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ECLI:NL:RBSGR:2005:AX6406

DISTRICT COURT of THE HAGUE CRIMINAL LAW SECTION THREE-JUDGE DIVISION (SENTENCE) Public Prosecutor's Office number 09/751003-04 The Hague, 23 December 2005 The District Court of The Hague, giving judgment in criminal proceedings, has delivered the following sentence in the criminal case of the public prosecutor against the accused: [accused], born in [place of birth] on [date of birth], with no permanent home or address in the Netherlands, at present detained at the penal institution [……….]. 1. The court hearing. The hearing took place during the court sessions of 18 March 2005, 10 June 2005, 02 September 2005, 21 November 2005, 22 November 2005, 23 November 2005, 24 November 2005, 25 November 2005, 28 November 2005, 30 November 2005, 01 December 2005, 02 December 2005, 05 December 2005, 07 December 2005, 09 December 2005 and 23 December 2005. The accused, assisted by his defense counsels Mr. J.P.A. van Schaik, lawyer in Veenendaal, and Mr. R. Gijsen, lawyer in Maastricht, appeared in court and was examined at the hearing, with the exception of 10 June 2005, 02 September 2005 and 23 December 2005. A total of 15 aggrieved parties joined the action as plaintiffs claiming damages, respectively named [injured party 1], [injured party 2], [injured party 3], [injured party 4], [injured party 5], [injured party 6], [injured party 7], [injured party 8], [injured party 9], [injured party 10], [injured party 11], [injured party 12], [injured party 13], [injured party 14] and [injured party 15]. The public prosecutors Mr. F. Teeven and Mrs. T. Polescuk have demanded that the accused be sentenced to a penalty of 15 years imprisonment, less the period spent in pre-trial detention, based on the amended charges on the writ of summons under count 1, principle charge and count 2 of the indictment. Furthermore the public prosecutors have demanded that based on the list of seized and not returned items - to be named hereafter seizure list, a photocopy of which, marked as B, has been included in this sentence - the seized items of the accused numbered 4 through 10, 13 through 15, 18 through 20, 23, 24, 27, 28, 29 (with the exception of the magazines) will be returned to the accused and that the seized items based on the seizure list numbered 1 through 3, 11, 12, 16, 17, 21, 22, 25, 26, 30 through 36, will be kept in judicial deposit on behalf of the entitled parties. Primarily the public prosecutors have concluded the complete allowance of all claims of the afore named aggrieved parties, being the maximum amount of € 680,67 (ƒ 1.500,=) that was applicable before the Terwee Act entered into force (Bulletin of Acts and Decrees 1993, 29). Alternatively the public prosecutors have concluded the complete allowance of all claims of the afore named aggrieved parties [injured party 10], [injured party 14] and [injured party 15] and the dismissal of the remaining aggrieved parties mentioned above. The public prosecutors have announced their intention to commence proceedings to demand for a confiscation order as referred to in Article 36e of the Penal Code. 2. The indictment After a further description of the indictment was given at the court hearing of 10 June 2005 pursuant to Article 314a of the Code of Criminal Procedure and subsequently after the indictment was amended at the hearing of 21 November 2005 - the accused is accused of the charges as mentioned on the inserted photocopy of the writ of summons, marked A, and of the demand for further description of the indictment, marked A1, and of the demand for amendment of the indictment, marked A2. [included: text demand amendment to the indictment] DEMAND FOR AMENDMENT TO THE INDICTMENT Public Prosecutor's Office number: 09/751003-04 The public prosecutor of the National Office of the Public Prosecution Service in Rotterdam, location Schiphol; Given the writ of summons in the case against: name : [name] first name(

  1. s): [first names] born on : [date of birth] born in : [place of birth] living at : without permanent abode or residence in this country address : presently residing : P.I. [Penal Institution] of the opinion that the charges should now be read as described below (whereby the modified text is printed in italics): count 1, principally: that Saddam Hussein Al-Tikriti and/or Ali Hassan Al-Majid Al-Tikriti and/or Hussein Kamal Hassan Al-Majid and/or (an)other person(
  2. s)(who so far has/have remained unknown), on or around 5 and/or 6 June 1987 and/or August 1988 in Zewa and/or on or around 16 March 1988 in Halabja and/or on or around 3 May 1988 in Goktapa (Gukk Tapah) and/or on or around 25 August 1988 in Birjinni (Bergin), in any case at one (or more) point(
  3. s)in time in the years 1986 and/or 1987 and/or 1988 in Iraq, together and in conjunction with (
  4. an)other(s), in any case in conspiracy, (again and again) with the view to completely or partially wipe out a national or ethnic group as such, to intentionally has/have killed members of the group and/or inflicted grievous bodily and/or mental harm by then and there, together and in conjunction, in any case in conspiracy, in Iraq (in Zewa and/or Halabja and/or Goktapa (Gukk Tapah) and/or Birjinni (Bergin) and/or (an)other place(
  5. s)intentionally used chemical weapons (mustard gas and/or nerve gas(es)) against persons, belonging to (part
  6. of)the Kurdish population group (in the country side and/or in Halabja) in Northern Iraq who were present then and there, as a result of which those persons from (part
  7. of)that Kurdish population group (in the country side and/or in Halabja) have died and/or suffered grievous bodily and/or mental harm ((among other things) existing in that those persons from (part
  8. of)that Kurdish population group (in the country side and/or in Halabja) have found themselves in a (permanent) situation of (serious) fear) to commit said crime(s), accused and/or his co-perpetrator(
  9. s)together and in conjunction, in any case alone, at (one) (more) point(
  10. s)in time in the period between 19 April 1984, through 25 August 1988 in Den Helder and/or Zoetermeer and/or Rotterdam, in any case in The Netherlands and/or in Baghdad and/or in Samara, in any case in Iraq, and/or Lugano, in any case in Switzerland, and/or in Antwerp, or in any case in Belgium and/or in Milan and/or in Trieste, in any case in Italy and/or in Luxemburg-City, in any case in Luxemburg, and/or in Baltimore, in any case in the United States of America and/or in Tokyo and/or Osaka, in any case in Japan and/or Singapore and/or in Aqaba, in any case in Jordan, intentionally provided opportunity and/or means and/or information to do so by then and there intentionally supplying thiodiglycol (TDG) and/or phosphoroxychloride (POCL3) and/or other precursors intended for the production of chemical weapons (mustard gas and/or nerve gas(es)) to (the Republic
  11. of)Iraq and/or by supplying materials to (the Republic
  12. of)Iraq in order to construct (
  13. a)factory(ies) for the production of chemical weapons (Al-Muthanna State Establishment) and/or by giving advise to (the Republic
  14. of)Iraq for the production of chemical weapons. (Article 1 Genocide Convention Implementation Act in conjunction with Article 48 Penal Code) and/or count 1. alternatively: if and in so far as the above should or could not lead to a conviction: that Saddam Hussein Al-Tikriti and/or Ali Hassan Al-Majid Al-Tikriti and/or Hussein Kamal Hassan Al-Majid and/or (an)other person(
  15. s)(who so far has/have remained unknown), on or around 5 and/or 6 June 1987 and/or August 1988 in Zewa and/or on or around 16 March 1988 in Halabja and/or on or around 3 May 1988 in Goktapa (Gukk Tapah) and/or on or around 25 August 1988 in Birjinni (Bergin), in any case at one (or more) point(
  16. s)in time in the years 1986 and/or 1987 and/or 1988 in Iraq, together and in conjunction with (
  17. an)other(s), (again and again) has/have violated the laws and practices of war, while that offense/those offenses (again and again) resulted in the death of (an)other(
  18. s)and/or that offense/those offenses (again and again) inflicted grievous bodily harm on (an)other(
  19. s)and/or that offense/those offenses (again and again) was/were (
  20. an)expression(
  21. s)of a policy of systematic terror or wrongful performance against the whole population or a specific group thereof, by then and there intentionally using chemical weapons (mustard gas and/or nerve gas(es)) against persons who were present then and there and as a result of which those persons have died and/or suffered grievous bodily harm, contrary to international customary law (in particular the prohibition on the use of chemical weapons and/or the prohibition on the use of poison or poison weapons and/or the prohibition on the use of asphyxiate, poison or other gases and/or the prohibition of inflicting unnecessary suffering and/or the prohibition of carrying out attacks which do not distinguish between military and civilians) and/or the stipulations of the Geneva Gas Protocol

(1925)and/or the stipulations of Article 147 of the Geneva Convention on the Protection of Civilian Persons in Time of War ("Fourth Geneva Convention", 1949) and/or the stipulations of the "common" Article 3 of the Geneva Conventions of 12 August 1949, (as members of the Government (of the Republic) of Iraq) belonging to one of the fighting parties in a state of war and/or in a (non-international and/or international) armed conflict several times at places in the territory of Iraq and/or by (systematically) terrorizing (part
  1. of)that Kurdish population group (while those chemical weapons were (also) used against persons who did not directly participate in the hostilities, to wit civilians from Zewa and/or Halabja and/or Goktapa (Gukk Tapah) and/or Birjinni (Bergin), in any case civilians in Northern Iraq and/or the use of those chemical weapons involved the cruel and/or inhuman treatment and/or mutilation of these persons and/or purposely caused serious suffering to these persons). to commit said crime(s), accused and/or his co-perpetrator(
  2. s)together and in conjunction, in any case alone, at (one) (more) points() in time in the period between 19 April 1984, through 25 August 1988 in Den Helder and/or Zoetermeer and/or Rotterdam, in any case in The Netherlands and/or in Baghdad and/or in Samara, in any case in Iraq, and/or Lugano, in any case in Switzerland, and/or in Antwerp, or in any case in Belgium and/or in Milan and/or in Trieste, in any case in Italy and/or in Luxemburg-City, in any case in Luxemburg, and/or in Baltimore, in any case in the United States of America and/or in Tokyo and/or Osaka, in any case in Japan and/or Singapore and/or in Aqaba, in any case in Jordan, intentionally provided opportunity and/or means and/or information to do so by then and there intentionally supplying thiodiglycol (TDG) and/or phosphoroxychloride (POCL3) and/or other precursors intended for the production of chemical weapons (mustard gas and/or nerve gas(es)) to (the Republic
  3. of)Iraq and/or by supplying materials to (the Republic
  4. of)Iraq in order to construct (
  5. a)factory(ies) for the production of chemical weapons (Al-Muthanna State Establishment) and/or by giving advise to (the Republic
  6. of)Iraq for the production of chemical weapons. (Article 8 Criminal Law in Wartime Act in conjunction with Article 48 Penal Code) count 2. that Saddam Hussein Al-Tikriti and/or Ali Hassan Al-Majid Al-Tikriti and/or Hussein Kamal Hassan Al-Majid and/or (an)other person(
  7. s)(who so far has/have remained unknown), on or around 13 and/or 14 February 1986 and/or 27 February 1986 at (approximately) 40 kilometres south of Abadan, in any case in the surroundings of Abadan, and/or on or around 10 and/or 11 April 1987 in Khorramshar and/or on or around 16 and/or 21 April 1987, in any case in April 1987, in Alut and/or on or around 28 June 1987 in Sardasht and/or in Rash Harmeh (in the immediate surroundings of Sardasht) and/or on or around 22 July 1988 in Zardeh and/or on or around 2 August 1988 in Oshnaviyeh, in any case at one (or more) point(
  8. s)in time in the years 1986 and/or 1987 and/or 1988 in Iran, together and in conjunction with (
  9. an)other(s), (again and again) has/have violated the laws and practices of war, while that offense/those offenses (again and again) resulted in the death of (an)other(
  10. s)and/or that offense/those offenses (again and again) inflicted grievous bodily harm on (an)other(s), by then and there, contrary to international customary law (in particular the prohibition on the use of chemical weapons and/or the prohibition on the use of poison or poison weapons and/or the prohibition on the use of asphyxiate, poison or other gases and/or the prohibition on inflicting unnecessary suffering and/or the prohibition on carrying out attacks which do not distinguish between military and civilians) and/or the stipulations of the Geneva Gas Protocol
(1925)and/or the stipulations of Article 147 of the Geneva Convention on the Protection of Civilian Persons in Time of War ("Fourth Geneva Convention", 1949) (as members of the Government (of the Republic) of Iraq) belonging to one of the fighting parties in a state of war and/or in an (international) armed conflict several times at places in the territory of Iran, (intentionally) using chemical weapons (mustard gas and/or nerve gas(es)) against persons (military and/or civilians) who were present then and there and as a result of which those persons (military and/or civilians) have died and/or suffered grievous bodily harm (,while those chemical weapons were (also) used against persons who did not directly participate in the hostilities, to wit civilians from Khorramshar and/or Alut and/or Sardasht and/or Rash Harmeh and/or Zardeh and/or Oshnaviyeh, in any case civilians in Iran and/or the use of those chemical weapons involved the cruel and/or inhuman treatment and/or or mutilation of these persons (military and/or civilians) and/or purposely caused serious suffering to these persons (military and/or civilians)). to commit said crime(s), accused and/or his co-perpetrator(
  1. s)together and in conjunction, in any case alone, at (one) (more) points() in time in the period between 19 April 1984, through 25 August 1988 in Den Helder and/or Zoetermeer and/or Rotterdam, in any case in The Netherlands and/or in Baghdad and/or in Samara, in any case in Iraq, and/or Lugano, in any case in Switzerland, and/or in Antwerp, or in any case in Belgium and/or in Milan and/or in Trieste, in any case in Italy and/or in Luxemburg-City, in any case in Luxemburg, and/or in Baltimore, in any case in the United States of America and/or in Tokyo and/or Osaka, in any case in Japan and/or Singapore and/or in Aqaba, in any case in Jordan, intentionally provided opportunity and/or means and/or information to do so by then and there intentionally supplying thiodiglycol (TDG) and/or phosphoroxychloride (POCL3) and/or other precursors intended for the production of chemical weapons (mustard gas and/or nerve gas(es)) to (the Republic
