The Anfal trial against Saddam Hussein
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CJGR236754 Techset Composition Ltd, Salisbury, U.K. 4/21/2007
Journal of Genocide Research (2007), 9(2),
June, 235– 242
5
The Anfal trial against Saddam
Hussein
10 MICHAEL J. KELLY
15
Saddam Hussein was executed at dawn on December 30, 2006. His body was
dropped from the hangman’s scaffold just minutes before the call to prayer
went up from minarets across Baghdad, marking the beginning of the Muslim
holiday Eid ul-Adha. The death sentence had been pronounced against the long-
time Iraqi dictator on November 5 by the judges of the Iraqi High Tribunal
20
(IHT) sitting in the Dujail case and was confirmed several weeks later by an appel-
late bench. The Dujail trial was the first in a series of seven criminal prosecutions
the former Iraqi dictator was scheduled to face. Dujail was the site of a 1982 mas-
sacre of 148 Shi’ites from the opposition Dawa party.1
With the conclusion of the Dujail trial, the IHT began Saddam’s second trial
25
under new judges to explore the question of culpability for the Anfal campaigns
against the Kurds. The Anfal trial was halfway completed at the time of
Saddam’s execution. The trial will continue against his co-defendants. Although
it was argued in many quarters that the trial should continue against Saddam post-
humously, in order to fully explore his personal role in these atrocities, the IHT
30
dropped the Anfal charges against Saddam immediately after his execution.
The Anfal campaigns were a series of military attacks by the Iraqi army under-
taken against the Kurdish civilian population in northern Iraq between March 1987
and April 1989. Saddam’s cousin, Ali Hassan al-Majid, also known as “Chemical
Ali,” was in complete command of the operations. Al-Majid earned this sobriquet
35
by employing aggressive gas warfare against thousands of Iranians during the long
Iran– Iraq war. He turned the might of Iraq’s military and security services against
the Kurds to, in his own words, “solve the Kurdish Problem and slaughter the
saboteurs.”2
As a result, between 50,000 and 100,000 Kurdish lives were lost during the
eight military strikes, 1.5 million Kurds were forcibly resettled, and 60,000
40
Kurds fled to the Kurdish regions of southeastern Turkey as refugees.3 Gas was
often used as a weapon of choice against Kurdish towns by al-Majid’s Arab
troops with devastating effects, as one survivor of the April 1987 attacks in
Balisan valley recalled:
45
ISSN 1462-3528 print; ISSN 1469-9494 online/07=020235-8 # 2007 Research Network in Genocide Studies
DOI: 10.1080=14623520701368628
Electronic copy of this paper is available at: http://ssrn.com/abstract=982397MICHAEL J. KELLY
It was like a fog. And then everyone became blind. Some vomited. Faces turned black;
people experienced painful swellings under the arm, and women under their breasts.
Later, a yellow watery discharge would ooze from the eyes and nose. Many of those who
survived suffered severe vision disturbances, or total blindness for up to a month. . . .
50 Some villagers ran into the mountains and died there. Others, who had been closer to the
place of impact of the bombs, died where they stood.4
Nevertheless, the genocide of the Iraqi Kurds can only be understood against the
larger backdrop of wartime Iraq. The 1980– 88 Iran– Iraq War immediately fol-
lowed the coincidence of Saddam’s assumption of power in 1979 and the toppling
55
of the Shah of Iran that same year. Saddam instigated the war to take advantage of
the chaos in neighbouring Iran under the new revolutionary regime of the Ayatol-
lah and gain back territory lost to Iran in the 1975 Algiers Accords, whereby Iran
had agreed to stop supporting Kurdish rebels in northern Iraq. However, Ayatollah
Khomeni used Saddam’s invasion to consolidate his own power and rally the
60
nation, thereby ensuring that the struggle with Iraq would be a long and bloody
one.5
By 1984, Iran had turned the tide and occupied southern Iraq around Basra.
Saddam responded with chemical weapons against Iran’s superior troop strength.
