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Transcript of Anfal Trial Judges 1/29/08 Presentation at Case Western Reserve

On June 24, 2007, the Iraqi High Tribunal handed down its decision in the Anfal Campaign trial, convicting “Chemical Ali” (Ali Hassan al-Majid) and five other high ranking military leaders of the former Iraqi Regime of genocide and other international crimes related to their roles in a 1980s crackdown against northern Iraqi Kurds. On Tuesday, January 29, 2008, Case Western Reserve University School of Law hosted a two-hour live presentation by the President/Chief Appeals Judge of the Iraqi High Tribunal, the five judges who presided over the Anfal Campaign trial, and the Prosecutor who tried the case. This trip to the United States marked their first public appearance outside of Iraq. Through a translator, the Judges and Prosecutor discussed the challenges that they faced, the precedent that their historic judgment sets, and the question of whether the proceedings were fair. This transcript of the session at Case Western Reserve University was lightly edited for grammar, but maintains the original syntax and style.

HOLDING THE HUSSEIN REGIME ACCOUNTABLE FOR ATROCITIES:

The Iraqi High Tribunal and Justice for the Kurdish Victims of the Anfal Campaign
TUESDAY, JANUARY 29, 2008
CASE WESTERN RESERVE UNIVERSITY SCHOOL OF LAW
4:00 P.M.

Panels and Speakers Present:
Mr. Michael Scharf, Professor and Director of the Frederick K. Cox Law Center, Case Western Reserve University School of Law
Ms. Stephanie S. Browne, Regime Crimes Liaison Office, US Department of Justice
Judge Arif Abdul Razaq AlShaheen, President of the Iraqi High Tribunal
Prosecutor Munqth Takleef Mibdir AlFaraoon
Judge Taher Taleb AlTokmachi, Trial Chamber II
Presiding Judge Mohammed Irebi Majeed AlKhalefa, Trial Chamber II
Judge Taher Taleb AlTokmachi, Trial Chamber II
Judge Hawar Hama Khursheed AlJaf, Trial Chamber II
Doctor Kadhim, Interpreter

Compiled and Edited by:
Layla Arnold
Katharine Gibson
Jason Greenglass
Andrew Stebbins

  PROFESSOR SCHARF: Welcome everybody. For those of you who don't know me, I am Professor Michael Scharf, the director of the Frederick K. Cox International Law Center here at the law school, and I am really pleased to welcome you this afternoon to one of the most extraordinary events this law school has ever hosted.

  Today you will hear presentations by the President of the Iraqi High Tribunal, the judge who presided over the Anfal campaign trial, and the Prosecutor who tried the case against “Chemical Ali” and the other defendants. The Judgment in this trial, which is available in English on our Grotian Moment Website, was historically significant in that it is one of the few to convict defendants of genocide since the time of Nuremberg when our own Professor Henry King -- who is sitting there in the second row -- prosecuted the Nazis 60 years ago.

  We also have been very lucky at Case Western to have been given the opportunity to play a role in this historic trial. We provide assistance through our War Crimes Research Office, and many of the students in this room have done work for the Iraqi High Tribunal, as well as five other war crimes tribunals. Some of the memos that we prepared were used by the Regime Crimes Liaison Office and ultimately found their place in the jurisprudence of the 900-page Anfal Trial opinion -- one of the longest judicial opinions ever written in a war crimes trial.

  This year the law school has been having a series of conferences and lectures to commemorate the 60th Anniversary of the Genocide Convention. We started out in September with a major conference, which had a keynote speech by the prosecutor of the Cambodia tribunal, which is just now starting to prosecute the people who committed genocide in that country in the 1970s. Then we had a lecture delivered by Luis Moreno-Ocampo, the chief prosecutor of the International Criminal Court, in October. Just a few weeks ago, we had a speech by Professor Michael Reisman, who talked about the importance of countries intervening to stop genocide. And now to top all of that off, we have a series of presentations by these jurists who are making their first ever appearance outside of Iraq.

  Many of our speakers have never had their faces shown publicly outside of Iraq, and for their protection, we don't have TV cameras covering this event.

  Let me begin by introducing Stephanie Browne, who is the Director of the Regime Crimes Liaison Office, which is run by our embassy and is staffed by lawyers from the Department of Justice and the Judge Advocate General, in Baghdad. Stephanie Browne was an Assistant U.S. Attorney in Rhode Island and she was a military judge before taking on this position, and so without further ado, I turn it over to Stephanie.

  MS. BROWNE: Thank you. Before we begin, the judges have asked if everyone would please rise for a moment of silence to honor the Anfal victims.

  (Moment of silence.)

