War Crimes

Jonathan Adler notes the DC Circuit’s Tuesday release of Simon v. Iraq, a case where US servicemen alleged that Saddam Hussein’s Iraqi intelligence services had taken them hostage and tortured them during Gulf War I. The court concluded (in contrast to earlier, similar lawsuits) that the suit could go forwards.

The plaintiffs rely on an exception to the Foreign Sovereign Immunity Act passed as part of the Anti-Terrorism & Effective Death Penalty Act of 1995, which holds that countries on the State Department’s list of state sponsors of terrorism are not immune from suit for certain kinda of offenses committed against American citizens. Iraq was on the list from 1990 until after the overthrow of the Hussein regime.

The exception was amended in the National Defense Authorization Act for FY 2008. The amendment provided, among other things, an amendment to the terrorism exception by explicitly granting a federal cause of action to plaintiffs, which the DC Circuit had not found in prior cases. It also newly permitted President Bush to waive the relevant sections of the NDAA with respect to Iraq.

The executive attempted to do so here, but the court concluded that because the plaintiffs had sued Iraq before the NDAA amended FSIA, the old FSIA provisions controlled the suit. The court then found the plaintiffs had a cause of action and permitted the plaintiffs’ suit to go forwards.

Iraq will almost certainly petition for certiorari in the United States Supreme Court, so any jury trial is almost certainly more than a year away. Nonetheless, for the moment, the court’s decision makes it much easier for American POWs who suffered war crimes during the Gulf War conflict to recover damages.

Full disclosure: As a law school student, the author assisted attorneys for a different group of tortured POW’s filing suit under FSIA.

Former Iraqi Deputy Prime Minister Tariq Aziz  faced the Iraqi High Tribunal Tuesday on war crimes charges for the execution of 42 business men who protested rising food prices in the wake of U.N. sanctions on the former regime. Aziz, widely recognized by his coke-bottle glasses and bombastic English, surrendered to U.S. forces shortly after the fall of Saddam Hussein. Though Aziz was one of the longest serving allies in the former regime, he largely kept out of day-to-day decisions, and, as the only Christian in the administration, left all the major decisions to his colleagues. He has been in U.S. custody since 2003 without charge and several observers say his trial is a way to vet the prosecution of former administration officials as the government of Prime Minister Nouri al-Maliki faces rising credibility issues.

Iran’s Press TV reports “Chemical Ali” suffered a heart attack and was presumably returned to U.S. custody? Or am I reading into this.  Says he was returned to a U.S. detention facility, but reading between the lines would lead you to believe he was NOT in a U.S. detention facility when he had the heart attack.  It’s been expected his execution would happen soon and it seems Iraq and U.S. officials have been pretty tight lipped on this one.  And I welcome any and all conspiracy theories as heart attacks tend to be a favorite of the CIA.

Heart attack strikes ‘Chemical Ali’
Wed, 23 Apr 2008 02:54:10

Saddam Hussein’s cousin, who is on death row, has been returned to a US detention facility after suffering a heart attack, officials say.

Ali Hassan al-Majid, better known as ‘Chemical Ali’ for his role in using of poison gas to kill Kurdish villagers in the 1980s, was admitted to a US medical facility on Sunday.

Al-Majid, who has been sentenced to death after ouster of Saddam’s regime on the charges of genocide, went on a hunger strike to protest his prison conditions.

His lawyer, Badee Izzat Aref, said al-Majid had suffered a heart attack as a result of his hunger strike.

A source from the US military confirmed that al-Majid had suffered a heart attack but said he was in stable condition and had been returned to a US detention facility on Tuesday.

Al-Majid’s execution has been delayed for months.

March 16 marked the 20th anniversary of a chemical weapons attack against a Kurdish uprising by the regime of Saddam Hussein in Iraq in 1988.  The international community is just coming to terms with the events.  With the U.S. pre-occupied with backing Saddam in his conflict with fever of Islamic nationalism gripping the Iranians, the massacre of thousands of Kurdish civilians and militants passed with barely a blip on the screen of the international media.  To commemorate the atrocities, Radio Free Europe/Radio Free Liberty interviewed Joost Hiltermann, the primary researcher for Human Rights Watch on the al-Anfal campaign.