Late in the war, Iran informally allied with Iraqi Kurds in the north—handily pro-
65
viding Saddam the excuse he needed to eradicate the Kurds as traitors. Thus
ensued the Anfal campaigns under the direction of al-Majid against what were
termed “saboteurs.”6 It is precisely because Saddam’s genocide against Iraq’s
Kurds overlapped with Iraq’s war against Iran that charges of genocide may ulti-
mately fail against the remaining co-defendants.
70
To prevail on charges of genocide, the prosecution must demonstrate not only
the underlying criminal acts, such as killing a protected ethnic group like the
Kurds, but also that the underlying rationale for the acts was motivated due to
the very characteristics of that group. Consequently, it must be shown that
Saddam killed the Kurds because they were Kurds, not because they were assisting
75 Iraq’s enemy during the war. This is known as the “specific intent” element of gen-
ocide, and it is often the most difficult aspect of proving the case.
One aspect of its difficulty is that if alternate, equally plausible, intents are ade-
quately demonstrated, then the specific intent to commit genocide for genocide’s
sake is undermined. Thus, if the defence can show that the defendants’ ill-treat-
80 ment of the Kurds was not based on the fact that they were Kurdish, but rather
because they were helping the Iranians during the Iran– Iraq war, were fighting
him as insurgents within Iraq, or were threatening the economic well-being of
the nation because they happened to be located over Iraq’s vast northern oil depos-
its, then specific intent would be found lacking and a genocide charge would fail.7
85 Indeed, several defendants have argued this line of justification already, and
“Chemical Ali” admitted undertaking the decisions leading to genocide for the
very purpose of offsetting Iranian advances:
All the orders given to relocate people were my decisions . . . The orders were given as the
90 region was full of Iranian agents. We had to isolate these saboteurs. We know that Iran had
236
Electronic copy of this paper is available at: http://ssrn.com/abstract=982397THE ANFAL TRIAL
taken a lot of our land . . . almost more than the size of Lebanon . . . We had to be very careful
with Iranians. You know historically what they have done with Iraq. I am not defending
myself. I am not apologizing. I did not make a mistake.8
95 Judicial opinions from international tribunals have declared that specific intent
may be inferred from the overt acts of genocide. The International Criminal
Tribunal for Rwanda noted in the Akayesu case that specific intent “inherent in
a particular act” can be deduced “from the general context of the preparation of
other culpable acts” targeting the same protected group; that those other acts
100 need not be committed by the same offenders; and that other factors such as the
scale of atrocities and the region in which they are carried out “can enable the
Chamber to infer the genocidal intent” of the underlying genocidal act.9
The Iraqi High Tribunal is not bound by the interpretations of such inter-
national tribunals in unrelated cases. However, the definition of genocide in
105 the Statute of the IHT is identical to that of the 1948 Convention against Gen-
ocide. This is also the definition used by the ad hoc international criminal tri-
bunals and by the new International Criminal Court. Consequently, to the extent
the IHT incorporates the same definition, it would be quite easy to also incor-
porate or at least acknowledge the elemental analysis of other courts dealing
110 with similar underlying conduct.
Saddam’s co-defendants, if not immediately executed, will also likely face gen-
ocide charges in the Halabja trial, a case concerning the bombardment of the
Kurdish town of Halabja in March 1988 by the Iraqi military using multiple
chemical weapons—mustard gas, sarin, VX and tabun. Up to 7,000 Kurds per-
115 ished in the attack. Since the cases against Saddam and his henchmen are being
brought before the IHT sequentially, the IHT judges sitting on the Halabja case
will have the advantage of a prior elemental application of the genocide charge
by the IHT judges in the Anfal case.
Because the trial is before the IHT and not an international tribunal, prosecutors
120 do not have to prove the case against him beyond a reasonable doubt. Instead, the
IHT need only be satisfied of his guilt. Thus, the overall proof standard tips sig-
nificantly toward the prosecution in this setting.