  MS. BROWNE: Thank you. The Regime Crimes Liaison Office, or the RCLO, was established under the National Presidential Directive 37, dated May 13, 2004. It was designed to assist in establishing a fully functioning and independent Iraqi High Tribunal with the capacity to investigate and prosecute former regime and Ba'ath Party members for crimes within the tribunal's jurisdiction.

  Those crimes include: genocide, war crimes, and crimes against humanity. The RCLO serves as the UnitedStates Government liaison with the Government of Iraq regarding the tribunal's investigations and prosecutions.

  In addition, the RCLO assists the tribunal's investigators, prosecutors, and judges by providing necessary training, investigative, and technical support, all necessary to ensure fair and impartial proceedings. The RCLO has included administrative support, attorneys both from the Department of Justice and JAG, officers from the Army, Navy, Marine Corps, and Air Force, defense advisors, drivers, translators, UnitedStates Marshals, agents from the FBI, ATF and DEA, video support, a secure evidence unit, and a Washington, D.C. support cell.

  The RCLO has focused on building the tribunal's capacity to handle all aspects of investigation through appeal of atrocity crime prosecutions. The security situation in Iraqi is fluid, I am sure you are aware, and this challenges the operations of the Iraqi High Tribunal in securing witnesses, getting them to trial while assuring their security, as well as security for the judges, court personnel, and defense attorneys.

  In addition, the RCLO has been involved in establishing programs of continuing legal education for the judges who are associated with the tribunal. These programs have focused on issues relevant to international criminal law, Iraqi criminal law and procedure, the transparency of judicial proceedings, and due process. The RCLO's ongoing efforts have increased the tribunal's ability to assume full responsibility for its courthouse security, case investigation, preparation of presentation, and logistical and fiscal responsibility for the operations and maintenance of the courthouse and its personnel. This increased capacity is evident in the successful establishment of the Iraqi High Tribunal as a national war crimes and atrocity crimes court that has completed trial, rendered judgments, and completed the appellate process in two cases: Dujail and Anfal.

  Of note, Anfal is the first national prosecution of a case charging genocide. The RCLO will continue to assist the Iraqi High Tribunal's further investigations of allegations by victims of war crimes and atrocity crimes committed by members of the former regime and a trial or trials of those alleged to be responsible. The RCLO as an organization and I as an individual are extremely proud to have had this opportunity to assist the tribunal and these brave men and women in their important work. They are courageous to engage in this work.

  It is with great pleasure that I turn the podium over to Judge Arif Abdul Razaq Al-Shaheen, President of the Iraqi High Tribunal.

  (Applause.)

  JUDGE ARIF: (Speaking in Arabic) Good evening.

  DR. KADHIM: (Translating as follows:) I am president of the Iraqi High Tribunal and the chairman of the appellate chamber. The goal of international society is to achieve happiness for mankind. This progress is a service of humanity, and we aim to eliminate conflicts and apply democracy for all countries and societies.

  Although law enforcement is usually left to individual countries, sometimes the international community has a role to play in mankind and enforcing laws. Some crimes are so egregious and universally repugnant to human society and human condition that they become international in nature. These crimes do not merely harm the society in which they occur, but they reach beyond the borders of the nation and harm other cities in the world. After the Second World War, when the Nuremberg Court punished war criminals, the concept that any person who commits an act classified as a crime under international law will be held responsible for that act and subject to punishment became accepted. Since then, there have been a number of courts that have sought to implement their national law for war crimes that were international in nature: The International Criminal Tribunals for the former Yugoslavia and Rwanda, and now the Iraqi High Tribunal.

  The IHT is unique among those courts, as it is among the first national courts with the limited jurisdiction to try cases involving international crimes including genocide, crimes against humanity, and war crimes. The IHT was established by Iraqi Law No. 10 of 2005 as an independent court. Its jurisdiction included any normal person, whether Iraqi, or a resident of the state, who committed crimes described by Articles 11, 12, 13, or 14 committed between July 17, 1968 and May 1, 2003 in Iraq or any other place. These crimes are: A: genocide, B: crimes against humanity, C: war crimes, and D: violation of the Iraqi laws prescribed in Article 14 of the statutes.

  A case before the IHT is first heard by an investigative judge. Those judges investigate the persons accused of committing the crime within the jurisdiction of the court. They make a decision whether to release the accused or to refer him to the criminal chamber. The criminal trial chamber consists of five judges, including the chamber president. They consider the evidence and call witnesses based on the investigative file or a defense request. The trial chamber determines whether the suspect is innocent or guilty.