  2. of)Iraq and/or by supplying materials to (the Republic
  3. of)Iraq in order to construct (
  4. a)factory(ies) for the production of chemical weapons (Al-Muthanna State Establishment) and/or by giving advise to (the Republic
  5. of)Iraq for the production of chemical weapons. (Article 8 Criminal Law in Wartime Act in conjunction with Article 48 Penal Code) given Article 313 of the Code of Criminal Procedure; demands, that this amendment be admitted; done during the court session of the three-judge division of the criminal law section of the District Court in The Hague on 21 November 2005. The public prosecutor, Mr. F. Teeven, LL M 3. Pleas contesting the validity of the writ of summons. 3.1. During the court hearing the defense put forward the plea of nullity against the summons concerning the period represented in counts 1 and 2 "in any case at (one) (or more) point(
  6. s)in time in the years 1986 and/or 1987 and/or 1988 in Iraq", because this is such a broad description of this period, the defense finds it not possible to understand what the writer of the indictment actually means and for that reason they are not able to defend themselves against that accusation and therefore argue that the right as set out in Article 6 paragraph 3 under
  7. a)of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) has been violated. The court considers that this period has been represented in such general terms against the background of the case file, that it does not become sufficiently clear to the accused against what he should defend himself. For that reason the court is of the opinion that the indictment with regard to the above mentioned period in counts 1 and 2 does not satisfy the requirements of Article 261 of the Code of Criminal Procedure and will therefore invalidate the writ of summons on that point. 3.2. Furthermore the defense argued during the hearing that the indictment on count 1-principally, after the insertion of the words "in any case in conspiracy" is hard to understand and self-contradictory, because on the one hand it seems to refer to the main offense, that has been committed together and in conjunction, and on the other hand in count 1-principally the accused is charged with the preparatory offense of conspiracy. The court does not believe the words "in any case in conspiracy" to be self-contradictory, because it is of the opinion that these words should be understood as an alternative component of the main offense charged primarily in count 1, which - briefly - consists of the (multiple) genocide committed by Saddam Hussein Al-Tikriti and/or Ali Hassan Al-Majid Al-Tikriti and/or Hussein Kamal Hassan Al-Majid and/or (an)other(
  8. s)person(
  9. s)(who so far has/have remained unknown), which component follows the "committed together and in conjunction with (an)other(s)", in other words the principal element of complicity. Therefore this plea is rejected. 4. Plea contesting the jurisdiction of the court. 4.1. During the hearing the counsel for the defense pleaded that because of the accessory character of complicity to genocide and war crimes, the court of The Hague has no jurisdiction, if it lacks jurisdiction with regard to the main offense. The court dismisses this plea, which if it was to be sustained, would result in a bar to the prosecution. According to Dutch law complicity in a crime, even if it concerns genocide or war crimes, is an independent indictable offense with for instance its own time and place of committing such an offense. With respect to the accused who is staying in the Netherlands and who is a Dutch national, pursuant to Article 5 of the Penal Code the indicted offenses of complicity are considered to be criminal offenses, on account of which he can be prosecuted in the Netherlands, while pursuant to Article 2 of the Code of Criminal Procedure and according to the special regulation of competence set out in the International Crimes Act (WIM) not only the Dutch judge, but also the District Court of The Hague is authorized to take knowledge of these matters. The fact that here we are dealing with international criminal offenses does not change anything stated above. Moreover the argument of the defense does not find any support in international law. Especially within the framework of international crimes, that generally include the involvement of a large number of organizations and individuals, bringing the cases to trial in different jurisdictions is inevitable. Another opinion would result into the impunity of a large number of suspects. This does not relate in any way to the international legal obligation to prosecute international crimes. Considering the seriousness of these crimes, regarding this obligation no distinction should be made between the various participation forms. 4.2. The defense of the accused argues that in the present case the court will be asked to give a judgment on the punishability of the government of another country and that Iraq would be the most competent country for the trial of the present offenses. For those reasons the exercise of jurisdiction would be inadmissible based on international law. As for the first part of this plea the defense adopts the position arguing that the exercise of jurisdiction would be contradictory to the regulations of international law concerning national immunities. This plea cannot be sustained, because the Netherlands do not have jurisdiction over natural or legal persons who enjoy immunity from prosecution according to international law. Although it is inevitable for the court in this case to give a judgment on the persons that have been included in the indictment as perpetrators concerning the principle offenses, this is not considered to be an exercise of jurisdiction, because this cannot lead to a conviction or the implementation of coercive measures against these persons. Needless to say the court considers in this respect that the persons that have been mentioned in the indictment as perpetrators regarding the main offenses, at present do no hold any official position and that therefore immunities under international law do not oppose the exercise of jurisdiction on international crimes committed during the performance of their duties in those positions, irrespective of the question whether or not the exercise of jurisdiction would be impossible and/or unwanted for other reasons. Concerning the argument that Iraq would be the most competent country for trial the court believes that, according to current international law, neither the main offenses nor the complicity of the accused in those offenses, come within the exclusive jurisdiction of any judicial authority. 5. Pleas contesting the entitlement of the public prosecution to proceedings. 5.1. Lapse of time or violation of the principle of legitimate expectations or violation of Article 55 paragraph 2 of the Penal Code. During the hearing counsel for the defense pleaded immunity from prosecution by reason of lapse of time, because of the limitation of the actions performed by the accused seen the fact that the action performed by the accused consists of a violation of the Import and Export Act, for which it was decided to forgo further prosecution on 5 October 2003. The court rejects this defense according to the following considerations. It is the choice of the public prosecutor in what way he composes the indictment regarding a complex of indictable offenses and the Economic Offenses Act cannot be considered as a lex specialis regarding the offenses the accused has been charged with. So for that reason it is not contrary to the rules of procedure to present the charges in this way on the indictment. 5.2. Violation of the Sixth Protocol to the European Convention on Human Rights (ECHR) During the hearing counsel pleaded that the Public Prosecution Service should be dismissed from prosecution, whereas the accused, the persons mentioned by name in the indictment and others run a risk to be sentenced and brought to death, or to be killed in an extrajudicial way. According to the defense this is contrary to the Sixth Protocol ECHR. The court also rejects this defense and argues that, apart from the question to what extent this human rights issue is valid under these circumstances, the independent exercise of jurisdiction cannot be considered to be a contribution to an international course of justice that includes allegations of human rights violations. Another conclusion is that this does not discharge the Netherlands from its autonomous international duty to bring international crimes to trial. 5.3. Violation of ECHR Articles 2 and 3 During the hearing counsel argued that ECHR Articles 2 and 3 had been violated, considering the fact that the accused, irrespective of the result of the present criminal proceedings, stills runs great risks outside the European Union which makes him liable to be prosecuted in Iraq, Iran or in any other country. After all - this is the way the court understands the defense of the accused - the evidence submitted by the prosecution and/or the court's conclusion that the charges in this case have been proven, could be used against the accused in the event of prosecution in another country. The court disallows this defense considering that a possible future breach of the "ne bis in idem" principle [Double Jeopardy Clause] by another country does not interfere with the present prosecution of the accused in the Netherlands. Counsel also argued that this risk also exists with respect to persons that do not stand trial in these proceedings. The court also rejects this defense, arguing that this does not affect the accused, but could possibly be a plea of those other persons in those others criminal cases. 5.4. Violation of equality of arms principle (Article 6-3b ECHR) The counsel for the defense of the accused holds the view that in these proceedings the equality of arms principle was allegedly violated, as a result of which they plead the infringement of the right to a fair trial as outlined in ECHR Article 6. In general, with respect to the "equality of arms" principle the court has the following considerations. The equality between prosecution and defense basically has a procedural character and implies that counsel for the defense should not find itself in an unreasonably unequal position as opposed to the prosecuting authorities. Equality of arms is also protected in international administration of criminal justice (ICTY, Tadic, case number IT-94-1-A, sentence of appeal proceedings, 15 July 1999, paragraph 52). Just like the Tadic case, the court recognizes the problems facing the defense in criminal cases of such complexity and international magnitude. However it should be considered that in comparison with Dutch criminal procedures, international criminal procedures are of a totally different nature. Just like the legal practice of common law, international criminal lawsuits focus on the collection of evidence by the suit litigants, largely or exclusively in support of their own point of view. The fact that in Dutch criminal proceedings the litigants really occupy different positions in respect of each other and that this positioning by the prosecution as well as by the judicial authorities should lead to the gathering of evidence, also taking into consideration the interest of the defense, undeniably has its consequences for the contents and the meaning of the "equality of arms" principle. In as far as the defense asserts that the efforts of the prosecuting and judicial authorities have not met their own investigation requirements, the Code of Criminal Procedure allows for sufficient possibilities for additional inquiries (see Article 36a C.C.P.). Moreover the court has demonstrated the willingness, also from a practical point of view, to satisfy reasonable requests made by the defense, like the assignment of more than one lawyer and the allowance of an amount of money to the defense lawyers in order to seek specialist advice. During the court hearing counsel pleaded a violation of the equality of arms principle, because the defense allegedly has not been able to access certain sources or source collections in the same way as the public prosecution service. The defense has not been able to exert an influence on the selection of documents obtained from Human Rights Watch and the United Nations and therefore counsel has not been able to establish whether disculpatory sources were excluded from the case file. The court refuses this plea, arguing that is has not become evident that those documents could be of any interest to the decision to be taken by the court. Finally the defense pleaded a violation of the equality of arms principle, because counsel was allegedly not able to carry out its own investigations abroad, including countries in the Middle East, because the defense counsel assists the accused on an assignment basis and consequently does not have sufficient financial means to order/carry out such an inquiry. Furthermore the defense asserts that it has not been able to carry out its own fact finding nor any investigation into the finding of possible disculpatory witnesses. The court cannot see why the defense should not have been able to carry out independent investigations. After all the defense itself can make trips to that end and can also request the examining magistrate and the public prosecutor to institute a similar inquiry. Moreover the defense had the opportunity to hire its own expert. For lack of funds, the defense could have applied for an advance payment pursuant to the Tariffs in Criminal Proceedings Act. Furthermore the defense was provided with an advance payment to find its own expertise. 