Genocide in Kurdistan

A dissertation presented in partial fulfillment
of the Diploma in Legal Studies at the University of Auckland

By Heval Hylan

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 Introduction
2.0 What is Genocide?
2.1 Historical background
2.2 Definitions
3.0 What is the Kurdish Genocide?
3.1 Incidents
3.2 Intent
3.2.2 The Definition of Intent
3.2.3 What constitutes the actual intent requirement?
3.2.4 Evidence to support the Kurdish case
3.3.5 Conclusion
4.0 A proposal for setting up an International Criminal Court for Iraq
4.1 Early History
4.2 Introduction
4.3 Why the need for setting up an International Criminal Court for Iraq?
4.4 The Proposal
4.5 The Question of Political Will
4.6 Conclusion
5.0 Universal Jurisdiction over genocide
5.1 Introduction
5.2 Jurisdiction
5.3 Conclusion
6.0 General Conclusion
7.0 Bibliography

Annex 1: Chronology
Annex 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 Hassan
Director 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, which [132] can examine "the plans and drafts of multilateral conventions emanating from Members of the United Nations, the main organs of the United Nations other than the General Assembly, specialised agencies or official organisations established by intergovernmental agreements with a view to encouraging the progressive development of international law and its codification, which the Secretary-General shall transmit to it for that purpose."

It is more than doubtful that the ILC could consider a request for legal characterisation of certain forms of behaviour unless its Statute were amended, which involves a decision by the General Assembly. The ILC solution, then, seems hardly workable.

At a less solemn level, there is certainly nothing stopping the Security Council, the General Assembly, or probably even the Secretary-General acting on his own authority, from establishing a committee of legal experts with the task of examining the problem of the legal characterisation of the genocide in Kurdistan by the Iraqi Government. If there is to be an investigation, it would probably be the only way to have it carried out. In theory, the ICJ has broad investigative powers, but it is very poorly equipped to carry out investigations into specific problems.

For the establishment of a Tribunal for Iraq, New Zealand, as an impartial country with a good reputation in the international arena, may be the best candidate to be asked by the New Zealand Kurds (see the request in letter form on the last page of this chapter) to take the initiative and offer itself as a neutral intermediary.

Finally, the Kurdish Genocide has been ignored, simply because of political interest by super powers -- particularly by the United States of America. This is the next issue to be discussed.

4.5 The Question of Political Will

The political will of the prosecuting (or extraditing) state will be a critical factor in the possibility of a prosecution, particularly where the law does not allow victims to initiate a criminal proceedings directly. In the Pinochet case, [133] British police immediately executed the arrest warrant sent by Spain. Austria's decision recognised the political costs of a break with the international status quo. [134] Austria placed its relations with Iraq above its international treaty obligations.

In November 1999, the former tyrant of Ethiopia, Mengistu Haile Mariam, [135] who was wanted by the Ethiopian authorities on charges of genocide and crimes against humanity, visited South Africa to receive medical treatment. Despite calls from local and international groups for his arrest, and despite South Africa's strong human rights record, he was not apprehended and he returned to exile in Zimbabwe where the government has sheltered him since his fall from power.

When Abu Daoud, who was accused in the massacre of Israeli athletes in the 1972 Munich Olympics, was apprehended in France in 1976, Paris gave short shrift to extradition requests from West Germany and Israel, and freed him four days after his capture.

Obviously, the existence of a democratic government and an independent judiciary, and perhaps the presence of a large community of exiles from the country of the crimes, will help create in the prosecuting state a political climate permitting a case to proceed. Pinochet's prosecution in Spain -- where a conservative government has been under pressure for South American trading partners to drop the case -- was only possible due to the independence of Spain's judiciary, as well as the large Chilean exile community in Spain, and strong popular support for the prosecution.

Senegal, which prides itself on being the first country in the world to ratify the treaty establishing the International Criminal Court, and which has taken a high profile on international rights issues, has allowed the Habre prosecution to move forward without political interference. On the other hand, Idi Amin, the former dictator of Uganda currently living in Saudi Arabia, is unlikely to be prosecuted in Saudi Arabia, [136] a state in which there is little political participation and no independent judiciary, and whose government is not responsive to international calls by NGOs and victim groups to bring Amin to justice.

Depending in part on whether the perpetrator's regime is still in power, it is possible that the government of the country in which such crimes occurred may try to block the prosecution. This may have important implications in relation to access to information and evidence, and even to the safety of witnesses, victims, and their families. Such governments may also press to have a case dropped, as Chile has tried to do in the Pinochet case. The outcome may then depend on the political will of the prosecuting state, the independence of its judiciary, and the counter-influence that interested groups may have. Even where international politics are not a factor, it may also prove difficult to convince a foreign prosecutor, or an investigating judge, to initiate the investigation of a crime committed outside of his or her country. This could occur because of a lack of local interest in a case of this type, or because of a resistance to the possibility of human and financial resources being diverted from local cases, particularly given the expense of international cases. Hence, a strong advocacy campaign may be needed. Austrian people, for example, may argue that their country should not become a "safe haven" for genocidalists and other criminals.

In addition, by the end of the Gulf War, chemical weapons had become fully integrated into the Iraqi armed forces. The Iraqi government then turned its military might on its own Kurdish minority and used chemical weapons against them. [137] Members of the US Congress called for sanctions on Iraq, but the US administration opposed the move. [138]

In fact, it has been suggested the US was providing Iraq with agricultural credits, and this continued despite evidence that the credits were being used improperly -- possibly to finance military purchases. [139]

At a meeting in Paris in January 1989, 149 nations unanimously agreed to condemn the use of chemical weapons, but the chemical attacks by the Iraqi government in Kurdistan 1988 were not mentioned. [140] On the other hand, chemicals are the inexpensive weapons of mass destruction, and, as Arab nations argued at the January 1989 Paris conference on chemical weapons, States could not be expected to renounce such weapons so long as their enemies maintained atomic arms. [141]

4.6 Conclusion

It seems that political interest easily overrides the legal guidelines as to what exactly constitutes a breach of world peace or security. Such matters are entirely up to discretion of the members of the UN Security Council. The Council has the explicit right to determine what exactly is a "threat" to world peace. It is doubtful whether States ratifying the Charter ever believed they were granting to the Council a blank cheque to modify their legal rights.

Whether or not it is politically feasible to establish a permanent and independent criminal tribunal within the framework of the United Nations Convention on Genocide is an open question. One international lawyer, Vratislav Pechota, concluded in 1989 that it was not feasible at that time. As an alternative, he argued that efforts should be made to establish some kind of stand-by mechanism that could be put to work only when there is sufficient support for international judicial action. [142]

Pechota also stressed that the mechanism should be independent and effective, and employ a principle of universal jurisdiction with respect to genocide (ie, individual States would have the authority to punish genocide regardless of where and by whom the crime is committed). Such a mechanism should also consist of procedures enabling the creation of ad hoc bodies such as a commission of inquiry, a prosecuting attorney, or a tribunal. [143]

Finally, the UN Charter does not solve the political problems of the UN Security Council and its interference in international criminal law. In respect of the silence on the Kurdish Genocide, for example, the true problem centres around political demands rather than legal ones. The analysis of the genocide in Kurdistan reveals how international criminal law today can be somewhat ineffective, simply because of the following reasons:

1. the politically-motivated interference of the UN Security Council

2. the inability of international criminal law to present uniform rules in crime definition and criminal procedure (that is, ineffective mechanisms)

International criminal law may cannot function effectively, and genocidal crimes such as in Kurdistan remain untouched, as long as these problems are present. [144] In solving the political problem of the UN Security Council and its interference, the road remains open with regard to solving the remaining, mostly legal, problems mentioned in (2). Any effort to solve the legal problems of international criminal law, as put in (2), without first solving the political problems of international criminal law, as put in (1), would be in vain.

Legality can flow from politics, but politics can also kill legality. In order to render international criminal law a better legal tool, we must abolish some of the old-fashioned political views of international law in general.

The previously mentioned letter proposing New Zealand as a neutral intermediary follows this chapter.