  The appellate chamber consists of nine judges, including the president, who at the same time is the president of the IHT. He has appeals submitted to him from the investigative judge's decisions or the trial chambers decisions. The appeals period is 15 days. The appeal is the result of either a request or sua sponte. The appellate chamber is also responsible for determining who shall sit as a trial chamber judge.

  The prosecuting chamber consists of a number of prosecutors who are responsible to determine the guilt of the person who is accused of a crime within the jurisdiction of the court. The IHT is a domestic court under Iraqi law. However, much of the substantive law in the statute derives from international law. The IHT statute and rules of procedure are modeled on war crimes tribunals for Yugoslavia, Rwanda and Sierra Leone. United Nations Security Council Resolutions 1483, 1511, and 1546 justify the establishment of the IHT by the Iraqi Government Council. The IHT statute has been confirmed by the Iraqi National Assembly, which was elected by the Iraqi people according to Article 33 (A) and (B) and Article 37 of the transitional administrative law.

  All this took effect when the statute was published in 4006 on October 18, 2005. At that time the Iraqi Institution Article 134 stated the IHT will continue, as an independent legal chamber, to conduct its duties in pursuing the dictator criminal members until such time as terminated by parliament.

  During Saddam's rule many atrocities were committed against the Iraqi people: genocide, crimes against humanity, and war crimes. The IHT was established to bring those who planned and participated in those atrocities to justice. It was very important to establish justice and the rule of law after such brutal crimes. Unlike the cases heard under Saddam’s regime, cases heard by the IHT were governed by statutes and laws. The laws now governing the defense office, investigative judges, criminal chamber judges, and appellate judges are very important rules to establish the foundation of an independent and fair legal system.

  Iraqis joining the IHT did so because of their commitment to the rule of law and because they would be a part of their country's history. We realize that building a healthy court system will contribute to justice and guarantee that the cruelty done by Saddam's special courts is not repeated. Saddam’s special courts amounted to mock trials in which the Defendant had no right to face a fair trial. This is a crucial step forward for Iraq. The future of the IHT is important, not just for the victims and the restoration of the rule of law in Iraq, but also to ensure the continued respect for Government institutions in general and legal institutions in particular by the citizens of Iraq.

  We, the people of Iraq, are emerging from a long history of dictatorship. The rule of Saddam was more powerful than the rule of law in Iraq. The IHT, as part of a larger effort, was meant to reverse this. The IHT has proven to be independent and fair and provided rights to those accused of wrongdoing. The Iraqi people whom we serve will begin to see the establishment of the rule of law. There are a number of thoughts I would like to share with you about the process of building an independent and an impartial court and our role in that process.

  First, the cornerstone of any emerging democracy such as Iraq is the rule of law, despite some cultural differences in the Middle East. I imagine that our ideas regarding the rule of law are very similar. The rule of law is the objective, fair, and impartial application of law that recognizes basic human rights. If there is no respect for the law, either because the law itself violates basic human rights or because it is applied in a manner that violates basic human rights, then the citizen in this seat loses respect for law and for law enforcement. If this happens, anarchy and lawlessness may win out above the law.

  In the Middle East where strength and power are admired traits, the rule of law has to be seen as more powerful than the rule of fear. If Iraqi citizens have no confidence in the new process of law, they will look for other ways to build their society and new government. IHT proceedings in the courtroom have been televised and have been viewed by many Iraqis. If Iraqi citizens come to view the IHT as a court of vengeance, then the power of law will come into question by the Iraqi people.

  Second, the process must not only be fair and impartial; it must appear to be fair and impartial. Part and parcel of establishing the rule of law and respect for the law is the perception that the law itself is fair and impartial. Many citizens throughout the world assume that their state's legal processes are firm. And they are correct. In Iraq, during Saddam's reign, Iraqi citizens did not assume the judiciary was fair, and in many instances it was not. The IHT is striving to achieve the gold standard of justice that is the very best of court systems in which an accused is afforded all rights to which he is entitled. As the Iraqi legal system moves forward, our law here today is to bring to you some ideas of how our legal system operates and to introduce you to the facts of the Anfal genocide case.

  In the 20th Century, the IHT emerged as the only forum that held Saddam Hussein accountable for his deeds. The trial of Saddam Hussein began on the 60th Anniversary of mankind's first attempt to face down lawless impunity at Nuremberg. By doing so, the Iraqi judicial system established a commitment to the key principles of fairness, openness, and respect for international law.

  It should be said that the Iraqi judges and prosecutors are well versed in Iraqi law and procedures. They have received extensive training in international criminal law and procedures, from highly respected and experienced people in the field: in Iraq, the United Kingdom, the Netherlands, and Italy. Court administrators have received extensive logistical support from officials from the UnitedStates, United Kingdom, and Australia. I would also like to give my thanks to the U.S.A. Administration for establishing the Regime Crimes Liaison Office (RCLO) in May 2004, which supported investigators, investigative judges, and prosecutors of the IHT.

