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

---------- Forwarded message ----------
Date: Fri, 25 Aug 2000 11:19:45 -0700
From: MERIP Media <>

MERIP Press Information Note 29

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.


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


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

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


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.


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

(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.)


For an accounting of the impact of economic sanctions on Iraq, see MERIP
Press Information Note 7, UNICEF Establishes Blame in Iraq:

Middle East Report 215 (Summer 2000) offers critical analysis of US policy
toward Iraq since the Gulf war. In the issue, Joost Hiltermann's "Elusive
Justice: Trying to Try Saddam," details US foot-dragging on a war crimes
tribunal for Iraq. Phyllis Bennis's overview of US policy is accessible
online at:

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