After more than thirty-five years of Ba`thist rule, Saddam Hussein and a number of other former Iraqi government officials responsible for perpetrating the most heinous crimes under international law crimes against humanity, genocide, and war crimes are about to be tried for their alleged crimes. This is the moment that Iraqis across the country, as well as many living abroad, have been waiting for and never thought they would see.
For far too many victims, it is of course too late. For other victims and family members, the trials will be the only formal recognition and acknowledgement they are likely to get of the grave injustices and loss that they suffered. The sheer scale of the crimes perpetrated by the Ba`th government is unimaginable: there are too many mass graves and too many killed or disappeared to ever entertain the hope that each and every victim will be accounted for. Those for whom the fate of their disappeared loved ones will never be resolved will be looking to the trials of the alleged perpetrators for justice and for closure.
The term disappeared refers to cases in which state agents or their associates take persons into custody but do not acknowledge holding those persons or do not disclose their location, thereby placing them outside the protection of the law. A widespread or systematic pattern of enforced disappearances constitutes a crime against humanity. Because the fate of the disappeared person remains unknown, international law regards it as a continuing offense, exempt from any statute of limitations.1 Disappearance constitutes a serious ongoing violation that causes continued suffering for surviving family members, making it essential that the Iraqi authorities, with the assistance of the international community, facilitate the identification of as many remains of victims as possible, and assist surviving family members and communities with appropriate ways of commemorating the deaths and according respect and dignity to the victims. The crime of disappearing someone is continuous until the fate or whereabouts of the disappeared person becomes known.
A key to the success of any trials will be the availability of solid documentary and forensic evidence. Since the overthrow of the Iraqi government in April 2003 by the U.S.-led coalition forces, over 250 mass graves have been located across Iraq. Some are believed to contain the remains of thousands of victims, including entire families. As Ba`thist officials fled their posts in the run up to and during the war in March and April 2003, they left behind stack upon stack of official documents, describing with disturbing detail the crimes they had committed over the years. Survivors of these crimes, families of those who were killed or disappeared, eyewitness, and others have since come forward to describe the nightmare in which they had been living. Even some of those who were complicit in these crimes have provided information about aspects of these crimes, including the locations of mass graves. Scores of the alleged key perpetrators are today behind bars awaiting indictment and trial, including most of the so-called deck of 55.
Witness testimonies are usually the ballast of a prosecutors case involving mass murder. But such testimonies hold greatest weight if they are supported by physical and documentary evidence. When trying high-level perpetrators for serious crimes, there are two components: 1) establishing that the crimes occurred, for which witness and forensic evidence are crucial; and 2) linking perpetrators who often were far away from the crime scene with responsibility for the crimes, for which witness testimony, especially from insider witnesses, and documentary evidence, are key.
This report provides an in-depth account of what has happened to key archival and forensic evidence since the ouster of Saddam Hussein in April 2003. The study is based on research conducted in Baghdad and the four northern governorates of Kirkuk, Mosul, Arbil, and Sulaimaniyya in February 2004, as well as earlier research conducted between April and June 2003 on mass graves in the governorates of Basra, Diyala, al-Hilla, al-Diwaniyya (al-Qadissiyya), al-`Anbar, Karbala, and al-Najaf.
The report focuses on two major sources of that evidence, documentary and forensic. It surveys whats been doneand not doneby the U.S.-led Coalition Provisional Authority and the interim Iraqi authorities since the invasion of March-April 2003 to preserve the evidence, and assess the implications for justice for Ba`thist era abuses and for some resolution regarding the fate of victims whose families live with uncertainty.
In the case of both documents and mass graves, U.S.-led coalition forces failed to secure the relevant sites at the time of the overthrow of the former government. They subsequently failed to put in place the professional expertise and assistance necessary to ensure proper classification and exhumation procedures, with the result that key evidentiary materials have been lost or tainted. In the case of mass graves, these failures also have frustrated the goal of enabling families to know the fate of missing relatives. The findings of the report are all the more disturbing against the backdrop of a tribunal established to bring justice for serious past crimes, the Iraqi Special Tribunal. Human Rights Watch has serious concerns that the tribunal is fundamentally flawed and may be incapable of delivering justice.
The extent of the negligence with which key documentary and forensic evidence has been treated to date is surprising, given that the U.S.-led coalition and Iraqi authorities alike knew that trials of Hussein and key Ba`th government officials would be important landmarks in Iraqs political recovery, that successful trials require solid evidence, and that, as international experience has shown, preserving such trial-ready evidence is a difficult task. Some of the evidence has been destroyed, but it is not too late to assume custody of millions of additional pieces of evidence. Some of this material, if it is given the urgent attention it needs and deserves, may prove critical in the proceedings of the upcoming trials. It will also play an important role as Iraqis attempt to construct an accurate historical record of their traumatic experiences under Ba`th Party rule.
Human Rights Watch strongly urges the Interim Government of Iraq to set up a Commission for Missing Persons, comprised of international as well as Iraqi experts, to establish effective procedures for protecting mass graves and conducting exhumations, and to oversee implementation of such a system. The government should similarly appoint a committee, again utilizing international as well as Iraqi expertise, to set standards for and oversee the handling of documents of the former government.
 The components of the crime of disappearance (such as the prohibitions of arbitrary detention and cruel, inhuman or degrading treatment) are expressly prohibited under international human rights law and many violate customary international law. The most detailed exposition of the pertinent legal principles are found in the U.N. General Assemblys Declaration on the Protection of all Persons from Enforced Disappearance (General Assembly Resolution 47/133, December 18, 1992. A/RES/47/133. http://www.un.org/documents/ga/res/47/a47r133.htm.