November 2000
President of the Security Council
Foreign Minister of New Zealand
Dear Sirs
Taking into consideration the gravity of the chemical weapons attacks against civilian Kurdish population in Halabja and other parts of Kurdistan in 1988 (northern Iraq) by the current Iraqi Government, [and the humanitarian crisis] affecting Kurdish people as one nation;
Convinced that serious breaches of the Genocide Convention 1948, and humanitarian law, have been occurring in northern Iraq;
Aware of the particular responsibility of the United Nations and the international community with regard to the territory of Kurdistan and in general to prevent any violation of the rule against Genocide.
Considering the reports, which raise that genocide is being committed in that territory against the people of Kurdistan;
Considering the importance of prosecuting any person responsible for genocidal acts.
Considering the previous precedents of international criminal tribunals created by the Security Council in similar situations, ie the ICTY and ICTR;
Hoping that the establishment of a Criminal Tribunal may serve as a deterrent in preventing further violations in the territory of Kurdistan;
The signatories of this petition request and urge the members of the Security Council to pass, under Chapter VII of the Charter of the United Nations, a resolution creating a Criminal Tribunal for Iraq, for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the territory of Kurdistan, including breaches of the Geneva Convention of 1949, and for crimes against humanity and genocide crimes.
(Signed) Kurdish Society in New Zealand
PO Box 56567 Dominion Road
Auckland New Zealand


5.0 Universal jurisdiction over genocide

5.1 Introduction

Genocide has been acknowledged as subject to universal jurisdiction under customary international law by several commentators. [145] As one commentator noted, " [o]nce internal atrocities are recognised as international crimes and thus as matters of major international concern, the right of third states to prosecute violators must be accepted." [146]

The Geneva Conventions specifically provide for universal jurisdiction over grave breaches. [147] It is now established that such jurisdiction applies in respect of a range of crimes beyond grave breaches, to crimes committed in international and internal armed conflict. [148]

Since the Nuremberg and Tokyo trials which followed World War II, the principle that it is the duty of states to bring to justice those responsible for international crimes, when they are not prosecuted in their own countries, has gathered momentum. Certain international treaties place states under a duty to ensure that suspects who come within their borders are brought to justice, either by prosecuting them in their own courts or by extraditing them to stand trial elsewhere.

This duty to either prosecute or extradite is contained in the four Geneva Conventions of 1949. States which are parties to the Geneva Conventions are obliged to seek out and either prosecute or extradite those suspected of having committed "grave breaches" of those Conventions:[149]

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie Case. [150]

"Grave breaches," as defined in the Conventions, includes wilful killing or inhuman treatment, causing great suffering or serious injury to body or health, and other serious violations of the laws of war. [151]

A serious weakness in the Conventions is that they only require the exercise of universal jurisdiction for offences committed in international armed conflict, and not in internal armed conflict. [152] 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. [153]

In addition to these treaties that impose obligations on states parties in relation to specific offences, it is widely recognised that customary international law obliges the exercise of universal jurisdiction for genocide. [154]

5.2 Jurisdiction

Traditionally, courts of a state would only exercise jurisdiction over persons who had committed a crime in their own territory (territorial jurisdiction). [155] Gradually, international law has recognised that courts could exercise other forms of extraterritorial jurisdiction, such as jurisdiction over crimes committed outside the territory by the state's own nationals (active personality jurisdiction), [156] over crimes committed against the state's essential security interests (protective principle jurisdiction), [157] and over crimes committed against a state's own nationals (passive personality jurisdiction). [158] -- although this last form of jurisdiction is contested by some states

States are obliged to arrest and exercise jurisdiction over persons suspected of genocide crimes under international law, no matter where these crimes occurred. This applies even if the crimes took place in the territory of another state, [159] involved suspects or victims who are not nationals of their state, or posed no direct threat to the state's own particular security interests (universal jurisdiction). [160] Genocide is a crime under customary international law over which any state may exercise universal jurisdiction. [161]

In 1961, Israel tried and convicted Adolf Eichmann of genocide crimes committed in Germany during the Second World War, and this conviction was based in part on universal jurisdiction. The District Court of Jerusalem stated: [162] "The state of Israel's 'right to punish' the accused derives, in our view, from two cumulative sources: a universal source (pertaining to the whole of mankind) which vests the right to prosecute and punish crimes of this order in every State within the family of nations; and a specific or national source."

On appeal, the Israeli Supreme Court reached the same conclusion: " [T]here is full justification for applying here the principle of universal jurisdiction since the international character of 'crimes against humanity' dealt with in this case is no longer in doubt."

Universal jurisdiction is provided for in legislation incorporating the Geneva Conventions and the two Additional Protocols. The Geneva Conventions Act of 1957 makes punishable certain grave breaches of the Geneva Conventions including genocide, wherever committed. The Geneva Conventions (Amendment) Act 1995, which came into force in 1998, extended universal jurisdiction to grave breaches of the First Additional Protocol of 1977.

However, the argument in this chapter is whether the Kurdistan genocide extends to universal jurisdiction. To discuss and analyse this argument, we need to look at court cases which are related to the genocide crimes of a universal jurisdiction nature. It is particularly interesting to look at Austria, [163] because (i) Austria conducted the first trial relating to the conflict in former Yugoslavia (a trial which was conducted on the basis of universal jurisdiction in a national court outside Yugoslavia); (ii) Austrian criminal law has a remarkably wide reach. (Article 64 of the Austrian Penal Code deals with offences which can be prosecuted in the Austrian courts even though committed abroad), [164] and (iii) the Vice Chairman of the Revolutionary Command Council who was one of Saddam's top deputies, Izzat Ibrahim al-Douri, visited Vienna for medical treatment in August 1990, and the Austrian government released him even he though he was accused of genocide. [165]

In July 1994, in Austria v Cvjetkovic, [166] an indictment was issued against Cvjetkovic on 27 July 1994 in the District Court of Salzburg, and his trial proceeded on charges of genocide and murder. The jury found that insufficient evidence had been produced to determine his role in the Bosnian genocide, and on 31 May 1995 he was acquitted on all charges. [167]

Austria accused Cvjetkovic of killing one person and deporting two others to a concentration camp, and charged him with genocide crimes. But when Izzat Ibrahim, Vice Chairman of the Revolutionary Command Council and one of Saddam's top deputies, visited Vienna for medical treatment, Austria did not accuse him -- even though al-Douri had given orders for chemical weapons attacks against civilians in Kurdistan, killing 5,000 people. [168] This was despite the fact that an Austrian municipal official launched efforts with the Austrian Government to seek an arrest warrant against al-Douri? [169]

The Austrian Government should not have sought to facilitate al-Douri's travel, especially when it seemed as though his sudden departure was made to thwart efforts by others to bring him to justice. [170] This sounds like a political point, but it is a legal issue, and it is about Austria's moral[171] international obligations. Also, there were no international responses toward Austria's violation of the Genocide Convention and other international instruments. [172]

This experience clearly demonstrated to those who wanted to see the effectiveness of the international legal mechanism, and justice against the Iraqi regime, that they needed to have their evidence ready and in a form that would justify an arrest warrant.

Why, then, did Austria not apply evidence -- both from international instruments (eg Special Rapporteurs on Iraq) and from non-governmental organisations (eg Human Rights Watch and Amnesty International)? This shows that Austria values its national interest more than it values either its international legal obligations or the lives of thousands of Kurdish people who died by the Iraqi government's use of chemical weapons. In addition, genocide crimes committed in Kurdistan are based in part on universal jurisdiction. [173]

Austria has also violated the norms of jus cogens, because jus cogens norms do not depend solely on the consent of States for their binding force, they "enjoy the highest status within international law." For example, a treaty that contravenes jus cogens is considered under international law to be void. [174] Indeed, the supremacy of jus cogens extends over all rules of international law. Norms such as using of chemical weapons against civilian have no difficulty in attaining the status of jus cogens, and therefore "prevail over and invalidate international agreements and other rules of international law in conflict with them."

