Farhan Mutlak AI Jibouri, Sultan Hashim Ahmad AI Tae' e, Hussein Rashid Moharmned and Ali Hasan AI Majid v. the General Prosecutor

Court	Iraqi High Tribunal (Appeals Commission), Iraq
Decision title	Opinion
Decision date	4 September 2007
Parties	Complainants/victims Farhan Mutlak Salih Al Jibouri Sultan Hashim Ahmad Al Tae Hussein Rashid Mohammed Ali Hassan Al Majid Al-Tikriti, a.k.a. chemical Ali
Categories	Crimes against humanity, Genocide, War crimes
Keywords	appropriation of property, destruction of property, enslavement, forced displacement of population, genocide, Murder, Non-international armed conflict, persecution, torture, unnecessary suffering, violence to life
Links	Opinion

Summary

In 1988, the Iraqi government under the leadership of Saddam Hussein, launched a military campaign against the Kurdish population residing in northern Iraq. In eight operations from February until September of that year, both conventional and chemical weapons were deployed against the citizens of Kurdish villages resulting in the deaths and injury of hundreds of thousands. Others were executed in the following raids, their homes were looted and entire villages were burned to the ground. Others still were transported to prison camps where they were starved and detained in inhumane conditions. This campaign became known as the Al Anfal campaign and was the subject of the Iraqi High Tribunal’s second case (the first one being the Al Dujail-trial).

Seven defendants, including Saddam Hussein and his cousin, nicknamed Chemical Ali, were brought before the Court. Charges against Hussein were dropped when he was executed in the course of the trial as a result of his conviction in another proceeding. By a verdict of 24 June 2007, the Tribunal convicted five of the remaining six defendants, one of whom was acquitted for lack of evidence. Three, including Chemical Ali and two military commanders, received death sentences; the others received cumulative sentences that essentially amounted to life imprisonment. The present decision by the Appellate Chamber of the Tribunal confirmed the trial verdict and dismissed all appeals.

Procedural history

The six defendants are charged with acts of genocide, crimes against humanity and war crimes, specifically intentionally attacking the civilian population, intentionally attacking protected buildings, destruction or appropriation of property, murder and enslavement. The charges are reproduced at p. 60 – 76 of the verdict.

On 21 August 2006, trial proceedings began.

On 5 November 2006, Saddam Hussein was convicted by the Iraqi High Tribunal in another case (Al-Dujail) and sentenced to death. This decision was confirmed on appeal on 26 December 2006. Following his execution by hanging on 30 December 2006, Saddam Hussein was removed from the present case. See also S. Raghavan, 'Saddam Hussein is Put to Death', The Washington Post, 30 December 2006.

On 24 June 2007, the Iraqi High Tribunal convicted five of the remaining six defendants. Tahir Tawfiq was acquitted for lack of evidence.

Related developments

The execution of Ali Hassan Al Majid was delayed for political reasons until 25 January 2010 when he was executed. At the time of his death, he had received four death sentences as a result of various proceedings against him (see J. Muir, 'Chemical Ali executed in Iraq after Halabja ruling', BBC News, 25 January 2010).

Legally relevant facts

In light of successive Iraqi government’s refusals to accede to the demands of the Kurdish population for recognition of their rights (to self-determination, to representation within the Parliament etc), the Kurds resorted to armed violence (p. 38, Trial Verdict).

With the return to power of the Ba’ath regime in 1968, the Kurdish population became the subject of a number of opressive measures (p. 39). In particular, from February until September 1988 eight military operations were launched against the Kurds in Northern Iraq known as the Al-Anfal operations. The government targeted villages sympathetic to the Patriotic Union of Kurdistan Party and Kurdistan Democratic Party (pp. 41-42, Trial Verdict). Villages were bombed with chemical gases forcing residents who managed to survive to flee, houses were looted and then burned down, others were arrested and transferred to the Northern Organisation Office and then on to ceoncetration camps where many suffered torture and harsh living circumstances (p. 43-46, 50, Trial Verdict).

