Ali Hassan al-Majid (also known as “Chemical Ali”), the former Iraqi general in charge of carrying out the 1988 genocidal Anfal campaign against the Iraqi Kurds, is expected to appear next week before the Iraqi Special Tribunal. Flaws in the tribunal’s statute raise serious concerns about the prospect of fair trials, Human Rights Watch said.
“Trials for atrocities committed during Ba’ath Party rule could not be more important for the victims and to show that justice works,” said Richard Dicker, director of the International Justice Program at Human Rights Watch. “But the process must be fair for justice to be done.”
The Iraqi Special Tribunal statute lacks significant fair-trial protections, including explicit guarantees against using confessions extracted under torture, and a requirement that guilt be proven beyond a reasonable doubt. At the same time, a suspect convicted by the tribunal may face the death penalty, which precludes the United Nations from providing the tribunal with much-needed technical assistance.
The tribunal’s statute also fails to require that judges and prosecutors have relevant experience trying cases of genocide, war crimes, and crimes against humanity – experience readily acknowledged to be lacking among Iraqi judges. The statute bars international experts from participating as prosecutors; while it allows for international judges, none have been approved. Given the complexity of prosecuting these types of cases and the current state of the Iraqi justice system, this raises concerns that the tribunal will lack necessary expertise.
Many of the former Ba’ath Party leaders expected to be tried by the Iraqi Special Tribunal have been held for a year or more without access to defense counsel, although attorneys for Saddam Hussein reportedly were able just recently to meet with him. Questioning a suspect, no matter how horrific the crimes for which he or she is alleged to be responsible, should not proceed without their lawyer present unless the suspect has agreed otherwise, Human Rights Watch said.
Human Rights Watch strongly believes that there must be accountability for massive crimes, including genocide, crimes against humanity, and war crimes committed during Ba’ath Party rule in Iraq. In the early 1990s, Human Rights Watch extensively documented the genocide against the Kurds, and repeatedly called for the perpetrators to be prosecuted.
Ali Hassan al-Majid, a cousin of Saddam Hussein, was in charge of carrying out the 1988 genocidal Anfal campaign against the Iraqi Kurds, which resulted in the murder and “disappearance” of some 100,000 Kurds. Al-Majid was widely known in Iraq as “Chemical Ali” for his repeated use of chemical warfare, which is prohibited under international law. Al-Majid also played a leading role in the campaign against Iraq’s Marsh Arab population in the 1990s, and was in charge of Iraq’s brutal military occupation of Kuwait.
“The Iraqi Special Tribunal has serious human rights shortcomings,” Dicker said. “The Iraqi government will need to change the process and make sure that trials are fair.”
The Iraqi Special Tribunal Statute provides for pre-trial assistance by lawyers only if a person is being questioned by one of the tribunal’s investigative judges. The statute fails to provide that during an investigation, interrogation, or other questioning a suspect must:
• Be informed, prior to questioning, that there are grounds to believe that he or she committed a crime under the jurisdiction of the Special Tribunal;
• Have the right to remain silent without such silence being considered an indication of guilt; and
• Be questioned in the presence of his or her lawyer, unless he or she waives this right.
Human Rights Watch has urged for amendments to the tribunal’s statute and a meaningful partnership between Iraqi and international judges and prosecutors to ensure fair prosecutions of former Ba’ath Party leaders.
“Trying former Iraqi officials under the current rules could mean a wasted opportunity to put Saddam and his henchmen on trial in a manner that has credibility in the eyes of the world,” Dicker said.
For more information on Human Rights Watch’s concerns with the Iraqi Special Tribunal, see https://www.hrw.org/backgrounder/mena/iraq121703.htm
For more information on “Chemical Ali,” see https://www.hrw.org/press/2003/04/iraq040703.htm