David J. Scheffer
Ambassador-at-Large for War Crimes Issues
Remarks, Carnegie Endowment for International Peace
Washington, D.C., October 27, 1999
The Continuing Criminality of Saddam Hussein's Regime
I deeply appreciate the opportunity to speak today at the Carnegie Endowment for International Peace on the continuing criminality of Saddam Hussein's regime. Here at Carnegie, in B.C.--before the Clinton Administration--I first studied and wrote about the grave violations of international law by the Iraqi Government, violations that defined the character of the Gulf War and that launched unprecedented cooperation in the UN Security Council and among our allies and friends for the purpose of confronting a force of evil in the Near East. I will never forget the unwavering support that Tom Hughes and Morton Abramowitz gave me during my 4-year tour here, and the superb professionals I worked with during those years.
Looking back to 1990 and 1991, before the days of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, it was clear to many international lawyers in those days that Iraqi president Saddam Hussein deserved investigation and prosecution as an international war criminal. His violations of international humanitarian law were considerable even at that time. Yet Saddam Hussein and his colleagues in power--men such as his sons Qusay and Uday, and Ali Hassan al-Majid, the infamous "Chemical Ali"--have not been stigmatized and ostracized by the international community as have been equally infamous men such as Slobodan Milosevic, Radovan Karadzic, Ratko Mladic, Jean Kambanda, and Théoneste Bagasora. Saddam Hussein and his henchmen are still viewed by some governments as legitimate tolerable leaders of a country somehow under siege by the international community. They are viewed as men with whom people want someday to do business, to open up channels of trade, and even to forget and forgive. In reality, these are thugs who terrorize what was once, and could again become, a great nation. The United States Government is determined to see this clique of Iraqi criminals stripped of their power and, if possible, brought to justice. They should benefit from no contracts, no trade, no initiatives that would bestow any legitimacy on their criminal enterprise in Baghdad. They should be isolated, cut off, and brought before the gates of justice. That would be far more generous and humane than what they have offered hundreds of thousands of their victims.
Some may ask: Why Saddam? Why today? Accountability for Saddam Hussein's crimes is a core part of the efforts of my office and of others around the world whose job is to focus on the investigation, prosecution, and ultimate deterrence of atrocities wherever they occur. The Office of War Crimes Issues at the State Department, which I head, is deeply engaged in supporting the investigation and, when appropriate, prosecution of serious violations of international humanitarian law in the former Yugoslavia, in the Great Lakes region of Africa (including Rwanda), in Sierra Leone, in Cambodia, in Sri Lanka, and elsewhere. We pay a lot of attention to the carnage in East Timor, Chechnya, Afghanistan, Burundi, and Angola.
In Iraq today, atrocities are being carried out by Saddam's army against the inhabitants of the southern marshes with a ferocity that is as widespread, albeit over a longer period of time, as that waged by Milosevic's goons against the Kosovar Albanians. The Iraqi regime's destruction of the environment in the south, making it uninhabitable by the people who live there, is part of that overall campaign. And Saddam's internal war against his political opponents is of a character that begs for description as crimes against humanity. The criminal enterprise is undeniable and glares at anyone who cares to look closely at Iraq today. We intend to keep exposing it for what it is and to work towards the day when the key people in Saddam's regime, who are actually responsible for it, are put behind bars.
I should therefore describe the scope and magnitude of the Iraqi regime's international crimes and who within the leadership clique we think merits investigation.
We have identified nine major criminal episodes under Saddam Hussein's rule in Iraq. Three of the nine episodes continue to this day and, indeed, one of them is accelerating at an alarming rate. These episodes are:
1. In the 1980's, crimes against humanity and possibly genocide in the "Anfal"campaign against the Iraqi Kurds, including the notorious use of poison gas in Halabja in 1988, which killed an estimated 5,000 people in a single attack.Like Slobodan Milosevic, Saddam Hussein did not commit these crimes on his own. Yet we know that Saddam Hussein has built up one of the world's most ruthless police states using a very small number of associates who share with him the responsibility for these criminal actions. Many of their names deserve to be better known, as well. For example, Ali Hassan al-Majid became known as "Chemical Ali" for his leadership and enthusiasm in using poison gas against Iraqi Kurds and in the Iran-Iraq war. He also turned up in Kuwait during the occupation and, more recently, as governor in the south of Iraq during recent periods of repression against the people there. When someone shows up at crime scene after crime scene, the pattern of evidence becomes clear
Two other examples are Saddam Hussein's sons, Qusay and Uday. Qusay Saddam Hussein is the head of the Special Security Organization and Uday is a commander of a ruthless paramilitary organization that maintains Saddam's hold on power.