The co-defendants who remain on trial for the Anfal campaigns are Ali Hassan
al-Majid, director of the Ba’athist Party’s Northern Bureau, who was granted com-
125 plete martial powers over northern Iraq to eradicate the Kurds; Sultan Hashem
Ahmed, military commander; Sabir Abdul-Aziz al-Duri, director of military intel-
ligence; Hussein Rashid al-Tikriti, deputy director of military operations; Tahir
Tawfiq al-Ani, governor of Mosul; and Farhan Mutlak al-Jubouri, head of military
intelligence in northern Iraq. While all the defendants were charged with crimes
130 against humanity, Ali Hassan al-Majid and Saddam Hussein were specifically
charged with genocide.
Below is a chronological update of the main highlights and fitful progress of the
Anfal trial up to the date of Saddam’s execution, followed by a short discussion of
themes. Unless otherwise noted, witness testimony quotes are drawn from BBC
135 reports.10
237MICHAEL J. KELLY
. August 21, 2006: The Anfal trial commences. Saddam and al-Majid refuse to
enter pleas and challenge the court’s legitimacy. The IHT ascribes not guilty
pleas to both men. The prosecution opens its case, recounting the horrors of
the Anfal campaigns against the Kurds.
140 . August 22: Two fact witnesses testified for the prosecution, describing the
chemical attacks and the blinding, foul-smelling smoke that ensued. Two of
Saddam’s co-defendants argued that they were targeting Iranian troops and
Kurdish guerrillas, not civilians.
. August 23: A Kurdish guerrilla recalled finding his dead brother and son after
145 a chemical attack on the village of Balisan. Compelling testimony was
also offered by a Kurdish mother concerning the effect of Saddam’s
chemical weapons on her children following the April 16, 1987 bombing of
Balisan:
150
[M]y daughter Narjis came to me, complaining about pain in her eyes, chest and stomach.
When I got close to see what was wrong with her, she threw up all over me . . . When I
took her in to wash her face . . . all my other children were throwing up . . . Then my condition
got bad, too. And that’s when we realized that the weapon was poisonous and chemical. I
went for four days without eyesight. My children could not see. I was just screaming. On
155 the fifth day I slightly opened my eyes. And it was a terrible scene. My children and my
skin had turned black.11
. September 11: More fact witnesses recounted chemical attacks during the Anfal
160 campaigns. Saddam responded that he never opposed the Kurds and had in fact
incorporated many Kurds into his army. The prosecution produced Dr Katherine
Elias Mikhail, a former Kurdish guerrilla fighter who is currently a writer based
in the United States. She described the planes that attacked Kurdish villages and
withstood cross-examination from defence counsel on technical military ques-
165 tions.
. September 12: After listening to more Kurdish witnesses, Saddam replied,
“rebellion is rebellion. Let’s come up with one country which had a rebellion
that wasn’t confronted by the army.” He also demanded a neutral country
like Switzerland examine evidence discovered in mass graves.12
170 . September 13: Kurdish witnesses testified on refugee flows into Iran and the use
of balloons by military aircraft to deliver chemical weapons in addition to mis-
siles. The Chief Prosecutor called for Judge Abdullah al-Amiri to be removed
from the bench because of bias toward Saddam, allowing defendants to threaten
witnesses and to make political speeches.
175 . September 14: Judge al-Amiri said that Saddam was not a dictator, but only
appeared as one.
. September 19: Judge al-Amiri was sacked by the IHT following a request by the
Iraqi government to do so on the basis of bias in favour of Saddam. Interference
by the Prime Minister’s office in the judicial process was seen as further under-
180 mining the IHT’s legitimacy.
238THE ANFAL TRIAL
. September 20: Judge Mohammad al-Khalifa, Judge Al-Amiri’s replacement,
ordered Saddam removed from court after Saddam refused to recognize his
authority. Defence counsel walked out and began a boycott of the trial,
vowing not to return until the government stopped interfering with the court.
185 . September 25: Saddam was removed from court again following a denial of his
request to be placed outside the defendants’ metal cage. Another Kurdish
witness testified as to the Anfal bombings, and a man held at the Nugrat
Salman prison camp testified that detainees were tortured and raped daily.
