Gathering the Evidence for Iraq's War Crimes Tribunal

The Kurdish villagers were gunned down in batches, a hundred-odd at a time, to be buried as they died. Their skeletons are sometimes hunched over, but more often sprawled back against the walls of the grave pits, reflecting the typical “throw” of the AK-47 assault rifle. In some of the pits, southern Iraq's winter rains had first softened the ground, so that dead or dying victims sank slightly into the mud before a bulldozer came and covered them over.

Some fifteen years on, the low acidity of the desert soil has left the villagers’ traditional garments draped over their bone-dry skeletons, the brightly colored fabrics still looking almost like new. The site, in the Samawa area more than 200 kilometers south of Baghdad, displays none of the gore of a moldering, Bosnia-style mass grave. Yet just as in the former Yugoslavia, the details here attest to individual human tragedies, repeated on an almost industrial scale.

Human remains found in a mass grave near Samawa, Iraq, April 21, 2005, shown in a photograph from the Iraqi Ministry of Human Rights (AP Photo/Ministry of Human Rights, HO)

The jaw of an elderly woman still holds a set of shiny pink dentures. The next grave over, an adolescent girl with a green headscarf still wrapped around her fleshless skull clutches a bundle of possessions tightly against her chest. Investigators speculate that these Kurds, transported south more than 500 kilometers from their native villages, were expecting to be resettled here, in the desert along the Saudi border.

The recently investigated Samawa site contains the remains of at least 1,500 individuals, mostly women and children, investigators say. This is only one of 27 mass-grave sites found in Muthanna province, and more than 300 throughout Iraq.  Total victims would thus run into the hundreds of thousands – not inconsistent with estimates by Kurdish and Shia activists about the total numbers of missing and disappeared from recent decades. US regime crimes liaison Gregg Nivala says the graves are evidence of “a widespread and systematic crime, committed over a long time – we think with the knowledge and direction of high-level members of the regime.”

The evidence in the ground undoubtedly tells a story of mass murder, but far from the full story. Beyond the question of scale, who exactly gave the orders that set the alleged death squads in motion?

Revealing the Chain of Command

As of May 2005, the US military holds in custody 15 ex-regime officials, including deposed president Saddam Hussein, on behalf of the new Iraqi authorities. Officially, these detainees now belong to the Iraqi Special Tribunal (IST), the national court set up to try them for crimes in the period from July 1968, when the Baath took power, until May 2003, when US president George W. Bush declared the end of major combat operations in Iraq. The tribunal, incorporating elements of international and Iraqi law, has jurisdiction over acts of genocide, crimes against humanity and war crimes, as well as corruption and policies leading to war against another Arab country.

A mass grave uncovered by investigators near Samawa, Iraq, April 21, 2005, shown in a photograph from the Iraqi Ministry of Human Rights (AP Photo/Ministry of Human Rights, HO)

Mr. Nivala, the chief advisor for the IST prosecution, describes the former regime’s rule as a “30-year-plus crime spree over all of Iraq.” But despite the “obvious” guilt of some of the accused, many observers continue to focus more on the IST itself, questioning the credibility of a court formed under US occupation. In response, the tribunal’s US advisors point out the care being taken to ensure due process, even if the eventual outcome – the conviction and execution of Saddam and others – looks like a foregone conclusion. Conducting a mass-grave excavation costs around $9 million per day of US money, Mr. Nivala said.

However, simply showing that mass executions happened will not be enough to fairly convict the high-level leaders. Pinpointing these culprits requires integrated evidence gathering – bolstering the physical evidence with testimony from surviving witnesses and, wherever possible, a paper trail showing the chain of command behind the massacres.

Evidence from the Graves

The recently excavated Samawa site includes 18 identified trenches, still discernable on the surface as roughly 3-metre by 12-metre patches of shrubbery running north to south, with “opportunistic plants” sprouting out of the looser fill soil. Only 10 of the grave pits – now cut crosswise by the investigators’ narrower probe trenches – have turned out to contain human remains. The perpetrators seem to have prepared the site all at once, and then filled the graves as needed, investigators said.

AK-47 shell casings, ejected rightwards, were sometimes kicked into the pits after the work was done, but more often left in clusters on the surface. Site topography, meanwhile, suggests a carefully chosen killing field, with a ridge of dunes on three sides that would allow the perpetrators to hide heavy equipment, such as the 10-foot wide front-end loaders that were apparently used to dig the graves. Mass-grave sites in northern Iraq reportedly show similar topographic features – a factor underlining the systematic, planned nature of the regime’s assaults on the Kurds, investigators say.  Establishing that acts of violence against civilians were carried out in a widespread or systematic way is essential to proving that they qualify as crimes against humanity. 

