The Trial of Hussein: Choosing the Evidence
Prosecution Likely to Focus on Few Incidents.

In Saddam Hussein's Iraq, killing was politics by other means.

As many as 300,000 Iraqis died on the orders of Hussein and his lieutenants, human rights groups believe. The years of violence included the gassing of Kurdish villages and the slaughter of Shiites in open fields. Countless other Iraqis disappeared one by one, to be executed as enemies no matter the quality of the evidence against them.

Now that Hussein is in custody, Iraqi and U.S. leaders are debating how to prove their belief that he was personally responsible -- and should perhaps pay with his own life -- for the carnage committed in his name. A trial is seen not only as a chance to bring Hussein to justice but also as an opportunity for Iraqis to confront their past.

Critical decisions have yet to be made on what could become the highest-profile war- crimes prosecution since Nuremberg. But officials and specialists familiar with Hussein's record foresee a trial that will focus on a relatively small number of crimes chosen for the strength of the evidence and their power to represent the types of suffering inflicted during 35 years of rule by terror.

Prominent on everyone's list is the 1987-88 Anfal campaign, in which tens of thousands of Kurds died and hundreds of villages were destroyed. A chemical weapons attack on the town of Halabja killed 5,000 people, one of many places where the Hussein government allegedly used airborne poisons.

Legal experts believe the most likely path to a conviction of Hussein for committing genocide or crimes against humanity is to establish his command responsibility for the institutions of Iraqi government, including the military that tormented the Kurds and the security services that killed thousands of ordinary Iraqis between 1968 and 2003. The well-documented Halabja attack may serve as a case in point.

Documents gathered in Iraq after the 1991 Persian Gulf War include an order from Hussein granting supreme powers in Kurdish northern Iraq to his cousin Ali Hassan Majeed. A June 1987 order from Majeed instructed Iraqi military commanders to carry out "special bombardments . . . to kill the largest number of persons present," according to Human Rights Watch.

The next year, an audiotape captures Majeed telling colleagues that he will use chemical weapons against the Kurds, whose political aspirations Hussein saw as a threat. Majeed, now a U.S. prisoner in Iraq, soon deployed the gas and became known as "Chemical Ali."

"I will kill them all with chemical weapons," Majeed is quoted as saying in a transcript provided by Human Rights Watch. "Who is going to say anything? The international community? [Expletive] them -- the international community, and those who listen to them. I will not attack

them with chemicals just one day, but I will continue to attack them with chemicals for 15 days."

In addition to the Halabja assault, a trial of Hussein would almost certainly address the fearsome force used to quell an insurrection by Shiite Muslims at the end of the Gulf War in 1991 and the subsequent draining of the southern marshes.

Led again by Majeed, who had moved south to take command, Iraqi troops terrorized communities with indiscriminate public shootings and air attacks, witnesses said. They killed an estimated 30,000 to 60,000 Shiites, most of them civilians, according to human rights organizations.

Back in control, Hussein and his security forces -- in a country labeled the "Republic of Fear" by Iraqi academic Kanan Makiya -- squeezed the Shiites in innumerable ways through the 1990s. One of the most infamous was the rerouting of the Euphrates River to dry up the southern marshes and disrupt traditions thousands of years old. An estimated 250,000 Marsh

Arabs were forced to flee to Iran or move elsewhere inside Iraq.

Also likely to be included in the prosecution of Hussein, according to current thinking in Baghdad, is the 1983 roundup and massacre of as many as 8,000 members of the Barzani clan. Hussein became angered when the Kurdish Barzanis helped Iranian forces seize two slices of Iraq and is believed to have sent his forces to exact revenge.

Hussein's smaller-scale persecution of real and perceived political opponents will be an almost certain target, with prosecutors taking examples from the innumerable individual executions and episodes of violent harassment. Human rights workers identified scores of mass graves last year, suggesting that long-term repression claimed more lives than estimated.

Two prominent cases under discussion are the killings of Shiite ayatollahs Mohammed Bakr Sadr, executed with his sister in 1980, and his cousin Mohammed Sadiq Sadr, assassinated in 1999.

File After File

Although critics have repeated their accusations against Hussein as dictator, tyrant and war criminal for years, prosecutors must confront major complexities in a case that is still not nearly ready for trial, according to Iraqi and U.S. sources.

Miles of files have yet to be examined, and uncounted witnesses must be interviewed.

Valuable to any prosecution will be new evidence gathered by U.S. forces, which seized tons of documents after the war in Iraq and arrested dozens of Hussein's former aides. U.S. authorities continue to hold closely any dramatic gleanings and have not decided how witnesses and sensitive information will be handled.

U.S. intelligence officials have said they would like to have at least a year to interrogate Hussein before he is delivered to court. They say long periods in captivity have typically made high-ranking terrorists markedly more cooperative. That could conflict with Iraqi ambitions to try Hussein faster, although it may take that long to organize an effective prosecution.

