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Genocide in Kurdistan


Genocide in Kurdistan


Genocide in Kurdistan
A dissertation presented in partial fulfillmentof the Diploma in Legal Studies at the University of Auckland
By Heval Hylan /dara@xtra.co.nz
Auckland, November 2000
Abstract
The 20th century has witnessed the evolution of perhaps the most contemptible violation of state-perpetrated, international criminal law -- that is, genocide. Genocidal behavior, however, has been routinely ignored in literature devoted to the discipline of criminology.
Governments in countries like Iraq sometimes act swiftly to suppress violations of human rights within their jurisdictions, perhaps to avoid adverse international attention. Violations of the Kurds' human rights are curtailed in this manner.
This paper examines aspects of the use of the chemical weapons in Kurdistan in 1988 by the Iraqi government. The atrocities committed against the Kurdish civilians of the Iraqi Government are called the Kurdish Genocide[1] (hereinafter referred to as the Genocide in Kurdistan). The discussion covers three main subjects.
First: The Iraqi government maintains that the genocide in Kurdistan is justified by the Quran Islamic Holy Book, although it publicly denies that this is its view. Genocide in Kurdistan is also ignored by the super powers for reasons of political interest.
Second: International legal tools for apprehending and punishing the Iraqi principal perpetrators are very likely necessary for the long-term successful prevention of most genocide. It is almost certain that serious efforts will also have to be made to bring about greater respect for the rule of law. The norms and legal conventions are essential for the purpose of defining our collective ideals and values, and, most importantly, for guiding our legal actions.
Third: This paper introduces a proposal for the setting up of an International Criminal Tribunal for Iraq (ICTI,) as a first option to punish the Iraqi perpetrators, then argues other punitive possibilities such as Universal Jurisdiction, the International Criminal Court, jus cogens norms, the International Court of Justice, and the exertion of political pressure. The discussion will reveal that there are strong links between all of these aspects. International and national court cases will be cited in support of the analyses and arguments.
Table of Contents
Abstract
1.0 Introduction2.0 What is Genocide?2.1 Historical background2.2 Definitions3.0 What is the Kurdish Genocide?3.1 Incidents3.2 Intent3.2.2 The Definition of Intent3.2.3 What constitutes the actual intent requirement?3.2.4 Evidence to support the Kurdish case3.3.5 Conclusion4.0 A proposal for setting up an International Criminal Court for Iraq4.1 Early History4.2 Introduction4.3 Why the need for setting up an International Criminal Court for Iraq?4.4 The Proposal4.5 The Question of Political Will4.6 Conclusion5.0 Universal Jurisdiction over genocide5.1 Introduction5.2 Jurisdiction5.3 Conclusion6.0 General Conclusion7.0 Bibliography
Annex 1: ChronologyAnnex 2: Maps
1.0 Introduction
The modern history and political struggles of the Kurdish people are not the subject of this paper, but the following short overview about the Kurds will provide the background to the issues that will be discussed.
The Kurds are a separate and distinct ethnic group living in an area often referred to as Kurdistan. They make up the majority of the population of this area -- a region composed of eastern Anatolia, extreme north-eastern Syria, northern Iraq (the part which is the subject of this paper), north-west Iran, and parts of southern and south-eastern Armenia (see Annex 2).
In area, Kurdistan is as large as France, and has a population of 25-30 million. In addition to having occupied this area for centuries, Kurds from all the countries mentioned above share a common language that, although related to modern Persian, is a unique Indo-European tongue. Most Kurds speak one of three dialects: Kurmandji, Sorani, or Zaza.
The Kurds were not originally Muslims; their ancestors believed in the Zoroastrian/Yazidi religion. The Treaty of Severs, signed by the Turkish Empire and the United Kingdom in August 1920, dealt with Kurdish affairs in Articles 62-64. Article 64 in effect gave the Kurds the opportunity to form an independent state in Kurdistan, at least in those parts formerly belonging to the Ottoman Empire.
Unfortunately for the Kurds, the treaty was rendered inoperative by the action of Mustafa Kemal (Atatürk). The Kurds later took an opportunity in 1946 to form their own state under the name of the Republic of Mohabad, but this venture lasted less than one year and the President, Qhazi Mohammed, and other leaders were hanged by the Iranian authorities. Since then, Kurds in all parts of Kurdistan have struggled for self-determination.
The Kurdish genocide of the 1980s, in which thousands of civilians lost their lives, stands as one of the worst human tragedies of the modern era. In Kurdistan, as in Nazi Germany, Cambodia, Yugoslavia, Rwanda, and Sierra Leone, extremist politics conspired with a diabolic disregard for human life to produce repression, misery, and murder on a massive scale.
We have heard of various incidents of massacre or genocide occurring against ethnic groups in Central and South America, Asia and Africa. The topic to be considered in this paper reflects the fact that, in recent times, poison has been used as a force to destroy a nation, and to attempt to kill a people. [2] I will deal with a new method of genocide; [3] a modern way, the use of chemical weapons against the Kurdish civilians in northern Iraq in 1988.
This paper's aim is to argue and analyse the case of genocide in Kurdistan-northern Iraq. Chapter one is a short introduction about the Kurds, their history, and the subjects discussed in this paper. Chapter two, 'What is Genocide?,' provides an overview of genocide, and its definition. Chapter three examines incidents of genocidal behavior that have occurred in Kurdistan by looking at the chemical attack itself, with a particular attention given to the matter of 'intent'. Chapter four proposes the setting up of an International Criminal Tribunal for Iraq (ICTI). Chapter five analyses the ability of a state to exercise, under international law, universal jurisdiction over genocide and other crimes.
The concluding chapter discusses what future advances in international law and international relations would be desirable, in view of the Kurdish Genocide and similar events of recent decades.
2.0 What is genocide?
Every tragedy whispers again of past tragedies. This affirmation is perhaps most germane to the matter of genocide. The 20th century had barely begun when, under cover of World War I, Armenians living under the Turkish yoke suffered massacres and deportations that eliminated over 1.5 million men, women, and children. Though the crime of genocide is ancient, the concept itself is relatively new. [4] This part of the paper explains, first, the term 'genocide' and briefly its historical background, and second, the definitional issues and controversies that circumfuse the term 'genocide'.
