The Anfal Genocide: personal reflections and legal residue.

• Jurisdiction: United States
• Author: Newton, Michael A.
• Date: 01 November 2007

I was humbled to be asked to share some of my perspectives on the Anfal Genocide against the Kurdish people with you tonight. I am honored to be here and able to share in this series of events that in the aggregate form the 30th Annual Holocaust Memorial Lecture Series. As many of you know, the annual Vanderbilt University series is the oldest of its kind on a college campus. The thematic thread running throughout the series is that human suffering and genocidal frenzy has been a constant component of our "modern" world. This series is dedicated to commemorating the lessons to be drawn from past suffering and to confronting current realities that threaten the lives and safety of people in conflict zones around the world. The strong support for this lecture series, as well as your attendance tonight, reflects an admirable seriousness and a commitment to academic discourse that befits a great university. These are serious topics for a serious time, and it is a rare and genuine pleasure to be with you to share a few comments on the suffering of the Kurdish people. It is particularly gratifying to see such a strong representation by the local Kurdish community in attendance.

As a preface, and in the interests of full disclosure, you should understand that I have spent much time with Kurdish lawyers and leaders. I was actively involved in the preparations for this trial and also advised the Iraqi High Criminal Court on aspects of international law associated with the complex legal issues presented by the Anfal facts. My interactions with the Kurdish people began in the mountains of northern Iraq in April 1991 as they fled the persecution of the regime in the immediate aftermath of the Gulf War. In my continuing interactions with the Kurdish community, I have often sensed the ethos of the suffering of the people, and over time I grew to admire their will to survive and thrive. At the same time, there was a quiet fortitude and resolute sense of community and family that has provided an admirable example of enduring strength of human spirit in the face of adversity and almost unspeakable suffering. The Kurds possess what one writer described as Kurdi zin duah, meaning a fierce warrior spirit wrapped in a love of homeland, tradition, respect and love of family, and an abiding respect for ancestors and village spirits. (1) I also felt the quiet and intense need for justice as the only appropriate response to what happened to the Kurds during the 1988 Anfal campaigns.

There is a very deep and almost palpable sense in which justice feeds the soul of the Kurdish people. For the Greek philosophers, the pursuit of justice was the highest calling of human endeavor. (2) Many Kurds dedicated their lives to pursuing peace and justice in the aftermath of the Anfal campaigns of 1988. In my work with Iraqi judges and lawyers, I have grown to respect their sincerity and sheer physical courage. For nearly seven years now, I have been privileged to work extensively with Iraqi judges and lawyers, and I was involved in the preparations for the Anfal genocide trial. I can assure you that the Iraqi jurists felt the weight of their duty on behalf of the people and on behalf of the law itself. I salute your efforts in being here tonight to reach across cultures and chasms of experience to perhaps absorb some the lessons that come from the Kurdish experience.

I hope to leave you with some tangible sense of the legal importance of the Anfal genocide trial that has recently concluded in Baghdad, as well as some of my observations of key legal concepts that the trial marks. The series of eight military campaigns conducted from February to August 1988 together constitute one of the most concerted and tragic series of events in the history of human affairs. These campaigns began close to the Iranian border, but eventually stretched far across a swath of Iraqi territory and to the border between Iraq and Turkey. The Anfal campaign stands as a monument to the level of savagery that eats at the very heart of what polite people call civilization. Civilized people want what is good for each other. The defendants brought before the bar of justice in Baghdad (3) conducted a deliberate, systematized, and orchestrated series of campaigns intended to eradicate every trace of Kurdish civilization and culture across a broad swath of Northern Iraq. They acted with a calculated cruelty and deliberateness of purpose because they felt secure in the belief that they were more important than the law. They embody the essence of impunity because their actions betrayed the belief that Saddam's power would forever shield them from any accountability. Juxtaposed against the ongoing work of the ad hoc tribunals established by the United Nations Security Council. (4) the first trials in the permanent International Criminal Court, the proliferation of internationalized/hybrid domestic mechanisms, and the increasing use of domestic forums to prosecute the most serious crimes of concern to the international community, the Anfal trial represents irrefutable evidence that the era of accountability is irreversibly underway.

The State of Iraq, whose very existence should have served as the primary protection for all Iraqis, instead became the engine of evil that sought to harm and kill the Kurdish people as a group. (5) By unanimously adopting Resolution 96(I) in 1946, the United Nations General Assembly defined genocide as "a denial of the right of existence of entire human groups." (6) In other words, the intentional destruction of people based on the stable and objective characteristics that make them part of an identifiable group undermines their very right to exist and therefore erodes the essence of their very humanity. (7) This premise became the foundation upon which the modern meaning of the term "genocide" and the scope of the expanding jurisprudence was built. That, ladies and gentlemen, is the heart of the genocide charges--the Ba'ath party leadership sought to eliminate the Kurdish people from northern Iraq based on their ethnic identity.

The Iraqi effort to incorporate the law of genocide into its domestic legal fabric is well in line with modern trends around the world. The modern field termed "international criminal law" is an interrelated system in which domestic forums, such as those established by the Iraqis, are responsible for implementing international norms alongside the institutions established by the international community. In essence, Iraqi officials harmonized the Iraqi criminal code with international law to the same extent as those officials in other nations who are enacting implementing legislation after accession or ratification of the Rome Statute of the International Criminal Court. (8)

Today, the force of genocide law is becoming nearly ubiquitous and increasingly uniform. The world today shares a common framework of definitions and principles that have been applied in a growing body of jurisprudence. On that basis alone, the Anfal genocide case is an important trial because it represents the latest and most notable benchmark in the jurisprudential pathway. As the prosecutor said in his closing argument,

Your honorable court represents the voice of the Iraqi civilization, which says to the world that the law in Iraq will not permit these crimes to go unpunished. These are the crimes of genocide, the crimes against humanity, and the war crimes which were committed against the innocent people of Kurdistan. These crimes were widespread and brutal to the point that they have gone beyond the borders of our country[] and have been imposed upon the conscience of humankind throughout the world. The Anfal shows to the world that the defendants are former officials who abandoned the most important duty of government, which is to protect and ensure the precious lives of its people. (9) The textbook definition of genocide flows from the 1948 Genocide Convention, and has been revalidated in every one of the international tribunal statutes. The Iraqi High Criminal Court statute, as it was originally drafted and then re-promulgated by sovereign Iraqi officials in October 2005, replicates the well-established law of genocide, (10) For those unfamiliar with its legal content, the accepted definitions are clear: (11)

"genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(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

Martin Luther King believed that the force of God expressed in society is justice. (12) If I may be so presumptuous as to add an addendum, call it Newton's Corollary if you like, I believe that the force of God expressed personally results in passion. The purest and finest offerings of the human spirit come from the deeply held principles that motivate us and lead us through enormous pain to emerge triumphant and whole. The extent of the Kurdish genocide was preserved for history by many brave people who had the passion to document the suffering of their people. They smuggled out photographs, took witness statements, preserved evidence, and swore to work for justice so long as they had free will and the breath to power their efforts. In documenting the crimes committed against the Kurdish people, the survivors displayed the same fierce resilience that is one of the defining characteristics of Kurdish culture. They risked their lives in the hopes that they could provide the ammunition for the pursuit of justice long in the future. The daily testimony unfolding in Baghdad represented their vindication.

The quintessence for...