In light of the text of the Barcelona [175] dictum that "all States can be held to have a legal obligation" in the protection of obligations erga omnes, it is surprising that we find it wholly unacceptable to suggest in general terms that the defining characteristic of obligations erga omnes is that their breach affects all States. The legal interest erga omnes [176] obliges any state to exercise universal jurisdiction over persons suspected of committing genocide crimes. [177]

The present Special Rapporteur on State Responsibility seems to want to avoid the codification of international crimes of state in the ILC Draft Articles. Human rights principles that bar genocide have jus cogens status, and any international agreement that violates them is void. [178]

A question is hidden in this argument: When the legal interest erga omnes obliges a state to exercise universal jurisdiction over persons suspected of committing genocide crimes, why did Austria not exercise its obligation as a high party to the genocide convention?

The prohibition against genocide has clearly attained jus cogens status. [179] Genocide crimes, and the norms that regulate them, form part of jus cogens (fundamental norms). Taking these matters into account, what decision will the international criminal tribunal or ICJ take against Iraq for using poison gas against its own people? [180]

To answer this question, there is no room for argument when political interest overrides international law, and when a genocidal act has been ignored for more than 12 years. Finally, under an international tribunal for Iraq, as is proposed in this paper, there would be no such difficulties in establishing the evidence of intent to destroy in whole or part as required by international law.

5.3 Conclusion

The Iraqi government leaders who perpetrate genocide and other mass atrocities are rightly held accountable for the deaths they cause -- deaths that almost certainly would not have occurred if they had not planned, authorised, and directed their perpetration. They are also especially accountable because they acted knowingly, intentionally, and voluntarily and, thus, deserve criminal punishment.

International law is not yet fully equipped to answer clearly and precisely all questions relating to the prosecution and punishment of individuals for the commiting of such atrocities. The tree is there and branches are slowly growing but it has not yet attained full maturity. Nonetheless, genocide crimes are international crimes which entail individual criminal responsibility and give rise to universal jurisdiction.

Despite the important moves to create a system of international criminal justice, there will still remain for the foreseeable future a role for national courts in prosecuting those suspected of international crimes who come within their borders. [181]

Finally, it is also now widely recognised that under international customary law, and general principles of law, states may exercise universal jurisdiction over persons suspected of genocide, and crimes in non-international armed conflict. It is also increasingly recognised that states not only have the power to exercise universal jurisdiction over genocide crimes, but also that they have the duty to do so or to extradite suspects to states willing to exercise jurisdiction. The Austrian government may argue that the Kurdish genocide hasn't been recognised internationally. This argument adds strength to the reasons for establishing an international court for Iraq.


6.0 General conclusion

The states are the linchpin of the prevailing system charged with the task of managing inter-collective conflict. They claim, per the United Nations Charter, to derive their legitimacy from the people. The ideal, of the states as fair representatives, in each case, of the will of a unified nation, is a myth -- but one so indispensable to the system that obvious inconsistencies are ignored. In other words, some are considered to be "nations" and are given the right to sovereignty and statehood; but others, very similar, are derogated to the status of "ethnic groups." [182]

The experience of the Kurdish people in the period after the genocide illustrates an important issue. Unless the consequences of genocide are addressed in the immediate aftermath of the event, the passage of time very soon puts survivors at a serious disadvantage. Without the attention of the international community; without the intervention of major states seeking to stabilise the affected region; without the swift apprehension of the guilty; and without the full exposure of the evidence, the victims stand little chance of recovering from their losses. In the absence of a response and universal condemnation, genocide becomes "legitimised."

War criminals who were nationals of vanquished nations, such as those from Germany and Japan, figured on long lists that had been prepared and were ready before the end of World War II. Continuously updated, these lists have since been used in trials of military personnel and functionaries of other services who had committed crimes of genocide -- mainly in German concentration camps or Japanese POW camps. The lists were prepared under the auspices of various international organisations. To this day, there are no such official lists of Iraqi citizens suspected of guilt in the matter of genocide committed against the Kurds.

Until the crimes of genocide in Kurdistan committed by Iraqi Government in 1988 are treated as crimes, insurmountable barriers will hinder prosecution. Without a recognition of their fundamental rights, and without the support of world opinion and the right to act within the framework of international law; the Kurds have to rely on the 'good will' of the Iraqi authorities.

Talk of punishing the crime of genocide is relatively meaningless without the existence of an international Penal Court. The establishment of such a court has been internationally no more than a talk show and the subject of political games. But the question is: Who is responsible for maintaining the silence about the Kurdish genocide? There are many answers, but a likely one might be the political interest of the super powers who pretend that they won the "Gulf War," but then failed to win the peace. Worse still, they thought (implausibly enough) that peace would soon establish itself in those areas controlled by the Iraqi government.

Genocide proceeded in the late 1980s with ruthless efficiency. At the same time, a conventional war continued between the two main Kurdish parties, KDP and PUK. [183] This internal struggle has cost thousands of lives over the past forty years. This ongoing domestic conflict is also one of the main reasons for a lack of serious international attention and an absence of peace. I strongly disagree with Kurds who blame others, and who take no responsibility for any of the loss of life. Kurds have no right to blame others, especially when they themselves are killing each other. [184] The situation continues to this day.

Currently we are seeing some of the highest political and military authorities in Yugoslavia being indicted for real-time acts and omissions. The twentieth century was the bloodiest in human history. Hopefully the Pinochet and Milosevic cases will cause political and military leaders in this century to think twice before embarking upon copycat, wide-scale atrocities.

This paper has discussed, argued and analysed the Kurdish genocide from both legal and political aspects. Evidence has been presented to support the argument that there has been a deliberate intent by the Iraqi government to destroy the Kurdish population in northern Iraq. This paper also puts forward a proposal for the setting up of an international tribunal for Iraq, as well as suggests a document intended for knocking on the universal jurisdiction doors, so that the perpetrators will be brought to justice. In addition, the International Criminal Court principles jus cogens and erga omnes have also been argued, but it seems clear that political will and self-interest have been much stronger factors in this matter than international law has been.

The only light this paper can find in the darkness of the Kurdish genocide is to present a proposal for the setting up of an international tribunal for Iraq, by the New Zealand government as a third and neutral party. Alternatively, the ICJ has the power to prosecute the perpetrators and punish them according to the principle of international justice, and political manoeuvres should play no part in this process.

There has been some reported evidence, in the form of speeches, of specific genocidal intent to eliminate the Kurds. From such evidence, it is not difficult to determine the intent of the high-level government defendant, or when such intent was formed. The problem of actually obtaining enough information to convince the trier of the fact that the acts of the Iraqi government, while not genocide, were attempted genocide and should therefore be punished, could be a very daunting task.

The practical argument presented above may prove to be very difficult to solve. It is the job of the United Nations Experts to put forth as many acts of the Iraqi government that the Experts deems relevant, that are acts toward the completion of the target crime and that show the intent of the Iraqi government to commit the crime.

In determining when the attempted genocide began, the Experts may look at the acts of the Iraqi Government and the totality of the circumstances surrounding those acts. From this analysis the Experts could then determine which acts amount to criminal culpability for the Iraqi Government, based on the spirit of the Genocide Convention and applicable public policy, thus determining when attempted genocide started.

In addition, assessing the point at which actions manifest intent to commit a crime and then become criminally punishable has always been, and always will be, one of the most difficult tasks of the international law, in whatever jurisdiction such events are located. In dealing with the crime of genocide, especially in a situation such as Kurdistan case, it will also be very difficult to find the exact points at which actual genocide begins and ends.

Finally, from my personal point of view the case of Kurdistan is that it was certainly "genocide," as measured against the Genocide Convention's standards. The lack of a global commitment for confronting a crime of this magnitude represents both a moral defeat and a political error. Eight decades ago there was no international law prohibiting genocide. Today, however, though genocide is prohibited under international law, no global body exists which has the authority to obligate its enforcement. Until the international criminal tribunal for Iraq is established, the Iraqi perpetrators of genocide in Kurdistan may take comfort in the realisation that their actions are often condemned in theory, but rarely in practice.


7.0 Bibliography

Table of Cases

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Attorney General of the Government of the Israel v Adolf Eichmann [1962] 36 ILR 277, 299.

Austria v Cvjetkovic [1998] Landesgericht, Salzburg 1 November 1998 (Austria).

Barcelona Traction Case, Light and Power Company, Limited (Belgium v. Spain (Judgement) [1970] ICJ Reports 3.