The word genocide comes from the ancient Greek word genos (race, tribe) and the Latin caedes (killing), the latter of these two also appearing in words such as tyrannicide (killing of a tyrant), homicide (killing of a human being), infanticide (killing of a child), etc. [5]
The term 'genocide' was coined relatively recently by the jurist Raphael Lemkin, [6] whose remarkable achievement initiated a one-man crusade for a genocide Convention. [7] Early as 1933, he submitted a proposal to the International Conference for Unification of Criminal Law to declare the destruction of racial, religious or social collectivises a crime (of barbarity) under the law of nations. [8]
Although every mass killing involves unique circumstances, certain underlying conditions are common to most genocide acts. The offending nation, or perpetrator, is usually a non-democratic country that views the targeted group as a barrier or threat to maintaining power, fulfilling an ideology, or achieving some other goal.
Most genocide occurs during a crisis such as war, state breakdown, or revolution, and the crisis is blamed by the perpetrators on the victims. In addition, the governments of other countries that might have interfered with or kept silent about the genocide, may support the perpetrators directly or indirectly by their lack of action.
2.1 Historical background
The Convention on the Prevention and Punishment of the Crime of Genocide was one of the first United Nations conventions to address humanitarian issues. It was adopted in 1948 [9] in response to the Nazi atrocities committed during World War II, following General Assembly Resolution 180 (II) of 21 December 1947 in which the UN recognised that "genocide is an international crime, which entails the national and international responsibility of individual persons and states." Article 1 of the Convention states that "the contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish."
The International Court of Justice (ICJ) noted in the Reservations to the Convention on Genocide Case:
The origins of the Convention show that it was the intention of the United Nations to condemn and punish Genocide as a crime under international law involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96(I) of the General Assembly, December 11th 1946). The first consequence arising from this conception is that the principles underlying the Convention are principles, which are recognised by civilised nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the Cupertino required 'in order to liberate mankind from such an odious scourge' (Preamble to the Convention).
In the Barcelona Traction Case (second phase), the ICJ recognised the outlawing of acts of genocide as obligations erga omnes for which, due to the importance of the rights involved, all States can be held to have legal interest in their protection. [10]
Finally, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have also had very strong effects in establishing that genocide is the most grievous crime that can be charged by an international war crimes tribunal today.
2.2 Definitions
Article II of the Genocide Convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group:
(a) killing members of the group;(b) causing serious bodily or mental harm to members of the group;(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;(d) imposing measures intended to prevent births within the group;(e) forcibly transferring children of the group to another group.
No state has ever advocated that genocide is not a crime, and the definition contained in Article II is considered to be binding international law, a universal interdiction that permeates the mask of state sovereignty. The terms of the definition of genocide contained in Article II of the Genocide Convention may be proficiently applied to the circumstances in Kurdistan, but there are some points to note regarding this definition of genocide. First, genocide need not be an attempt to destroy a whole ethnic group. It is impossible to intend to kill all the Kurds; but just attempting to destroy part of an ethnic group suffices. Second, only one of the five acts described in Article 2 sub-articles (a) to (e) need apply to the situation in question for it to be considered genocide.
In other words, for a situation to fit the definition of genocide, three essential elements are required to be present: (i) an identifiable national, ethnical, racial or religious group; (ii) the intent to destroy such a group in whole or in part (mens rea); and (iii) the commission of any of the listed acts in conjunction with the identifiable group (actus reus). There is no requirement for a certain number of fatalities to have occurred, however, for a situation to be considered genocide. Finally, the elements (i) and (iii) can easily cover the Kurdish genocide, but the element (ii) is complicated, and it is difficult to identify and establish in the Kurdish case. For this reason there will be special attention to 'intent' in this paper.
3.0 What is the Kurdish genocide?
After 16 March 1988, one word came to symbolize the tragedy of the Kurds -- Halabja. [11] Halabja is the Kurdish Auschwitz; not because the scale of the massacre was comparable with that of the Nazi death camp, but because the victims were chosen merely because they were Kurdish civilians. [12]
Halabja was only one of many towns attacked by poison gas in 1988 dropped by Iraqi forces. The full extent of the lasting damage suffered by the Kurdish people as a result of the Iraqi government's use of poison gas is yet unknown. [13]
The Kurdish Genocide was centrally planned and administered by the Iraqi Government against the entire Kurdish population. In addition, the Kurdish people were also subjected to deportation, expropriation, abduction, torture, massacre, and starvation. But these violations are not the subjects of discussion in this paper. [14]
3.1 Incidents
On the 16th of March 1988, Iraqi bombers attacked the Kurdish town of Halabja [15] using chemical weapons and nerve gases such as Tabun and Sarin. These gases left thousands of civilian's dead, many thousands wounded, and tens of thousands of people homeless. [16]
Including Halabja, there were in total eight Anfal campaigns between February and September 1988: [17]
First Anfal: February 23 - March 19, 1988 (Halabja attacked March 16, 1988) [18]Second Anfal: March 22 - April 1, 1988 (Qara Dagh)Third Anfal: April 7 - 20, 1988 (Germian village, Qader Karam)Fourth Anfal: May 3 - 8, 1988 (Valley of the Lesser Zab)Fifth, Sixth and Seventh Anfals: May 15 - August 26, 1988 (Mountain Valleys of Shaqlawa and Rawandus)Final Anfal: August 25 - September 6, 1988 (Badinan) [19], [20]
3.2 Intent
Genocide is a crime characterised by the fact that it forms part of a wider plan to destroy, in whole or in part, a particular group. As a crime directed at a group, [21] the genocidal intent is necessarily associated with mass crimes.
The specific intent of the accused, as was defined by the drafters of the Genocide Convention, must be proven, since by definition intent is a necessary element of the crime. [22] Accordingly, if one does not possess the specific intent to destroy a group in whole or in part, then that person would not be found guilty of genocide[23] but s/he could still be found guilty of crimes against humanity, a war crime, homicide, or any of the enumerated crimes in Article II (a)-(e). [24]
In addition, the International Law Commission (ILC), in commenting on its draft Code of Crimes against the Peace and Security of Mankind, stated, in this regard: .".. A general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such an act with respect to the immediate victim or victims is not sufficient for the crime of genocide. The definition of this crime requires a specific intent with respect to the overall consequences of the prohibited acts." [25]
3.2.1 The Definition of Intent
Perhaps the most difficult part of the definition of genocide is the intent. It is hard to prove and easy to deny. Usually genocidalists do not document their guilt, and evidence can be hard to find or prove. Genocide in Kurdistan covers a wide range of activities -- some visible and some not. Despite such difficulties, it would be hard to justify a view that The Holocaust, and the events which occurred in Armenia, Namibia, Rwanda, and Kurdistan were not genocides.