5.5. Violation of the right to interview witnesses for the prosecution and for the defense (ECHR) Article 6-3d During the hearing the defense argued that the accused has the right to interview witnesses for the prosecution as well as for the defense. The defense also pleaded that the right to request the examination of witnesses also might have been violated, if the defense was not given the opportunity to further examine the witnesses for the prosecution that actually testified for the defense. In that manner the possibility to gather or to clarify exculpatory evidence, or evidence that supports the point of view of the accused was withheld from the defense and for that reason the right to a "fair trial" has been infringed. The defense is of the opinion that a similar situation produced itself with regard to the witnesses X, Y, [witness 112] and other witnesses (being [witness 113], [witness 114] and the employees of the AIVD [General Intelligence and Security Service of the Netherlands]), while the defense observes that during the hearing the court has explicitly and extensively confronted the accused with the statements of the last-named witnesses. The court rejects this defense regarding witnesses X and Y, because their testimonies form a written part of the criminal file. Furthermore efforts to interview these witnesses more closely or cause such interviews to be carried out were not successful. Concerning witness [witness 112] the court dismisses this plea because this statement has not been used as evidence by the court. Likewise the court rejects this argument regarding witness [witness 113], because this person was interviewed as a witness during the court hearing. With respect to the other witnesses this plea is also refused, because the examination of these witnesses was not possible or not relevant. The fact that their statements were read during the hearing is related to the obligation of the court to briefly inform the parties about the contents of the case file. 5.6. Violation of innocence presumption (ECHR Article 6 - paragraph 2) During the hearing the defense argued that by making the multimedia presentation used for the closing speech available to the press, the public prosecution service has purposefully and contrary to the principle of innocence presumption, publicly portrayed the accused as perpetrator instead of suspect. The court rejects this argument for the following reasons. It is not possible to understand why the performance of the public prosecutor should lead to a disallowance of the prosecution. After all the aforesaid presentation forms part of the closing speech delivered in open court, whereby the public prosecutor has the liberty to argue, based on a completed investigation, why he considers the charges against the accused to be proven. Moreover the defense received the same facilities concerning the counsel's plea. The fact that, in spite of the prohibition and previous agreements, the backside of the head of the accused was shown on television after all is to be regretted, but subsequently the court fitted the court room with the necessary facilities to avoid the possibility of repetition. 5.7. Violation of the equality principle During the hearing the defense argued that the public prosecution service had infringed the equality principle with respect to a number of specific witnesses, as well as the ban on arbitrariness, and reasonable and fair weighing up of interests, by deciding to prosecute the accused and not to prosecute [witness 92] and [witness 36] and by releasing [witness 35] from custody after his apprehension and examination, while knowing that he would immediately leave the country and would therefore not be available for prosecution in person. The court puts forward that this plea lacks factual basis, as the public prosecutor stated during the session of 21 November 2005 that the witness [witness 35] is still a suspect. For that reason it has not become likely that [witness 35] will not be prosecuted. So at this moment there is no question of an infringement of the equality principle. In so far as it is a matter of violation of the equality principle, the court is of the opinion that this should not lead to a disallowance of the prosecution or to a remission of the sentence. For that matter, the basis of the argument of the defense is founded upon the international duty to prosecute international crimes. The court accepts that the effect of the principle of discretionary powers is limited by this duty, but wants to stress that this obligation also includes limitations as to contents and essence of the principles of a fair trial, in case the application of these principles would actually result in the failure to comply with the international obligation to bring international crimes to trial. Moreover the court observes that for reasons of place of residence and nationality, [witness 92] and [witness 36] it is not possible to initiate criminal proceedings against them, while during the hearing, at the explicit request of the defense, they could only be questioned after they had been given a safe-conduct, issued by the public prosecutor. The defense also pleaded during the hearing that the difference in treatment between the accused and [company 1] and [company 2], and those foreign companies that still supplied substances in 1987 being precursors for the production of mustard or nerve gases, should also lead to a disallowance of the prosecution on account of violation of the equality principle and infringement of the ban on arbitrariness. The court refuses this plea, because the two cases mentioned by counsel can not be considered as similar to the offenses that the accused has been charged with in the present trial. With regard to the foreign companies, the Netherlands do not have jurisdiction to institute legal action against these companies. 5.8. Violation of the "nemo tenetur" principle During the hearing the counsel for the defense also pleaded that the government acted contrary to the "nemo tenetur" principle, which is protected by the right to a fair trial pursuant to ECHR Article 6, considering that the contacts, information and advice of the AIVD were false and misleading and caused the accused to expose himself to this prosecution. The court rejects this plea, taking into consideration the fact that the public prosecutor did not make any statement on the liability to prosecution. Since the statements made by the accused during the interview that was broadcasted on 6 November 2003 were not included in the judgment of the evidence, there is no need to discuss this plea of infringement of the "nemo tenetur" principle. It has not become plausible that the public prosecutor intentionally committed a gross violation of the principles of due process. 5.9. Prosecution contrary to a proper administration of justice The defense argued during the hearing that, although the prosecution service knew that the criminal offenses that the accused and the persons that have been pointed out by the prosecution as principal perpetrators of the main offenses are being associated with, represent the subject of a criminal investigation in different countries, the public prosecutor has omitted to get in touch with those countries in order to concentrate the criminal proceedings. Because of such an omission, the prosecution has acted contrary to the principle of proper administration of justice. The court rejects this argument for the following reasons. In so far as a proper administration of justice should imply that main perpetrators and other participants in the offenses charged on the indictment should be brought to trial by the same court, the assertion that proceedings would be contrary to a proper administration of justice should be dismissed, because nowhere else in the world the present charges are brought to trial as international crimes. 6. Applicable law. 6.1. In the present criminal proceedings the court is confronted with the question of the mutual relationship between the applicable provisions of international and national law. Concerning the relationship between international criminal law and our own general criminal law, the legal history of the WIM (International Crimes Act) contains a number of relevant considerations: "For further substantiation of the components of criminal offenses (objective and subjective), and for a demarcation of the limits of liability under criminal law, the Dutch judge needs to explore international law, as it was laid down in the Statute of the International Criminal Court and the directives on "Elements of Crime" drawn up according to Article 9 of the Statute of the ICC, that serve as guidelines for the interpretation of criminal offenses." (Explanatory Memorandum, Parliamentary Documents II, 2001-2002, 28 337, nr. 3, page 5) "Apart from some exceptions, the general rules of national criminal law are also applicable to legal action regarding international crimes (also see Article 91 Penal Code). Special reference is made to the rules concerning the principle of legality, attempt and preparation, participation, concurrence, ne bis in idem, limitation of action, etc. The Statute of the ICC also contains rules on these subjects, mainly in part 3 <<General principles of criminal law>>. Generally these rules of the Statute have a similar meaning and are intended to protect the same interests and rights as its counterparts in our Penal Code. However some parts have been phrased differently and contain slightly different criteria and limits." (Explanatory Memorandum, Parliamentary Documents II, 2001-2002, 28 337, nr. 3, page 25) "As indicated before (…) in order to determine the extent of the description of criminal offenses - and likewise the substantiation of the subjective components -, the Dutch judge needs to explore international law and international case law." (Explanatory Memorandum, Parliamentary Documents II, 2001-2002, 28 337, nr. 3, page 27) "The point of departure that the general rules of national criminal law are applicable, except when national criminal law does not provide for certain rules, or in case of rules that clearly deviate from those that apply under the Statute of the ICC." (Explanatory Memorandum, Parliamentary Documents II, 2001-2002, 28 337, nr. 3, page 29) 6.2. From these considerations the court draws the conclusion that, if international rules on liability under criminal law concerning international crimes essentially deviate from national criminal law, the first mentioned rules should prevail. In addition to the rules provided for in legislation on this issue, the court does not restrict itself to the rules in the Statute of the ICC. Since certain choices in the Statute of the ICC do not represent a faithful codification of current international law, but exclusively and/or mainly regard the jurisdiction of the Criminal Court. Therefore, establishing liability under international criminal law requires an extensive inquiry, also including the case law of various international criminal courts. 6.3. A proper application of important rules of international criminal law by the national criminal court judge serves two purposes. In the first place he has to meet with the requirements and expectations of international criminal law regarding the penalization and prosecution of international crimes, which entails that liability under Dutch law should not fall short as opposed to liability under international law. Apart from that however, the Dutch judge must also respect the limits of liability according to international law. The court considers both elements to be of importance. With respect to the second element the public prosecution service holds the view that conventional-law obligations to penalization represent minimum obligations and therefore the Netherlands are always allowed to go beyond those limits and exceed the bounds of international liability. In the opinion of the court the prosecution service does not acknowledge the place of these conventions and crimes within an international system of standards of criminal law. By assuming a larger liability under national law than customary under international law, in some cases based on national law a crime could be considered as an offense pertaining to international law, whereas the international community does not consider it as such. In this respect an important argument for the court concerning international crimes to give preference to the bounds of international liability instead of national liability, refers to universal jurisdiction connected with international crimes. Exceeding the liability limits of international criminal law, when a case is brought to trial under national law, could cancel the international basis for universal jurisdiction, while the latter can only be applied to practices that are indictable as criminal offenses under international law. In relation to this subject the prosecution argued that in the present proceedings there is no question of excessive jurisdiction from an international law point of view, seen that the accused is prosecuted based on the active nationality principle. The necessary consequence resulting from these considerations that, within the framework of starting proceedings against international crimes committed abroad, different standards of liability can be applied to Dutch nationals and foreign nationals, is considered by the court to be unacceptable, in any event when it concerns the crime of committing genocide. 6.4 Because the actions of the accused will explicitly and exclusively be prosecuted as international crimes, the court will focus on the international boundaries of liability. An important question in this respect is to what extent it is possible to clearly establish these boundaries based on international law and if these should be considered to be indicative. The court wondered if this would result in a discrepancy between international and national law concerning the requirement of intention of the accomplice and the required contribution to the main offense by the accomplice. As for the components of the descriptions of the criminal offenses a similar discrepancy is less obvious, because in this respect general criminal law hardly knows any independent rules. 6.5. Concerning the requirement of intention for complicity, the court makes a distinction between genocide and war crimes. 6.5.1 Genocide distinguishes itself from other international crimes because of its specific intent, based on certain arguments, to partially or entirely exterminate a population group. The question to what extent the accomplice should have this intent is a substantial issue that has regularly been discussed in the case law of the international criminal tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR). It is important to notice that early case law attached significant value to dolus specialis [specific intent] with regard to the perpetrator as well as the participants, because of the special seriousness and specific place of the genocide offense. However the most recent and authoritative case law of the appeal chamber of the ICTY and ICTR shows that a similar approach was dismissed, so now a conviction of the accomplice in/to genocide is possible if the accused knew of the genocidal intention of the perpetrator (ICTY, Krstic, case nr. IT-98-33-A, sentence on appeal, 19 April 2004, paragraph 144; ICTR, E. and G. Ntakirutimana, cases nr. ICTR-96-10-A and ICTR-96-17-A, sentence on appeal, 13 December 2004, paragraphs 500 and 501). Contrary to the prosecution, the court holds that the case law was sufficiently crystallized out regarding this subject, seen that this matter was regularly discussed and the appeal chamber of the ICTY and the ICTR repeatedly explained and confirmed the state of the law. The court also wishes to stress that the requirement of actual knowledge is justified when it is regarded as the boundary for the liability of the accomplice in relation to the special intent of the perpetrator; apart from that the first case law of the tribunals rather points out in the direction of a requirement of a more far-reaching intention than in the direction of forms of conditional intention. Finally the limitation of the liability of the accomplice in/to genocide, as indicated by the international criminal tribunals, is founded on the confirmation of genocide as being a unique crime ('crime of crimes'), as distinct from other international crimes like crimes against humanity and war crimes. The extension of the boundaries of liability under criminal law obviously impairs this unique character. The court considers that the requirement of knowledge of the accomplice in relation to the main offense genocide is an essential component of liability under international criminal law on this subject and that Dutch law, which seems to result in a larger liability, can not be applied in this respect. 