The non-governmental group INDICT has come up with a list of 12 people it believes should be indicted by an international war crimes tribunal. In addition to Saddam Hussein, his two sons, and Ali Hassan al-Majid, INDICT's list includes Barzan al-Tikriti, former head of Iraqi Intelligence; Taha Yasin Ramadan, Vice President of Iraq; Watban al-Tikriti, former Minister of the Interior; Sabawi al-Tikriti, former head of Intelligence and the General Security Organization; Izzat Ibrahim al-Douri, vice chairman of the Revolutionary Command Council and former Head of the Revolutionary Court; Muhammad Hamza al-Zubaydi, Deputy Prime Minister of Iraq; Tariq Aziz, Deputy Prime Minister of Iraq; and Aziz Salih Noman, Governor of Kuwait during the Iraqi occupation
Need for International Investigation and Prosecution
The U.S. Government is well aware of the tension that exists in the international system today between a small number of governments that believe there is something to be gained by maintaining relations with Saddam Hussein's regime and by weakening the UN sanctions program, and others who recognize the need to continue to isolate Saddam Hussein and work towards the day of his downfall and that of his closest associates. Before any government entertains further thoughts about deeper relations with the Iraqi regime, the factual record of this criminal enterprise needs to be fully appreciated. There must not be a memory lapse when it comes to the war crimes of Saddam Hussein and his inner circle.
Since some governments are contemplating broader relationships with Baghdad, and since some well-intentioned people seem to believe that our support for sanctions against the Iraqi regime somehow raises questions about our own conduct towards the people of Iraq, we must understand the character and magnitude of Saddam Hussein's criminal enterprise. The Iraqi regime's violations of international humanitarian law have been going on for many years and are, in fact, on-going. This is a man and a regime who have brutally and systematically committed war crimes and crimes against humanity for years, are committing them now and will continue committing them until the international community finally says enough.
I am going to explain in some detail what we are doing to corner Saddam Hussein and his regime within the rule of law. Our primary objective is to see Saddam Hussein and the leadership of the Iraqi regime indicted and prosecuted by an international criminal tribunal. There remains a critical need for such ad hoc international criminal tribunals at the end of the 20th century. The permanent international criminal court envisaged by the Rome Treaty of 1998 will have only prospective jurisdiction when it is established, and that will not happen unless 60 governments ratify the Rome Treaty. Given that four governments have ratified the Rome Treaty to date, one can expect that several years will elapse before such a permanent court can be used, and then only for crimes committed after its establishment. Moreover because of the way the ICC's jurisdiction was set out in article 12 of the Rome statute, Saddam Hussein will be immune from the ICC so long as he only kills Iraqis. That is unacceptable to us, and should be unacceptable to other civilized nations of the world.
For several years, the United States has quietly pursued with member States of the Security Council and with interested governments in the region the goal of an international criminal tribunal that would be established by the UN Security Council. I have personally led this effort since 1997, and I have visited with many governments to seek out their views. We are realistic about where we stand and the prospects for accomplishing our objective. Quiet diplomacy has told us that many governments agree with the principle that something should be done to bring Saddam Hussein and other very high officials to justice. Interestingly, many governments seem to think that the effort will be blocked in the Council by countries willing to defend Saddam Hussein publicly. Given how infamous his crimes have been, this will be an interesting test to see who will defend a regime that has committed both international and internal atrocities that are as horrendous as they are illegal.
Let me briefly review the procedure that has been followed in previous efforts to establish the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda. In both cases, the procedure was first to select a UN rapporteur to examine the situation and report to the Security Council and General Assembly. That has already been done for Iraq with the outstanding work of Max van der Stoel, whose many reports on Iraq are detailed with information and analysis of the criminal character of Saddam Hussein's actions.
The next step traditionally would be the establishment of a UN Security Council Commission of Experts to investigate the facts and report back to the Security Council. This was done in the cases of the former Yugoslavia and Rwanda and quickly led to establishment of international criminal tribunals. Similar commissions of experts have also examined atrocities in Burundi and the Democratic Republic of the Congo in recent years, but the Security Council has not yet moved to establish criminal tribunals to prosecute the perpetrators of crimes in those countries. In the case of Iraq, as Assistant Secretary of State Martin Indyk said on September 13, we believe that the Security Council would be well served with a Commission of Experts to gather all of the information on the criminal conduct of the Iraqi regime, organize it coherently, and then report to the Security Council on the merits of a criminal tribunal.