Some light can be shed on the definition of intent in the Convention by an examination of the discussion that took place during the drafting of the Convention that preceded its inclusion. Much of the refinement of the original version of the Genocide Convention that had been prepared by Professors Lemkin, Donnedieu de Vabres and Pella, was carried out by an ad hoc Committee of the United Nations Economic and Social Council. [26]
Article II of the Ad Hoc Committee's draft defined genocide as "deliberate acts committed with the intent to destroy a national, racial, religious or national political group on grounds of the national or racial origin, religious belief, or opinion of its members." The work of drafting the Convention was later referred by the United Nations General Assembly to the Assembly's (Legal) Sixth Committee. The Sixth Committee's Draft of the Convention was adopted without amendment by the General Assembly. [27] Commenting on some of the Sixth Committee's amendments from the Ad Hoc Committee's version, Lippman notes:
In the end, there was uncertainty over interpretation of the phrase 'as such'. It was pointed out that the phrase 'as such' might mean either 'in that the group is a national racial religious or political group' or 'because the group is a national racial, religious, or political group'. It is clear that under Art II the requisite intent to commit genocide must be accompanied by proof of motive, however the motive requirement may be interpreted. Delegates feared that if intent was not linked with a motive requirement that situations such as 'bombing which might destroy whole groups ... might be called a crime of genocide; but that would obviously be untrue'. [28]
'Grave breaches,' as defined in the Conventions, include wilful killing or inhuman treatment, causing great suffering or serious injury to body or health, and other serious violations of the laws of war. [29]
A serious weakness in the Conventions is that they require the exercise of universal jurisdiction for offences committed only in international armed conflict, and not in internal armed conflict. [30] However, the Statutes of the International Criminal Court and the International Criminal Tribunals for former Yugoslavia and Rwanda do specifically give jurisdiction for these courts over violations committed in an internal armed conflict. [31]
3.2.2.What constitutes the actual 'intent' requirement?
The question presented in which I will deal with in the following pages is: What constitutes the actual 'intent' requirement, for the Iraqi government to be found guilty of genocide in Kurdistan? In answering this question I will focus on two issues: (i) the necessary intent for the genocide crime, which has been criticised as being too ambiguous and vague, and (ii) the jurisprudence of the International Criminal Tribunal of Rwanda ICTR and International Criminal Tribunal for the Former Yugoslavia ICTY, to see how both tribunals have interpreted the meaning of intent (in particularly ICTR, which has lowered the standard in proving intent as compared to the drafter's understanding of the notion of intent).
Note that, as it stands, the ICTR seems to have afforded a "knowledge" standard while the negotiating record of the Genocide Convention [32] suggests the standard to be that of "purpose." Prior to the creation of the (ICTY) (ICTR), the Genocide Convention appeared to be dormant. [33] Scholars concluded that the "Genocide Convention has had no impact whatever and genocidal behavior has not ceased." [34]
Consequently, it was not until the early 1990s, forty years after the Convention was put into force, that the first International Criminal Tribunal was organised to prosecute those accused of genocide. Hugo Adam Bedau offered one of the earliest interpretations of the Genocide Convention's specific intent requirement, in his article "Genocide in Vietnam?" [35] In trying to determine whether the United States was guilty of genocide during the Vietnam War, Bedau first attempted to discern the meaning of genocide as put forth by the Genocide Convention.
According to Bedau's essay, genocide is divided into two parts: (1) the actus reus which includes the genocidal acts as enumerated in (a)-(e) of Article II; and (2) the mens rea or necessary genocidal intent. [36]
In Bedau's view, one could only be found guilty of genocide if they had committed one of the enumerated acts and had the specific intent to destroy the national, racial, ethnical or religious group as such, in whole or in part. "It is not enough to kill persons belonging to a different race or religion, but these murders must be committed as part of a plan to destroy the given group … Where such specific intent is lacking there is no genocide." [37]
But what if one of the enumerated acts occurs "simply as a result of another otherwise intentional act, would that not constitute genocide?" [38] Presumably the answer is 'No,' since the actor did not have the necessary intent. [39] Ultimately, Bedau criticizes the Genocide Convention's definition of genocide for its lack of clarity. [40]
Similarly, a UN Special Rapporteur in 1978 submitted a report proposing the modification of the Genocide Convention, claiming that the Convention "lacked effective international measures to prevent and punish genocide." [41] Insofar as the intent requirement is concerned, the Special Rapporteur suggested including the prohibition of "negligent as well as intentional acts." [42] He also suggested that the specific intent requirement only had to met by decision-makers accused of genocide, and that a general intent requirement or knowledge requirement should be imposed on functionaries. [43]
Nevertheless, the specific intent requirement was not changed since it is the specific "intent to kill a group in whole or in part" that distinguishes genocide from homicide; moreover "the systematic and intentional murder of ethnic … minorities, absent intent to exterminate such groups, remains punishable as a crime against humanity and/or war crimes." [44]
Finally, forty years after the Genocide Convention had been established, the UN, in 1993, appointed a Commission of Experts to investigate alleged acts of genocide in the former Yugoslavia. In the Commission's final report, the law of genocide was discussed. [45] According to the Experts, genocide did not require the "extermination of an entire group," but that a "cluster of acts which together threaten the group's existence" was within the purpose and spirit of the Genocide Convention." [46]
Furthermore, the extermination of a group's political leaders, civilian members as well as religious figures, could all be evidence of genocide. Likewise, the forced fleeing of members of the group in response to extermination measures can be evidence of a "perpetrator's genocidal intent." Moreover, the group being victimized could either be a majority or minority group with the particular society.
In a recent ICJ genocide case, Bosnia & Herzegovina v Yugoslavia, the Bosnians sought provisional measures against the Serbs, claiming that the Serbs had been committing genocide against the people of Bosnia. According to the Bosnians the Serbs had killed, tortured, physically and mentally abused and detained the Bosnians unlawfully, thus violating Article II (a)-(d) of the Genocide Convention. [47] The Serbs counter-claimed, arguing that the Bosnians were also guilty of genocide since Serbs living in Bosnia had likewise been killed. [48]
In the end, due to the "purposeful and indiscriminant killings, and other forms of inhuman treatments" [49] taking place in the former Yugoslavia, as well as the atrocities that where happening in Rwanda, the United Nations Security Council created International Tribunals in both territories for the purpose of prosecuting those accused of genocide and other crimes. But, due to the political or other interest, genocide in Kurdistan has not yet been internationally recognised. [50]
Despite the argument posed by the UN Special Rapporteur, the ICTY and the ICTR kept the intent requirement as specific, rather than lowering it to a negligent or general intent standard. Likewise, the ICTY and the ICTR kept the "in whole or in part" language as stated in the Convention. Ultimately, it will be up to the jurisprudence of the ICTY and the ICTR, when interpreting the language of the Genocide Convention, to determine what the necessary mental state is for genocide.