  I also appreciate the advice and support given to the appellate chamber as well as the first and second trial chambers. There were many others who provided help and support to the IHT. In particular, Governmental Organizations like: the International Bar Association, or IBA, the International Legal Assistance Consortium, the International Association of Penal Law, and also some academic consortium.

  I shouldn't forget the efforts made by Professor Scharf, who helped train the judges of the IHT, and by this university, whose research assistance helped ensure that our judgment was based on international precedent. Finally, I would like to express my thanks to you for giving me this opportunity and for listening to my presentation, thank you very much. I have talked to you in general about the IHT, and now I will give the podium to my colleague Judge Muhammed Irebi. Judge Muhammed Irebi is the Chairman of Second Trial Chamber of the IHT, and was the Chairman of the Anfal case; and he will be your next speaker.

  Thank you.

  (Applause.)

  JUDGE IREBI: (Speaking in Arabic.)

  DR. KADHIM: (Translating as follows:) Mr.Chairman of the IHT, the dean of the school, and dear audience, peace be upon you and mercy of the all mighty God. By the name of Allah, the most merciful and most gracious, let not unbelievers think that our respite to them is good for themselves. We grant them respite that they may grow in their antiquity, but they will have a shameful punishment, the holy crime.

  The Anfal case, heard by the Second Trial Chamber of the Iraqi High Tribunal can be considered the historical record of what happened in the Anfal campaign. The horrible Anfal campaign had one purpose, to deny the Kurdish people their basic rights to life, freedom, and security. The Anfal campaigns were the most brutal military campaigns against the Kurdish Iraqi people; they burned everything and eliminated all life.

  In Arabic, Anfal is a word that means “spoils of war,” and is the eighth chapter of the holy Qur'an. In the first verse, the mighty God said that a nation by the name of Allah is the most merciful and gracious. They ask thee concerning things taken as spoils of war. Such spoils are at the disposal of Allah and the messenger. So, if you believe, fear Allah and keep straight donations between ourselves, Allah, and his messenger. In this verse, Anfal means: the spoils of war taken from the enemies of religion in a holy war.

  The brutal exregime chose the name Anfal for the bloody campaign against the Kurdish people, but not because it respected the Qur'an's words and verses. The exregime wrote time after time that it did not respect the principles of religion, but it looked for a religious cover for their crimes. So, in using this name, it gave the impression that the Kurdish people were against religion. This suggested that they were disbelievers, and their men, women, and properties were free for taking. It is important to divide the Anfal campaign into two stages in order to understand the nature of its operations.

  Number one, Anfal operations began on March 29, 1987 in a common meeting between the Revolution Command Council and original leadership of the Ba'ath Party. Ali Hasan AlMajid, “Chemical” Ali, was then assigned responsibility for what was called the North Affairs Committee. This meant that he was given the authority of the ICC and the Ba'ath Party to carry out their policies in the North Affairs Committee of Iraq and Kurdistan, maintain stability there, and apply autonomous law in the area. All of that was according to the first document, ICC decision No. 160, issued on March 29, 1987. This same decision also obligated all civilian, military, and security departments to follow the orders of Ali Hasan AlMajid. As long as he needed any of these authorities to fulfill the purposes of this decision, he had the authority of the National Security Council and the North Affairs Committee.

  All governors and managers of the administration, military intelligence departments, security forces, and members of popular Army leadership were expected to report to Ali Hasan AlMajid. Additionally, these departments and units were to carry out the orders and instructions that Ali Hasan AlMajid issued according to ICC decision No. 160. I wish to add, that this decision instructed the military leadership of the area to follow the orders of Ali Hasan AlMajid on every issue related to this decision.

  When Ali Hasan AlMajid was assigned his position, he declared that large areas of Kurdistan be considered forbidden. No one was allowed in those areas. He gave the Kurdish people living in those areas a deadline (June 20, 1987) to leave their villages, and go to detention or internment camps surrounded by soldiers. No one could go in or out of these camps unless they had permission from the authorities. These camps were wide flatlands without any kind of services. The exregime gathered the Iraqi Kurds there to suffer and die slowly. There was nothing in these camps except death, hunger, cold, and humiliation for the detainees who suffered at the hands of the exregime criminals.