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Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Reports 151.

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Nicaragua case- Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), (Jurisdiction) [1984] ICJ Reports 293.

Pan Am case-Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie Libyan Arab Jmahiriya v United Kingdom and United States of America [1992] ICJ Report 114.

Prosecutor v. Jelisic, [1993] ICTY Case No. JL/P.I.S./441-E

Prosecutor v. Akayesu, [1994] ICTR Case No. ICTR-4-T, 1.14

Prosecutor v. Kambanda, [1994]ICTR Case No., ICTR 97-23-S.

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Prosecutor v Jorgic [1997] ICTY 26 September 1997.

Prosecutor v Tadic [1997] ICTY Case No. IT-94-1-T, 7 May 1997.

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ICTR Statute. 1993.

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Annex 1: Chronology

11 September 1961: Beginning of a Kurdish armed uprising in Iraq, led by Mullah Mustafa Barzani. The Iraqi army launches its first major offensive against the Kurds in mountainous terrain.

18 June 1963: The USSR officially declares its support for the Kurdish uprising and Barzani's group.

10 February 1964: Marshal Are, commander of Iraqi armed forces fighting the Kurdish uprising, recognizes Kurdish national rights.

1967-1968: Kurdish peasants wage tactical guerrilla war in Iranian Kurdistan.

30 July 1968: Saddam Hussein becomes deputy chairman of the revolutionary Command Council of the Ba'ath Party in Iraq, and his portfolio is expanded to head internal security.

8 August 1968: The Kurdish village of Dukan in Mussel, Iraq, is the scene of a major army atrocity. The war against the Kurds in Iraq is stepped up.

11 March 1970: The Kurds and the Iraqi government sign an agreement on the 'Autonomy of Kurdistan,' to be implemented within four years, and the fighting stops.

12 March 1970: In what is regarded as the most brutal military coup in modern Turkey, center left and left-wing democratic parties and organizations are outlawed en masse. Thousands of Kurdish separatists and nationalists, students, trade unionists, and members of the intelligentsia are among those arrested and brought before special military tribunals.

March 1974: Following the collapse of the 1970 Kurdish autonomy accords in Iraq, war breaks out. The Kurdish towns of Zakho and Qala Dizeh are razed to the ground. Hundreds of thousands of Kurds are subject to severe brutalities, and they flee the cities.

6 March 1975: The Algiers Agreement between Iraq and Iran. The Shah in Iran ends his support for the Iraqi Kurds. The Iraqi Kurdish leadership flees to Iran.

June 1976: a new phase of guerrilla (Peshmerga) operations is launched in Iraqi Kurdistan to stop the brutal Iraqi campaign against the Kurds and their towns and villages.

1978: Abdulla Ocalan forms the Kurdistan Workers Party (PKK).

10-11 February 1979: The monarchy is overthrown in Iran. In Kurdistan, Kurdish partisans seize army barracks and police stations, and set up a de facto autonomous administration.

March 1979: The Kurdish provinces in Iran boycott the referendum on forming the Islamic Republic.

June 1979: Saddam Hussein becomes President of Iraq.

17 August 1979: Ayatollah Khomeini declares war on the Kurds.

September-October 1979: Kurdish guerrilla operations are carried out throughout the Kurdistan area of Iran.

15 August 1984: The PKK starts its guerrilla warfare against the Turkish state in southeastern Anatolia.

1 March 1988: 'The Massacre of the Innocents'. Iraq uses chemical weapons in Halabja, and over 5,000 Kurds perish in one afternoon.

March 1991: In the aftermath of the Gulf War and the failed uprising of the Kurds in Iraq against the embattled Iraqi regime, Saddam's forces attack Kurds and send over two million fleeing to the mountains of Iran and Turkey.

April 1991: The US-led Allied Operation Provide Comfort begins setting up camps and bringing supplies to hundreds of thousands of Kurds stranded in the mountains. A 'safe haven' is established.

June 1992: Democratic elections are held in Iraqi Kurdistan. The Kurds create the only democratic parliament and government in the region.

March 1992: The massacre of Kurdish townspeople in Cizre by the Turkish army during Newroz (New Year's) celebrations.

October 1992: Turkish armed forces move into Iraqi Kurdistan.

1992-3: More than sixteen journalists are killed in south-eastern Turkey while covering the Kurdish situation.

1994: Massoud Barzani (KDP) and Jalal Talabani (PUK), turn their guns on each other for the hundred and first time.

September 1995: US State Department sponsors a ceasefire agreement between KDP and PUK at meetings in Ireland. As at November 2000, the agreement has not been finalised.


Notes

[1] The chemical attacks of 1988 called Kurdish Genocide by the Kurdish people and some other sources, which mentioned in this paper, such as Human Rights Watch, various newspapers and journalists who visited Kurdistan after attacks.

[2] Shelton, Dinah, in Ruth Thompson (ed.) The Rights of Indigenous Peoples in International Law (Saskatoon, University of Saskatchewan Native Law Center, 1987), 47.

[3] Genocide has been a crime under international law since 1951: Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the Genocide Convention), 78 UNTS 277, approved by GA Res. 2670 on December 9, 1948, entered into force 12 January 1951.

[4] George S. Yacoubian Jr. Injustice Studies, Vol. 1, No. 1, November 1997

[5] Lemkin, Raphael, Axis Rule in Occupied Europe, published in 1944.

[6] Lemkin, Raphael, a Polish Jewish scholar who taught law at Yale and Duke universities.

[7] Kuper, Leo, Genocide : its Political Use in the Twentieth Century, New Haven, 1981, 22.

[8] Lemkin, Genocide as a Crime under International Law, 1947:146.

[9] General Assembly resolution 260 (III) of 9 December 1948.

[10] Barcelona Traction Case Belgium v Spain, ICJ Reports, vol. 3, 1970, paras. 33 and 34.

[11] The town is just south of the so-called safe zone in northern Iraq created by the United Nations in 1991.

[12] The Iraqi governments chemical attacks on Halabja are grave breaches of the Geneva Conventions recognized by Articles 2(a) (wilful killing).

[13] Middle East Watch, Genocide in Iraq: The Anfal Campaign against the Kurds (New York, Human Rights Watch, 1993), 234.

[14] See Special Rapporteur on Iraq, Max van der Stoel, Reports on the situation in Iraq, 1993/74"E/CN.4/1994/58, 16; E/CN.4/1995/56, 15 February, 1995. P. 14; 4 March, 1996, 5; 14 November 1997 (A/C.3/52/7),4; 23 November 1998; and the annual report. GENEVA, Press Release HR/CN/892, 31 March 1999.

[15] 29/03/1988: Al-Thawra, (in Arabic) official newspaper of the Iraqi Government states the right of using chemical weapons. Halabja attacks were the most powerful attacks. For this reason there will special attentions to Halabja in this paper.

[16] Christine Gosden, an English geneticist, went into Halabja ten years after the chemical attacks, a town of lingering death and human suffering that is unique in the world. She said: Western military manuals say chemical weapons disperse after a few days, and are generally silent on the question of long-term effects. But in Halabja, 10 years later, people are still dying, of cancers and respiratory ailments that Gosden says are directly attributable to chemical weapons. Many are covered with horrible skin eruptions. People have gone blind and suffered severe neurological damage. Couples have become infertile, or produced children with mental retardation, heart defects, harelip, cleft palate and other major malformations. Miscarriages are alarmingly frequent. Crops have been blighted to this day. Domestic animals are producing few progeny, and many that are born are malformed. Snakes and locusts have mutated, becoming larger and more aggressive. And Halabja, forgotten by the world, has sunk into a collective state of depression. Some people have gone insane, and suicides are increasingly common. "Nobody is doing anything, and people are getting very angry," said Gosden. "It is a living hell. My sleep is disturbed by memories of the people of Halabja, and I can weep just talking about it." See Ray Moseley, World ignores town gassed by Iraq in '88, Chicago Tribune, 23 March 1998.

[17] Middle East Watch, Genocide in Iraq: The Anfal Campaign against the Kurds (New York, Human Rights Watch, 1993), p.234. See also the maps included this paper.