6.5.2 This is different with respect to complicity in war crimes, which do not require a special intent of the perpetrator. The required intention of the accomplice in international administration of criminal justice is not essentially different form Dutch law on this subject. In as far as any differences can be pointed out, in the opinion of the court, these lie within the "acceptable margin", as put into words by the legislator in the Explanatory Memorandum to the International Crimes Act (WIM): "It would not be practical and cause unnecessary uncertainty, if the Dutch judge were to apply participation clauses and grounds for exemption from criminal liability in legal proceedings against international crimes, that are somewhat different from the provisions he is used to work with. (Explanatory Memorandum, Parliamentary Documents II, 2001-2002, 28 337, nr. 3, page 29) 6.6. Regarding the question of how large the participation of the accomplice should be in relation to the main offense, the court finds no real difference between international and national law. Although international administration of criminal justice seems to assume a more far-reaching contribution (a substantial contribution to the committed crime; see ICTY, Blaškic, case nr. IT-95-14-A, sentence on appeal, 29 July 2004, paragraph 48; ICTY, Vašiljevic, case nr. IT-98-32-A, sentence on appeal, 25 February 2004, paragraphs 134 and 135) than the Dutch administration of justice (to facilitate the accomplishment of the main offense by the perpetrator), but the court judges that this subject is of a more factual nature, and presently does not form a substantial element of liability under international criminal law, so it is not a matter of a clear deviation from international rules and therefore the court will proceed on the application of Dutch law. 7. Considerations regarding the main charge of genocide under count 1, principally 7.1. The conclusion that it was indeed genocide is not only important for finding an answer to the question whether the principal charge under count 1 has been proven. This conclusion is also important in case of acquittal of the principal charge under count 1, because if it was indeed genocide, consequently the alternative charge under count 1 has also been established, being the circumstance that those main offenses were committed "while that offense/ those offenses (again and again) was/were (
  10. an)expression(
  11. s)of a policy of systematic terror or wrongful performance against a specific population group." 7.2. Based on the Genocide Convention Implementation Act and the applicable international law, the court assumes that the following issues need to be proven cumulatively with respect to the main offense, before addressing the issue of the complicity of the accused. 1. The persons referred to as perpetrators in the charges intentionally committed one or more of the acts as defined in Article 1 subsection 1 through 4 and 5 Implementation Act of Genocide Convention, and 2. those acts were committed intentionally against an ethnic or national group, and/or a part thereof by the persons referred to as perpetrators in the charges, and 3. those acts were committed with the intent to destroy that group as such, entirely or partially, by the persons referred to as perpetrators in the charges. Sub. 1 The court establishes that the conduct of the persons referred to as perpetrators in the charges constitute acts as defined in Article 1 sub 1 and 2 of the Genocide Convention Implementation Act, being the killing of members of the group and inflicting grievous bodily harm to members of the group. Sub. 2 It can only be a matter of genocide when the overt acts and the intention to entirely or partially destroy are targeted at a specific and protected group. The question remains to what extent the Kurdish population group (in rural areas and in Halabja) in Northern Iraq, referred to in the charges, can be considered as an ethnic and/or national group as defined in the Genocide Convention Implementation Act and the Genocide Convention itself. In the opinion of the court it has not been legally and convincingly proven that the Kurdish population group in Northern Iraq is a national group as defined in the Implementation Act and the Convention. Regarding the qualification ethnic group as defined in the Genocide Convention the court considers the following alternative requirements: - the members of the group share a common language and culture, or - the members of the group consider their own group as an ethnic group, or - others, amongst them the perpetrator(
  12. s)who committed genocide, consider the group to be an ethnic group. (ICTR, Kayishema and Ruzindana, case nr. ICTR-95-1-T, sentence of the court of first instance, 21 May 1999, paragraph 98) The court finds that it has been legally and convincingly proven that the Kurdish population group meets the above mentioned requirements for ethnicity as defined in the Genocide Convention. In order to come to this judgment, the court used the following evidence. a. a written document, being an Iraqi government document, included in a writing, Report on the situation of human rights in Iraq, submitted by Mr. Max van der Stoel, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 1993/74 (UN Doc. E/CN.4/1994/58, H 74 - page 83): In the name of God, the Merciful, the Compassionate Directorate of Security, Dohuk Governorate/Political Department Ref: 2241 Date: 10 February 1987 To: Directorate of Public Security / 45 Section M Subject: Information With reference to your letter No. 11881 dated 15 January 1987, having conducted a meticulous secret investigation concerning the person mentioned in your above letter, we have found out the following: 1. Full name: [……………] 2. Previous address: [……………] 3. Present address: [……………], out of bounds for security reasons. 4. Place and date of birth: 1978 5. Profession: Child 6. Academic achievements: Illiterate 7. Political orientation: Independent 8. Ethnicity: Kurdish 9. Religion: Muslim 10. Name of mother: [……………] 11. Elements with whom she meets: Fugitives and subversives 12. Further information: 1. On 13 March 1982, together with her father [……….] she fled and joined the ranks of the subversives, the clique of "scions of treachery". 2. In accordance with Public Security letter No. M 64 Q 2/64735 dated 12 December 1982, it has been decided to confiscate her movable and immovable property. 3. In our opinion, a warrant should be issued for her arrest. For your information. With regards. (signed) Director of Security, Dohuk Governorate 9 February b. the testimony given during the court session of 30 November 2005 by the witness [witness 95] that - among other things - includes the following: The purpose of the Kurds was to obtain the recognition of their ethnic national rights, the recognition of the language and culture. The Kurds wanted to participate in the decision-making process as first-rate citizens. The Kurds distinguished themselves as an ethnic group from the other Iraqi population by their different moral values, the landscape is different, the clothes are different, the eating habits are different. You are a Kurd when you see yourself as such. In my opinion a Kurd is someone born from Kurdish parents, who considers the Kurdish language, the requirements of the Kurdish people, the Kurdish territory and the Kurdish moral values as his own. (…) You put it to me that in my statement of 23 August 2005 I speak of identity cards that the Kurds received from the Iraqi authorities and you ask me what criteria were used for recording these data. My answer is that if someone has Kurdish parents and this person considers himself to be a Kurd. c. a document being a certified Dutch translation of a transcription in the English language concerning a witness examination before [………] examining magistrate in charge of criminal proceedings at the court in The Hague, heard in the offices of the United States public prosecutor in Baltimore, Maryland. This document contains, among other matters - rendered in a compact way - the statement made by [witness 115] on 30 October 2005 before the aforementioned examining magistrate (RC-file - page 1797): My ethnic background is Kurdish. See furthermore in a similar sense the following evidence: c.1 the witness examination of [witness 116] (7.3. under k.). c.2 a document, being a witness examination of [witness 117] dated 29 November 2002, containing, rendered in a compact way (H90a - page 113): I am an Iraqi citizen and belong to the Kurdish population. c.3 a document, being a witness examination of [witness 118] dated 20 November 2002, containing, rendered in a compact way (H90a - page 134): I am an Iraqi and belong to the Kurdish population group. c.4 the witness examination of [witness 102] (12.66). c.5 an official report of a witness examination on 21 September 2005, drawn up and signed by [………], examining magistrate in charge of criminal proceedings in this court, and [………], clerk of the court. This official report includes, among other matters, - rendered in a compact way - the afore mentioned statement of [witness 14] made on 21 September 2005 (G14.I - page 893 through 899): I am a Kurd. In 1976 I joined the Iraqi army. c.6 a witness examination of [witness 5] (see hereafter under e.) c.7 an official report of the witness examinations of [witness 16], [witness 8], [witness 10] and [witness 9] in the proceedings against [accused] on 14 June 2005, 15 June 2005 and 16 June 2005, drawn up and signed by [………], examining magistrate in charge of criminal proceedings in this court, and [………], clerk of the court. This official report includes, among other matters, - rendered in a compact way - the afore mentioned statement made to the examining magistrate on 15 June 2005 by [witness 10] (G10.I - pages 786 through 789): I am a Kurd who worked in the Iraqi army at the department of supplies and transport. c.8 an official report of the witness examinations of [witness 16], [witness 8], [witness 10] and [witness 9] in the proceedings against [accused] on 14 June 2005, 15 June 2005 and 16 June 2005, drawn up and signed by [………], examining magistrate in charge of criminal proceedings in this court, and [………], clerk of the court. This official report includes, among other matters, - rendered in a compact way - the afore mentioned statement made to the examining magistrate on 14 and 16 June 2005 by [witness 9] (G9.I - pages 776 through 781): I am a Kurd who was employed by the Iraqi army as commander of the medical department. Sub. 3 The distinctive element of genocide regards the special intent to entirely or partially exterminate a protected group as such. Without direct evidence, for instance in the shape of a confession, this special intent of the perpetrator(
  13. s)can be deduced from a number of circumstances. Based on international administration of criminal justice, the following factors play a significant role in the process of establishing that genocidal intent: - the general framework in which the acts were committed; - the circumstance that the protected group systematically became the victim of other wrongful acts; - the scale on which the criminal offenses were committed; - systematically striking victims because of their membership of a special group; - the repetition of destructive and discriminating acts; - the number of victims; - the way in which the criminal offenses were committed; - the territory where the perpetrator was operating; - the obvious intent of the perpetrator to take the life of his victims; - the seriousness of the committed genocidal acts; - the frequency of the genocidal acts in a certain region; - the general political framework in which the crimes were committed; - comments made by the perpetrator with respect to the position and/or the fate of the protected group. (ICTY, Jelisic, case nr. IT-95-10-A, sentence on appeal, 5 July 2001, paragraph 47; ICTY, Jelisic, case nr. IT-95-10-T, sentence of the court of first instance, 14 December 1999, paragraphs 73-77; Karadžic and Mladic, cases nr. IT-95-5-R61 and IT-95-18-R61, decision as defined in Rule 61, 11 July 1996, paragraphs 92, 94 and 95; ICTY, Krstic, case nr. IT-98-33-A, sentence on appeal, 19 April 2004, paragraphs 12-14 and 21; Miloševic, case nr. IT-02-52-T, decision as defined in Rule 98bis, 16 June 2004, paragraphs 246-248; ICTR, Kayishema and Ruzindana, case nr. ICTR-95-1-T, sentence of the court of first instance, 21 May 1999, paragraph 93); ICTR, case nr. ICTR-98-44A-T, sentence of the court of first instance, 1 December 2003, paragraph 806; ICTY, Nikolic, case nr. IT-94-R61, decision on account of Rule 61, 20 October 1995, paragraph 34, ICTR, Akayesu, case nr. ICTR-96-4-T, sentence of the court of first instance, 2 September 1998, paragraph 523; ICTR, Simba, case nr. ICTR-01-76-T, sentence of the court of first instance, 13 December 20005, paragraph 413) For the judicial finding of genocidal intention, the court makes a difference between systematic oppression and discrimination of the Kurdish population, and the continuously intensifying campaign of violence of the Iraqi government against the Kurds in the north of Iraq which, at any time, could be viewed as proof of genocidal intention. For the general image of oppression and discrimination of the Kurdish population in Iraq, which, in general, plays a role in determining genocidal intention in a later stage, the court takes the following evidence into account: a. a document, being the Report on the situation of human rights in Iraq of 19 February 1993, submitted by Mr. Max van der Stoel, Special Rapporteur of the Commission on Human Rights, in accordance with Commission Resolution 1992/71 (UN Doc. E/CN.4/1993/45, H75 - pages 25 through 27): A history of oppression 85. According to numerous reports, the Kurdish minority has endured severe oppression at the hands of several national administrations since at least the beginning of this century. Under the present Government of Iraq, i.e. the administration of the Arab Baath Socialist Party which came to power in 1968, the oppression has continued and even escalated, despite the introduction of commendable legislation which portended autonomy for the Kurds. In particular, the period of the Presidency of Saddam Hussein (July 1979 to the present) has seen particularly severe oppression which culminated in Government aggressions which the Special Rapporteur has previously described as “genocidal” in nature (E/CN.4/1992/31, paras. 