  Some of the Kurdish people hated those camps and others refused to go. On June 20, 1987 the amnesty period expired, and document No. 2 was issued carrying the No. 4004, which explained to the first, second, and fifth Army Corps leaders how to deal with the forbidden villages. It stated that because the mentioned period to gather those villagers officially expired on June 21, 1987, they had decided the following starting June 21, 1987:

  1. All the forbidden villages should be considered as sabotaged gathering points for either Iranians or traitors of Iraq.

  2. It is forbidden for any human or animal to exist there, and it will be considered as a battlefield where any unit can fire at will unless there is a specific order from our office.

  3. It will be forbidden to travel to it, from it, or invest in it in any way. All the specialized units and departments should consider this matter seriously.

  4. The court commanders should arrange special strikes from time to time, both day and night, using artillery, helicopters, and airplanes in order to kill as many people as possible located in that area. When I said special strikes, I meant by that using chemical weapons, and those instructions issued by “Chemical” Ali had included or covered 4,000 Kurdish villages.

  5. Anyone found in those areas will be arrested and will be investigated by the security departments, and if the person is between 16 and 70 years old, he will be executed after taking as much information from him as possible.

  This document bears Defendant “Chemical” Ali's signature, and when the court asked him about it, he confirmed that he issued it. When the court asked him if the orders contained in this document were carried out or not, he admitted that some of the orders were carried out, and according to it, a lot of Kurdish Iraqi people were executed. Then defendant Ali Hasan Al‑Majid added: “If I managed to get out now from this cage, I would do more than I did in the Anfal campaign.”

  The plan and operations hurt everything, and all men, women, and children were transferred in the Anfal campaigns. Everything was burned. It also included villages along the Iraqi-Turkish border, the Iraqi-Iran border, other villages near the city of Baghdad itself, and even villages located 100 kilometers away from the borders. This siege continued from June 22, 1987 until February 22, 1988. There were mass killings and disruptions to the Kurdish way of life, as we described. It was an attempt by the regime to exterminate the Kurdish population.

  The eight Anfal operations started on February 22, 1988 and finished on September 6, 1988, and were as follows: The first Anfal operation started on February 22, 1988, and it was terminated in mid-March of the same year. It was conducted by the Kurdistan party, which included Sagalow, Bagalow, Holden‑‑ by the way, the judge told you, audience, that these names were written in the Kurdish language. He is not a master of the language, and so you must please excuse him.

  (Laughter.)

  DR. KADHIM: Sagalow, Bagalow, Holden, Apchala, Cidell, Malooma and Benekjar. These areas were attacked with different types of chemical weapons, and after taking control of the whole area, all the houses were looted, then demolished according to Ali Hasan Al‑Majid's instructions. All the persons who were arrested there were sent to the north, where many of them disappeared; it is assumed they were killed.

  The second Anfal operation started on March 22, 1988, and it covered the areas and the villages around it. For example, Sosenow, Malecjar‑‑ these are names of the villages‑‑ Tekar, Genuan, Cordal, Seshtawe, Conak. These villages were bombed with chemical gases by airplanes, artillery, and rockets. Some people died, and others managed to escape to the mountains. After taking control of the whole area, all life was exterminated. They destroyed and burned the villages, filled up water springs, and completely burned all the trees in that area.

  The third Anfal operation, directed toward the Germanon area, started on April 7, 1988, and terminated on April 20, 1988. The targeted area stretched among several villages, including Tazan, Alkajoel, Hidosol, Haliawa, and other areas as well. Those areas received the same treatment as the second Anfal operation. After taking control of the whole area, the military troops demolished the houses and eliminated all life. They detained the civilians -- men, women, and children, and sent them over to the north bureau to deal with them as planned.

  The fourth Anfal operation started on May 3, 1988. After fulfilling the objectives of the previous operation, initially conducted by military troops against the Kurdish villages, another unit was ordered to conduct a new, more widespread campaign. For several days, air strikes were conducted to spread chemical weapons and achieve widespread destruction throughout the Azelesfal River Basin and other areas. 1,680 men, women, and children were killed, their villages totally destroyed. Their farms were burned, and all life was exterminated.

  The fifth, sixth and seventh Anfal operations, which followed the same patterns that appeared in the previous operations, were followed in the Kurdish areas of Albierges and other villages belonging to various districts. They continued even after the end of the Iraqi-Iran War in August 1988. These operations took place across a large area and affected a large number of villages including Tokobar and Comitan, some of which were summer resorts. Chemical weapons were used on a mass scale, and the operations continued to extend beyond the limits of the provinces.

  To give you a clear idea, the purpose behind the Anfal operations was to destroy all of the villages near the Iraqi‑Iran borders, preventing the inhabitants of those villages from cooperating with the Iranians against the Iraqi Government. The regime claimed that this was the reason behind destroying and eliminating those villages.