[18] Different French Television networks, on Thursday and Wednesday on 23rd and 24th of March 1988, the first pictures of corpses of thousands of those martyred and wounded of the chemical bombing in Halabja were broadcast. The first channel of the French Television noted that it is not the first time that the Baghdad regime had deployed chemical weapons, however this is the first time that Iraq, is so vastly deploying them against the civilians. French Television networks, on Thursday and Wednesday on 23rd and 24th of March 1988. See also Andrew Gowers, Middle East Editor, and Richard Johns of the London Daily, Financial Times, writing on 23rd of March, 1988, and Alistair Hay, pathology professor at Leeds university, England, speaking on BBC Television News, and BBC Radio World Service oh 22nd and 23rd of March, 1988.

[19] Middle East Watch, Genocide in Iraq: The Anfal Campaign against the Kurds (New York, Human Rights Watch, 1993), 234.

[20] Photos were featured on the cover of the January 11-17, 1989 edition of the London weekly 'The European'.

[21] Bauer,Yehuda, 'On the Place of the Holocaust in History,' Holocaust and Genocide Studies 2, no. 2 (1987).211-15.

[22] Bassiouni Cherif M., The Law of the International Criminal for the former Yugoslavia, at 530 (1996).

[23] In addition, Article VI of the Convention on the Prevention and Punishment of Genocide states that, "persons charged with genocide... shall be tried by a competent tribunal of the State in the territory of which the act was committed...." This Article is based however, on the erroneous assumption of ethical governments and criminal individuals, a reversal of truth in proportion to the degree of autocracy practised in most countries predisposed to genocidal behavior. When acts of genocide occur, they are normally perpetrated intranationally. That is, governmental leaders attempt to exterminate a segment of their own national population. Following these attempts at genocide, the same perpetrators will often remain in power. Rarely will government officials arrest and prosecute themselves for crimes committed intranationally. Without a permanent international criminal court, the singular jurisdictional alternative available in international law for trying perpetrators of genocide is the principle of universality. This principle however, is not well-embraced. The underlying tenet of maintaining state sovereignty prevents its frequent utilization and destines victims of genocide to hope that their perpetrators will arrest, prosecute, and punish themselves.

[24] See 3 UN GAOR (73rd mtg.), at 97 (1948), adopting U.N. Doc. A/C. 6/288 (1948) (Norway).

[25] 1996 ILC Report, UN doc. A/51/10, 88.

[26] For a history of the drafting of the convention (on which this portion of the current discussion relies) see M Lippman, "The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide" (1985) 3 Boston University International Law Journal 1.

[27] Ibid.

[28] Ibid at 42.

[29] Article 147 of the Fourth Geneva Convention.

[30] Common Article 3 of Genocide Convention

[31] Articles 8.2(c) of the ICC Statute and 4 of the ICTR Statute.

[32] Convention for the Prevention and Punishment of the Crime of Genocid, United Nation General Assembly Resolution. 260 (1948).

[33] Note that there where no genocide prosecutions despite commission of the crime in Uganda, Cambodia, Kurdistan, and East Timor.

[34] Glaser, K. and S. Possony, Victims of Politics: The State of Human Rights 44 (1979).

[35] Bedau, H.A., Genocide in Vietnam, at 579 (1973).

[36] Ibid., at 580.

[37] Testimony of the deputy legal advisor to the U.S. State Department, in 1970 Genocide Hearings 44.

[38] Bedau, H.A., Genocide in Vietnam, at 581 (1973).

[39] Ibid., at 583.

[40] Ibid., at 581.

[41] Study of the Question of the Prevention and Punishment of the Crime of Genocide, U.N. ESCOR, 31st Sess, 120, U.N. Doc. E/CN.4/Sub.2/416 (1978).

[42] See generally Lippman, Matthew, The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, BU LAW REVIEW 1, 2 at 602, (1985).

[43] Ibid., at 602.

[44] See Bassiouni, Cherif M., Crimes Against Humanity: The Need for a Specialized Convention, 31 Colum. J. Transnat'l L. 457, 477 (1994).

[45] The Commission of Experts, established pursuant to the conflict in the territory of the former Yugoslavia, found that in some cases of genocide "there will be evidence of actions or omissions of such a degree that the defendant may reasonably be assumed to have been aware of the consequences of his or her conduct, which goes to the establishment of intent." See McDougall, Gay J, Special Rapporteur, CN.4/Sub.2/1998/13 , 22 June 1998. See also Commission of Experts Report (S/1994/674), para. 313.

[46] Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992).

[47] Application of the Convention on the Prevention and Punishment of the Crime of Genocide 15 (Bosnia and Herzegovina v. Yugoslavia) ICJ Annual Report 1998.

[48] Ibid.

[49] See Lippman, Matthew, The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty-five Years Later, 8 Temp Int'l & Comp. L.J. (1948). The humanitarian object purpose of the Genocide Convention dictates that the Convention should be accorded a broad interpretation.

[50] At last, after forty-five years the UN had its first two tribunals to prosecute those accused of violating the Genocide Convention. Although Article II of the convention had been criticized for being too narrow, protecting only national, racial, ethnical, and religious groups, both the ICTY and the ICTR adopted the convention verbatim in their individual statutes.

[51] Prosecutor v. Akayesu, Case No. ICTR-4-T, 1.14 at 19, 1997. The ICTR Trial Chamber I found Jean-Paul Akayesu guilty of genocide and crimes against humanity on September 2, 1998.

[52] See Statute of the ICTR, Article II.

[53] Prosecutor v. Akayesu, Case No. ICTR-4-T, 1.14 at 19(1997).

[54] The first issue the ICTR judges faced was whether the Tutsis as a collective group could fit into one of the four categories, national, racial, ethnical, and religious groups, as specified by the ICTR Statute.

[55] The ICTR proceeded to define each group, stating[55][55] Magnarella, Paul J., Some Milestones and Achievements at the International Criminal tribunal for Rwanada: The 1998 Kambanda and Akayesu Cases, 11 Fla. J. Int'l. 517 (1997). The Chamber reasoned that since the special intent to commit genocide lies in the intent to destroy in whole or in part, a national, ethnical, religious or racial or social group, it was necessary to determine the meaning of these social categories. that an "…ethnical group was one whose members share a common language or culture." See Prosecutor v. Akayesu, Case No. ICTR 96-4-T 7.8 at 157.

[56] Ibid.

[57] In Rwanda they have similar cards identification cards, specifically statin whether an individual was either Hutu or Tutsi. See Magnarella, Paul J., Some Milestones and Achievements at the International Criminal Tribunal for Rwanda: The 1998 Kambanda and Akayesu Cases, 11 Fla. J. Int'l. 533 (1997).

[58] See the evidence in this paper.

[59] See Middle East Watch, Genocide in Iraq, at349 (1993).

[60] Prosecutor v Akayesu, Case No. ICTR 96-4-T 7.8 at 157.

[61] See evidence in this paper, in particularly Ali Hassan al-Msjid's audio tape-recorders.

[62] Prosecutor v Kambanda, Case No., ICTR 97-23-S at 12

[63] Kambanda, who was the Prime Minister of the Interim Government of Rwanda from 8 April 1994 to 17 July 1994,

[64] Prosecutor v Kambanda, Case No., ICTR 97-23-S at 13

[65] Ibid., at 14

[66] The use of the chemical attacks in Kurdistan 1988. See also the evidence in this paper.

[67] See Security Council Resolution. 827, U.N. SCOR, 48th Sec., 3217

[68] One year prior to the creation of the ICTR, the Security Council passed Resolution 827, creating the first International tribunal since the establishment of the Genocide Convention, to prosecute those guilty of genocide in the former Yugoslavia. See also Statute for the Genocide Convention, Article 2.

[69] Prosecutor v Jelisic, Case No. JL/P.I.S./441-E. On October 19, 1999, Trial Chamber I rendered its judgment against Goran Jelisic. This trial was the first genocide trial held at the ICTY. On October 29, 1998, Jelisic pleaded not guilty to the genocide charge, but guilty to the remaining 31 charges. Trial Chamber I found that the Prosecutor failed to prove beyond a reasonable doubt that Jelisic acted with the intent to destroy, in whole or in part, the Bosnian Muslim population as a national, ethnic, or religious group, or that Jelisic had the clear knowledge that he was participating in the destruction, at least in part, of a given group (see the ICTY web site -- the full document is not yet available, will eventually be found at <www.icty.com).