97 - 103). 86. In the 1970’s, the Arabization of the disputed Kirkuk region and the creation of a no-mans-land along the border with Iran and Turkey resulted in the forced relocation of tens of thousands of Kurds in so-called “collective villages”; these villages were often located in barren areas easily accessible to the Iraqi Army. It was reported that only some Kurds received minimal compensation for the loss of their homes and farmland and were forbidden to return to their villages, of which many had been destroyed. Among the displaced Kurds were members of the Barzani clan, who were allegedly internally displaced to desert camps in southern Iraq without compensation for their destroyed property. A few years later, 1980, these Barzanis were reportedly relocated once again from the south to the Qustapha and Diyana camps near Arbil in the north. Their relocation is alleged to have been carried out by the Iraqi authorities in retaliation for the alliance of the Kurdish peshmerga of Massoud Barzani with the Iranian forces at the beginning of the Iran - Iraq war in September 1980. Following the Iranian occupation of Hajj Omran in July 1983 in northern Iraq, 8,000 Kurdish Barzani tribesmen (including more than 300 children) were reportedly taken from the Qustapha and Diyana camps and disappeared in Iraq custody (A/46/647, paras. 16 and 55, together with the Special Rapporteur’s later comments at paras 66 - 67). In this connection, the Special Rapporteur notes the curious reference to the “Barzani Group” in Document 3 of Annex I, which seems to imply that the Government of Iraq was still in custody of such persons. However, none seem to appear among the 523 names on the 37 Execution Decrees that form part of the aforementioned document as attachments. 87. Apparently to prevent the peshmerga from hiding themselves in the mountains and villages of Iraqi Kurdistan, an increasing number of Kurdish villages were destroyed in the mid-1980’s. Again many Kurds were forcibly relocated to “amalgamized villages” and government complexes. The number of relocated Kurds in this second wave of village destruction has been estimated as 500,000. This process of evacuation and detention of “subversives” and their “relatives” appears to be confirmed by the text of Document 6 of Annex I which refers to instructions, which presumably applied throughout the region, issued by the Director-General. The Special Rapporteur is in possession of other similar documents. 88. In early 1987, when the Kurdish peshmerga were reported to be in control of a great part of northern Iraq, the forces of the Kurdish leaders Massoud Barzani and Jalal Talabani apparently joined together in order to fight the Iraqi Army. According to several informed observers of the situation, this might have been the moment when the Government of Iraq made the determination that effectively all Kurds were potential enemies of the State. This supposition is strengthened by the reference in the first sentence of the attachment in Document 8 of Annex I, dated 7 June 1987, which describes instructions “aimed at ending the long line of traitors from the Barzani and Talabani clans and the Communist Party, who have joined ranks with the Iranian invader enemy”. At this point, all Kurds were put at risk by what appears to have been a non-judicially controlled policy aimed against the nebulously defined “subversives”, “saboteurs”, “Iran’s agents”, “traitors”, “Barzani group”, “Talabani group”, together with “deserters” and “evaders”. So, apparently, came into existence what the Government of Iraq labelled, and what is infamously known to the local population as, the “Anfal operations”. b. a document being a certified Dutch translation of a transcription in the English language concerning a witness examination before [………] examining magistrate in charge of criminal proceedings at the court in The Hague, heard in the offices of the United States public prosecutor in Baltimore, Maryland. This document contains, among other matters - rendered in a compact way - the statement made by [witness 119] on 28 October 2005 before the aforementioned examining magistrate (RC-file - page 1487): I would say that the regime engaged in severe profiling of the Kurdish population in northern Iraq. By that I mean that if you are a Kurd in Iraq, you were suspect, you are proven that you are … that the suspicion is not needed to be there. c. a document being a certified Dutch translation of a transcription in the English language concerning a witness examination before [………] examining magistrate in charge of criminal proceedings at the court in The Hague, heard in the offices of the United States public prosecutor in Baltimore, Maryland. This document contains, among other matters - rendered in a compact way - the statement made by [witness 41] on 29 October 2005 before the aforementioned examining magistrate (RC-file - page 1637): I graduated in 1977. You tell me that in my statement before the police I said that this was a difficult period. The Kurds were always persecuted by the regime of Saddam Hussein and I was a student working and studying in Baghdad. In 1974 the war between the Kurds and the Iraqi Government broke out. The ones who came to college after I did had to be Baathists if they wanted to be admitted to that college. That is why it was difficult to live as a non-Baathist and as a Kurd among Baathists. I was allowed to continue my studies. I had to be very careful and keep a low profile. d. an official report of a witness examination by the National Police Agency, National Criminal Investigation Department, official report number 200518040808, dated 18 April 2005, legally drawn up by authorized investigating officers. This official report includes, among other matters, - rendered in a compact way - the statement that was made by [witness 41] (G41 - page 535): You ask me about the situation in Iraq in relation to the Kurds. The Kurds were treated as second-rate citizens by Saddam Hussein. We were discriminated against in many ways. (…) Kurds were executed without reason. e. the official report of the witness examination on 26 September 2005 that was drawn up and signed by [………], examining magistrate in charge of criminal proceedings in this court, and [………], clerk of the court. This official report includes, among other matters, - rendered in a compact way - the aforementioned statement of [witness 5] (G5.I - pages 887 through 890 and RC-file - pages 218 through 221) that was made on 26 September 2005: In the army, Kurds had fewer chances to become promoted. With the passage of time one automatically became a major. Kurds who got to the rank of colonel were sent into retirement or they were banned from sensitive positions. Also the chances of a promotion within the Baath party were slimmer. f. the official report of the witness examination on 14, 15 and 16 June 2005 that was drawn up and signed by [………], examining magistrate in charge of criminal proceedings in this court, and [………], clerk of the court. This official report includes, among other matters, - rendered in a compact way - the afore mentioned statement of [witness 9] (G9.I - pages 776 through 785 and RC-file - page 128) that was made on 14, 15 and 16 June 2005: Being a Kurd I was discriminated against in the Iraqi Army compared to non-Kurds. I had finished my studies with distinction, but was not allowed to continue my studies abroad. Non-Kurds who had lesser study results were allowed to do so. 7.3. With respect to the intensifying and ongoing campaign of violence and oppression, including the Arabization of the living area of the Kurds, large scale disappearances, arbitrary executions, the attacks on the Kurdish villages and their destruction, and the use of chemical weapons, which campaign culminated in the Anfal operation, the court takes the following evidence into account: a. a document, being the Report on the situation of human rights in Iraq of 25 February 1994, submitted by Mr. Max van der Stoel, Special Rapporteur of the Commission on Human Rights, in accordance with Commission Resolution 1993/74 (UN Doc. E/CN.4/1994/58, H74 - pages 36 through 43): The Anfal campaign 109. In the context of the present situation of the Kurdish population of Iraq, the Special Rapporteur believes that the events of the Anfal campaign require further consideration because: (
  14. a)hundreds of thousands of persons remain personally affected by the continuing violations of disappearance, destruction of property, etc.; (
  15. b)there appear significant similarities between events of the Anfal campaign against the Kurds and reports of present events in the southern marsh area of the country; and (
  16. c)the same Government remains in power directing policies having current effects and giving rise to considerable concern for policies which may affect the Kurdish population in the future. In addition, the unprecedented volume and wealth of evidentiary material at the disposal of the Special Rapporteur, comprising some 18 metric tons of official Iraqi documents, testimonies, analytical reports, forensic and other scientific reports, etc., equally call out for study in the interest of establishing the facts and responsibilities of human rights violations allegedly committed against the Kurdish population. Moreover, since the events of the Anfal campaign left virtually no Iraqi Kurd untouched, the Special Rapporteur takes note of the argument made to him by Kurdish leaders that genuine national reconciliation will be difficult as long as the issues and effects of the Anfal campaign remain unresolved. 110. The allegations of genocidal practices constituted by the Anfal campaign were described by the Special Rapporteur in his previous reports to the Commission on Human Rights (E/CN.4/1992/31, paras. 97 - 103 and E/CN.4/1993/45, paras. 89-99). The continuing study of evidentiary materials now affords a closer examination of the campaign: in particular, the Special Rapporteur takes note of the work done by the international non-governmental organization Middle East Watch in having now examined approximately 40 percent of the over 4 million official Iraqi documents taken from Government offices (principally security offices) by Kurdish groups in northern Iraq subsequent to the March 1991 uprisings. The Special Rapporteur has described these materials in detail in his last report to the Commission (E/CN.4/1993/45, paras. 89-90). 111. While conflicts between the Kurdish population, or parts thereof, and the central authorities of Iraq have long historical antecedents, the Anfal campaign should be viewed in the specific context of events between 1985 and the present as elaborated below. However, while the general policy against the Kurdish groups appears to date from 1985, the specific operations forming the Anfal campaign may be more clearly delimited as having occurred between 23 February 1988 and 6 September 1988. According to the official Iraqi documents reviewed by the Special Rapporteur, and in agreement with the analysis conducted by Middle East Watch, the Special Rapporteur observes that the Anfal campaign appears to have been composed of eight distinct operations: Tables 1 of 3 of Annex II summarize, respectively, the essential features of each operation, the known uses of chemical weapons, and the main effects of the operations on the civilian population. The map appended to Annex II also exhibits the geographic location of the various operations. Read together with the Tables and map, the eight Anfal operations are described in the following paragraphs according to information obtained in the documents and corroborated by testimony and scientific studies of physical evidence. 112. The first operation of the Anfal campaign appears to have begun on 23 February 1988 with a series of chemical and conventional attacks by both air and ground forces against the Patriotic Union of Kurdistan (PUK) peshmerga strongholds in the Jafati valley in the Governorate of Suleimaniyeh. Particularly fierce attacks were directed against the villages of Sergalu, Bergalu and Yakhsamar where the main headquarters of the PUK were located. The largest chemical attack was launched on 16 March 1988 against the Kurdish town of Halabja killing between 3,200 and 5,000 of its residents. After almost eight years of war with Iran, these mass killings constituted part of the Government’s clearly established practice of indiscriminate attacks against civilian targets. During the first Anfal operation, it appears that very few civilians were captured or deported by Government forces; most were able to flee to Iran. Based on an assessment of the operations and the declarations made throughout the documents relating to this period, the main objective of the First Anfal was apparently to eliminate the PUK strongholds and to destroy the civilian settlements in the Jafati valley. This aim was achieved on 19 March 1988 with the defeat of the last peshmerga base in the village of Bergalu; most of the remaining PUK peshmerga units fled across the border to Iran. 113. The second stage of the Anfal campaign appears to have begun on 22 March 1988 when Government forces launched chemical attacks against the village of Sayw Senan in the Qara Dagh subdistrict of the Governorate of Suleimaniyeh. Estimates of the number of civilians killed in this attack vary between 70 and 90. This offensive was followed over the next days by similar chemical attacks on the nearby villages of Dukan, Balakajar, Masoyi and Ja’faran. Following the characteristic pattern of the Anfal operations, several hundred young men from the villages in Qara Dagh reportedly disappeared after their arrest and detention in the Suleimaniyeh emergency force base. The chemical attacks also resulted in a mass flight of civilians: the majority headed north and found temporary safety in the housing complexes near Suleimaniyeh, while those who went south and crossed into southern Germian, heading towards Kalar, were captured by advancing Government troops. A large number of these families subsequently disappeared, while others were taken to the camp of Dibs or transported to the prison of Nugrat Salman. From the perspective of military operations, the Second Anfal was accomplished very easily since a large part of the peshmerga units had fled to Iran after their defeat in Sergalu-Bergalu. The Second Anfal operation seems to have come to an end around 1 April 1988. 