That being said, we strongly believe even at this stage that the Security Council would be fully justified in establishing an ad hoc international criminal tribunal without the predicate of a Commission of Experts. We say this because a major effort, strongly supported by the U.S Government and other governments and non-governmental organizations, has already been working to gather relevant information about the Iraqi regime so as to be able to make it available to an international prosecutor as soon as one is appointed with jurisdiction over Saddam Hussein and his top assistants.
When you look at the record, it should become more and more clear that others who are reminded of the criminal character of Saddam Hussein and his regime will eventually conclude, as we have, that there is more to gain for international peace and security from pursuing international justice against Saddam Hussein than it would ever be possible to gain for private profit from pursuing international commerce with Saddam Hussein.
During the Rome conference for the international criminal court last year, the common refrain of the most rhetorically spirited backers of the permanent court was, "No more Saddam Husseins." I challenge each and every government and non-governmental organization that has supported the establishment of a permanent international court to match their deeds to their words, and ensure that the real Saddam Hussein can be isolated and eventually brought to justice by the international community.
Being Prepared for Investigations Elsewhere
Just as we are committed to using international law to advance the cause of peace, we are also hardheaded realists about what it will take to achieve the result we seek. If an international criminal tribunal or even a commission of experts proves too difficult to achieve politically, there still may be opportunities in the national courts of certain jurisdictions to investigate and indict the leadership of the Iraqi regime. Indeed, if there were a regime change in Baghdad, the opportunity may well arise for domestic prosecutions of the Saddam Hussein regime. We want to be prepared, in the event any such national court indicts members of the regime, to provide a "care package"of valuable information to assist in that effort.
Other jurisdictions are also having to take an interest in the prosecution of senior Iraqi leaders. This summer, Izzat Ibrahim al-Douri, Vice Chairman of the Revolutionary Command Council and one of Saddam's top deputies, visited Vienna for medical treatment. He learned quickly that international travel is becoming risky for the Iraqi leadership. An Austrian municipal official launched efforts with the Austrian Government to seek an arrest warrant against al-Douri. He then fled the country to return to Iraq. The United States would have preferred that the Austrian Government not 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. But this experience clearly demonstrated to those who want justice against Saddam Hussein and his regime that they need to have their evidence ready and in a form that would justify an arrest warrant. We were heartened that Tariq Aziz, Deputy Prime Minister, decided to stay home rather than attend a conference in Rome in August.
The United States has long believed that top officials of the Iraqi regime do not deserve to be received as distinguished visitors in the capitals of the world. Just as Slobodan Milosevic is confined to Serbia along with his colleagues indicted by the International Criminal Tribunal for the former Yugoslavia, Saddam Hussein and his closest colleagues should be increasingly confined to Iraq. Sadly, they will still have 48 palaces in which to relax, many built in recent years at the expense of Iraq's children. Still, the victims of Saddam Hussein's crimes can take some small measure of comfort that Iraqi officials responsible for those crimes are no longer enjoying the luxuries of European travel, medical care, and a standard of living that they deny to the Iraqi people.
Considerable Evidence of Iraqi War Crimes Exists
For its part, the United States Government will continue to gather and organize a large amount of incriminating information about the Iraqi regime stretching back to the 1980's. The documents we have been working on include:
Seeing Saddam Hussein indicted for his crimes is a goal that the Administration and the Congress all share. In 1997, the House of Representatives voted in favor of such a resolution by a vote of 396-2; in the Senate a similar resolution passed 97-0. Last year Congress expressed its desire to see an international criminal tribunal established to indict Saddam Hussein when it adopted the Iraq Liberation Act.