Three years after the creation of the ICTR, the tribunal had entered its first guilty verdict. The accused was Jean-Paul Akayesu, [51] a known Hutu, who was the former mayor of Taba during 1994. In the relevant part, Article II of the ICTR's Statute mimics the exact language of the Genocide Convention's Treaty. [52]
The importance of this case lies in the way the ICTR judges addressed the preliminary questions related to genocide. [53] More important, however, is whether the Kurds fit into more than one of the four categories, national, racial, ethnic, and religious groups. This was also an important issue in the judgments of ICTR. [54] It is also possible to use the legal test as to whether the Kurds are a collective ethnic group "stable and permanent and whose membership is mainly determined by birth, language, and culture." [55] The Kurdish case may fit into the ethnic category according to Genocide Convention, because:
1. Iraq is a patrilineal society so that one's ethnicity (ie whether a person is a Kurd or an Arab) is determined at birth according to their father's ancestry;
2. one's ethnicity can be judged subjectively, as in the case of Kurdistan where one's ethnicity is establish through their society's criteria; [56] and
3. the fact that most people of Kurdistan carried identification cards, specifically stating whether or not they are a Kurd. [57]
The next issue facing the international tribunal courts, and which has relevance to the Kurdish case, is what constitutes specific intent when trying an individual accused of genocide when there is an absence of any hard evidence of intent, ie a confession or written plan delineating an aggressor's intentions? [58] Intent, however, could be inferred from a number of presumed facts.
First, the killings committed in Kurdistan were against the Kurds as members of a group rather than as individuals. Second, the sheer number of those exterminated (approximately 5000) suggests an intent to destroy in whole or in part. Third, evidence of the systematic killing of the group under the direction of a centralized authority[59] also shows an intention to destroy. Finally, the nature of the acts meets those conditions stipulated in Article II (a)-(e).
In addition, the judges of the ICTR concluded that genocide had in fact been committed, but the specific intent of the accused was to be determined during the individual trials, since one is innocent until they are proven guilty. [60] Consequently, in the case of Akayesu, the court had the task of trying their first defendant accused of genocide to determine whether he had the requisite intent.
In the Akayesu case, the justices held that since the Tutsis were an ethnic group that had been destroyed in part at the hands of the defendant and by those under his control, by way of the forbidden acts enumerated in the statute, the actus reas had been met. Furthermore, because the defendant had knowledge of and then preached about the use of chemical weapons, [61] the tribunal felt it had no other choice than to find that the defendant had met the mens rea, specific intent to commit genocide. [62] Similarity can easily be found between the Kurdistan and the Rwanda cases in the issues related to intent. In fact, the Iraqi leaders had knowledge of and then preached about the use of chemical weapons in Kurdistan 1988, as Akayesu had and did in Rwanda.
The Iraqi government's involvement in the genocidal acts, as disclosed through documented evidences, were: (i) that the Iraqi leaders made speeches calling for the chemical weapons attacks upon Kurdish civilians, and referring to them as saboteurs, (ii) that they incited other Kurds to kill Kurdish civilians, and, finally (iii) that they did nothing to prevent others from committing other acts of violence specifically targeted at the Kurdish civilian population, particularly in Halabja.
In comparison, Jean Kambanda, [63] another Hutu extremist who was also accused of committing genocide, pleaded guilty to all of the charges against him. In his plea agreement Kambanda admitted that in Rwanda during 1994 there was a "widespread systematic attack against the civilian population of Tutsi, the purpose of which was to exterminate them." [64]
He further stated that he had knowledge of the mass killings, and that he had participated in meetings of the Council of Ministers where the plan to exterminate the Tutsis was formulated and eventually implemented. He also admitted that he supported the Radio Television Libre des Mille Collines whose broadcasts were used to incite the persecution of the Tutsi population. Finally, he acknowledged doing nothing whatsoever to stop the extermination of the Tutsis. [65] The Iraqi government (Iraqi top leaders) took similar deliberate actions in their conspiracy to commit genocide, their complicity in genocide, and their incitement of others to commit genocide. [66]
In Kambanda's case, the court reasoned that Kambanda was still guilty of committing genocide (as well as conspiracy to commit genocide, complicity in genocide, inciting others to commit genocide and the like) since he knew the Hutu extremists were killing and causing physical and mental harm to members of the Tutsi population because of his participation in organising and implementing a widespread system to exterminate members of the group. In fact, Kambanda planned the genocide in order to "destroy in whole or in part" the members of the Tutsis ethnic group, was sufficient to find that Kambanda had the necessary intent to commit genocide. [67]
Thus it appears from the Akayesu case and the Kambanda case that the ICTR considers that knowledge of the mass killings, as well the contemporaneous commission of the at least one enumerated acts of Article 2 (a)-(e), or participation by an individual in organising the killing where the target group is killed in whole or in part, to be sufficient evidence to find an accused guilty of genocide.
Conversely, the legislative history for the Genocide Convention attaches a standard of "purpose," whereby an individual must have acted with the purpose to destroy in whole or in part. Knowledge of the genocide without evidence of purpose by the accused will likely fail the drafter's intent.
The ICTY has also interpreted the meaning of intent, and had made some additional thoughts in this important issue. [68] Not since the Nuremberg and Tokyo trials, which occurred immediately after World War II, has a court been created to try those accused of international war crimes, crimes against humanity, genocide and the like.