. September 26: Saddam was removed from court again for attempting to read a
190 political speech into the record.
. October 9: A 31-year-old Kurdish woman who was 13 when her village was
attacked in April 1988, testifying behind a curtain to conceal her identity,
said: “I know the fate of my family. They were buried alive.” Another
witness testified as to missing members of his family. The identity cards of
195 his sister and a brother were found in a mass grave in Samawa. In addition to
the many defence counsel and associated personnel who have been murdered
during the trials of Saddam Hussein, Chief Judge al-Khalifa’s brother-in-law
was gunned down in Baghdad.13
. October 10: Saddam was removed from court again after shouting verses from
200 the Koran. Testimony was received from Kurdish inmates at detention camps
focusing on inhumane treatment and abuse.
. October 11: Three Kurdish witnesses testified as to further Anfal atrocities.
. October 17: Defence counsel ended its month-long boycott of the trial. Kurdish
witnesses testified about mass removal of populations to detention camps, con-
205 ditions in those camps, and disappearances.
. October 18: A Kurdish witness spoke behind a screen about the killing of Kurds
in the desert in 1988, describing the desert as “full of mounds that all had people
buried underneath.”
. October 19: Evidence was offered of government forces bombing Kurdish vil-
210 lages in April 1988, and then stopping trucks of victims suffering from the gas
attacks and redirecting them to detention centres where scores of people died
from malnutrition and disease.
. October 30: Saddam’s chief defence counsel stormed out of court declaring the
trial unfair. The IHT appointed new defence counsel and then received testi-
215 mony. A Kurdish witness described the “doomsday” of the gas attack on his
village coming the day after Ramadan, recalled children among the piles of
bodies in the village still clutching traditional sweet candies to celebrate the
end of the holiday, the smell of rotten apples in the air from the chemicals,
and presented the IHT with a list of 35 people who were killed during the attack.
220 . October 31: Mass murder and mass burial were brought into evidence by a
witness testifying behind a screen. He described prisoners being taken by bus
to an execution site in western Iraq in April 1988. Guards took prisoners in
pairs from the bus, shot them, and dragged their bodies into a ditch. He pre-
tended to be dead after being sprayed with bullets and dragged to a ditch by
225 the legs.
239MICHAEL J. KELLY
. November 7: After being sentenced to death by the IHT judges in the Dujail
trial, which concluded before the Anfal trial commenced, Saddam called for
unity in Iraq and reconciliation among the warring parties. Several witnesses
from the same village described how they were rounded up by Iraqi soldiers,
230 offered amnesty for surrender, and then shot. Thirty-three people died in this
incident during the Anfal. A video was introduced into evidence depicting
human remains in a mass grave found in the area described by the witnesses.
. November 27: Defence counsel was chastised by the court for delay in providing
the names of witnesses they wished to call. A Kurdish survivor of a firing squad
235 during the Anfal campaign testified about his experience.
. November 28: The prosecution presented its first expert witness, Dr Clyde
Snow, a US forensic scientist, who testified about mass graves of Iraqi Kurds
killed in 1988. Dr Snow travelled to the town of Koreme in 1992, four years
after the massacres. His photographs showed unearthed skeletons and detailed
240 more than 80 gunshot wounds. The IHT rejected the defence counsel’s objec-
tion that the witness was a biased American. The defence, nevertheless,
suggested that bodies may have been moved to the grave from other locations.
. November 29: Douglass Scott, a forensic archaeologist, explained that bullets
and cartridge cases found among bodies in the Koreme mass grave demon-
245 strated “firing-squad type organization.” He said Kalashnikovs were used.
Another expert witness, Asfandiar Shukri, an American physician, testified
that mustard gas had been used on Kurdish refugees near the Turkish border
in 1988.
. December 4: The IHT granted a prosecution motion to conclude the case after
250 70 witnesses have appeared. The case turned to linking the defendants to the
killings.
. December 18 –19: Prosecutors presented Iraqi government memoranda linking
the defendants to the chemical attacks undertaken during the Anfal campaigns.
