Politics, Not Policy: Behind US Calls for War Crimes Tribunals for Iraq

Sarah Graham-Brown

August 25, 2000

(Sarah Graham-Brown is author of Sanctioning Saddam: The Politics of
Intervention in Iraq, I.B. Tauris, 1999.)

In a public break with the US, British Foreign Secretary Robin Cook
today
submitted a draft parliamentary bill supporting the rapid establishment
of
an International Criminal Court (ICC) in which to try major war
criminals
and violators of human rights. The British move to secure the ICC's
ratification in Parliament contrasts sharply with the Clinton
administration's recalcitrance on the ICC. The US continues to insist
on
protecting its own nationals from prosecution by the ICC--even at the
cost
of watering down the court's mandate. At the same time, the US is once
again
loudly urging the use of international courts to prosecute Iraqi
leaders on
war crimes charges, a decade after Iraq's invasion of Kuwait.

US POLICY UNDER PRESSURE

The US response to the ICC displays its preference for ad hoc policies
on
war crimes and crimes against humanity. In the case of Iraq, the
administration is mainly reacting to political pressure, rather than
waging
a committed campaign to achieve justice. Building and presenting a case
against Iraqi leaders would certainly be difficult. But the checkered
history of US calls to prosecute the Iraqi leadership bespeaks the
fluctuating fortunes of US policy on Iraq, rather than the genuine
difficulties of enforcing international justice.

With a presidential election imminent, the administration wants to fend
off
criticism from the right, mainly from Republicans in Congress, who
complain
that the Clinton administration has done little to implement the Iraq
Liberation Act--granting extensive aid to Iraqi oppposition
groups--passed
by Congress in 1998. Both George W. Bush and Al Gore have adopted
hawkish
positions on Iraq to distance themselves from current policy. The US
may
also be assuming a newly proactive stance on human rights to deflect
growing
criticism of the humanitarian impact of economic sanctions on Iraq. The
most
recent bluster from the State Department on August 2 coincided with a
national mobilization of anti-sanctions activists in Washington on
August
5-7.

HISTORY OF FOOT-DRAGGING

Immediately after the Gulf war, President Bush promoted the idea of a
war
crimes tribunal, but after the initial statement, action was stalled.
The
Bush administration even delayed the release of a judge advocate
general's
report on Iraqi war crimes, based on work by US Army war crimes
investigators and lawyers in Kuwait after liberation. The report was
not
published until President Clinton was in office.

The Clinton administration periodically raised the possibility of a war
crimes tribunal but nothing more than rhetoric resulted. Successive US
administrations protested that the anticipated resistance of other
permanent
UN Security Council members, especially Russia and China, blocked them
from
pursuing a tribunal more vigorously. In fact, neither country used its
veto
to prevent the establishment of the International Criminal Tribunal for
the
former Yugoslavia (ICTY), despite the close links between Russia and
Serbia.
The ICTY in the Hague--a court established outside the country in which
the
crimes were perpetrated--would be the most likely model for a tribunal
on
Iraq.

The war crimes proposal took on new life in the US only in the late
1990s,
as the impasse over Iraqi policy in the Security Council intensified
and US
policy on economic sanctions came under attack. Ironically, the chances
of
achieving Security Council consensus on establishing a tribunal
probably
diminished as the rift over sanctions policy widened. Nonetheless, in
May
1998 David Scheffer, US Ambassador-at-Large for War Crimes Issues,
called
for "focusing renewed attention on Saddam Hussein and the senior
members of
his regime."

During 1998 the Senate allocated a total of $3 million to the
International
Campaign to Indict War Criminals (INDICT) to compile evidence
supporting the
indictment of individual Iraqi officials for war crimes. INDICT,
launched in
London in January 1997, aimed to persuade the international community
to set
up an international tribunal to try members of the Iraqi regime for
genocide
and war crimes.

Progress has been slow, though INDICT now says it has built cases
against
several leading figures in the government. Eyewitness testimony is hard
to
secure, particularly because witnesses fear retaliation against
themselves
or their families. Up to now, the actual US financial contribution is
said
to amount only to about $500,000. On August 2, 2000, Scheffer announced
that
a total of six non-governmental organizations were now involved in
developing and publicizing war crimes material. These included the
Washington-based Iraq Foundation and the Human Rights Alliance as well
as
INDICT.

INDEPENDENT EFFORTS

The US effort has no connection with the UN human rights machinery. Max
van
der Stoel, the UN Special Rapporteur on Iraq until early this year,
began
years ago to identify the responsibilities of individual members of the
regime for human rights crimes. As early as 1994, he had named Saddam
Hussein and Ali Hasan al-Majid as responsible for war crimes and crimes
against humanity committed under their commands.

Investigators have obtained two large bodies of documentary material on
abuses since the Gulf war. One consists of material gathered by US
forces in
Kuwait after the Iraqi retreat. Scheffer announced on August 2 that "we
have
begun to declassify and make available through the Iraq Foundation the
first
of many documents captured by American forces during the liberation of
Kuwait." When asked how long ago this declassification process
started--given that the documents have long been in US government
hands--Scheffer responded vaguely that the process had been going on
"for at
least a year or more."

The other body of evidence documents the brutal 1988 Anfal campaign
against
the Kurds. It consists of material seized by the Kurdish political
parties
>from Iraqi security facilities in northern Iraq after government
forces
withdrew in 1991. Some of these documents remained in Kurdish hands,
but
several tons of documents were transported to the US by Human Rights
Watch,
with US government assistance. Human Rights Watch then collated and
translated tons of them, making them publicly available.

The Iraqi regime could have been pursued for its long-standing human
rights
abuses in venues besides a war crimes tribunal. Human Rights Watch
advanced
a second proposal: to file a case of genocide--relating to the Anfal
campaign--in the International Court of Justice in the Hague. But
advocates
were unable to muster a large enough group of states to bring the case.
In
1999 and 2000 Human Rights Watch, as part of its call to lift
non-military
sanctions on Iraq, joined the campaign for an international tribunal
similar
to those for Rwanda and the former Yugoslavia.

SHADES OF PINOCHET

States that are signatories to the relevant human rights conventions
have,
in theory, universal jurisdiction with respect to crimes against
humanity,
genocide and war crimes, and torture. If implemented, national law can
allow
cases to be brought against members of abusive governments who travel
abroad. Regime members may be deterred from traveling abroad if there
is a
real chance that prosecutions will be initiated. The US evidently views
this
legal mechanism as an attractive opportunity to "maintain pressure" on
the
Iraqi regime, and the Clinton administration has been urging other
states to
pursue this course. A year ago the threat of legal action forced a top
Iraqi
leader, Izzat Ibrahim al-Duri, to leave Vienna before getting the
medical
treatment he had come for, and a few weeks later deputy prime minister
Tariq
Aziz decided to send a videotaped address rather than attend a
political
meeting to which he'd been invited in Rome. This summer Jordan
reportedly
asked al-Duri to leave Amman when he showed up there for treatment.

Since the Gulf war, the US has used the blatant human rights abuses of
the
Iraqi regime, stretching back to the 1970s, to gain political or moral
high
ground, but refrained from pursuing decisive action against the
perpetrators. Whenever its increasingly isolated policy on Iraq hits
difficult patches, the US increases the volume of its rhetoric. But
Washington's recalcitrance toward the ICC suggests the US is no more
determined now than before to try seriously to bring Iraqi war
criminals to
justice.

(When quoting from this PIN, please cite MERIP Press Information Note
29,
"Politics, Not Policy: Behind US Calls for War Crimes Tribunals for
Iraq,"
by Sarah Graham-Brown, August 25, 2000.)