All the victims at the Samawa site are thought to have been Kurds, brought there in mass transport operations. Based on partial probes, US investigators offered a rough population breakdown: only 27 percent of the victims were adults, whereas 63 percent were under 18 years old. “Most were very small, and 10 were clear infants,” an investigator said. The few adult males uncovered there are thought to have been elderly men.

Clothing from the site appears to connect the victims there to northern Iraq and even to particular Kurdish villages. Identity cards, found in association with some 10 to 15 percent of individual remains, provide further evidence of victims’ origins, as well as narrowing down the timeframe for the killings. In one instance, a facial reconstruction based on a Samawa skull has provided a close match to an ID photograph. Although naming individual victims is not the prosecution’s priority, such details could add considerable color to courtroom arguments.

Archaeologists employed by the US Department of Justice wrapped up excavations at the Samawa site at the end of April. On-site investigations there involved two or three days of magnetic work, slow scraping with heavy machinery (no more than two centimeters at a time) to reopen the grave pits, and eight days of hand excavation, investigators said. Forensic work now continues at an IST morgue near Baghdad, based on sample of remains of 100 victims from the site.

As excavations continue elsewhere, the IST hopes to discourage local communities from interfering with potential evidence prior to the conclusion of trials. At some sites in the south, valuable evidence has been lost when Shia Arab survivors came to retrieve victims' remains for proper burial. [i]

Witness Testimony

The next step will be to correlate the physical evidence with witness testimony. According to legal experts familiar with the IST process, clues from some of the southern mass-grave sites, such as ID cards, have started producing successful leads to eyewitnesses who can testify to round ups in Kurdish villages in the Anfal campaign – the 1988 military offensive against Kurdish communities that is likely to form a central part of the cases against former members of Saddam’s regime. However, witnesses may be afraid to come forward en masse, so the prosecution must seek them out.

Witness interviews, like so much else in the investigative process, are hindered by the difficult security conditions in the country at the present time. In other circumstances – that is, truly post-conflict circumstances – prosecutors would probably set up centers for witnesses to come forward with testimony. Given the ongoing risk of reprisals, this is simply not happening in Iraq.

As with forensic evidence, the stories told by thousands of individuals are less important than a solid general picture. Moreover, wide segments of the Iraqi public will be able to “relate” their own experiences to a handful of well-publicized testimonies, legal experts said.

In late April, the IST announced that investigative judges had recorded numerous statements about the mass transportation and execution of the Faili Kurds, in addition to finding related documentary evidence. Many arrest warrants have been issued as a result, while investigations into the case continue, the IST said.

The prosecution may also rely on testimony from ex-regime members.  Chief investigative judge Ra’id Juhi indicated that he had taken statements from at least a few of the current 15 “high-value” detainees, although he declined to provide details. US advisors are also allowed to interview the detainees, but only the Iraqi investigative judges can take official statements. “If investigators from my office interview a witness, it doesn’t really count,” one advisor said.

Mr. Juhi said that some of the detainees “are being cooperative.” Whether defendants will testify against each other, of course, remains to be seen. But the tribunal’s rules do leave room for plea-bargaining, and this was one of the subjects discussed at training seminars for IST judges in London late last year.

The Paper Trail

Along with thousands of witness statements, the prosecution already claims to possess hundreds of thousands of incriminating documents. In 1991, Kurdish forces reportedly captured 14 tons of documents related to the Anfal campaign, now stored in CD-ROM format. Interim human rights minister Bakhtiyar Amin, a Kurd with a background as a rights activist in Europe, called Anfal “the most documented case of genocide since the Second World War.”

Documents related to other atrocities may have been lost in the wave of looting following the US-led invasion. However, US forces claim to have seized many more documents, at least some of which point to top-level regime culpability.

Legal experts said that defendants in the Anfal case would include Saddam Hussein, his cousin Ali Hassan al-Majid (known as “Chemical Ali” for his use of poison gas against Kurdish civilians) and many others. But while the prosecution builds its cases, lawyers on Saddam’s defense team complain that they have still not been allowed to see any of the alleged evidence.

Saddam and the Tribunal's First Case

At the end of February, IST investigative judges completed their first prosecution file and referred five detainees for trial. The case, now going through pre-trial procedures, revolves around Dujayl, a mainly Shia town about 50 kilometers north of Baghdad.