114. The Third Anfal was concentrated on the Germian plain. On 7 April 1988, the Government forces launched a massive offensive involving assaults of infantry supported by artillery, armored units and the air force. The troops appear to have advanced in a pincer-like movement converging from several different points around the Germian plain. Since only a few peshmerga units appear to have been present in this region, the Government forces record that they met virtually no resistance. In this phase of the campaign, Government forces seem to have employed mainly conventional means: chemical weapons appear to have been used only on a few targets, such as the small village of Tazashar where the peshmerga managed to put up some resistance. Fleeing villagers are recorded as having been channeled to specific collection points and were subsequently sent to prison camps in Dibs, Nugrat Salman and Topzawa. Consistent with all phases of the Anfal campaign, the captured adult men disappeared en masse. However, reports indicate that a large number of women and children also disappeared in the course of the Third Anfal, especially in certain specific areas such as the southern parts of the Daoudi and Jaff-Roghzayi regions: some estimates put the number of disappeared at around 10,000 in this limited area alone. According to several corroborating eye-witness testimonies reported by Middle East Watch, thousands of men, women, children and elderly were transported en masse from the above noted camps to execution sites located at Hadar, Ramadi and Samawah in, respectively, northern, central and southern Iraq. By 20 April 1988, the last pockets of peshmerga resistance together with all civilian settlements are recorded as having been wiped out in the region of the Third Anfal. 115. The fourth stage of the Anfal campaign appears to have begun on 3 May 1988 with a heavy chemical attack by the Iraqi air force on the villages of Askar and Goktapa in the valley of the Lesser Zab river. According to eye-witness accounts reported by Middle East Watch, hundreds of civilians were killed as a result of this offensive while many of the survivors were captured by the advancing Government forces; some fifty families from the village of Askar were reportedly arrested and sent to the complex of Suseh. As during the previous stage of the campaign, Government forces attacked the villages in the area of the Fourth Anfal from several different directions. Upon military occupation of the villages, the buildings were demolished and the villagers were said to have been rounded up and trucked away to camps such as those at Topzawa, Dibs and Nugrat Salman. The adult men, along with a large number of women, children and elderly, disappeared in this process. Specifically, as many as 1,600 people are reported to have disappeared from the villages of Bogird, Kanibi, Kleisa, Qizlou, Gomashin and Kani Hanjir alone. Many of them are believed to have been subsequently killed in mass executions. By 8 May 1988, all villages in the area had been razed to the ground and their residents captured, detained or disappeared. 116. The fifth, sixth and seventh stages of the Anfal campaign appear to have lasted from 15 May to 28 August 1988 and concentrated on the villages situated in the valleys of Shaqlawa and Rawanduz, north of Dukan Lake. In this area, the remaining peshmerga units had gathered in an attempt to offer resistance to the advancing Government forces. On 15 May 1988, the Iraqi air force attacked the village of Wara with chemical weapons, killing many civilians. More chemical attacks followed on 23 May 1988 when the villages of the Balisan, Seran, Hiran and Smaquli valleys were bombed. Since many of the villages had already been abandoned as a result of actions taken against them in 1987, the casualties of May 1988 were said to be relatively few. However, the remaining families were treated according to the established pattern: the men were captured and disappeared, the women and children were trucked away to collection centers with some disappearing. Heavy fighting continued for several months before Government forces finally managed to defeat the PUK; the remaining peshmerga fled across the border to Iran. 117. The Eighth Anfal operation, which is also referred to in official Iraqi documents as the “Final Anfal”, appears to have been carried out between 25 August and 6 September 1988 in the Badinan region in northern Iraq., i.e. after the end of the Iran-Iraq War and far from the war-zone, but the stronghold of the Kurdistan Democratic Party’s peshmerga forces. On 25 August 1988, chemical attacks were launched against Birjinni, Tuka and several other villages. Following these heavy bombardments, the villagers fled from their homes to the surrounding mountains where hundreds of them reportedly died from the cold weather, hunger or the after-effects of the chemical attacks. Many of the fleeing villagers were later captured by Government troops and sent to collection centers. All the men who were arrested are reported to have disappeared; hundreds of them are believed to have been killed in mass executions. The women, children and elderly were later released and abandoned in the plains north of Arbil. The Final Anfal operation resulted in the defeat of the KDP peshmerga. 118. The Anfal campaign appears to have ended on 6 September 1988 with a general amnesty (promulgated by Revolution Command Council Decree No. 736) which pardoned all Iraqi Kurds who had had “legal” proceedings started against them or who were otherwise being “pursued” for acts committed prior to the amnesty. However, despite the amnesty, official Iraqi documents record that Kurds captured inside vast tracks of land which land had been declared “prohibited areas” before 6 September 1988 continued to be executed. Those Kurdish families who were released from the prison camps under the amnesty were transported to housing complexes or simply abandoned in the open air. Nobody was allowed to return to the demolished villages in the areas which were still defined as “prohibited”. Importantly, the amnesty decree (which was applicable for only one month) was not accompanied by abrogation of the laws which threatened the Kurdish population. For example, according to a letter dated 22 November 1988 from Arbil Security, the shoot-to-kill instruction contained in order 24/4008 (see paragraph 121 below) was still being applied “with no exception”. Another document, dated 11 April 1989, affirms that the directives contained in order 28/4008 remained in force at that late date. Indeed, it was only being proposed to abrogate order 28/4008 on 22 June 1990 (see Document No. 14 in Annex I). 119. Having described the basic content of the eight operations constituting the Anfal campaign, the Special Rapporteur observes that the evidence to establish more clearly his initial findings, i.e. that the Anfal campaign was, like most actions of the Government of Iraq, very well planned, implemented and documented. The immediate effects of the Anfal campaign were to cause: (
  17. a)the death of thousands of men, women and children by arbitrary execution or indiscriminate killing; (
  18. b)the disappearance of tens of thousands more men, women and children; (
  19. c)the arbitrary arrest, detention and forced relocation of hundreds of thousands of men, women and children; (
  20. e)the destruction of thousands of villages including essential economic resources and important cultural properties; and (
  21. f)the essential destruction of the rurally based Kurdish way of life. These effects were accomplished in a clearly systematic fashion through the intentional use of obviously excessive force. 120. Evidence relating to the organization and implementation of the Anfal campaign is revealed both explicitly by reference to, and examination of, the official Iraqi documents in the possession of the Special Rapporteur. As noted above, the year 1985 appears to have marked a turning point in the history of oppressive measures affecting the Kurds. While many important elements of what later constituted the Anfal campaign pre-date 1985, e.g. the policy against the Barzani clan and the general policy of extending punishments to members of families, tribes and villages, the ground for a comprehensive policy against the Kurds appears to have been laid in May 1985 when military orders were issued instructing the use of “all types of weapons available” against “subversives” in the northern Kurdish territory. This instruction is seen to be linked with subsequent orders and acts including, notably, the June 1985 instructions from the Office of the President that the “elderly, women and children among subversives’ relatives should be deported to the regions where the subversives are” and “that detention remains enforceable against subversives’ relatives able to bear arms”. Such instructions were implemented with meticulous attention as those deported were stripped of their Iraqi nationality and thrown to their fate (with regard to the care and precision with which the Government administered this program, see E/CN.4/1993/45, Document 6 of Annex I). Under the administration of the then Secretary-General of the Northern Bureau of the Baath Party, Mohammed Hamza al-Zubeidi, an increasingly severe and complex policy of oppression evolved: according to a June 1990 comprehensive proposal to abrogate 13 instructions which, read together, appear to constitute the elements of a single policy, the matrix of decrees, directives and instructions forming that policy date from 4 September 1985 (see Document No. 14 of Annex I). 121. When either Mohammed Hamza al-Zubeidi proved not to be up to the appointed task or, in any event, someone stronger and more reliable seemed to be required, Ali Hassan Al-Majid was appointed Secretary-General of the Northern Bureau of the Baath Party on 18 March 1988 with enormous and exceptional powers over “all civil, military and security organs of the State” (See Document No. 15 of Annex I). Upon taking up this post as the virtual dictator of the region, Ali Hassan Al-Majid issued a series of strict and harsh instructions clearly establishing his personal control over affairs in the north and demonstrating no sympathy for even the slightest of humanitarian principles. Al-Majid defined the scope, strategy and bureaucratic structure of the Anfal campaign through two standing orders he issued in June 1987. The orders included a total prohibition of life (human and animal) in defined areas inhabited almost exclusively by Kurds and including thousands of villages in the Kurdish countryside. The first order, numbered 28/3650 and dated 3 June 1987, is a personal directive signed by Ali Hassan Al-Majid according to which the armed forces in the region were to kill any human being or animal present in the areas which had been designated “prohibited” (See Document No. 16 of Annex I). The order also implemented a strict economic blockade of the area permitting no foodstuffs, persons, cattle or machinery to reach the villages that had been prohibited. The second significant order, numbered 28/4008 and dated 20 June 1987, was issued by the “Command of the Northern Bureau” under the signature of al-Majid (See Document No. 10 of Annex I). Order 28/4008 expanded the directives contained in 28/3650 and specified the strategies to be employed: it repeated the total prohibition of the designated areas and confirmed the policy to intentionally “kill the largest number of persons” using artillery, helicopters and aircraft at any time of the day or night. Furthermore, and more importantly, the directives included an explicit order to the Security services to detain and interrogate all persons captured in the designated villages with those between the ages of 15 and 70 to be executed after any useful information had been obtained from them. These sweeping directives granted license to kill and guaranteed impunity thereafter to the Government forces and officials operating in the prohibited areas. By the end of 1987, official documents indicate that the morgues were under heavy pressure to keep up with the inflow of corpses from the mounting executions. 122. While the ostensible object of taking evidently excessive steps against large parts of the Kurdish population was said to be to rid the area of “saboteurs”, “subversives”, “traitors”, “criminals” and a variety of other undesirables, it is clear from the declarations of Ali Hassan Al-Majid that the instructions were aimed against all Kurds with the object of eliminating real or presumed opposition. As a result, the policy was to suppress those who could be controlled in amalgamized villages, destroy the rural life-style of these mountain people and liquidate those of apparent oppositional sentiments together with their extended families, tribes and communities. The fact that Ali Hassan Al-Majid viewed the situation in such terms is revealed in several of his recorded statements. For example, on 15 April 1988, al-Majid is recorded as having told members of the Baath Party’s Northern Bureau and Governors of the Autonomous Region the following: “By next summer there will be no more villages remaining spread out here and there, but only complexes. … I will prohibit large areas; I will prohibit any presence in them. What if we prohibit the whole basin from Qara Dagh to Kifri to Diyala to Darbandikhan to Suleiymaniyah? What good is this basin? What did we ever get from them? … All of this basin, from Koysinjaq to here … I’m going to evacuate it. … No human being except on the main roads. For five years I won’t allow any existence there … In the summer nothing will be left.” It is to be stressed that the locations mentioned by al-Majid are exclusively Kurdish. Another example came after completion of the Anfal operations of 1988 when al-Majid is recorded on 21 January 1989 as relating to his Northern Bureau colleagues the following: “So we started to show these senior commanders on TV that (the saboteurs) had surrendered. Am I supposed to keep them in good shape? What am I supposed to do with them, these goats … No, I will bury them with bulldozers. Then they ask me for the names of all the prisoners in order to publish them. I said, “Weren’t you satisfied by what you saw on television and read in the newspaper?” Where am I supposed to put this enormous number of people? I started to distribute them among the governorates. I had to send bulldozers hither and thither…” Some months later, in a sort of valedictory address upon completion of his term as Secretary-General of the Northern Bureau of the Baath Party, al-Majid was recorded on 15 April 1989 as saying the following: “I said probably we would find some good ones among them, since they are our people too. But, we didn’t find any. Never. … Apart from those two, there are no loyal or good ones. … I would like to speak about two points: one, Arabization, and two, the shared lands between the Arab lands and the Autonomous Region. The point that I am talking about is Kirkuk. When I came, the Arabs and Turkomans were not more than fifty-one percent of the total population of Kirkuk. … Then we issued directives. I prohibited the Kurds from working in Kirkuk, the neighbourhoods and the villages around it, outside the Autonomous Region.” 