Human Rights Watch takes no position on the use of force to remove Saddam Hussein from power. However, as the possibility for armed conflict and a transition in Iraq increase, the international community and the future leadership of Iraq must address the question of how serious crimes such as genocide should be prosecuted.
Human Rights Watch welcomed several of the recommendations in the declarations issued by the Iraqi opposition conference, including the intention of working towards the referral of the perpetrators of the crime of genocide and the gassings at Halabja to an international tribunal. However, the conference did not address the question of accountability for other equally serious crimes, including crimes against humanity, although these were condemned.
Human Rights Watch also said it was concerned at the inclusion in the 65-member Coordination and Follow-Up Committee appointed by the conference of some former members of Iraq's repressive apparatus who have been involved in serious human rights violations. Among them is Wafiq al-Samarra'i, former head of Iraq's notorious Military Intelligence, believed to be implicated in crimes at a time when gross and systematic human rights abuses were perpetrated as part of Iraqi government policy. Having held such a position of high responsibility, al-Samarri'i warrants an in-depth investigation to determine the degree of his involvement in these crimes.
"Justice for past crimes is going to be an enormous issue if Saddam Hussein falls," said Hanny Megally, executive director of the Middle East and North Africa Division of Human Rights Watch. "Perpetrators of gross human rights abuse should obviously not be a part of any new government."
No amnesties should be granted for incidences of genocide, crimes against humanity, or war crimes, and an international tribunal should investigate and try both senior and middle-level officials accused of those crimes, said Human Rights Watch.
Some Iraqi opposition figures as well as U.S. administration officials have suggested that they support the prosecution of relatively few elite commanders in Iraq in order to encourage defections of top Iraqi military and civilian officials.
"There is an unwarranted fear that insisting on justice will jeopardize any government transition in Iraq," said Megally. "The record from Africa, Latin America and Europe is clear: only a transition that builds in a process of accountability for grave human rights violations will lead to a just and reconciled society."
Crimes committed under Saddam Hussein's government include, but are not limited to: the gassing of up to 5,000 Kurdish villagers in one chemical weapons attack in Halabja killings and disappearances of Shi`a and other segments of the populations - with victims believed to range between 250,000 and 290,000 over the past two decades, among them at least 100,000 people who are believed to have perished in the Anfal campaign against the Kurds; the use of chemical weapons in the Iran-Iraq War; and crimes incident to the occupation of Kuwait.
In its backgrounder, Human Rights Watch argued that these crimes constitute genocide, crimes against humanity and war crimes. An international tribunal is needed, Human Rights Watch said, because the Iraqi justice system is too compromised to render verdicts impartially, fairly and independently, while military tribunals will smack of "victors' justice."
The Human Rights Watch backgrounder states that other international mechanisms, such as the International Criminal Court or third-country prosecutions, could complement but cannot replace an international tribunal. Mechanisms such as a truth commission established by a transition Iraqi government could also play a vital reconciliation function in conjunction with the tribunal.
"In periods of transition, truth and justice are mutually reinforcing." said Megally " Both are needed as part of a genuine accountability effort. But establishing a truth commission would not absolve a new Iraqi authority from its duty under international law to prosecute the most heinous crimes."
Human Rights Watch also warned that amnesties for such crimes would contravene international law and fail to provide a sound foundation for re-establishing civil society and the rule of law in Iraq.
For Human Rights Watch's views about engagement with Iraq, see "Human Rights Watch Policy on Iraq," http://hrw.org/campaigns/iraq/hrwpolicy.htm.
For the backgrounder, "Justice for Iraq: A Human Rights Watch Policy Paper," see http://www.hrw.org/backgrounder/mena/iraq1217bg.htm.