[70] Ibid.

[71] Ibid.

[72] Black's Law Dictionary 560 ( 6th ed. 1991).

[73] Ibid., at 609.

[74] Black's Law Dictionary, at 973 ( 6th ed. 1991).

[75] Bassiouni, Cherif M., The Law of the International Criminal Tribunal for the Former Yugoslavia, at 530 (1996).

[76] See 3 UN GAOR (73rd mtg.), at 97 (1948), adopting U.N. Doc. A/C. 6/288 (1948) (Norway).

[77] "... Thus, one has to ask whether it is logical to have a legal scheme whereby intentional killing of a single person can be genocide and the killing of millions of persons without intent to destroy the protected group in whole or in part is not an international crime? Yet, that is the present situation." Bassiouni, M. Cherif, Crimes against Humanity in International Law, 1992, 473.

[78] Webb, J., "Genocide Treaty - Ethnic cleansing: substantive and procedural hurdles in the application of the Genocide Convention to alleged crimes in the former Yugoslavia," Georgia Journal of International & Comparative Law, no. 377, 1993, 391.

[79] See U.N. GAOR C.6 73rd mtg., at 96 (1948).

[80] See 1991 ILC Report, at 231.

[81] Ibid., at 233.

[82] Robinson, Nehemiah The Genocide Convention : A Commentary, 63. (New York: Institute of Jewish Affairs 1960). See also Actual destruction of the entire group need not occur; the intent is sufficient with a part.

[83] Black's Law Dictionary, at 973 ( 6th ed. 1991).

[84] Ibid.

[85] See 132 Cong. Rec. S1377-78 (daily ed., Feb. 19, 1986).

[86] Bedau, H.A., "Genocide in Vietnam," at 621 (1973).

[87] Prosecutor v Akayesu, Case No. ICTR 96-4-T, 6.3.1 at 108.

[88] Ibid., at 107.

[89] Ibid., at 107

[90] Robinson, Nehemiah, The Genocide convention: Its Origins as Interpreted, at 15 (1950).

[91] See Lippman, Matthew, The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty-five Years Later, 8 Temp Int'l & Comp. L.J. (1948).

[92] All the tapes are in the US National Archives. The Patriotic Union of Kurdistan (PUK) and the Kurdistan Democratic Party (KDP) agreed to send 18 ¼ tons of Iraqi Government's files, tapes, and other documents to the United States through a tripartite arrangement with Middle East Watch and the US Senate Foreign Relations Committee. Under the term of agreement the Foreign Relations Committee turned the documents into official records of the US Congress and stored them in facilities of the US National Archives. (The total number of pages has been estimated at about four million). See Middle East Watch, Bureaucracy of Repression, The Iraqi Government in Its Own Words, February 1994, 2.

[93] Middle East Watch, Genocide in Iraq: The Anfal Campaign against the Kurds, New York: Human Rights Watch, 1993, 234.

[94] Middle East Watch Genocide in Iraq, 349.

[95] Jash is the word for collaborationist groups of Kurdish people who received payment from the Iraqi government to fight against the Kurdish guerrillas, and their own people. These groups began to be formed in the early 1960s.

[96] Middle East Watch Genocide in Iraq, 349.

[97] See Middle East Watch, Bureaucracy of Repression, The Iraqi Government in Its Own Words, February 1994, documents 9-29. In other documents, the Iraqi Government used specific references to chemical attacks such as 'special attacks' or the use of 'special ammunition.' 50-116.

[98] This document contain the first, but by no means only, direct reference in the Iraqi state files to a chemical attack carried out by Iraqi forces. See Middle East watch, Bureaucracy of Repression-The Iraqi government in its Own Words, February 1994.

[99] The Iraqi government calls all Kurdish people in villages sabotages. This language has been always used in the Iraqi official document in Iraq-Kurdish conflicts.

[100] The attack in question took place, according to eyewitnesses interviewed by Middle East Watch in summer of 1992, in the Qaradagh area on March 22, 1988, at the beginning of the second Anfal operation. The casualties, which local inhabitants put at between seventy-eight and eighty-seven, were almost all civilians, as the rebels had their bases outside the two villages mentioned here. Middle East Watch has seen maps which list all the villages. See chapter 4 in Genocide in Iraq). MEW ref.:2123/5-c].

[101] The 1948 Convention on the Prevention and Punishment of Crime of Genocide. Art II 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."

[102] Bauman, Zygmunt, Modernity and the Holocaust. Cambridge: Polity Press, 1989, 88. See also Khaled Salih, 'Anfal: The Kurdish Genocide in Iraq,' Digest of Middle East Studies, vol. 4, no. 2, Spring 1995, 24-39.

[103] Although Iraqi bureaucrats clearly tried to avoid making direct references to chemical attacks, Human Rights Watch's evidence shows that slips did occur. There may have been a general order forbidding them from using the term chemical attacks in direct reference to Iraqi forces. Middle East Watch has so far found one document that orders assignation of the classification "Top Secret" to documents that contain information about the use of chemical weapons. (Memorandum from the Amn (secret police) directorate in Erbil (Kurdish city in northern Iraq) to Amn sup-directorates, ref.S5/19299 of December 17, 1988, MEW 91/25-A).

[104] Taylor, Phil, 'Where the devil do these people get their moral authority?' Reproduced from LM issue 103, September 1997.

[105] On the non-implementation of Article 227, see, among others, A. Mérignhac and E. Lémonon, Le Droit des gens et la guerre de 1914-1918, Paris 1921, 580.

[106] In response to the Iraqi invasion of Kuwait 1990, which is not the subject in this paper.

[107] In a television interview given on 1 September 1990, Margaret Thatcher said: "If anything happened to those hostages then sooner or later when any hostilities were over we could do what we did at Nuremberg and prosecute the requisite people for their totally uncivilised and brutal behaviour. They cannot get out of these days by just saying: 'well, we were under orders'. That was the message of Nuremberg." In 61 British Yearbook of International Law, 1990, 602.

[108] See US Department of State Dispatch, 12 November 1990, Vol. I (11), 260, reporting President Bush's remarks on 28 October 1990: "Iraq's invasion marks an outrageous breach of the peace, a broad-faced violation of the UN Charter. Saddam Hussein plundered a peaceful neighbour, held innocent's hostage, and gassed his own people. And all four of those crimes are punishable under the principles adopted by the allies in 1945 and unanimously affirmed by the United Nations in 1950. Two weeks ago, I made mention [of] the Nuremberg trials. Saddam Hussein must know the stakes are high, the cause is just, and today, more than ever, the determination is real." Two weeks previously, President Bush had said: "Remember, when Hitler's war ended, there were the Nuremberg Trials." See US Department of State Dispatch, 22 October 1990, Vol. I (8), 205.

[109] See The Times, 3 September 1990, "When Saddam is brought to court." There were also, on the other side, Iraqi proposals for President Bush to be tried in absentia for various international crimes, either in Algiers or Iraq. However, it is unclear to what extent it was envisaged that the court would have a truly international character. See The Times 'Echo of Nuremberg trials in Iraq,' 26 September 1990.

[110] See Le Figaro, 16 April 1991, 6; Libération, 16 April 1991, 2; Le Quotidien de Paris, 16 April 1991, 14.

[111] See the incidents in this paper.

[112] The United Nations Charter Article 39.

[113] Simon, Thomas W. "Defining Genocide," Wisconsin International Law Journal. Fall 1996.

[114] ICC Statute 1998, Artickle 124

[115] See generally Mohammad Bedjaoui, The New World Order and the Security Council: Testing the legality of its acts 1-8 (1995); Bernhard Graefrath, Leave to the Court What Belongs to the Court: The Libyan Case, 4 European journal of International Law, 184, 185, 1993.