Political support would mean little without the resources to bring the facts of Saddam's crimes to light. With the strong support of the Congress, the United States is providing financial support to groups gathering information about Iraqi crimes. Congress appropriated $5 million in the May 1998 Bosnia/Iraq supplemental to support efforts by the Iraqi democratic opposition and by NGO's on documenting Iraqi crimes and to call international attention to Saddam's record of atrocities going back to 1979. Of a total Iraqi war crimes appropriation of $2 million during fiscal years 1998 and 1999, we have thus far given about half of that amount the UK-based human rights group "INDICT"to compile documentary evidence and to interview witnesses. We are providing support to the International Monitor Institute in Los Angeles to collect and digitize audio and video evidence of Iraqi atrocities. We also intend to provide a grant to the Human Rights Alliance to facilitate its efforts to conduct educational efforts on the Iraqi regime's criminal record and to assist other human rights groups that work on the Iraq war crimes effort. Finally, in conjunction with the Harvard Documentation Project, the Iraq Foundation will use a grant to catalogue and put on the Internet captured documents showing how the Iraqi regime carried out the "Anfal" campaign and other crimes against the Iraqi people. One of our objectives is to widely publicize incriminating information about the Iraqi regime. Not all of us have the time to travel to Colorado University to look at their collection of 5.5 million pages of captured Iraqi documents. But we hope that with our financial assistance, the Iraq Foundation and others will be able to put many of these on the Internet where Saddam's criminal record will be viewable around the world.
For FY2000, we have requested $10 million in the FY2000 Foreign Operations appropriation bill to support the Iraqi opposition and to continue to document Saddam Hussein's record of atrocities. However, there are two points I must make on the subject of resources.
Let me turn to a review of the horror of one of the most brutal crimes of Saddam Hussein's regime, the Anfal campaign, explain the modern assault on the Kurds, and then discuss the campaign of atrocities against the Shi'a of the Southern Marshes, particulary recent criminal actions.
The Anfal campaign of the late 1980's was one of the worst examples of atrocities committed in pursuit of what the world would come to know as ethnic cleansing.
The Iraqi methodology and goals are well seen in a secret speech (of which a recording was captured) by the infamous Ali Hassan Al-Majid, Saddam's cousin, "Chemical Ali." He was in the late 1980's the man in charge of implementing the government's policy in the north, specifically to quell unrest and insurgencies among the Kurds.
In the speech to security commanders in January 1989 he promises: "I'll certainly look after the Kurds. I'll do it by burying them with bulldozers. That's how I'll do it". He was true to his word.
The policy was simple and direct. To curb the unrest and insurgencies vast regions were forcibly denuded of people and livestock. The populace was sent to distant housing complexes under Iraqi military control. The emptied villages were then razed. Many persons naturally were reluctant to abandon their homesteads and land, and they would flee into nearby hills.
Orders for treating these persons were explicit, as shown in an order of June 1987: "The armed forces must kill any human being or animal present within these areas. They are totally prohibited". This order was repeated often because apparently some units in the field were not as vigorous in implementing policy as the high command desired.
Another states: "The corps commands shall carry out random bombardments using artillery, helicopters, and aircraft at all times ... in order to kill the largest number of persons present in those prohibited areas". Further, "All persons captured in those villages shall be detained ... and those between the ages of 15 and 70 must be executed after any useful information has been obtained from them.
There is an utter disregard for non-combatants that permeates these orders.
Listen to another cold blooded edict from May 1987: "The First Army Corps issued an order as requested by comrade Ali Hassan Al-Majid to execute the wounded civilians after the party organization ... confirmed their hostility toward the authorities".
There is more:
From February 1989, "It has been decided to carry out the death penalty against all the criminals whose names are listed in your above letter. There is no need to send them to the investigative court".
Another message to higher ups in December 1987 complains that executions are backlogged because the morgues are full. These seized documents are littered with the phrase "necessary measures" which we know from collaborative evidence means summary executions.
The best known incident of the Anfal was the attack on the northeastern city of Halabja, where some 5,000 civilians died in 1988 from the effects of mustards and nerve gases. The devastating effects of these attacks are still being felt in Halabja today, with highly abnormal rates of birth defects, cancers and infertility. Recently a British geneticist, Dr. Christine Gosden documented the horrors that Saddam's attack has inflicted, and continues to inflict, on the people of the town. She found numerous cases of bone, skin, and neurological pathologies that have continued to inflict suffering on many who were not killed outright. The Washington Post gave Dr. Gosden its entire Op-Ed page to describe the horrors that Saddam Hussein's forces inflicted upon the people of Halabja. "60 Minutes"devoted an entire segment to portraying graphically what Dr. Gosden encountered in Halabja. Given that its report was aired in prime time television, I can tell you it left out some of the most gruesome scenes of the damage inflicted on Iraqi families.
The Halabja attack made 60 Minutes but it was far from unique. Captured Iraqi documents are replete with references to what are euphemistically called attacks with "special ammunition"in towns like Malakan, Talinan, Kandor, and Badinan. There were many others. Field units dutifully reported the effects of these attacks to the high command, blandly noting the deaths of whole families, mass blindings and other grand accomplishments.