123. It is clear from the very words of the all-powerful Secretary-General of the Command of the Northern Bureau that the Kurdish people (“them”, “they”, “these goats”, “the Kurds”) were intentionally targeted as a group. As al-Majid took power in the north and implemented his policy against the Kurds, it seems equally clear that the historically splintered Kurds also saw themselves more and more as a group: in May of 1988, the “Kurdistan Front” was formed of the eight main Kurdish groups then facing the common enemy of severe Government of Iraq policies. 124. As described above in paragraphs 112 to 117, the Anfal campaign was carried out under the direction of Ali Hassan Al-Majid in the spring and summer of 1988. By that time, documents in the possession of the Special Rapporteur clearly indicate that the Government had equated extended family relations with the terms “subversives” and “saboteurs”, as had been done long before in the case of “the Barzanis”. The strategy employed by the Government forces during the Anfal campaign followed roughly the same pattern throughout the various stages of the operations: chemical attacks from air directed both against civilians and peshmerga strongholds, combined with assaults by ground forces against the areas; pillaging of all villages left to the mercy of advancing Government forces; mass arrest, detention and internal deportation of civilians; and transport of many detained civilians in convoys of army trucks to holding centers where, as a general rule, the adult men were separated from the women and disappeared. The women, children and elderly were normally sent to prison camps and contained in conditions of extreme deprivation. Others disappeared together with the men. Persons who managed to evade the advancing forces were often tracked down in nearby towns and cities by the Security. Consistent with al-Majid’s recorded statement of 21 January 1989, documents further indicate that the number of persons being executed had reached unmanageable proportions by the end of 1988 when, on 15 November 1988, the Revolution Command Council issued Decision No. 840 foregoing the Constitutional need for ratification of death sentences by the President (See Document No. 17 of Annex I); on 14 December 1988, the President’s Office instructed relevant Ministries to expedite the execution process (See Document No. 18 of Annex I). At the time of these decisions, followed by al-Majid’s recorded statement, it is to be noted that the Iran-Iraq war had long before ended. Survivors and other eye-witnesses (including some who took part in the executions) report that many of those who had “disappeared” during the Anfal operations were executed and, as Ali Hassan Al-Majid almost boasts, were buried in mass graves throughout the country. 125. According to the documents in the possession of the Special Rapporteur, many of the individual decrees, directives and instructions referred to above were in force at the time of the March 1991 uprisings and some may well still be in force. The existence of such powers, orders and personalities in the present Government of Iraq, where Ali Hassan Al-Majid holds the rank of Minister of Defense, portends a precarious future for the Kurds. b. a written document, being an Iraqi Government document, included in a writing, Reports of the situation of human rights in Iraq, submitted by Mr. Max van der Stoel, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 1993/74 (UN doc. E/CN.4/1994/58, H74 - pages 79 through 80): BUREAU FOR THE ORGANIZATION OF THE NORTH - HEADQUARTERS Reference: 28/4008 Date: 20 June 1987 From: Bureau for the organization of the North - Headquarters To: The Commanders of the First, Second and Fifth Army Corps Subject: Procedure to deal with the villages that are out of bounds for security reasons In view of the fact that the officially announced deadline for the amalgamation of these villages expires on 21 June 1987, we have decided that the following action should be taken with effect from 22 June 1987: (
  22. i)All the villages in which subversives, agents of Iran and similar traitors to Iraq are still to be found shall be regarded as out of bounds for security reasons; (
  23. ii)They shall be regarded as operational zones that are strictly out of bounds to all persons and animals and in which the troops can open fire at will, without any restrictions, unless otherwise instructed by our Bureau; (iii) Travel to and from those zones, as well as all agricultural, animal husbandry and industrial activities, shall be prohibited and carefully monitored by all the competent agencies within their respective fields of jurisdiction; (
  24. iv)The corps commanders shall carry out sporadic bombardments using artillery, helicopters and aircraft, at all times of the day or night in order to kill the largest number of persons present in those prohibited zones, keeping us informed of the results; (
  25. v)All persons captured in those villages shall be detained and interrogated by the security services and those between the ages of 15 and 70 shall be executed after any useful information has been obtained from them, of which we should be duly notified; (
  26. vi)Those who surrender to the governmental or Party authorities shall be interrogated by the competent agencies for a maximum period of 3 days, which may be extended to 10 days, if necessary, provided that we are notified in such cases. If the interrogation requires a longer period of time, approval must be obtained from us by telephone or telegraph or through comrade Tahir al-Ani; (vii) Everything seized by the advisers and troops of the National Defense Brigades shall be retained by them, with the exception of heavy, mounted and medium weapons. They can keep the light weapons, notifying us only of the number of those weapons. The corps commanders shall promptly bring this to the attention of all the advisers, company commanders and platoon leaders and shall provide us with detailed information concerning their activities in the National Defense Brigades. (signed) Comrade Ali Hassan Al-Majeed Member of the Regional Command and Secretary of the Bureau for the Organization of the North. [Stamp of the Revolution Command Council, Northern Affairs Committee] cc: Chairman of the Legislative Council; Chairman of the Executive Council; Party Intelligence; Chief of the Army General Staff; Governors (Chairmen of the Security Committees) of Nineveh, Ta’mim, Diyala, Salahuddin, Sulaimaniya, Arbil and Dohuk; Branch secretaries of the above mentioned governorates; General Directorate of Military Intelligence; General Directorate of Security; Director of Security of the Autonomous Region; Security Services of the Northern Region; Security Services of the Eastern Region; Security Directors of the governorates of Nineveh, Ta’mim, Diyala, Salahuddin, Sulaimaniya, Arbil and Dohuk; For information and action within your respective fields of jurisdiction. Keep us informed. c. a document, being an Iraqi Government document, included in the Report on the situation of human rights in Iraq of 19 February 1993, submitted by Mr. Max van der Stoel, Special Rapporteur of the Commission on Human Rights, in accordance with Commission Resolution 1992/71 of 19 February 1993 (UN Doc. E/CN.4/1993/45, H75 - pages 82 through 83): A Single Arab Nation With An Eternal Message Arab Baath Socialist Party Iraqi Region Headquarters of the Bureau for the Organization of the North Office of the Secretariat (Confidential express cable) Ref: 4350 Date: 7 September 1987 To: All security committees in the governorates of the northern region, Diyala, Salahuddin Re: Listing and expulsion of the families of subversives Comradely greetings: In the light of the meeting held on 6 September 1987, chaired by Comrade Ali Hassan Al-Majeed, Secretary of the Bureau for the Organization of the North, and attended by the heads and senior officials of the Party branches in the northern region, the following instructions have been issued: 1. The security committees in the northern governorates should submit lists of the families of subversives, to be completed between 6 and 15 September 1987. As soon as the lists are complete, the families in question should be expelled to the regions where their subversive relatives are, with the exception of males aged between 12 and 50 inclusive, who should be detained. Families which comprise martyrs, missing persons, captives, soldiers or fighters in the National Defence Brigades shall be excluded from such measures. 2. Steps should be taken to hold public seminars and administrative meetings to discuss the importance of the general population census, due to take place on 17 October 1987, and to stress clearly that anyone who fails to take part in the process without a valid excuse shall lose his Iraqi nationality. 3. Subversives who repent shall be permitted to return, having first surrendered their weapons, between 6 September and 17 October 1987, after which they shall not be permitted to do so, even if they surrender their weapons. Please take note and inform us of whatever necessary action is taken. Kind regards. (Signed) [……….] Secretary Northern Affairs Committee cc: All Party branch commands in the northern region, Diyala and salahuddin First Corps Command Fifth Corps Command General Directorate of Military Intelligence General Directorate of Security Second Corps Command Please take note. Regards. d. a document, being an Iraqi Government document, included in the Report on the situation of human rights in Iraq of 19 February 1993, submitted by Mr. Max van der Stoel, Special Rapporteur of the Commission on Human Rights, in accordance with Commission Resolution 1992/71 of 19 February 1993 (UN Doc. E/CN.4/1993/45, H75 - page 84): In the Name of God the Merciful the Compassionate Eastern Region Intelligence Organization Confidential and Personal Ref: Section 3 / Division 3 / 2127 Date: 28 September 1987 To: All centers other than branch committees Re: Demolition of Villages Letter no. 5866 dated 17 September 1987, which was transmitted to us by way of confidential and personal letter no. 5 / 1493 dated 23 September 1987 from the Security Committee in the governorate of Ta’mim, gave instructions that villages which pose no security threat should be demolished only with the consent of valiant Comrade Ali Hassan al-Majeed, Secretary of the Bureau for the Organization of the North. Exceptions are villages from which shots are fired at military convoys or which are used by subversives to attack government installations and defy the State. Please take note and carry out the instructions with precision. (signed) Lieutenant Colonel p.p. The Director General Directorate of Military Intelligence Eastern Region Intelligence Organization e. a document, being an Iraqi Government document, included in the Report on the situation of human rights in Iraq of 19 February 1993, submitted by Mr. Max van der Stoel, Special Rapporteur of the Commission on Human Rights, in accordance with Commission Resolution 1992/71 of 19 February 1993 (UN Doc. E/CN.4/1993/45, H75 - page 88): In the Name of God the Merciful the Compassionate Bureau of the President of the Republic The Secretary General General Directorate of Military Intelligence Eastern Region Intelligence Organization Seal: I come to you from Sheba with good tidings General Directorate of Military Intelligence Please quote the full reference number (The martyrs will continue to be the noblest of us all) Very Confidential and Personal No.: Section 3 / Division 3 / Saddam’s Quadisiya / 522 Date: 18 March 1988 To: Sulaimaniya Security Directorate - Chamchamal - Sayyid Sadiq - Darbandkhan Re: Detention of families and subversives Confidential express letter no. 297 dated 15 March 1988 from the Headquarters of the Bureau for the Organization of the North gave instructions that the families of subversives who take refuge with our units should be detained in special guarded camps set up for that purpose under the supervision of intelligence officers from the First and Fifth Corps. Please take note and inform us of any necessary action taken. (signed) Lieutenant Colonel p.p. The Director Eastern Region Intelligence Organization f. an official report of a witness examination by the National Police Agency, official report number 200501061400, dated 6 January 2005, legally drawn up by authorized investigating officers. This official report includes, among other matters, - rendered in a compact way - the statement that was made by [witness 25] (G25 - pages 280 through 285): I know that many Kurds have been taken to the south of Iraq in order to change the composition of the population. This happened while Arabs received money to go and live in cities that had a predominantly Kurdish population. This was commonly known under the population. You ask me how these Kurds were taken to the Arab cities. This didn’t happen voluntarily. They were just put onto trucks and taken away under the responsibility of the Baath Party. I also saw this myself; for example I saw Kurdish people walking with all kinds of household goods. They had obviously been expelled from their homes. You ask me whether I was under the impression that these Kurds were being deported. Yes, that is what happened. The government made up the story that the Kurds were going to be used as employees. This story was released to the news papers and television. You ask me when was the first time that I heard about this deportation; that was towards the end of the eighties. I think from 1987 more or less. You ask me whether this deportation was common knowledge. I am certain that everybody knew about it. That was because the media communicated extensively about the Kurds being taken away to the Arab south in view of employment plans. Nobody believed that, the media were in the hands of the Baath Party and every Iraqi was aware of that. g. a document, being a witness statement [witness 120] dated 28 January 2001, drawn up by Belgian investigating officers. This document includes, among other matters (H46a - pages 1 through 4): On the morning of the attack on Halabja (16 March 1988) I was asked to assist in the command room. Upon arrival I