An April 1988 document from the director of military intelligence to the presi-
255 dency said a “special weapon” had been utilized. Another document from the
chief of staff to field commanders in August 1988 said: “[w]e cannot miss
this opportunity for the complete destruction and devastating of saboteurs in
the north area.” Film footage was also shown of Kurdish villagers “fleeing
clouds of white smoke after aerial attacks” and dead Kurdish civilians following
260 gas attacks.14 In a March 18, 1987 letter from military commanders to Saddam’s
office, it is noted that “[n]atural conditions do not permit the use of sarin because
the area is covered with snow” which would reduce its toxicity, and continued,
“[w]e have good quantities of mustard agent,” but advises waiting until the
snow melt to use it as well. The reply from Saddam’s office was that the sugges-
265 tion had been approved.15
. December 21: The IHT heard testimony of Saddam’s forces beheading a men-
tally ill Kurdish man and throwing three other Kurds out of a helicopter in mid-
flight. Documentary evidence was introduced supporting this testimony.16
Further documentary evidence in the form of government memoranda
270 showed a knowledge and willingness to use chemical weapons against
240THE ANFAL TRIAL
Kurdish civilians since they would have little effect on Iranian troops: “Most
Iranian agents in the targeted area have the necessary equipment and medical
kits to protect themselves from a ‘special ammunition’ attack.”17
. December 22: On what would turn out to be Saddam’s last day in court, as the
275 IHT adjourned until January 8, two Iraqi military commanders and co-defen-
dants denied using chemical weapons against the Kurds during the Anfal cam-
paign by shouting at the judges in response to documents describing “special
weapons.” They claimed only the use of conventional weapons and argued
that they were attacking Iranian forces in northern Iraq that were utilizing
280 Kurdish bases.18
The Anfal trial carries over much of the dynamic of the Dujail trial—chaotic court-
room antics, a tribunal openly hostile to the defendants and defence counsel,
unsafe conditions outside the courtroom, and a background of political interfer-
285 ence with the court’s independence. The IHT also continues to suffer from the
same legitimacy deficit that it did during the Dujail trial—namely, that it was
not far enough removed from the Coalition occupying forces that created it, the
Coalition-appointed transitional government that staffed it, or the American advi-
sors that continue to advise it. This is all more grist for the mill of those who would
290 have preferred an independent international criminal tribunal to begin with.
What emerges from the summaries described above is a picture of a strained
and flawed judicial process. Human rights groups, no friend of Saddam during
his time in power, nevertheless continue to assail the IHT proceedings as patently
unfair and failing to live up to even minimum universal judicial standards. Much
295 of the criticism rests on a lack of familiarity with international criminal law by the
Iraqi lawyers and judges, despite the international nature of the charges, such
extensive use of anonymous witnesses that defence counsel cannot rebut their evi-
dence, and a security environment that truncates the ability of the defence to inves-
tigate and test the prosecution’s evidence.
300 That said, what the IHT may contribute to the small canon of genocide cases
since Nuremberg is potentially significant. There are many aspects of genocide
that remain unsettled under international case law. For instance, the question of
whether ethnic cleansing constitutes genocide continues to be debated within
the academy. Ethnic cleansing was a central aspect of Saddam’s Anfal campaigns
305 against the Kurds. Moving the Kurdish population out of the area around the oil
fields and repopulating those areas with Sunni Arabs occurred relentlessly
during this time frame. Kurds in northern Iraq are now dealing with the
problem of resettled Arabs in traditionally Kurdish lands because of that ethnic
cleansing. A judgment on whether this is a form of genocide would be extremely
310 helpful in the development of the law of genocide, even if it comes from a some-
what flawed domestic tribunal.