  The eighth Anfal operation made it clear that the policies and lies aired by the ex‑regime were baseless. The Iraqi‑Iran war came to an end on August 8, 1988. Although this suggested that all military operations came to an end on that date, this was incorrect. The eighth Anfal operation started on August 22, 1988, and it went on until September 6, 1988, after a ceasefire between Iraq and Iran. This made very clear that there was no war, and there was no need to destroy those villages. Of course, that campaign targeted the civilian inhabitants of those villages. It included the Hadeke area, which was near the Iraqi-Turkish borders, hundreds of kilometers from the Iranian borders. What was argued by the ex‑regime was groundless because it hit and bombarded an area several kilometers from the Iraqi-Iran border.

  In addition to traditional weapons, the ex‑regime used chemical weapons. In Koramet, a village in the province of northern Iraq, 33 people were executed and only four men survived. This was characteristic of the Anfal campaign. In fact, those persons were executed before the inhabitants of the villages without any reason. There was no investigation and no trial. The only apparent reason for their execution was that they were Kurdish citizens. Those who were arrested were men, women, and children. They were detained in Nasarki Castle, and they were taken to Mosul Province.

  What happened in the pre-Anfal and the Anfal operations was a part of what the Iraqis suffered for 35 years. For all these years, the Ba'ath Party took part in torturing, killing, and eliminating members of the Iraqi great nation. There are 284 mass graves that were discovered, proving that the crimes of the ex‑regime occurred.

  Finally, I wish to say I will reward you with heavens while your enemy has been shamed forever. Rest in peace, all what you vote for has been established. Iraq now is independent and free country. Thank you very much.

  (Applause.)

  PROSECUTOR MUNQTH: (Speaking in Arabic.)

  DR. KADHIM: (Translating as follows) I have the honor to stand before you and talk to you, to express the difference between the Iraqi legal system and other legal systems in other countries. Because I have limited time, I cannot give you detailed explanations about this subject material, although it is extremely important work, but I will do my best to cover the most points in this material.

  First, Iraqi criminal procedures make it necessary for an investigative judge to start an investigation when a crime is committed. You may know that there is no investigative judge in the American legal system, as the case is in Egypt or in France. So among the duties of the investigative judge is that he should start an investigation as soon as the crime is committed. When the defendant stands before the investigative judge the judge should make it clear for the defendant why the crimes and accusations were directed against him. He should also gather evidence and interrogate the defendant according to the evidence against him such as documents and witnesses.

  When the investigation is completed, defendant's papers will be referred to the criminal court, and in this case, defendant will be aware of all the accusations against him. Meanwhile, in other judicial systems, there is no investigative judge. But there is the public prosecution, which means the prosecutors themselves take the responsibility for collecting the evidence, bringing witnesses and complainants, and referring the file to the Court. Therefore, the prosecutor should direct the accusation to the defendants at the beginning of the session so that they are able to defend themselves, and they should know what kinds of accusations are directed against them. This is the first difference between our system and others.

  Secondly, the prosecutor in the criminal procedure system, that is, the Iraqi system, is called an honest foe. This means that he was never a personal enemy to the defendants, but he represents the community, and as a result, he has the right to ask the court to release the defendant if he is sure that the evidence is not sufficient to convict him for prosecution. They also have the right to convict defendant. That is what happened in both cases of Dujail and Anfal. The prosecutor was able to demand release of some defendants because he was confident they were not responsible for the committed crimes. In certain other judicial systems, the prosecutors have no right to ask for the release of a defendant in the court.

  The third difference in Iraqi law -- the court is to decide to convict or not, whereas in certain other systems, it is the jury who gives the conviction decision against the defendant.

  The fourth difference -- the judicial precedents are not binding for the Iraqi courts, and they are considered binding in certain legal systems. And now I have come to the conclusion of my presentation.

  In the Iraqi judicial system, defendant and the defense counsel are fully aware of the accusations directed against defendant; the defense attorney can get a copy of the case file before referring it to the criminal court. The prosecutor will present to the community under Iraqi law, sometimes challenged by the defense attorney to defend the defendant during the investigation and in the criminal court if there is sufficient evidence to convict that defendant. If there is sufficient evidence to convict that defendant or if the prosecutor obtains other evidence in addition to that available in the case, he will be the defendant's foe and will then demand his conviction according to the available evidence and documents. So in this case, the prosecutor, the judges, and the defense counsels will be considered the parties who are trying to seek the truth.

  And finally, I would like to thank you very much for listening, and I apologize for the limited time I had been given that I couldn't explain other differences and thank you very much.

