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.
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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)
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