Likewise, the provision on genocide in the ICTY' statute, like the ICTR statute, is an exact replica of the Genocide Convention Treaty. [69] In contrasting the specific intent requirement necessary to be found guilty of genocide in the former Yugoslavia as opposed to Rwanda, the standard for ICTY as seen in the case of Gorden Jelisic, the "Serbian Adolph." Jelisic was accused of 31 counts in his indictment, including genocide. [70]
In the Trial Chamber's ruling, the judges held that in order for an individual to be guilty of genocide he must have the specific intent to destroy in whole or in part a specifically delineated group. The court reasoned that there must be evidence of "clear knowledge" that the accused "was participating in the … destruction … of a given group." The evidence necessary to establish an accuser's intent would be "planning, inciting others, ordering the genocide or other types of participation in the known genocide." [71]
Consequently, it appears that the ICTR standard for intent is "knowledge of the genocide plus prohibited acts," whereas under the ICTY standard the accused must have "clear knowledge that s/he is participating in the genocide." [72]
In other words, if a defendant is on trial for genocide in the former Yugoslavia the prosecutor must prove the defendant clearly knew that his/her actions where part of a greater genocidal scheme and that the intent was to participate in the destruction of the protected group (in whole or in part.) On the other hand, in Rwanda, for the court to be able to infer the defendant's intent to commit genocide, the prosecution needs only to show that the defendant knew of the genocide and then acted. Specific acts by the defendant are less important than the overall nature of the atrocities against the targeted group as a whole.
In the end, the ICTY's intent standard, like that of the ICTR, is lower than the intent standard enacted by the Genocide Convention, since the language of the convention includes the mental element of "purpose." The question on appeal will likely be whether the "clear knowledge of one's participation in the genocide" is close enough to "purposely destroying a group in whole or in part" that a perpetrator's actions can be viewed as meeting the necessary intent as dictated in the Genocide Convention.
An appellate court would more likely uphold those convictions where the perpetrator was found to possess the specific intent to commit genocide under a "clear knowledge" standard, rather than those that had "mere knowledge" of the genocide but did nothing to stop it, since the focus is on the actions of the perpetrator alone and not on the overall result of the genocide.
One more issue emerges when comparing general and specific intent. As mentioned above, the specific intent needs clear knowledge, but in criminal law, general intent is the intent to do what the law prohibits. The prosecution does not have to prove the defendant intended the particular harm that resulted. [73]
For instance, if a person is hiding in the bushes along side of a street and begins shooting at cars that are passing, and ends up killing a person driving by, the accused could be found guilty of second degree murder. The identity of the victim is irrelevant and the intent of the actor is equally unimportant, because, in general, in intent crimes the focus is on the result of the accuser's actions and not whether they intended to harm another person. The fact that the accused did not intend to kill the victims is inconsequential, since it is the result of the defendant's actions, ie shooting at cars and killing another, that is the focus.
In contrast, specific intent is where a special mental element is required such that the defendant has the mental purpose to break the law. A common example is the crime of larceny. Larceny is the "taking and carrying away of another's personal property with the intent to deprive the owner thereof." [74] Larceny would not be taking a bicycle that looks like yours, but which turns out to belong to another. For a person to be found guilty of larceny it must be proved, as an element of the crime, that the accuser's mental state was such that s/he had the intent to steal someone else's bicycle.
The fact that s/he took another's bicycle will not be enough to find the accused guilty if the required mental state is lacking. Likewise, in the case of genocide, which was defined as a specific intent crime by the drafters of the Genocide Convention, the specific intent of the accused must be proven, since, by definition, it is a necessary element of the crime. [75] Accordingly, if one does not possess the specific intent to destroy a group in whole or in part, then that person would not be found guilty of genocide, but s/he could still be found guilty of crimes against humanity, war crime, homicide, or any of the enumerated crimes in Article II (a)-(e). [76]
Therefore, the killing of one individual with such intent is genocide, but the killing of a thousand without the intent would merely be homicide. [77] In other words, "genocide occurs when the intent is to eradicate the individuals for no other reason than that they are a member of the specified group." [78]
Moreover, the knowledge is also not enough if its not "purposeful." When the drafters of the Genocide Convention agreed to insert the Norwegian amendment which included the phrase "in whole or in part," they also agreed that an aggressor's acts would constitute genocide if the aggressor's purpose was the destruction of a group, even if only a portion of the group was harmed and not the entire group. [79]
Unfortunately the drafters of the Convention seemed to have been more concerned with the definition of "in whole or in part," than with articulating the mental state one must have. Although the drafters agreed that genocide would be a specific intent crime since without the necessary mental state it would be homicide, [80] they never used a precise word to manifest their exact intention.
In a 1991 report, the International Law Commission explained that the prohibited acts must be "volitional … general intent to commit one of the acts … and general knowledge of the consequences of such acts on immediate victims in not enough." [81] Thus, the actor must have knowledge of the ultimate objective of the massive criminal conduct [82] such that the actor's purpose is the destruction of a nation, racial, ethnical or religious group, ie, one's action must be carried out with purpose. [83]
However, because one's mental state is an element of the crime, [84] the clarification of the accused's intent and the determining of the facts of the matter under investigation would have to depend almost completely on circumstantial evidence, since concrete evidence of the accuser's intent will probably not be available. Accordingly, in order to prove an individual had the intent to commit genocide, evidence of the accuser's purpose must be established by determining whether his or her actions where in fact directed toward the destruction of a group, such that the numbers of those killed would be "of evidentiary value as to the individual's state of mind." [85]
Criticised by many leading experts in the field, the meaning of genocide as put forth by the Genocide Convention is ambiguous, [86] making its interpretation and implementation very difficult. Consequently, the ambiguity of Article II has caused divergent interpretations of what constitutes the intent requirement for committing genocide as between the ICTR, the ICTY and the legislative history of the Genocide Convention.
According to the ICTR, an offender is considered guilty of genocide when s/he has committed one of the prohibited acts of Article II (a)-(e), with the intent to destroy a particular group in whole or in part. [87] The accused is "culpable because s/he knew or should have known that the acts committed would destroy, in whole or in part, a group." [88] Moreover, if the accused kills only one person, s/he may still be convicted of genocide, as long as it can be established that the victim was killed because of their membership in a protected group. [89] Thus "the individual civilian Kurdish victims are important not per se, but because they belong to the targeted group." [90]
The difficulty once again, lies in trying to determine whether the individual accused of genocide had the required specific intent. According to the Trial Chamber of ICTR, an accuser's intent can be inferred from the broader genocidal intent "inherent in a particular charge, from the general context of the perpetration of other culpable acts systematically directed against that same group, whether the acts were committed by the same offenders or others." [91]
According to the ICTR, if an individual does not confess to having the intent to destroy in whole or in part, as long as they killed at least one Tutsi (or committed any of the other acts enumerated in Article II) and had knowledge of or participated in the plan to exterminate the Tutsi, their specific intent could be inferred from overwhelming evidence of the planned extermination.