All told, the death count from Anfal numbers tens, perhaps hundreds of thousands of slaughtered Kurds. Unmarked mass graves pockmark northern Iraq, where thousands were buried. The government grew so tired of answering inquiries from concerned relatives that instructions went out in September 1990 stating that instead of the standard phrase, "They were arrested during the victorious Anfal campaign and remain in detention,"the official reply would now be, "We do not have any information on their fate."
At least 3,000 villages were destroyed or severely damaged. At the Nuremberg trials, the Nazis were held accountable for the destruction of the towns of Lidice in Czechoslovakia and Oradour-sur-Glane in France. It is time to remember the thousands of Lidices in Iraq.
While Anfal is officially over, the campaign against the Kurds is not. A more contemporary example will attest to that.
Buildings within the walls of the ancient city of Kirkuk were demolished between September 1997 and August 1998. The expulsion of Kurdish and Turkomen families may well be linked to an Iraqi policy of "ethnic cleansing", with the stated purpose of "rectification of nationalities". Baghdad is attempting to transform Kirkuk and the surrounding oil-rich area from a Kurdish to an Arab majority populace. The Iraqi regime would have you believe that all the destruction seen in the photos is a result of archeological excavations.
Shi'a of the Southern Marshes
Last month the State Department issued a white paper on Iraq that included some information on crimes recently committed against the Shi'a of the southern marshes. Assistant Secretary James Rubin showed some photographs of the extent of destruction near al-Masha. Today I want to show you some additional photographs of very recent destruction and the continued degradation of the agricultural resources and marshland of southern Iraq. There is unquestionably a systematic and large-scale effort underway to ethnically cleanse the Shi'a of the southern marshes and to destroy the environment in which they have lived for more than a thousand years.
The roughly 5,200 square kilometer area known as the southern marshes of Iraq has largely been destroyed by actions of the Iraqi government. Through the use of dams, causeways and other draining measures the area has lost most of its water.
The subsequent rise in salinity has ruined the area for agriculture. The land is now more suited for the many military camps that dot the landscape.
These steps were taken to hamper operations by Iraqi insurgents. The Iraqi marshes have sustained the homes and livelihoods of thousands of people for thousands of years, through the depredations of the Assyrian and Mongol invasions. Saddam Hussein is forcing the inhabitants off their land.
No one can doubt the Iraqi regime's continuing assault on its own civilians. We hope other governments will join in a multinational legal assault on Saddam Hussein in the months ahead. We are prepared to lead that effort and to sustain it until Saddam Hussein has met his match in the court of law.
I can anticipate the primary concern of many, perhaps some in the audience, regarding the nutrition situation in Iraq under the sanctions and the fate of Iraq's children. How can I go on about Saddam Hussein when we are being charged with crimes against the starving humanity of Iraq? Easy. The Secretary of State and, last week in the International Herald Tribune, the National Security Adviser have repeatedly addressed this concern, and I will leave their words standing. Sandy Berger described Saddam's squandering and corrupt administration of Iraq, at the expense of his people, "obscene." The facts are abundantly clear now on who is responsible for the misery of the Iraqi people. I would simply add that the fastest way to restore proper nutrition and medical treatment to the women and children of central and southern Iraq would be a regime change in Baghdad and the treatment of Saddam Hussein and his ilk for what they truly are: suspected criminals who merit full investigation and, if the facts establish probable cause, indictment and prosecution for crimes against humanity, war crimes, and even genocide.
In coming weeks, we will produce more imagery of destruction and other criminal acts in Iraq. The on-going character of the ethnic cleansing campaign in southern Iraq means we are witnessing a massive criminal enterprise at work, day by day, and victim by victim. The reckoning of Saddam Hussein will not be easy, may take a long time, and will surely entail risk. We cannot turn our backs to the challenge of international justice in Iraq, any more than we can ignore the humanitarian needs of the Iraqi people.
Elihu Root, the first president of the Carnegie Endowment for International Peace, believed strongly in the rule of law and the importance of America's emerging role in the world. I believe we should follow the path that the Nobel Foundation attributed to Elihu Root: "He believed that international law, along with its accompanying machinery, represented mankind's best chance to achieve world peace, but like the hardheaded realist he was, he also believed that it would take much time, wisdom, patience, and toil to implement it effectively." The same ideals, and the same realism, guide us today.
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