By Hania Mufti (Human Rights Watch)
Kendal Nezan has asked me to talk about justice for the members of the former regime with particular focus on the mass graves and the documentation that we seized from the Iraq Intelligence and Security and the Court house and what has happened to them since the fall of the regime.
I am going to talk first about the crimes, secondly who will be tried, thirdly what is that Court I am talking about and the state of the evidences.
In fact, just ten days ago, Human Rights Watch has completed an assessment, a partial assessment with particular focus on documentary evidence that may be used in the trials when they begin. Of course we are talking about the most serious crimes under International Law, genocide, war crimes and crimes against humanity. Most of you know what kind of crimes have been committed by Saddam’s regime over the past decades. The most developed definition of these crimes exists now in the Treaty which established International Criminal Courts and those crimes that are going to be heard before the Iraqi Special Tribunal have affected Kurds in the North, Shi’a in the South, as well as many other sectors of the Iraqi population.
Now let us see those documents that have been revealed since the fall of the regime. They represent only a tiny portion of the information that could be obtained about crimes of the past.
Listing the major crimes, of course there were attacks against Iraqi Kurds long before the Anfal campaign, the destruction of 4500 Kurdish villages and the transfer of the population to settlement camps, the use of chemical weapons, before Halabja, during 1987, against Kurdish civilians, and the actual killing itself constitutes an act of genocide, but there are other killings not in that context but in the forcible and arbitrary transfer of population, and the use of chemical weapons against them that constitute crimes against humanity.
Kak Dara Bahaaddine has already referred to the situation in Kirkuk which has been the scene of the arabization campaign by the Iraqi government and the displace of hundreds of thousands of Kurds, Torkmans, Assyrians and others from their homes and replaced them by Arabs. This policy also constitutes a crime against humanity.
Also the repression of the Shi’a population of Southern Iraq even before the crushing of the 1991 uprising, just following the 1979 revolution in Iran when there was systematic repression of Shi’a muslims who were considered to be supporters of what was happening in Iran. Many were executed, others died under torture. These are crimes against humanity. Also the repression of the Marsh’ Arabs in the South and the resettlement of people elsewhere; then we have to talk about general repression against Kurds in Iraq, where there have been a staggering number of disappearance. Most of the victims are unfortunately in the mass graves, since many have not reappeared following the fall of the regime.
Based on the estimates that HRW has made, we feel that up to three hundred thousand people have disappeared since the early 1980’s or at least since 1979. There may be more who will be discovered later on.
- the group of 8 000 Barzani
- those people that were removed to resettlement camps in Iraqi Kurdistan in 1983,
at least 7 000, may be 10 000, Kurdish Fayli families deported to Iran and many of them did not reappear after the fall of the regime,
many Shi’a clerics and students from Kerbela and other places,
Koweiti nationals and other countries’ nationals who never reappeared after the end of the Gulf War in 1991,
many other groups, many other ethnic minorities, the list is too long.
The extensive use of chemical weapons during the Iran-Iraq war by Iraq during the 1983 -1984 period.
We estimate that 20 000 Iranians were killed by mustard gas and nerve agent, though both Iran and Iraq were parties to the Geneva Protocol that prohibited this use, and this constitutes war crimes, and of course the abuses and crimes that took place in the context of the occupation of Koweit also constitutes crimes and crimes against humanity.
Unfortunately it is not possible to detail but that is a basic list.
As for who will be tried, of course all of you are familiar with the list of 55 that the United States published. I believe that the number of these people who are now in custody is 44 or 45. Also these people have been actually arrested, although two or three actually surrendered. This the list that the United States prepared . And there are many questions. Why some people are not on it, why some people are on it? There are many others responsible for the crimes who are not on that list, some of them are in custody, in Kurdish custody, some of them probably will be tried by Iraqi special tribunals, and are going to be in held in prison outside Baghdad. The CPA keeps people who are in the official places of detention. There are people who are held for imperative reason of security. There are different groups. There is a black list, there is a white list of what they call high valuable detainees. The black list is the most serious, with the top representatives of the former regime. HRW believes that there are many other middle level officials and even lower officials who ought to be brought in Special tribunals, not just the big names.
The Iraqi Special Tribunal was established by the Governing Council last year. This Special Tribunal was established under occupation. We submitted a memorandum to the Governing Council assessing the Law, which is available on the HRW Website. We may just mention two or three key-points. We strongly believe that the judges who will be involved in this Tribunal will not have sufficient expertise to deal with these very complex criminal trials, without precedent in Iraq. There are other problems associated with it. One is the death penalty, which we are against in principle. We do not know when the trials will start, which defendants will be brought before it. But what we are trying to do at this point is to assess what is the state of the evidence that might be used against the defendants once they are brought to the Court.
The three main sources of evidence would be the forensic evidence coming out of the mass graves once they are fully recorded, the documentary evidence obtained from the Iraq intelligence, the Iraqi security agencies, the Baath party, the Regional Command and so forth. Once they have been analyzed, the relevant information extracted would also be a major source. The third major source is the testimentary evidences from the victims, their families, the eye-witnesses and so on. A subsection of that category is information that was obtained from the suspects themselves under interrogation by the CPA since their arrest after the fall of the regime.