Recently there have been strong indications that Saddam may also soon be charged in the Dujayl case -- meaning that a high-profile trial of the former Iraqi leader could begin within the next few months. 

The Dujayl case cannot be regarded as “typical.” For one thing, the prosecution’s argument will rely mostly on witness testimony and surviving documents, without a major forensic component. Mr. Nivala, the US advisor, said that Dujayl came up first because it was “a relatively straightforward case” about events within a “discrete scope of time and place.” Nonetheless, Dujayl provides one of the best opportunities thus far to observe how IST investigators are drawing together different types of evidence.

The town, with a population of roughly 100,000, was the scene of apparently well-documented human-rights abuses in the early 1980s. Iraq was engaged in a desperate war with neighboring Iran at the time, and the town was known as a nest of sympathy for the Shia opposition group Dawa – now among the main parties in Iraq’s new, elected government but at that time linked through its military wing Shahid al-Sadr with a campaign of assassination and sabotage against the Baathist regime. Regardless, Saddam’s government seems to have ignored the rules in humanitarian law against extrajudicial killing and the use of violence against civilians.

In July 1982, an ambush of Saddam’s motorcade by a small band of Shia rebels prompted the regime to unleash ruinous collective punishments in the town. Although five of the seven attackers escaped, the state rounded up hundreds other citizens, eventually executing at least 143, whose names are recorded on a 1985 execution certificate. The men were ostensibly found guilty by Iraq’s Revolutionary Court, but legal experts say the trials fell far short of any reasonable standard of due process.  The Baghdad-based Freed Prisoners Association (FPA), which found the document and supplied it to IST prosecutors, says that more than 200 others were probably also executed.

Eyewitnesses to Brutality

The FPA, with a branch in Dujayl, has played a key role assembling the case, allowing investigators to limit their visits to the town. With the help of a local FPA contact, survivors of the early 1980s abuses were brought to the capital to be interviewed there. Some of these witnesses later spoke to Nasser Kadhem, a trainee journalist with the Institute of War and Peace Reporting (IWPR). [ii]

Dujayl foodstuff merchant Abdel Zaher Abed, 63, said he went with other survivors just over a year ago to meet investigators, who photographed the heavy scars on his back. Mr. Abed said the scars were caused by repeated floggings with plastic hoses, which he suffered at the remote southern Nujrat Salman prison. He now looks forward to hearings at the IST. “Thank God there will be a trial now, and the case will be settled justly,” he said.

Shia cleric and former conspirator Mohamed Tawfiqi, whose brother Sattar was gunned down after firing the opening shot at the presidential motorcade, calls the upcoming trials “revenge for my brother, who sacrificed himself for Iraq.”

Three relatively high-level Baathists are charged in the Dujayl case: Saddam’s half brother and former advisor Barzan Ibrahim al-Hassan; former deputy prime minister and vice president Taha Yasin Ramadan; and Awad Hamad al-Bandar al-Saadoun, former chief judge at the old regime’s Revolutionary Court, who signed the execution order for Dujayl prisoners in 1985.

But investigators also looked into the role of local Sunni accomplices. According to town residents, US troops swooped in to arrest local Baath organizer Abdullah Ruwayd al-Musheikhi and his son Mizher Ruwayd al-Musheikhi in early February, less than a month before the Dujayl referral hearing. Although the IST statute rules out guilt by association, Shia residents say that other local Sunnis also committed crimes but have not been arrested.

Saddam was not initially listed among those charged in connection with Dujayl.  However, it now seems clear that the prosecution intends to add him to the list of those facing trial in the case.  The IST announced on April 28 that Saddam would be referred for trial in a matter of weeks.  On May 31, the new Iraqi president Jalal Talabani confirmed in an interview with CNN that he expected Saddam to be put on trial “within two months.”

A list of prospective charges against Saddam obtained by the Associated Press from the Iraqi Special Tribunal includes the executions at Dujayl among the 14 cases that prosecutors are concentrating on.  The tribunal has adopted an approach that involves conducting separate trials for each of the crimes involved -- meaning that Saddam will probably appear as defendant in more than ten separate cases.  Future cases against him are likely to include the chemical weapons attack against the Kurdish town of Halabja; the harsh repression of a Shia rebellion in the south of Iraq in 1991; the execution of political and religious leaders viewed as posing a threat to Saddam's power; and the killing of hundreds of members of the Kurdish Barzani tribe.

Foregone Conclusions?