Joost Hiltermann was the primary researcher for Human Rights Watch (HRW) on the 1987-88 Al-Anfal campaign by Saddam Hussein’s regime — a campaign that sought to annihilate northern Iraq’s Kurdish population. The March 16, 1988, chemical attack on the Iraqi Kurdish town of Halabjah, which killed an estimated 5,000 people, is the subject of Hiltermann’s latest book, “A Poisonous Affair: America, Iraq, and the Gassing of Halabja.” Hiltermann, now the International Crisis Group’s deputy program director for the Middle East and North Africa, spoke to RFE/RL Iraq analyst Kathleen Ridolfo ahead of the 20th anniversary of the Halabjah attack.

RFE/RL: Could you share with us your thoughts about the significance the 20th anniversary of the Halabjah chemical attacks and what it means to you as someone who closely studied what had happened there?

Joost Hiltermann: It’s been 20 years. That’s not such a long time. The events that transpired in 1988 are still very fresh in the memories of those who lived through these terrible times in Iraqi Kurdistan. I was there a month ago, and the scars are very visible. Interestingly, the Kurdistan Regional Government is only now starting to draw international attention to these events — obviously for political reasons. But it is very important that the memory of these events be kept alive. What happened was, first of all, a chemical attack on a major town that killed thousands. The first such attack in history. So far the only one; hopefully, it will always be the only one. Secondly, [it was part of] a counterinsurgency campaign that involved the systematic murder of tens of thousands of civilians — Kurdish civilians — in an act of genocide that also is relatively unknown in the world. (more…)

The Iraqi Presidential Council said Friday they removed the blockade on the execution of Ali Hassan al-Majid, better known as “Chemical Ali.”  It was delayed in June 2007 over obstacles in the legal procedure for handing down death sentences.  The council is made up of Iraqi President Jalal Talabani, a Kurd, and his two vice presidents. Majid was found guilty of war crimes, genocide and crimes against humanity for the Anfal campaign targeting ethnic Kurds.  Though Iraq has not asked the United States to assume custody of Majid, which would mean his execution was imminent, it is expected that the sentence will be carried out within 30 days.

In June, 1988, the Iraqi military - directed by Majid - killed up to 180,000 Kurdish civilians and guerillas as part of a crackdown against uprisings in Iraqi Kurdistan.  Majid admitted to ordering troops to execute Kurds who would not participate with imposed displacements, however, he denied the use of chemical weapons during the campaign.  Majid also faced death for his role in the suppression of a Shi’ite rebellion - which was allegedly backed by the United States - following the defeat of Iraq in the 1991 Gulf War.

An adviser to Iraqi Prime Minister Nouri al-Maliki said the execution will be carried out in “a matter of days.”

I’ve been critical of this tribunal in the past.  The Iraqi High Tribunal examining the case came into power while Iraq existed under the mandate of the Coalition Provisional Authority, the transitional government of Iraq ran by the United States as the occupying power. Some critics, including this author, say the Iraqi tribunal should proceed in coordination with the international courts, which it does not.  The Iraqi code of law did not recognize crimes against humanity and other war crimes until the CPA allowed it to do so.  On that front, the Fourth Geneva Convention curtails the legal limits an occupying power must exercise when defining the laws in its subject country.  The CPA defining, or at the very least participating in, the definitions of war crimes and subsequent penalties smacks of victor’s justice.

Another issue here is the ability to proceed in a war crimes tribunal in a fair matter so soon after the overthrow of the previous regime.  As mentioned, a member of the Council determining his fate is himself a Kurd, making impartiality dubious indeed.  Others view the imposition of the death penalty as a violation of international law because the tribunal does not use a jury system, instead proceeding with a review panel of judges.

Various members of U.N. judicial councils also view the trials as unfair, and thereby the death penalty here, unjust.

See “Iraq” category for more on this, or search for “Anfal.”

The Center for Constitutional Rights filed a second lawsuit Wednesday against Blackwater Worldwide for assault, intentional infliction of emotional distress, wrongful death and war crimes. The second lawsuit concerns a Sept. 9 shooting in Baghdad that the prosecutors allege Blackwater guards fired into a crowd of civilians unprovoked. The lawsuit is filed on behalf of Ali Husaamaldeen Ibrahim al Bazzaz, whom the group says died during the incident.