[116] 1992 I.C.J. 114 (Provisional Measures Order of April 14, 1992) [hereinafter Lockerbie]. Libya against the United Kingdom filed a companion case. The Court's decision in the case against the United Kingdom is identical in all relevant respects to its decision in the case against the United States. See Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie Libya v. UK, 1992 I.C.J. 3 (Provisional Measures Order of April 14, 1991).

[117] 1993 I.C.J. 325 (Provisional Measures Order of Sept. 13, 1993).

[118] Geopoliticaly, Kurdistan has been an important area, because it is divided between Turkey, Iran, Iraq, Syria, and former Soviet Union.

[119] Security Council Resolution 808 and 827, 1993 for establishment of the ICTY.

[120] Note Verbal dated 30 April 1993 from the Permanent Representative of the Netherlands to the United Nations addressed to the Secretary-General, at 2, UN Doc. S/25716 (1993). The Netherlands indicated, however, that the Security Council's establishment of the Tribunal "seems appropriate" under the circumstances, given the "complicated and time-consuming process" involved in concluding a treaty. Id. See also Note Verbal dated 12 March 1993 from the Permanent Mission of Mexico to the United Nations addressed to the Secretary-General, at 2, UN Doc. S/25417 (1993).

[121] Article 39 of the Charter with respect to threat to the peace, breach of the peace or act of aggression allows the Security Council to invoke Chapter VII if there is a threat to the peace, a breach of the peace. In replying to the argument that with regard to the maintenance of international peace and security, the ICJ in Certain Expenses case stated "the court considered that the action referred to in that provision was coercive or enforcement action. In this context, the word "action" must mean such action as was solely within the province of the Security Council, namely that indicated by the title of Chapter VII of the Charter: "action with respect to threats to the peace, breaches of the peace, and acts of aggression" See ICJ Certain Expenses of the United Nations, Advising Opinion of 20 July 1962.

[122] Prosecutor v. Tadic, Case No. IT-94-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 12 (Int'l Crim. Trib. for the Former Yugo. App. Ch., Oct. 2, 1995), reprinted in 35 I.L.M. 32, 42 (1996) [hereinafter Tadic Appeals Chamber Jurisdiction Decision]. Decision will be made by citation to the page number within the relevant opinion. This decision is examined in detail at 144-146.

[123] See Defence Brief to Support the Motion on the Jurisdiction of the Tribunal, Prosecutor v. Tadic, Case No. IT-94-1-T (Int'l Crim. Trib. for the Former Yugo. June 23, 1995.

[124] Ibid

[125] The Yugoslavia Tribunal is comprised of three chambers. There are two Trial Chambers, which are composed of three judges each, and an Appeals Chamber, which is composed of five judges. Statute of the International Tribunal Arts. 11(a), 12, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), Annex, UN Doc. S/25704 (1993). The judgments of the Trial Chambers and any decisions by a Trial Chamber dismissing objections based on lack of jurisdiction may be appealed to the Appeals Chamber. See International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991, Rules of Procedure and Evidence 121, 72(B), UN Doc. IT/32/Rev.3 (1994).

[126] Ibid

[127] Report of the Committee of French Jurists set up by the French Minister of State and Minister for Foreign Affairs (10 Feb. 1993) [hereinafter French Jurists Report] attached to Letter dated 10 February 1993 from the Permanent Representative of France to the United Nations addressed to the Secretary-General 13, U.N. Doc. S/25266 (10 February 1993).

[128] Joyner, Christopher C., Enforcing Human Rights Standards in the Former Yugoslavia: The Case for an International War Crimes Tribunal, 22 DENV. J. INT'L L. & POL'Y 235, 257 (1994). A handful of commentators are of the view that the Council's authority to make an Article 39 determination is strictly circumscribed to situations that would qualify as a threat of force under Article 2(4) of the Charter.

[129] See Article 11 of the draft Code of the ILC.

[130] Article 34 (1) of its Statute, "States alone are entitled to come before the Court."

[131] Article 96 (1) of the Charter of the United Nations.

[132] Article 17 of its Statute

[133] The Commissioner of Police for the Metropolis and Others, ex parte Pinochet, 25th November 1998. See Amnesty International, Report EUR 45/01/99 January 1999.

[134] In August 1999, when Izzat Ibrahim al-Duri, a top aide to Iraqi President Saddam Hussein, visited Vienna to receive medical treatment, a local city councilman filed a criminal complaint against him, citing his active role in Iraq's genocide against the Kurds. Less than forty-eight hours later, the Austrian government let him leave the country.

[135] Mengistu Haile Miriam is living in Zimbabwe, which has refused Ethiopia's extradition request to stand trial for crimes committed between 1974 and 1991. During this period, tens of thousands of political opponents were killed, in particular during the "Red Terror"

[136] Idi Amin is being sheltered by Saudi Arabia. During his autocratic rule of Uganda from 1971 to 1979, Amin expelled the entire ethnic Asian population from Uganda. Amin's regime was responsible for the murders of an estimated 100,000 to 300,000 people.

[137] See "Chemical Weapons Use in Kurdistan: Iraq's Final Offensive," staff report to the Senate Foreign Relations Committee, 21 Sept. 1988, Edward Mortimer, a letter to the editor, New York Review of Books, 22 Nov. 1990, 53.

[138] Congressional Quarterly, Congressional Quarterly Almanac, 1988, Washington, DC: 1989, 510-11; Congressional Quarterly Weekly Report, 28 April 1990, 1281-82.

[139] Hornik, Richard, 'With A Little Help from Friends,' Time, 11 June 1990, 34.

[140] Cody, Edward, '149 Nations Vow to Shun Poison Gas,' Washington Post, 12 Jan. 1989, A1, A32.

[141] Cody, Edward, 'Talks Show Growing Arab Consensus That Chemical Arms Balance Nuclear,' Washington Post, 13 Jan. 1989, A24.

[142] Pechota, Vratislav, Criminal Responsibility, (1989) 201-03.

[143] Ibid

[144] Kreindler, Lee S, Litigation Status in Lockerbie Case, New York Law Journal, Volume 219, Number 82.

[145] Randall, Kenneth C., "Universal Jurisdiction Under International Law," Texas Law Review, vol. 66, (1988)131.

[146] Meron, "International Criminalization of Internal Atrocities," (1994).559.

[147] The common articles of the Geneva Conventions, include the statement that "Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches [of the present Convention], and shall bring such persons, regardless of their nationality, before its own courts..."

[148] For example, Article 3 was held to be subject to universal jurisdiction in the Military and Paramilitary Activities in and Against Nicaragua case (Nicaragua v. United States), International Court of Justice, (1994)392.

[149] Geneva Conventions for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Relative to the Treatment of Prisoners of War, and Relative to the Protection of Civilian Persons in Time of War.

[150] This Article is contained in each of the four Geneva Conventions, for instance in Article 146 of the Fourth Geneva Convention.

[151] Article 147 of the Fourth Geneva Convention.

[152] Common Article 3 of Genocide Convention

[153] Articles 8.2(c) of the ICC Statute and 4 of the ICTR Statute.

[154] Restatement (Third) of the Foreign Relations Law of the United States, para. 404; UN General Assembly Resolution 95(1) of 1946, reiterating the principles in the Nuremberg Charter and Judgment. Crimes against humanity have now been defined in the Rome Statute of the International Criminal Court.

[155] For example, see the case of the SS Lotus (France v Turkey) 4 ILR 153; PCIJ Reports Series A no. 10. See also Peter Malanczuk, Akehurst's, Modern Introduction to International Law, 1997, 110.

[156] Some states, such as Mexico, Brazil and Italy, claim criminal jurisdiction also on the basis of the passive nationality principle to try an alien for crimes committed abroad affecting one of their nationals. See Peter Malanczuk, Akehurst's, Modern Introduction to International Law, 1997, 111.

[157] Most countries use Protective jurisdiction to some extent, and it therefore seems to be valid, although there is a danger that some states might try to interpret their security too broadly. Ayatollah Khomeini's fatwa on 14 February 1989 against the writer Salman Rushdie is a good example. Peter Malanczuk, Akehurst's, Modern Introduction to International Law, 1997, 112.

[158] Peter Malanczuk, Akehurst's, Modern Introduction to International Law, 1997, 113.