Sultan Hashim Ahmad was in charge of implementing the Al-Anfal operations; Ali Hasan Al Majid was in charge of the Northern Organisation Office and issued direct orders; Sabir Abdul Aziz was Military Intelligence General Director and member of the Armed Forces; Hussein Rashid Mohammed was Deputy Army Chief of Staff during the operations; Tahir Tawfiq was Secretary to the North Affairs Committee and Farhan Mutlak Al-Juburi was North and Eastern Zone Intelligence System Director (pp. 13-14, 19, 22).

Core legal questions

Article 95 of the Iraqi Constitution prohibits the establishment of special or exceptional courts. In light of this text, is the Iraqi High Tribunal unlawfully established?

Specific legal rules and provisions

Articles 11(First)(A) and (C), 12(First)(A), (C), (D), (E) and (F), 13(Fourth)(A), (D) and (L), 15 and 33, of the Iraqi High Tribunal Law Nº 10.
Articles 1, 2, 30, 60-65 of the Iraqi Penal Code Nº 11.
Articles 95 and 134 of the Interim Iraqi Constitution.

Court's holding and analysis

The Iraqi High Tribunal is not a special court although it is specialised to consider certain issues, much like other specialised courts in the country: trade regulation courts, traffic courts, rental property courts etc. Its establishment is therefore not contrary to Article 95 of the Constitution. Once its work has concluded, the House of Representatives has the right to dissolve it pursuant to Article 134 of the Constitution (p. 19).

The Appeals Chamber approved the verdict at trial and rejected all the appeals requests (pp. 27-28).

Further analysis

M.J. Kelly, 'The Anfal Trial Against Saddam Hussein', Journal of Genocide Research, 2007, Vol. 9, pp. 235-242;
I.M. Ralby, 'Joint Criminal Enterprise Liability in the Iraqi High Tribunal', Boston University International Law Journal, 2010, Vol. 28, pp. 281-340;
M. Klamberg, 'The Concept of Genocide and the Anfal Campaign', The Living History Forum, 2 June 2012;
International Center for Transitional Justice, The Anfal Trial and the Iraqi High Tribunal:

The Complainant Phase of the Anfal Trial;
The Prosecution Witness and Documentary Evidence Phases of the Anfal Trial;
The Defense Phase and Closing Stages of the Anfal Trial

Global Justice Center, 'The Anfal Decision: Breaking New Ground for Women’s Rights in Iraq '.

Instruments cited

Related cases

Iraqi High Tribunal (Second Criminal Court), Al Anfal, Special Verdict Pertaining to Case No 1/ C Second/2006, 24 June 2007.

Additional materials

Human Rights Watch, 'Q&A: The Anfal Trial', 23 June 2007;
Center for Halabja against Anfalization and Genocide of the Kurds, “Anfal”: The Iraqi State’s Genocide Against the Kurds, 2007;
'Profile: The Anfal Trial Defendants', Al Jazeera, 10 June 2007;
R. Razek et al., 'Judge: Chemical Ali, 2 Others to Be Hanged, CNN, 4 September 2007;
M. Sung, 'Iraq Tribunal Upholds Death Sentences in Anfal Genocide Case', JURIST, 4 September 2007;
M. Howard, 'A Town Celebrates Verdict but Fears no one Will Be Called to Account for its Suffering', The Guardian, 25 June 2007;
'Saddam’s Cousin Sentenced to Death', Al Jazeera, 24 June 2007;
'Chemical Ali Sentenced to Hang by Iraq Tribunal', Al Arabiya News,24 June 2007;
M. Oliver, 'Saddam Co-Defendants Deny Anfal Genocide', The Guardian, 22 August 2006;
'Date Set for Saddam’s Anfal Trial', Al Jazeera, 27 June 2006.

Social media links

D. Graeber, '“Chemical Ali” Faces Death in June 24 Verdict', Foreign Policy Association, 13 June 2007;
K.J. Heller, 'Convictions in the Anfal Trial', Opinio Juris, 24 June 2007.