  Thank you.

  (Applause.)

  MS. BROWNE: Because of the time, there isn't time to do justice to Judge Hawar's presentation, and we will open it up to questions -- I suspect everybody can hear me. Thank you. We all realize how important the question and answer period is. So at this point, we will open it up for your questions, for any of the participants here. That includes me, but I think the focus probably should be with them.

  Yes, sir.

  AUDIENCE MEMBER: Before my question, first of all, I want to express -- I am sure you know well how much you are heroes, not only in Iraq, but to humanity in the world.

  (Same audience member now speaks in Arabic.)

  MS. BROWNE: Excuse me. For the benefit of those who don't speak Arabic, can you translate that?

  DR. KADHIM: Repeat his question.

  AUDIENCE MEMBER: I began looking at the Iraqi documents in '91 when I worked at Harvard and on the book, but my question is about doctors from the Iraqi military who would visit the villages and towns. There were 50-plus villages and towns that were hit with chemicals and biological weapons and would chart where the bombs fell and what they contained in terms of chemicals. They would also chart where the bodies fell and what effects on the bodies each of the components had. Did you interview any of these doctors from the military? Did you meet with any of these doctors, and do you have any information about what they did with the information they gathered because they said the bombing on the Kurds was for practice and was stopped when George Schultz said to stop the bombing, but they would have likely continued on and on.

  JUDGE ARIF: (Answering in Arabic).

  DR. KADHIM: (Translating as follows:) I would like to express or explain to my dear friend and brothers that we have found tens of thousands of documents inside Iraq, and we also received other documents from France, from French organizations, and humanitarian organizations. But regrettably, we didn't find that any Iraqi doctor in the former Iraqi Army had come to those places bombarded by chemical weapons. But we have eyewitnesses and information that there were special groups working in the president's office of the former regime. They used to come to the bombarded areas and take samples of the soil in that area and samples from the humans and from the animal bodies, and even they used to take samples of the waters in the same regime.

  Before the fall of Saddam's regime, that regime had taken all the documents that may prove the attack used those weapons in an attempt to hide them or to get rid of them. But we managed to prove that the chemical weapons were used by that regime, and their impact is still on the Iraqi soil and on the Iraqi environment. And that's why the chemical weapons still have their impacts in the Kurdistan area. We did not find -- although somebody had given us information. Thank you very much, another. Another question. Sorry.

  Before introducing your question, sir, we have a large number of documents that prove that chemical weapons were used through the correspondence between the presidency office and other departments. When the Kurdish people moved from Iraq towards Turkey, a foreign doctor had visited those Kurds, and he came and talked to the Court as a witness. He had a large number of photos of the camps of the Kurds as well as medical reports using the chemical weapons. But no military doctor came to the Court and said that he would be a witness.

  AUDIENCE MEMBER: It wasn't a document but a journalist that interviewed Iraqis from the military; Iraqis who said they went to the villages after the bombardments.

  JUDGE ARIF: (Answering in Arabic.)

  DR. KADHIM: No Iraqi military doctor could come to be a witness in our office. Any person who should come to our court, he is either a witness or a complainant, but all of those persons about whom you are talking had disappeared.

  AUDIENCE MEMBER: May I ask a question?

  MS. BROWNE: Yes.

  AUDIENCE MEMBER: I was just wondering if any war crimes charges were leveled at Saddam Hussein for the use of chemical and biological warfare in the war against Iran. I understand that the use of chemical and biological warfare is illegal no matter who does it to who, and weren't there even more people who died as a result of these chemical and biological weapons in the Iranian wars?

  And I know what it says in your Qur'an where it says that if you kill one person, it is like you killed all of humanity.

  DR. KADHIM: Humanity.

  AUDIENCE MEMBER: But by the same reason, isn't the hanging of Saddam Hussein rather than giving him a long prison sentence; even a person who has done so much wrong as him, isn't that like killing all of humanity unless you kill in selfdefense? Thank you.

  JUDGE IREBI: (Responding in Arabic.)

  DR. KADHIM: (Translating) Sir, when you introduced your questions, you gave the answer to your questions at the same time. So according to the Holy Qur'an, one who kills a person without any misdeed or without any mistake committed by him, it is as if he killed the entire humanity. That's what was mentioned in the Qur'an. Now, I may ask you a question?

  You know, we are not going to talk about subject materials that are being discussed by our court or maybe in the near future they might be tackled. I am talking about the Anfal case. We have 182,000 victims who lost their lives in the Anfal operations.

  JUDGE IREBI: (Continuing in Arabic.)