[159] Wolfrum, Rudiger, "The Decentralized Prosecution of International Offences through National Courts," Israel YearBook International Human Rights199, 183.

[160] The case of Demjanjuk v. Petrovski is interesting for the recognition that crimes against humanity are offences for which there is universal jurisdiction. The US Circuit Court of Appeals ruled that, based on the right to exercise universal jurisdiction over offences against the law of nations and against humanity, the United States could extradite an alleged Nazi concentration camp guard to Israel or any other nation. The court recognised that the acts committed by Nazis and Nazi collaborators are "crimes universally recognised and condemned by the community of nations" and that these "crimes are offences against the law of nations and against humanity and the prosecuting nation is acting for all nations." The Court thereby recognised the principle of universality for crimes against humanity. See Marie-Claude Roberge, Jurisdiction of the ad hoc Tribunals for the former Yugoslavia and Rwanda over crimes against humanity and genocide, International Review of the Red Cross no 321, 1 November 1997, 651-664.

[161] Meron, Theodor, 'International Criminalization of Internal Atrocities,' Am. J. Int'l L. 89 (1995), 569.

[162] Attorney General v Eichmann, 36 Int'l L. Rep. 277, 299, 1962.

[163] August 1990, Izzat Ibrahim al-Douri, Vice Chairman of the Revolutionary Command Council and one of Saddam's top deputies, visited Vienna for medical treatment. See Human Rights Watch, New York, August 18, 1999. Human Rights Watch criticised the Austrian government for releasing a senior Iraqi leader accused of genocide.

[164] Austria's Initial Report to the UN Committee against Torture, UN documents CAT/C/5/Add.10, at5.

[165] Human Rights Watch criticized the Austrian government for releasing a senior Iraqi leader accused of genocide. See Human Rights Watch, New York, August 18, 1999).

[166] In July 1994, Dusko Cvjekovic. Bosnian Serb who had sought asylum in Austria was arrested and charged after a Muslim refugee from Bosnia recognised him and accused him of participating in a practice of "ethnic cleansing" of Muslims in Bosnia. murder and arson but not, perhaps surprisingly, with war crimes under the provisions of the Geneva Conventions. Cvjetkovic challenged the validity of the arrest warrant on the grounds that the Austrian courts lacked jurisdiction over the case, and this question was referred to the Austrian Supreme Court. The Prosecutor had based jurisdiction not on Article 64 of the Penal Code -- for which he would have had to demonstrate that Austria was "under an obligation to punish" -- but on Article 65.1.2. In order to rely on this provision, he had to show that Cvjetkovic could not be extradited to Bosnia-Herzegovina for reasons that did not relate to the nature of the crime. The Prosecutor relied on the fact that judicial co-operation with Bosnia-Herzegovina was not possible since there were no mail or telephone communications between the judicial authorities of the two countries due to the war, and that there was no orderly administration of criminal justice in the place where the offences were committed. Further, he argued that the double criminality requirement was satisfied, and that the crime of genocide was not a political crime, since Article 7 of the Genocide Convention specified that it should not be considered as such. See Reuters News Service, March 29, 1995; Judgment of the Oberster Gerichstshof, Vienna, 13 July 1994.

[167] Republic of Austria v Cvjetkovic, Landesgericht, Salzburg, 1994.

[168] The principle enunciating the responsibility of command derives from the principle of individual criminal responsiblity as applied by the Nuremberg and Tokyo Tribunals. It was subsequently codified in Article 86 of the Additional Protocol I of 8 June 1977 to the Geneva Conventions of 1949. Another position was articulated in one of the "Commentaries on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949," which provides that the mens rea required, as an essential element, to establish superior responsibility "must be so serious that it is tantamount to malicious intent, apart from any link between the conduct in question and the damage that took place." See Claude Pilloud , "Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949,"at 1012 (1987).

[169] Human Rights Watch criticized the Austrian government for releasing a senior Iraqi leader accused of genocide. See Human Rights Watch, New York, August 18, 1999).

[170] The international community has also consistently reaffirmed for the fundamental rule of international law that heads of state and public officials do not enjoy immunity for genocidal acts and crimes against humanity more than half a century.

[171] Arthur Koestler may be right that 'statistics do not bleed,' but if these figures do not make the blood rush through your heart, you have no heart worthy of the name.

[172] See, for example, Article 6 of the Charter of the International Military Tribunal for the Far East (1946); Article IV of the Convention for the Prevention and Punishment of the Crime of Genocide (1948); Principle III of the Principles of Law Recognised in the Charter of the Nuremberg Tribunal and the Judgement of the Tribunal (1950); Article 3 of the UN Draft Code of Offences against the Peace and Security of Mankind (1954); Article 7 (2) of the 1993 Statute of the International Tribunal for the former Yugoslavia; Article 6 (2) of the 1994 Statute of the International Criminal Tribunal for Rwanda; and Article 7 of the UN Draft Code of Crimes against the Peace and Security of Mankind, adopted in 1996, as well as in Article 27 of the Statute for the International Criminal Court, adopted in Rome on 17 July 1998.

[173] See Attorney General v Eichmann, 36 Int'l L. Rep. 277, 299 (Isr. Sup. Ct. 1962).

[174] See Vienna Convention, Art. 53.

[175] See Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports (1970) 32, at paras. 33-34.

[176] Almost 30 years after the International Court of Justice more or less 'created' the category of 'obligations' erga omnes in its famous obiter dictum in the Barcelona Traction judgment, the existence, meaning and impact of obligations "towards the international community as a whole."

[177] Bassiouni, M.Cherif, Crimes against Humanity (Dordrecht/Boston/ London: Martinus Nijhoff Publishers 1992), 510-527; Bernard Graefrath, 'Universal Criminal Jurisdiction and an International Criminal Court,' 1 Eur. J. Int'l L. 1990), 67, 68; Menno T. Kamminga, 'Universal Jurisdiction in Respect of Gross Human Rights Offences: Putting the Principle into Practice,' Int'l L. Ass'n Y.B. (1995/1996), 485-491; F.A. Mann, 'The Doctrine of Jurisdiction in International Law,' 113-1 Recueil des Cours (1964), 9, 95; Peter Malanczuk, Akehurst's Modern Introduction to International Law (London and New York: Routledge 7th ed.1997), 113; Kenneth C. Randall, 'Universal Jurisdiction under International Law,' 66 Tex. L. Rev. (1988), 785, 814.

[178] Special Rapporteur on State Responsibility, J. Crawford, 'First Report on State Responsibility' (1998), paras. 97 et seq, UN Doc. A/CN.4/490/Add. 1, at 9-10.

[179] Advisory Opinion of the International Court of Justice on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, 15.

[180] The different acts constituting the crime of genocide are enumerated in article II of the Convention. Such acts are: "killing members of a national, ethnical, racial or religious group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group." Each of these categories of acts can constitute the crime of genocide, as could any combination of these acts. But those acts are not the subjects in this paper.

[181] Article 9 of the Statute for the International Criminal Tribunal for former Yugoslavia, adopted by UN Security Council Resolution 827 of 25/5/93, states that "The International Tribunal and national courts shall have concurrent jurisdiction ... The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal." The Statute for the Rwanda Tribunal contains similar terms. The Rome Statute for the ICC, Article 1, states that the Court shall be complementary to national criminal jurisdictions.

[182] National, ethnical, racial or religious groups are all protected. It is not a condition that the victim group is a minority, it might as well be a numerical majority (66% of Iraq's population are Shiá Muslims in southern Iraq).

[183] KDP = Kurdish Democratic Party, leader Massoud Barzani (leader since he was born); PUK = Kurdish Patriotic Union, leader Jalal Talabani (leader since 1964). There are also more than ten small parties in Kurdistan today.

[184] Before blaming the Iraqi government and international community, one should direct the blames on the Kurdish political parties who has the major responsibility by supporting the Iranian army in invading Halabja in 1988, and also killing thousands of Kurds in the internal conflicts, which goes on for almost forty years. 15/03/1988: The Patriotic Union of Kurdistan declares having liberated Halabja with Iranian help. See Le Monde 19/03/1988.


Copyright 2000 Heval Hylan. Used by permission.