Even so, with the charges against Saddam dropped after his execution, the Kurds
must feel that they did not get their day in court against him as the Shi’ites (victims
in the Dujail trial) did. This is unfortunate, especially true from the storytelling
315 standpoint, which is key to national healing and reconciliation after long periods
241MICHAEL J. KELLY
of traumatic rule by ruthless despots. Whether that adds to the increasing sectarian
animosity in Iraq remains to be seen. The Kurds have thus far steered clear of the
civil war erupting between the Sunni and Shi’a Arab populations to the south of
Iraqi Kurdistan. Of course, the Kurds are not used to receiving justice from
320 Baghdad no matter who controls it, so the sudden clearance of Saddam for the
Kurdish genocide may be taken as a matter of course by the Kurds.
Nevertheless, commuting Saddam’s death sentence to the end of the Anfal trial
would have presented the best option for the Iraqi government, the Iraqi people,
the Kurds in particular, and the development of law. Unfortunately, the IHT,
325 under pressure from the government, failed to choose it. Continuing the Anfal
trial against Saddam posthumously would have been a second-best option,
which the IHT also failed to choose. Thus, the saga of Saddam’s genocide
against the Kurds remains an untold tale in the crucible of justice. A genocide con-
viction of “Chemical Ali” will be welcomed, as he was indeed the principal per-
330 petrator of such crimes. He has admitted those deeds in open court, albeit with an
intent to stop Iranian interference in the region. But the big fish, Saddam, got off
the hook.
335
Notes and References
1 “Saddam trial verdicts in detail,” BBC News, November 5, 2006, http://news.bbc.co.uk/2/hi/middle_east/
6118302.stm.
2 Human Rights Watch, Genocide in Iraq: The Anfal Campaign against the Kurds (Washington, DC: Human
Rights Watch, 1993), http://hrw.org/reports/1993/iraqanfal/ANFALINT.htm.
3 Human Rights Watch, Genocide in Iraq, op cit.
340
4 David McDowall, A Modern History of the Kurds (London: St Martins Press, 1996), p 353.
5 Michael J. Kelly, “The tricky nature of proving genocide against Saddam Hussein before the Iraqi Special
Tribunal,” Cornell International Law Journal, Vol 38, 2005, pp 983, 989.
6 Kelly, op cit, pp 989 –999.
7 Kelly, op cit, pp 989 –995; Michael P. Scharf, “The significance of the Anfal campaign indictment,” in
345 Michael P. Scharf and Gregory S. McNeal, eds, Saddam on Trial: Understanding and Debating the Iraqi
High Tribunal (Durham, NC: Carolina Academic Press, 2006), pp 222– 224.
8 Reuters, “‘Chemical Ali’ admits ordered Kurd villages cleared,” Reuters, January 28, 2007.
9 Prosecutor v Akayesu (1998) ICTR-96-4-T.
10 “Timeline: Saddam Hussein Anfal trial,” BBC News, December 4, 2006, http://news.bbc.co.uk/2/hi/
middle_east/5272224.stm.
350 11 “Mother recalls Iraqi gas attack,” BBC News, August 23, 2006, http://news.bbc.co.uk/2/hi/middle_east/
5277916.stm.
12 “Kurd witness mocks ‘caged’ Saddam,” BBC News, September 12, 2006, http://news.bbc.co.uk/2/hi/
middle_east/5337722.stm.
13 “Iraqi troops buried family alive,” BBC News, October 9, 2006, http://news.bbc.co.uk/2/hi/middle_east/
6033627.stm.
14 “Saddam trial sees graphic footage,” BBC News, December 19, 2006, http://news.bbc.co.uk/2/hi/mid-
355 dle_east/6193863.stm.
15 Borzou Daragahi, “Memos outline chemical plans,” Los Angeles Times, December 19, 2006, p A4.
16 Sameer Yacoub, “Kurds thrown to death,” Advertiser (Australia), December 22, 2006, p 40.
17 Borzou Daragahi and Said Rifai, “Memos suggest Kurds targeted; Hussein prosecutors say chemical arms
aimed at civilians, not Iranians,” Los Angeles Times, December 21, 2006, p A7.
18 Jamal Halaby, “Saddam aides deny using nerve gas,” Advertiser (Australia), December 23, 2006, p 46.
360
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