So I forecast that on the forensic and the documentary evidence with a partially evaluation of the state of preparation of this evidence should the trial begin this year or next year. We all have seen the mass graves as they were covered by the media. We saw families digging some of the graves themselves in order to find information about their missing relatives. You probably will not be surprised to know that hardly a single mass grave has been forensically examined in Iraq by CPA, except for 2 or 3 sites that were exhumed by Koweitees who brought their own forensic specialists in order to search for the remains of Koweitees missings from the 1991 Gulf War.
Officially on the database of the CPA there are 259 mass graves sites not all of which have been assessed, not all of which have been confirmed as containing human remains, though reliably reported to do so. Of these 259 sites, approximately 20 have been selected as priority sites for information at different levels. I would say that there are two different purposes for exhuming graves. One is, evidently, for the extraction of information to be used in trials and the second for what they call community based exhumations, i.e. identifying the remains in order to return them to their families. This second level of exhumation might produce evidences that could be used in court but that wouldn’t be the principal aim.
There have been a number of problems of getting international forensic teams to come to Iraq to do the actual work and much of it is the fault of the CPA. We did talk to the United States and to the United Kingdom before the war saying that it would be no surprise if mass graves were found, all knew. However, there was no major protection for the mass grave sites as crime signs, or to have people ready to actually carry out the work as soon as possible thereafter. We have seen people coming with bulldozers, digging up the graves and the skeletons just falling from the bulldozers to the ground, thus totally destroying the evidence. Those are the images that we could see in the middle of May 2003 for a period of a month or two. That is what happened.
There have been attempts to set up training courses to increase the local capacity of the Iraqis themselves to carry out the forensic work themselves. There is unfortunately no tradition of forensic courses, it is not a subject that is taught at University. And in two of the very relevant places we only found one forensic consultant forensic for Iraq who is the head of the Institute of Forensic Medicine in Baghdad. This is not in their tradition. But there are other specialists who could be drawn upon or be involved, such as archeologists. There are many archeologists in Iraq. There are also geophysicists , because of Iraq oil industries. There are others… but they all need training courses of forensic analysis. That needs intensive training. CPA has carried some training but it has been a little late and not sufficient.
What are also needed are expert criminal signs investigators, specialists in photographic evidences. We need librarians and documentation specialists who can record what is coming out. We need site managers for the grave sites, we need mortuary technicians…
And on the side of the International forensic teams, of course, there have been a number of concerns, there are some security considerations particularly following the attacks against the United Nations last year, and the attack on HCRC in Baghdad, so there is a problem. There has also been a problem with regard to the absence of unified forensic protocol by which all teams conduct the forensic exhumations, and this was bad experience of the Kurds during the exhumations where different standards were used, different methods were used, by different teams that came from different countries. Some team also objected to the fact that there is no central institution or depositery for all the information. The database that compares information coming from the mass graves with the information coming out from the families’ testimonies, information coming out of the documents seized from Intelligence and security at Courthouse. There is also a major problem for the European forensic teams. The main contributors are going to be Finland, Denmark, and Netherlands. They all have a problem with the issue of the Death penalty that the law establishing the Iraq special tribunal will provide, so they are concerned that the evidence which they produce as a result of their work would be used to convict people before the Court and result their death.
So much needs to be done on the question of forensic work, on the question of documentation, we talked to a number of different groups that actually possess original documents. Following the fall of the regime there was a state of chaos, political parties seized some documents, NGOs, local NGO’s had some others documents, the CPA itself has a huge amount of documents. Individuals have documents, everyone has documents. I found documents during my tour of different places. I do not know what happened to them except that we informed local political parties to protect them so they do not disappear. They are all over the places, there is no method for classifying them, and bringing them under one roof. This is one of the things that we were hoping the UN would do. But the decision to actually establish a central repository for all these information never happened.
We examined the way these documents have been used since the fall of the regime, how they will be kept, were they in a secure place, and the results that we found were very varied. In one place for example, we found they were really preserved in a very good way, people were not allowed to touch them, and they would be scanned. And it is a strong contrast with other place, where the documents were, if we can imagine the main hall of the European Community House that is exactly what they looked like. So when you enter the room, with all these documents, you literally step on them, it’s just like a mountain, all over the place. No sense of their historical importance.
There have been other problems. Documents have been sold. At every stage we have heard that documents have been sold by the kilo. In other cases, as people started to realize the importance of these documents, they will sell one single document for maybe 500 $. In some place we found that the original documents have been written on by people who were handling them. Then they tried to classify the documents. There are now documents which are false, and it is sometimes difficult to distinguish between the authentic one and the non authentic one. So there are huge problems of that kind: the security of the documents, where are they all going to be kept? Some of these have been taken out of the country to Qatar, US agencies which are looking through the documents and presumably seized them. But the rest are just lying there in mosques. Political parties are willing to hand over these documents giving access to them. there is an organised process. The CPA tried recently to make the Human Rights ministry in Baghdad the main roof.
So in other words the state of the evidence needs to be worked on for many months before being ready for use at the trial – even if we do not know when the trials start .