As even the tribunal’s critics admit, some of the current detainees are “obviously guilty” of orchestrating mass murder. Yet the IST is struggling with a credibility problem.

The roughly 50-judge body, though composed of Iraqis, was set up under US supervision, based partly on international post-conflict tribunals and partly on existing Iraqi law. Although an elected government is now in place, some international lawyers continue to criticize the IST as an “exceptional” organ formed under foreign military occupation.

“This puts organizations that would otherwise be extremely helpful with evidence gathering in an extremely awkward position,” notes Naz Modirzadeh, assistant professor of International Humanitarian Law at the American University in Cairo (AUC). “If you’re a human-rights group, do you assist the United States in a US-led procedure that you have fundamental problems with?”

US administrators strove to shield the process from external meddling. They dismissed requests from the New York-based Human Rights Watch (HRW) to review the IST’s founding statute, which was approved in December 2003 by the US-picked Iraqi Governing Council (IGC).

HRW field researchers had compiled evidence about the regime’s human-rights abuses and, along with Kurdish activists, called unsuccessfully for Saddam to be charged in an ad hoc tribunal several years before the US-led invasion. But the rights group, balking over the tribunal’s power to impose capital punishment, now refuses to share its evidence, including extensive witness statements, with the Iraqi tribunal. For the same reason, the IST has also been shunned by the United Nations and other international organizations that have actively assisted with transitional justice arrangements for other countries. [iii]

Iraqi law, from the Baathist period and earlier, permits execution by either hanging or shooting. Drafters of the IST statute deemed such procedures to be the “will of the Iraqi people,” perhaps with some justification.

Some US allies, most notably Britain, have agreed to cooperate in “death-penalty neutral” ways. While the British government organized judicial training sessions, British military teams have assisted with chemical analysis in the field. But the British position is “a careful one,” a British diplomat acknowledged. “The death penalty is a red line for us.”

From POWs to Defendants

Before the so-called Iraqi “resumption of sovereignty” in June 2004, Saddam was held as a prisoner of war by the United States, which protected him from summary trial and execution under an angry IGC, and partly shielded the US occupation authorities against flak from rights groups. Since then, although he is still guarded by U.S. troops, Saddam has been in the “legal custody” of Iraq.  Six months passed from the former president’s capture by US troops until his first appearance before an IST judge, at which point he had still not seen a defense lawyer.

His first meeting with his lawyers eventually happened in December – nearly a year after his capture and five months after his televised questioning by Mr. Juhi, the chief investigative judge. Other IST prisoners also spent months as POWs, before being suddenly converted into civilian prisoners facing trial. Saddam and the others are still being denied their right to adequate representation, according to HRW and other critics.

Amid complaints from detainees’ relatives, the IST insists that all 15 now have defense counsel of their choosing. Saddam on April 27 “met his counsel for more than four hours, and this is not their first meeting,” a statement from the tribunal said.

Most Iraqis do not seem overly concerned about the fine points of IST justice. Even Mr. Amin, the former human rights minister, said he “would not shed a tear if Saddam were executed.”

Western human-rights activists familiar with Iraq, similarly, say they “don’t care what happens to Saddam Hussein.” However, show trials in a US-led court could set an atrocious precedent, they warn.

Supporters may call the national tribunal “a step to help build the justice system” in Iraq. But to the IST’s critics, a “flawed process,” especially one culminating in vengeful executions, is sure to achieve exactly the opposite.

…

[i] As the Samawa excavation wrapped up, another mass-grave discovery came to light. Yaha al-Kasir, a human-rights activist in nearby Diwaniya, told news agencies on 2 May 2005 that the new site contained 19 grave trenches with the remains of thousands of Shia and Sunni victims. Unlike at the Samawa site, Iraqi soldiers and residents were apparently involved in excavating the graves.

[ii] Nasser Kadhem has written about the case for IWPR and also conducted interviews in Dujayl for this report.

[iii] The United Nations, while avoiding the IST, is cooperating with Iraq's Ministry of Human Rights in plans for a National Centre for Missing and Disappeared Persons, which is meant to handle exhumations and provide assistance to victims' families.

Neil MacDonald, a journalist based in the Middle East, has reported from Baghdad for the Financial Times, The Economist and the Christian Science Monitor.

Related Links

Iraqi Special Tribunal

Institute for War and Peace Reporting Iraq Programme

Iraq: State of the Evidence

Human Rights Watch Report

November 2004

Saddam Faces Trial for a Range of Charges

By Paul Garwood

Associated Press, June 6, 2005

(via The Los Angeles Times)

Back to Top