heard that one hour earlier Saddam Hussein had personally given the order for the counter attack with chemical weapons. It is my opinion that the object of the chemical attack was to punish and frighten the Kurdish population, which was regarded by Saddam Hussein as allies of Iran. We knew right away that the bombardments had resulted in the death of thousands of Kurds. h. a document, being a witness statement [witness 121] dated 2 May 2001, drawn up by Belgian investigating officers. This document includes, among other matters (H46a - pages 1 through 11): As commander at the frontlines near Halabja I had total control over the PUK troops that were involved in the operation. I have counted a total of 14 air raids on the city (…). At the time of the chemical bombings I informed the PUK head quarters that an estimated 5000 victims had been killed. i. an official report of a witness examination on 17 November 2005, drawn up and signed by [………], examining magistrate in charge of criminal proceedings in the court of The Hague, and [………], clerk of the court. This official report includes, among other matters, - rendered in a compact way - the afore mentioned statement made to the examining magistrate by [witness 122] (RC-file - pages 2113 through 2119): In 1991 a Kurdish delegation entered into negotiations with the Iraqi authorities. The Kurdish delegation was headed by Barzani. I was a member of that delegation on behalf of the Socialist Party of Kurdistan. The delegation of the Iraqi government consisted of ten members under the direction of Izzat Duri, the deputy of Saddam Hussein. You ask me about the meetings that I attended whereby Saddam Hussein was also present. There were several; in 1970, 1979 and also during the negotiations in 1991. At the time of the Anfal, when chemical weapons were also deployed, Ali Hassan Majid was the director for the northern provinces. I told him personally that Iraq had deployed chemical weapons and that he had done away with 180,000 people. In our delegation I had been charged with this discussion. I also discussed the chemical weapons. After all, the deployment of chemical weapons and the disappearances during the Anfal are connected with each other. Ali Hassan Majid became angry. He shouted that we wanted to accuse him and that we called him Chemical Ali. He said that all he had done was carry out orders. Furthermore he literally said: "the people we collected did not even amount to 100,000". You ask me what Saddam Hussein has said in my presence about the Anfal. He did not speak about details. He spoke in general terms. He said that many things had happened, that many people had been killed and many people had disappeared. We were told to forget about it and turn the page. The message that was given by the regime was 'let bygones be bygones', those were acts of war. We did not agree on that and said: "what you did was directed towards the civilian population". j. a document being a certified Dutch translation of a transcription in the English language concerning a witness examination before [………], examining magistrate in charge of criminal proceedings at the court in The Hague, heard in the offices of the United States public prosecutor in Baltimore, Maryland. This document contains, among other matters - rendered in a compact way - the statement made by [witness 41] on 29 October 2005 before the aforementioned examining magistrate (RC-file - pages 1628 through 1703): In 1980 I worked in the Iraqi Army. I deserted in 1982. On 23 May 1987 an Iraqi regiment deserted and came to us, the PUK forces. They were all Kurds. Two weeks after Ali Hassan Al-Majid started his job, he bombed us with gas. The first attack by chemicals had taken place on 13 or 14 April 1987, three or four days prior to the attack on us. You ask me if I have any knowledge of the new settlements, the new cities, as they were being mentioned by the Iraqi regime, where the Kurds were taken to. That is correct. Jeznikam was one of the collective towns built around the city of Erbil and it was built for the people from Halabja, the final Anfal. People from Birjinni and Koreme were taken to Jeznikam. In 1991 I was in Jeznikam myself. All collective towns were horrible places to live in, without electricity, without water, without any facilities at all. I saw the collective towns after Kurdistan was raided. But the life, after I saw them, three years after the people had been deported, was different from the day they were built, so I cannot describe what these people have been through. k. a document being a certified Dutch translation of a transcription in the English language concerning a witness examination before [………], examining magistrate in charge of criminal proceedings at the court in The Hague, heard in the offices of the United States public prosecutor in Baltimore, Maryland. This document contains, among other matters - rendered in a compact way - the statement made by [witness 116] on 1 November 2005 before the afore mentioned examining magistrate (RC-file - pages 2022 through 2112): My ethnic origin is Kurdish. You put it to me that a human rights report has been produced called: 'Genocide in Iraq' (H76). I have it. You tell me that one of the authors of the report, Mr. [witness 111], stated to the Dutch Police that he interviewed me as one of the survivors of a mass execution. That is correct. In the beginning of the eighties the attacks started, but after the year '84 those attacks were intensified. '85, '86, '87 were years in which we were attacked intensively. You ask me what sort of attacks they were and by whom those villages were attacked. Saddam's army with tanks and aircraft, helicopters and hunters. A hunter is some sort of aircraft that would fly very fast and had 80 rockets on board. You ask me how I knew these were Iraqi airplanes and helicopters. They came with the army and there was an Iraqi flag on the planes. Of the 12 villages of our area, three villages were totally destroyed by the army quite early, because they were at the frontlines. They considered everyone a saboteur, an opponent of the government, and they had plans to extinguish all those people. You ask me if I also heard about those plans on the radio; yes. They made no secret of that because they sent planes to those areas as well. It was bombarded. They said openly that those people were saboteurs and had to be destroyed. You ask me if they said on the radio that the Kurds had to be destroyed or that the saboteurs had to be destroyed. Yes, and finally they published on the radio that all these people were saboteurs, agents of Iran. The inhabitants of Kurdistan. You ask me if they literally said that on the radio, that all inhabitants of Kurdistan were saboteurs and that they had to be destroyed. All of them, yes. We were a lot of people and we were arrested. An attack was launched at our area. The Iraqi Military did not say anything to us. Cars started to drive. We got to Topez Awa. It was a large space, some sort of patio. Adjacent were large rooms. We saw members of the Military Intelligence Service on the patio. They were armed, ready to shoot. They shouted while we were taken out of the cars. The cars drove off. You can recognize the Military Intelligence Service by the clothing. The military wear khaki suits. The Intelligence Service wear dark green uniforms. I also saw women and children there. We were all in one room and the room opposite of ours was filled with women and children. We were able to see that. All the rooms were full with between 400 and 500 people. We were taken there at night and taken away the next morning. I did not get any water or food at Topez Awa. Many people fainted of hunger, thirst, heat. I saw that a soldier threw two loaves of bread to another room, but you cannot consider that as giving food. There was no such thing as giving food. They tried to bring groups of ten people to the toilet at a time. Twice or three times they tried that, and then they stopped because it was not possible. The people who fainted in the rooms did not get any medical care. Early in the morning, at 07:00 - 08:00 they were taken away. The next day they brought white closed cars. Only men were taken away in those cars. They read out names aloud. There was room for 34 people in such a car. There was a small window towards the driver, and there was a guard seated beside the driver. The men that were taken away in this manner were 20 or 25, 30 years old, of all ages. There were also elderly men, older than 55 or 60 in the rooms, but they were not taken away with us. Our group consisted of approximately 500 men. They were not told where they were taken to. There was someone in the car with me, he knew the way, he told us: "We are going towards Mosul" and later: "Now we've left Mosul, we are going southwards." The name of the place where we were shot dead was Rumandi. Once we got to the place where it all happened, we heard sounds of shootings, shovels. There were 15 or 17 cars. The guard seated beside the driver wore a green suit and had a Kalashnikov in his hands. At some stage they opened the side door. A big man in a green suit took a young boy. He was not armed. They blind-folded him and handed him over to a few men who were armed. We grabbed the hand of the man in the green suit and gave him a few blows. The armed people outside started to shoot at us while we were all in the car, without unloading us. I was hit by a bullet in my back and in one of my eyes. The shooting had ended. I noticed there were still some people in the car who were alive. A few of them had fled as well. I started to run as well. I heard shots in that area. When I started to run, I still heard shots and shovel sounds from a distance. l. an official report of a witness examination on 26 September 2005, drawn up and signed by [………], examining magistrate in charge of criminal proceedings in the court of The Hague, and [………], clerk of the court. This official report includes, among other matters, - rendered in a compact way - the afore mentioned statement made to the examining magistrate by [witness 5] (G5.I - pages 887 through 978 and RC-file - pages 218 through 221): I only heard of Anfal when Saddam Hussein announced the ending of that campaign. In official messages we heard that the opponents of the Iraqi government had been expelled from the country to Iran and Turkey. They also announced that adversaries had been killed. On account of the Anfal Saddam said that there was no room for those who were against us. He also explicitly mentioned the Kurds. It was said that the villagers offered help to the Kurdish resistance that had been expelled abroad. Through this support, the resistance had been able to carry out attacks on Iraqi territory. It was clear that Saddam was against the Kurds, but not all of them. Some Kurds stood at his side. I do not know if the Anfal was only directed towards the North or also towards other areas. Saddam has always opposed the Kurdish movement, that was started by Mullah Mustafa Barzani. The term "Jash" (small donkey): an insulting first name for the Kurds that supported Saddam. m. an official report of the witness examinations of [witness 16], [witness 8], [witness 10] and [witness 9] in the proceedings against [accused] on 14 June 2005, 15 June 2005 and 16 June 2005, drawn up and signed by [………], examining magistrate in charge of criminal proceedings in this court, and [………], clerk of the court. This official report includes, among other matters, - rendered in a compact way - the afore mentioned statement made to the examining magistrate on 14 June 2005 by [witness 16] (G16.I - pages 791 through 797 and RC-file pages 109 through 115): I worked as regular soldier at the chemical department of the Iraqi Army. I dealt with high ranked military officers and therefore I was aware that only a select group around Saddam Hussein and his family, among them Chemical Ali (Ali Hassan Al-Majid), knew about the attacks. The objective of the attacks was to destroy people and not to conquer the town. Furthermore the Iraqi did not only have the intention to hit Iranians, but also the Kurds in Halabja / the Kurdish Pershmerga fighters. How do I know that? That is a matter of military strategy. I know there were Iranian soldiers in Halabja. I heard this on the Iraqi radio and later on through interviews. I believe it was not Iran that carried out the attacks, because Iranian soldiers were still in that area (and Iraqi military were no longer there) and I understood that Chemical Ali on TV more or less confirmed that Iraq was behind those attacks. n. a document being a certified Dutch translation of a transcription in the English language concerning a witness examination before [………], examining magistrate in charge of criminal proceedings at the court in The Hague, heard in the offices of the United States public prosecutor in Baltimore, Maryland. This document contains, among other matters - rendered in a compact way - the statement made by [witness 115] on 30 October 2005 before the aforementioned examining magistrate (RC-file - pages 1790 through 1858): You ask me if I am one of the survivors of mass executions which took place in the north of Iraq by the end of the eighties of the last century. Yes. (…) Before I was arrested I lived in a village by the name of Karahasan. That was in '87, but in '87 the village was destroyed by the Iraqi authorities. In the year 1987 the Iraqi Government told us that they were about to declare that area as a prohibited area. There were approximately 150 villages. We were ordered to leave the area within 15 days. Otherwise, the houses would be destroyed while the people were still in the houses. That is indeed what happened. Some people got killed underneath bricks. (…) Within two weeks, bulldozers arrived and destroyed the village; approximately 150 other villages in the surroundings of Kirkuk as well. The communication of the authorities was such that this area was to be kept a prohibited area, because it was close to Kirkuk. I have seen it with my own eyes. I was in Karahasan at that certain moment that the army moved in with battalions of the People's Militia. Later they told me that we were given 15 days to leave the village, so that was the order. We left immediately, even at night, because during the day there were all sorts of helicopters in the air shooting at people. After a week's time I returned to the village. I saw that all our houses had been destroyed. You ask me if you understood it correctly from my story that I was handed over to the Iraqi authorities by the Jash and that I was apprehended there and then. What you say is correct. The next morning at 10:00 o'clock we reported ourselves to Sheikh [……]. By car we were driven to a valley behind the village by the name of Aliawa, and when we arrived there w

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