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The Iraqi Prime Minister, Nouri al-Maliki, issued an appeal to U.S. President George W. Bush requesting U.S. officials hand over Ali Hassan al-Majid – “Chemical Ali” – and two other former Iraqi officials sentenced to hang for war crimes.  U.S. officials have been reluctant to hand the three officials over to the Iraqi’s citing a potential for a Sunni uprising.  U.S. officials also said that a row between al-Maliki and the Sunni vice president Tariq al-Hashemi influenced the decision to retain custody.  The row centers on the fate of former defense minister Ahmed Hashim al-Taie, viewed as a respected officer coerced to cooperate in atrocities under Saddam Hussein’s orders. (more…)

The attempts by the U.S. military to bring charges against an Associated Press photographer is bringing condemnation from the press group.  The U.S. military detained Bilal Hussein in Ramadi in April, 2006, alleging he had links to terrorist groups in Iraq.  Hussein, a 36-year-old native of Fallujah, has been held in custody since then without formal charges announced.

“In the 19 months since he was picked up, Bilal has not been charged with any crime, although the military has sent out a flurry of ever-changing claims. Every claim we’ve checked out has proved to be false, overblown or microscopic in significance,” said AP President and CEO Tom Curley.

U.S. officials say Hussein gave false identification papers to a sniper who was trying to escape capture by U.S.-led forces, that he was in possession of materials used to manufacture bombs, and that his photographs were synchronized with bombs targeting coalition forces. An investigation by the AP found no evidence to support these claims.

Curley says his detention is a mockery of the democratic ideals lauded by the United States as the panacea for the Middle East. “This is a poor example — and not the first of its kind — of the way our government honors the democratic principles and values it says it wants to share with the Iraqi people,” Curley wrote in The Washington Post. “This affair makes a mockery of the democratic principles of justice and the rule of law that the United States says it is trying to help Iraq establish,” Curley wrote.

AP 

Investigators found Blackwater security personnel fired indiscriminately in 14 of the 17 shooting deaths of Iraqi civilians on Sept. 16.  The FBI said the contractors violated deadly-force rules in effect for security contractors, suggesting the contractors acted recklessly. Officials familiar with the case say they are cynical about the ability to prosecute individuals in the case because the legal framework outlining government contractors is ambigious and inadequate.

Security contractors fired in response to alleged hostile fire during the Sept. 16 escort of a State Department official, killing 17 Iraqis. Security contractors do not fall within current military codes, but Rep. David E. Prince, D-N.C., said he would propose legislation to extend the Military Extraterritorial Jurisdiction Act to civilian contractors.

“Just because there are deficiencies in the law, and there certainly are,” Mr. Price said, “that can’t serve as an excuse for criminal actions like this to be unpunished.

However, the use of ex post facto law – law defining a crime after the crime occurred – is typically considered unethical.  Lawmakers expressed the need for the new U.S. attorney general, Michael B. Mukasey, to tackle the thorny issue, but he may be forced to turn away any prosecution citing a lack of legal framework.

FBI investigators concluded at least five Blackwater contractors fired on Iraqi civilians with automatic weapons. A contractor identified as “turret gunner No. 3″ fired most of the rounds, resulting in several fatalities. Investigators concluded the convoy escorted by Blackwater contractors were not fired upon, but instead were responding to their others in the same united. One officials familiar with the investigation said, “I wouldn’t call it a massacre, but to say it was unwarranted is an understatement.”

NYT 

The chief prosecutor in the Iraqi High Tribunal examining the death of 180,000 in Iraqi Kurdistan from chemical weapons attacks said the death sentences against three former ministers should proceed. Munqith al-Faroon rejected the arguments that one minister, Sultan Hashim al-Tai, should be pardoned because he was only following orders.

Al-Tai negotiated the cease-fire in the first Gulf War and surrendered to U.S. forces after the invasion of Iraq in 2003. The Iraqi High Tribunal sentenced him and two others to hang for genocide, war crimes and crimes against humanity for their role in “Operation ANFAL,” a chemical weapons attack in northern Iraqi Kurdistan.
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