  DR. KADHIM: (Translating) The question is, what will happen if a person appears in America and kills the same number of Anfal victims; what will happen in your country or in the world? You would think that he deserves mercy to be given to him? Do you think he should receive merciful punishment?

  AUDIENCE MEMBER: A long prison sentence.

  JUDGE IREBI: (Responding in Arabic.)

  DR. KADHIM: (Translating) The Iraqi court applied the Iraqi law, and the court did not find any reason to be merciful with him. They applied the Iraqi law.

  Sir, please.

  PROFESSOR SCHARF: Judge Irebi, I have a question for you. The first IHT trial, the Dujail case, was very messy, and the judges had a lot of trouble maintaining control of their defendants and their lawyers. And although your trial was not televised and seen in the UnitedStates, I understand that it was very well controlled by you, and I want to know what kind of lessons you learned and employed to maintain control of your courtroom from the experience of the previous trial.

  DR. KADHIM: Thank you very much, sir, for this question.

  JUDGE IREBI: (Responding in Arabic.)

  DR. KADHIM: (Translating) When the Anfal trial case sessions started, I was not chairman of those sessions, but I was merely a member, only a member of the second trial chamber. I don't want to mention anything about the previous chairman of the second trial chamber. The Iraqi law, like other laws in the world, had given the full freedom for the chairman of the session to control the session and whatever else inside the courtroom. The Iraqi law had given the chairman of the first trial chamber the right to detain or to imprison any person who violated the courtroom rules for 24 hours. Such a solution is inappropriate and does not fit with the cases of the people with whom we are dealing in the courtroom.

  The defendants of the Anfal case were accused of committing crimes with serious outcomes. So if you decide to send him to detention or to prison for 24 hours, he will be extremely happy. So we have to refer to the second choice, and the law had given the chairman of the trial chamber the right to expel or to fire the person who violated the regulations of the courtroom, including the defendants.

  Saddam Hussein, as everybody knows, including the judges, was interested in the cameras and the lights, and he wanted to turn our court into a podium for propaganda so that he could send messages to his followers outside. So I stopped him from doing so when he tried to speak about subject materials beyond the evidence of our case. So I tuned him out, and when he tried to speak politics, I tried to stop or to close the microphone, and then at the end of the day, he was tamed.

  JUDGE IREBI: (Continuing in Arabic.)

  DR. KADHIM: (Translating) And he started to abide by the rules and regulations. In fact, we were dealing with him politely and in a human way, and in addition to that, we kept all his rights and guarantees as a defendant. Thank you. Thank you, sir.

  MS. BROWNE: Any other questions?

  PROFESSOR SCHARF: Henry, did you have a question?

  DR. KING: You convicted the defendants on genocide, and I think that was very important, but do you think you could have convicted under crimes against humanity? That's my question.

  DR. KADHIM: (Translating) Thank you, Professor, for your question and for attending our presentations. Yes, the answer is yes, sir. The defendants were convicted of committing three kinds of crimes: Genocide, crimes against humanity, and war crimes.

  Of course, there are legal requirements and means to prove certain things, especially for the genocide crime, and the professor knows better than others do that genocide requires proof of a special intent. It had been proved that there was a special criminal intent to eliminate the Iraqi Kurdish people as a group, and that was proved through documents and evidence made available to our trial chamber.

  JUDGE ARIF: (Answering in Arabic.)

  DR. KADHIM: (Translating) Genocide or crimes against humanity, the difference between them here is very weak, very feeble. I personally can describe the difference as a very thin string between two massive blocks. Our court and its prosecutors, after checking the documents and hearing the witnesses, felt that the intent to eliminate the Kurdish nation partially or totally was promoted by Saddam Hussein and his regime, proving genocide.

  MS. BROWNE: I want to thank all of you on behalf of the RCLO and the IHT for extending this opportunity to all of us to give this presentation. There will be an opportunity, as I understand it upstairs, for more questions. And there will be a couple more translators up there, so I would encourage you to take that opportunity, but we need to have you vacate this room because there is another class that is coming in. So thank you all very much.

  (Applause.)

  (Concluded at 5:50 p.m.)

  State of Ohio
  SS: County of Cuyahoga

C E R T I F I C A T E
This certifies that the foregoing is a true and correct transcript of the proceedings had at the Case Western Reserve University School of Law, Cleveland, Ohio, on January 29, 2008, commencing at 4:00 p.m.

In the Matter of:
Holding the Hussein Regime Accountable for Atrocities:
_________________________
COURT REPORTER
FINCUN‑MANCINI COURT REPORTERS
1801 East Ninth Street
Suite 1720
Cleveland, Ohio 44114
(216) 6962272
(216) 6962275 FAX

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