State Department war crimes ambassador Pierre-Richard Prosper is expected to visit Iraq next month to discuss the Hussein trial with the Iraqi Governing Council and the U.S.-led occupation authorities. The White House has offered to help Iraq develop a special tribunal and build the case against Hussein and others, but it does not want to be seen as dictating terms.

Iraqi authorities must decide the extent of the charges against Hussein and, indeed, the scope of a trial that many Iraqis hope will stretch beyond his personal role to expose a vast system of terror. Some members of the Governing Council are pushing for an early trial that convicts

Hussein quickly and closes a door on the nation's inglorious past.

"Any investigation into this case will take some time. You have an entire country that is literally a crime scene, plus what occurred in the neighborhood," cautioned a senior State Department official, referring to Iraq's invasion of Kuwait in 1990 and its use of chemical weapons against

Iran. "We have decades of abuses. One should not expect this to be a quick and rapid process."

The evidence against Hussein is mostly circumstantial, said Hassan Mneimneh, who reviews Iraqi files at Harvard University and in Baghdad for the Iraq Memory Foundation, which aims to build a definitive record for future generations. "He kept himself removed by one or two degrees from actual executive decisions when it came to any act of repression."

Makiya, a creator of the foundation and an expert on known Iraqi documents, said: "We don't have a smoking gun. There would be some ambiguity, I suspect, from a legal point of view."

International legal standards do not require a commander to be proved to have delivered explicit orders to underlings, said Richard Dicker, director of the International Justice Program at Human Rights Watch. Rather, the evidence must prove that the leader knew or should have known about the alleged crimes and did nothing to prevent them or punish the perpetrators.

"It's open-and-shut on a command theory," said Peter Galbraith, a former U.S. diplomat. Hussein "was in charge of Iraq for 35 years," he said. "It's impossible to imagine that the Kurds were gassed without his knowledge."

A second approach would be to demonstrate that Hussein participated in a joint criminal enterprise, Dicker said. Akin to conspiracy statutes in U.S. courts, the approach holds members of a criminal group accountable for their colleagues' actions.

"He clearly ran the regime. If they can attribute crimes committed by his generals, security officials and confidants to him, they can throw away the key," said Michael Amitay, head of the Washington Kurdish Institute, which received a share of the $10 million spent by the U.S. government to gather evidence against Hussein and his lieutenants.

Problems and Potential

The Hussein government's repeated assaults on Kurds illustrate the problems and the potential of a case against Hussein for genocide or crimes against humanity. Human rights workers who have studied the documents say they have found no direct command from Hussein to target the Kurds.

Details of the Anfal campaign are well known, thanks to the seizure of documents after the Persian Gulf War, when northern Iraq came under the protection of the United States and Britain. Working with Human Rights Watch, the U.S. military hauled 18 tons of documents to Washington, where staff members spent years building a genocide case.

"There's going to be pretty clear documentary evidence that this was not a rogue operation," said Kenneth Roth, executive director of Human Rights Watch. "This was a very well-planned and orchestrated operation to smoke Kurds out of the highlands using chemical weapons, to round them up on the plains, and to truck the men and boys to remote locations for execution."

A delegation of Iraq's current leaders, dispatched Dec. 14 to confirm the identity of the newly captured Hussein, asked him about the attack on Halabja. He told the delegation Iran was responsible. He insisted that he ran a just society. He has long dismissed allegations of brutality against the Shiites by declaring that Iraqi troops acted within their rights to crush an insurgency.

Investigators expect last year's capture of central and southern Iraq to yield incriminating files from a government that documented its operations in often extraordinary detail. Documents that could fill seven miles of shelves were in the custody of the U.S. Iraq Survey Group by July. Many more are scattered among Iraqi political parties and other groups.

Countless Iraqis have told stories of brutality and oppression since Hussein's government fell on April 9, a trend that his arrest appears likely to intensify. U.S. forces are holding at least three dozen men who served in top jobs in the Hussein government.

"Everyone is out to save himself or herself at this stage," said David Scheffer, former U.S. ambassador for war crimes, who perceives "a lot of potential for witness testimony from the highest levels."

Human rights workers and international legal advocates fear that pressure for vengeance inside Iraq will force a trial that fails to measure up to international legal standards -- and does not reach deeply enough into Iraq's past horrors.

"This has to be done methodically and systematically. It's largely a question of a rush to closure," said Mneimneh, whose research is part of a broader effort to document Iraq's recent past. "Iraqi society at large is willing to let it happen because, at the end, Saddam is going to be executed, which is what they want to happen."

Some of Hussein's accusers said a murder conviction could be a simple -- if potentially unsatisfying -- way forward. During a 1982 Cabinet meeting, according to author Said K. Aburish, Hussein took issue with his health minister, Riyadh Ibrahim. The Iraqi leader invited Ibrahim to step into the next room. Ministers heard a shot, and Hussein returned alone.

No one heard from Ibrahim again.

[Source: By Peter Slevin, Washington Post Staff Writer, 02Jan04]

War in Iraq

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