In contrast, the negotiating record of the Genocide Convention states that an individual's own intent must be proven such that the person had the purpose to destroy the group in whole or in part, since the actor's mental state is an element of the crime. Merely inferring that the accused had the intent to destroy in whole or in part because it is obvious from the "general context" that the victims were killed because they were members of a particular group will likely fail to meet the drafter's intent, since it is the individual's state of mind that is sought, not what happened collectively.
On the other hand, the ICTY offers a third standard, which lies between the ICTR and the Genocide Convention. In the Jelisic's case, according to the ICTY, the accused must have clear knowledge of his/her participation in the genocide. In that case, Jelisic had murdered, tortured, detained and abused Muslims, which are all prohibited acts that fall within Article II (a)-(d) of the Genocide Convention.
The problem in Jelisic case was that the prosecution did not prove that the defendant clearly knew of his participation in the genocide. According to the ICTY, intent could only be proven through "planning, inciting or ordering of the genocide," where the accused acts with the intent to destroy the targeted group, irrespective of the overall nature of the atrocities which took place.
Although the number of those killed can be of evidentiary value when proving an individual's intent, according to the drafters of the Convention the killer's intent must still be identified such that the perpetrator participated in the killing individuals because they were part of a national, political, religious or ethnic group, for the purpose of destroying the group in whole or in part. Thus the ICTY seems to be more in line with the Genocide Convention, whereas, the Trial Chamber of the ICTR has lowered the intent standard from purposely committing one of the prohibited acts enumerated in Article II of the Convention's draft, to knowingly participating in the extermination of individual because they are a member of the targeted group.
By lowering the standard to "knowledge," the ICTR appears to have drifted too far from the original intent of the Genocide Convention. For the drafters, genocide was such a grievous crime that it was made punishable by the international community. It is a crime that "shocks the conscience," and even hearing the word should send chills down one's back. It was intentionally distinguished from homicide and murder because the killing focuses on the identity of the victims, ie an immutable characteristic, which fatefully brought the victims together.
If and when the issue of specific intent to commit genocide is brought up on appeal, the Appellate court will likely not uphold convictions where the standard for intent is "knowledge." The reason for this is that knowledge is more like a general intent crime, where the result of the perpetrator's actions could be the partial or entire destruction of a national, political, religious or ethnic group. Moreover, although the results of his or her actions may appear to be genocide, they are not, in reality, since the perpetrator did not have the requisite specific intent to commit the crime.
When an accused is guilty of genocide it is because s/he acted with a greater purpose. The perpetrator is killing people because of who they are as members of a group that he wishes to destroy. This sort of intent is what was to be punished and prevented according to the Genocide Convention. Knowledge of the genocide alone will not prove that the accused had a purpose in committing genocide, nor will the numbers of those killed prove that the accused committed genocide, unless there is further evidence of a plan of extermination.
Therefore, when arguing or trying a case like the Kurdish genocide, it is important to show, as well as state, that the defendant purposely participated in the mass killings in such a way that his or her personal involvement was part of an overall plan to destroy the Kurdish people in whole or in part. But still it would be very difficult to prove that the intent of the person's act was purposeful.
3.2.3 Evidence to support the Kurdish case
There are sufficient documents in both Arabic and in English, including speeches and newspaper articles, which present clear evidence for an argument that, first of all, there were chemical attacks in Kurdistan, and, secondly, that the attacks were planned by the Iraqi Government to destroy the Kurdish civilians in whole or in part -- in another words, that the "intent" existed. There are channels to prove the actus, and then the reus.
First: Speeches. Recorded on audiotape, Ali Hassan al-Majid (known in Kurdistan as 'Ali Chemical') justified the use of poison gas against the Kurds in a speech to the cadres of Saddam Hussein's Ba'ath party.
He says on the tape: [92] "Who is going to say anything? The international community? F… them -- the international community and those who listen to them!" Early in 1987, while ruminating at a meeting with subordinates (recorded on another tape), [93] Ali Hassan al-Majid defended himself against the potential critics who might dare question his 1988 wholesale execution of Kurdish men, women, and children: "Am I supposed to keep them in good shape? No! I shall bury them with bulldozers." Then, as if recalling the terms of a debate about how to settle the Kurds' fate, he added: "Where am I supposed to put all this enormous number of people? I started to distribute them among the governorates. I had to send the bulldozers hither and yon."
In an address to top Ba'ath cadres, he spelled out a "systematic military plan" designed to surround the Peshmerga (Kurdish guerrilla fighters) in a small pocket, and attack them with chemical weapons: "I will attack them with chemicals one day, but I will attack them with chemicals for fifteen days." [94]
On another tape, Ali Chemical was recorded bluntly informing a Jash: [95] "I cannot let your village stand, because [what would happen if] I attack it with chemical weapons? Then your families would die. You must leave your villages right now because I cannot tell you the same day I am going to attack with chemical weapons." [96]
Second: Documents. There are tens of documents that have references to the chemical attacks. It is important to mention that the documents below have direct reference to chemical attacks carried out by Iraqi forces. The first document to mention is a top-secret letter sent by the Director of the Intelligence Centre of Kalar, a small Kurdish town in northern Iraq. [97]
Top Secret - Document No. 9 [98]
During the month of March 1988, our aircraft bombed the headquarters of the sabotage [99] bands in the villages of Saywan (4596) in a chemical strike. This resulted in the death of 50 saboteurs [100] and the wounding of 20 other saboteurs.
[Signed]
Captain Kifah Ali HassanDirector of the Intelligence Centre of Kalar.
Third: Articles in newspaper and magazines. There are hundreds of articles.
The following is an extract from an Iraqi and Western newspaper about the use of chemical weapons in Kurdistan 1998.
My eyes became heavy, I had pain breathing, I vomited 8 or 9 times ... Each time I opened a door of a house, there were children, women, & men agonising & dying.
Mohamad Azizi, 25 years, Le Monde 08/04/1988.
Al Thawra, the official organ of the Iraqi Government, states on 29 March 1988:
No one has the right to dictate to Iraq the type of weapon it uses to defend itself. Those who talk about the Geneva Convention (of 1925 on chemical & biological weapons & to which Iraq is signatory TKT) must bear in mind that this convention forbid also the occupation by force of other's lands.
