Today, crimes against humanity can be committed not only within the context of an armed conflict, but also independently of any such conflict").

HRW does not here address the question of whether crimes against humanity must be committed by individuals acting in some degree as agents of a state. The Judgment of the Nuremberg Tribunal and related precedents are absolutely clear that individuals may incur liability for crimes against humanity, and that an individual is not shielded from liability for crimes against humanity by acting under color of the state. It is less clear, however, whether an individual could plead immunity from the charge of crimes against humanity on the groundof having no relationship, direct or indirect, formal or informal, with a state. HRW need not settle whether it considers this a necessary element because in the case of Iraqi government crimes in Koreme, as at Nuremberg, there is no question but that all the alleged authors of these crimes acted directly as agents of the state.

3 Note, however, that the element of persecution is an alternative ground for finding crimes against humanity, and not an additional requirement to element (i), so long as the persecutions comprise crimes not less serious than murder, extermination, enslavement, and deportation provided in element (i).

4 See the Convention on the Punishment and Prevention of the Crime of Genocide, entered into force January 12, 1951, at Article II.

5 HRW reserves on the question of what entity, if any, has legal jurisdiction to try the alleged authors of crimes against humanity.

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