The above sources illustrate that the Iraqi Government may have had the purpose or intent to destroy the Kurdish population in whole or in part, or to destroy the language and culture of that group, thus constituting or authorising the crime of genocide by, inter alia, providing for:
1. The forcible removal and transfer of the Kurdish people as a racial or ethnic group in a manner which was calculated to bring about the group's physical destruction in whole or in part;
2. actions which have the purpose, the effect or the likely effect of causing serious mental harm to members of the Kurdish minority as a racial or ethnic group;
3. the deliberate infliction on a racial or ethnic group of conditions of life calculated to bring about its physical destruction in whole or in part.
This aspect of the Iraqi Government claim relies upon the definition of genocide in the Genocide Convention 1948. [101] In addition, the chemical weapons attacks on Halabja and other Kurdish areas (the Kurdish Genocide of 1988) had a distinctly modern flavour. [102] Although mass murder is not a modern invention, contemporary mass murder within the perimeters of a territorial state is. It is distinguished by a virtual absence of all spontaneity, on the one hand, and the prominence of rational, carefully calculated design, on the other.
Finally, maybe there was intent to destroy, in whole or in part, the Kurdish people. There is evidence to fit the chemical attacks in the genocide definition, [103] and there is also international law to punish the genocidal crimes. What is needed from the international community is legal enforcement, and political and moral support, for the establishment of an international criminal tribunal for Iraq, in order for the unpunished murder of thousands of Kurdish people to be brought to justice. [104] This is the subject of the next chapter.
3.2.4 Conclusion
It seems that it is not an easy legal task to interpret whether a genocidal act such as happened in Kurdistan was intentional, but the ICTR and ICTY have taken some steps forward in clarifying "intent." In the Kurdish case, the indications are there that there was an intent to destroy the Kurdish population in whole or in part, and there is enough evidence the action should be taken. There is a need to appoint a United Nations Commission of Experts to investigate alleged acts of genocide in Kurdistan, as was established in the Rwanda and Yugoslavia cases. To establish intent in a paper like this is impossible, as there are to many conflicting interpretations. What is needed is an International Criminal Tribunal for Iraq (ICTI), and this is proposed in the next chapter.
4.0 A proposal for the setting up of an International Criminal Court for Iraq
4.1 Early History
The idea of setting up an international criminal court, to bring to justice those individuals including leading State officials who are allegedly responsible for serious international crimes, goes back to the aftermath of World War I.
Article 227 of the Treaty of Versailles provided for the establishment of a tribunal composed of five judges (to be appointed by the United States, Great Britain, France, Italy and Japan) to try the former Kaiser of Germany, Wilhelm II. This tribunal was never established. [105]
During World War II the Allies took up the idea of an "international" tribunal. The Nuremberg and Tokyo tribunals were thus established, in 1945 and 1946 respectively.
In 1948, the United Nations General Assembly invited the ILC to study the desirability and possibility of establishing a criminal judicial body -- a "Criminal Chamber of the International Court of Justice." However, neither the early discussion in the Commission, nor the provisions of Article VI of the 1948 Genocide Convention on 'an international penal tribunal, were translated into reality.
It would seem that the idea to establish a criminal court for Iraq was disputed for the first time in August-September 1990 [106] by Margaret Thatcher, then Prime Minister of Great Britain, [107] and George Bush, then President of the United States, [108] the notion having reputedly originated in the United States Department of the Army. [109] It received a renewed impetus in early 1991 with the news that Iraqi troops had massacred Kurdish Iraqis in northern Iraq.
On this occasion, the concept of an international court to try Saddam Hussein was mooted by the German Foreign Minister, Hans Dietrich Genscher, in a meeting of the (then) 12-member States of the European Community, held in Luxembourg on 15 April 1991. The proposal was strongly supported by the Foreign Ministers of France (Roland Dumas), Belgium (Mark Eijskens) and Luxembourg (Jacques Poos). [110]
4.2 Introduction
Trials are legal therapy. Virtually all Kurdish people lost relatives to the genocide, and many have suffered post-traumatic stress disorder. Trials will help the Kurds' recovery, through the therapeutic value of judicial proceedings. In effect, trials help transform lingering grievances into past history.
Bringing genocidal criminals to justice helps restore the legitimacy of the once-offending state. Croatian authorities, for example, turned over to the Hague Tribunal for the former Yugoslavia a number of its suspected war criminals, in order to enhance its image and promote its integration into European institutions.
4.3 Why the Need for Setting Up an International Criminal Court for Iraq?
The setting up of an International Criminal Court for Iraq could provide the means to put an end to grave violations in Iraq and to contribute to the restoration and maintenance of peace. The establishment of an ad hoc tribunal would undoubtedly represent major progress towards those goals.
In asking why there is a need for such a court, there are three main arguments to the answer, and all are related to the charge of genocide:
1. The use of chemical weapons, prohibited by international law, in Halabja and other parts of Kurdistan in 1988 were possibly constituted as genocide. [111]
2. The victims did 'constitute a national, ethnical, racial or religious group' and that the Iraqi government's actions were of criminal intent. Also, the number of Kurdish civilians killed by the use of chemical weapons were of such magnitude as may constitute a genocidal act.
3. Genocide in Kurdistan was a threat to and a breach of peace. [112]
As mentioned earlier in this paper, there is evidence against the Iraqi government to satisfy the need for establishing an international criminal tribunal for Iraq. If it has been possible to establish tribunals for Yugoslavia, Rwanda and Sierra Leone, why not for Iraq?
According to the Convention on the Prevention and Punishment of the Crime of Genocide, Article 4, "Persons committing genocide shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals," [113] and there is no legal motivation why Iraq should be excluded from this punishment.
Moreover, late-blooming twentieth century Iraqi leaders need not fear punishment, and the Kurdish Genocide issue will not benefit from the establishment of International Criminal Court, because the ICC will have power to try only crimes committed after it is established (ie it will not be retroactive) [114]
4.4 The Proposal
The increase in Security Council activity, especially its creativity in designing novel measures for responding to threats to international peace and security, has raised questions about the purview of the Council's competence and the existence of checks and controls upon its authority. [115]
These issues are now regularly raised before the judicial organs of the United Nations. The ICJ was presented with such issues in two notable cases: Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie Libya v UK ('Lockerbie'), [116] and the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro). [117]
In both cases, the International Court has thus far handed down only decisions relating to provisional measures and preliminary objections, and has not directly considered the issues relating to limits on the powers of the Security Council. These issues were also raised with respect to the Yugoslavia Tribunal. The above cases are not directly connected to the Kurdish genocide, but they explain the fact that the Security Council has the power to establish an international tribunal when there is a breach to international peace and security. [118]
The Security Council established the Yugoslavia Tribunal in 1993. [119] Under Article 25 of the Charter, the Members of the United Nations are obliged to carry out decisions of the Security Council.
At the time the Council was considering establishing the Tribunal, various Member States raised the issue of whether the Security Council had the power under Chapter VII. Some States emphasised the need for caution with respect to this exercise of Chapter VII powers by the Security Council. [120] For practical and political reasons, however, the members of the Security Council overcame any previous hesitations regarding the legality of establishing the Yugoslavia Tribunal in 1993. [121]
The ICTY itself was confronted with the issue of the validity of its establishment in its first case, Prosecutor v Tadic. [122] On June 23, 1995, counsel for the accused, Dusko Tadic, filed a motion contending, inter alia, that the Tribunal lacked jurisdiction to try Tadic because its establishment through a resolution of the Security Council was illegal. [123] In the Tribunal's Appeals Chamber, the defendant's arguments raised "a series of constitutional issues which all turn on the limits of the power of the Security Council under Chapter VII of the Charter of the United Nations and determining what action or measures can be taken under this Chapter." [124]
Both the Trial Chamber and the Appeals Chamber [125] upheld the legality of the establishment of the Tribunal, but did so in different ways. The Trial Chamber found it did not have the authority to review the legality of the establishment of the Tribunal, but noted in dicta that if it had such authority it would conclude that the Security Council had acted within the purview of its Chapter VII power. The Appeals Chamber, on the other hand, held that it did have the authority to review the legality of the establishment of the Tribunal and found that the Tribunal had been properly established. [126]
On the other hand, the Committee of French Jurists concluded that it was "juridically possible" for the Security Council to create the Yugoslavia Tribunal under Chapter VII of the Charter only if the Tribunal's powers were "limited to the purpose for which it is created, ... the restoration of peace and security." [127] This objective was actually accomplished in the case of the Yugoslavia Tribunal. The Tribunal is subject to strict temporal and geographical restrictions: it is only authorised to consider cases arising in the territory of the former Yugoslavia after 1991. In other words, the Tribunal's mandate was narrowly tailored to respond to the threat to peace identified by the Security Council.
The question which begs to be asked is this: Would the Kurdish case also be narrowly tailored to respond to a threat to peace? To answer this question, the proposal needs to be argued in more detail, and an initiative taken by a third party to raise the genocide case in Kurdistan internationally.
Emphasising the actual basis for a finding of a threat to peace provides a standard to evaluate the responsive measures chosen by the Security Council, because the Charter places the whole decision on this score with the Security Council. [128]
Theoretically, and independently of any consideration as to political advisability, it is certain that in strictly legal terms nothing stands in the way of the responsibility of the Iraqi Government being determined by "a ICTY, ICTR or even Nuremberg-type procedures" -- if what is meant is that:
1. Iraqi leaders would be tried by an internationally constituted Tribunal (international in respect of both its origin (a treaty) and its composition (judges of various nationalities));
2. the legal mechanisms and the terminology now used by the ICTY and ICTR for genocide crimes ("crimes against the peace and the security of mankind" would be used in the Kurdish case;
3. the personal liability of the perpetrators would not be protected by their official capacity. [129]
Today, a tribunal with this competence does not exist, but it can be created by the Security Council or a treaty. The Nuremberg Tribunal was established by the London Agreement of 8 August 1945 -- that is, by a treaty subsequent to the incriminated acts -- and the ground in respect of liability for international crimes, without being fully stabilised, is certainly more "sound" today than it was in 1945.
As for the fact that Iraqi leaders have not been captured, and the fact that there is probably no lawful way to lay hands on them (at least at present (see universal jurisdiction in this paper)), that is not a diriment impediment. Criminals can always be tried in absentia.
A new treaty establishing a new tribunal would therefore be indispensable, with all the political risks and technical difficulties that would involve, but it is worth considering that:
1. the task seems less "Herculean" where genocide is involved, since the Convention of 9 December 1948 on the prevention and punishment of the crime of genocide defines the crime in reasonably clear terms, and that its Article 6 provides for the jurisdiction of an "international criminal court" (which, however, remains to be established);
2. the ILC is in the process of drawing up a draft Code of crimes against the peace and the security of mankind, the drafting of which is quite advanced. Drafted in 1990, at the request of the General Assembly of the United Nations, was a report on the issue of the "creation of an international criminal tribunal." Whatever the shortcomings of this work, it constitutes a useful starting-point for reflection -- even, should the case arise, a possible basis for negotiations.
That being so, the difficulties involved in the undertaking should not be politically masked and it is fair to wonder whether it would not be wiser to envisage different procedures. Thought might be given, in particular, to mechanisms enabling the behaviour of the Iraqi Government to be legally characterised in respect of the Kurds, without trying the Iraqi leaders stricto sensu, in the sense that such a procedure would not culminate in a criminal sentence. Recourse to such a procedure would provide notably the following advantages:
1. The procedures exist or, if they are to be created (see ICTY and ICTR Statutes), their legal basis involves no specific problems and their implementation is almost straightforward;
2. The Iraqi leaders could be heard (through representatives of Iraq) but there would be no need to comply with the very complicated rules of criminal trials;
3. Politically, it would be easier to prevent transforming the "defendants" into "martyrs" in the eyes of world public opinion.
Moreover, the International Court of Justice. has no jurisdiction in respect of individuals; [130] so there is no question of its being asked to "try" Iraqi leaders (unless the Statute, annexed to the Charter, were revised ...) and to have it hand down a ruling through contentious proceedings. On the other hand, [131] "The General Assembly or the Security Council may ask the International Court of Justice for an advisory opinion on any legal matter" -- (the Economic and Social Committee has likewise been allowed to formulate requests for opinions through Resolution 89 (I) of the General Assembly).
Nothing is evidently more "legal" than a question bearing on the legal characterisation, on the basis of international law, of certain forms of behaviour. Even though the ICJ considers itself entitled to refuse to respond to certain requests for an opinion -- something it has so far never done -- it is hard to see what would hinder the Security Council or the General Assembly from asking the Court, for instance, whether Kurdish cases (which would have to be listed with care) were genocide and crimes against the peace and security of humanity, and whether the senior Iraqi authorities could be held personally liable for those crimes.
Another possibility would be to submit questions of this kind to other existing organs of the United Nations made up of Experts. Such could be the case of the International Law Commission
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