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PREAMBLE
Between June 16-19, 1992, some two hundred Iraqis representing a broad political, ethnic and religious spectrum within Iraqi society met in Vienna to found the Iraqi National Congress (henceforth "the INC"). They came from all over the world—northern Iraq, neighboring countries like Iran and Syria, Europe and the USA. Over the course of four intensive days of heated discussion and debate, these Iraqis elected an 87-person "General Assembly" which in turn voted into existence an "Executive Committee" mandated to implement the decisions of the General Assembly.
At that founding conference, the General Assembly of the INC resolved to establish in Iraq a "constitutional, parliamentary, democratic order based upon political pluralism and the peaceful transfer of power through elections based upon the sovereignty of law."
The Vienna Congress also resolved that during the transition from dictatorship to democracy a transitional government must "work during a time period of not more than one year," to carry out a number of urgent tasks. Among these is "presenting those accused of crimes against the people before proper legal courts in which their right to self-defense is guaranteed." It went on to make the restriction that only the "higher decision makers and most responsible authorities in die existing regime" should be tried in this way.
In a separate resolution, the General Assembly of the Vienna conference also voted into effect a resolution which called upon "the relevant international agencies to try Saddam Hussein and his associates." The INC also appealed to the international community, and the United Nations Security Council in particular, to begin establishing the process by which the trial could take place. It was resolved to support in every way possible the European initiative then underway to bring the Iraqi regime before an international court for what the conference called the regime's "crimes against humanity."
These resolutions, along with all other resolutions of the Vienna Congress, were once again ratified and re-adopted in Salahuddin, northern Iraq, on October 27-31, 1992, during the second conference of the General Assembly of the INC. At this conference, the INC had grown to embrace individual democrats and virtually all established organizations and currents within the Iraqi opposition. Of particular note in Salahuddin was the recommendation carried by the expanded General Assembly for the issuance of "a general pardon to all members of the Iraqi armed forces with the exception of the small leadership group around Saddam Hussein."
In the transition from dictatorship to democracy, the problem of justice looms very large. This report, entitled "Crimes Against Humanity and the Transition From Dictatorship To Democracy," has been prepared by the INC's Executive Council in fulfillment of all the previously mentioned resolutions and as a concrete elaboration of the forms that justice ought to take if the people of Iraq are going to be spared even more suffering than they have already endured.
Accountability and Amnesty
There are crimes that are so serious as to mandate universal enforcement, jurisdiction, and responsibility. These are what the legal profession calls crimen contra omnes, "crimes against all." Such crimes have been committed inside Iraq on a large scale since July 1979, following the accession of Saddam Hussein to the Presidency of the Republic in a bloody purge of the upper echelons of the Ba‘th Command.
If such crimes are to be left unpunished, a terrible injustice will have been perpetrated upon the survivors of these crimes, along with their families. The suffering of the victims will not have been honored and redeemed by Iraqi society at large. This is bound to leave a legacy of bitterness and pain that will live on to haunt the Iraqi body politic for generations to come. The welfare of the victims, and of future generations of Iraqis, demands that justice be done and be seen to be done.
On the other hand, the nature of the Ba'thist system is such as to have made very large numbers of people complicit in the perpetration of these crimes. Tens of thousands of Iraqis were either willing or unwilling participants in what was done to other Iraqis during the 1980s and 1990s. Very large numbers of people informed on one another or stood by while their neighbors were humiliated, imprisoned, abused, deported, tortured, made to "disappear" and killed in countless horrible ways. Virtually every adult male has had to serve long terms in an army that has consistently brutalized both its own soldiery and ordinary Iraqi citizens. The multi-layered, highly secretive security organizations regularly employed hundreds of thousands of people to watch over, police, and abuse individuals in a variety of ways. According to one calculation, one-fifth of the economically active labor force in 1980 (677,000 people) were institutionally charged with one form or another of violence (whether "policing", "defending" or "controlling" the society at large). If this was the picture on the eve of the Iraq-Iran war (before the decision to go to war with Iran had been made) one can imagine the extraordinary state of affairs that has developed after twelve more years of this kind of dictatorship and two grueling wars. Many, if not most Iraqis, are simultaneously victims and victimizers. In these extraordinary circumstances, the collective interest of all Iraqis cannot possibly translate into the prosecution of everyone who is in fact guilty.
In asking the Security Council to appoint a special international tribunal to try the Iraqi leadership named in this report, the INC is principally and above all looking to the future of Iraq. It is interested in channeling the legitimate grievances of large numbers of Iraqis into judicial procedures of due process so as to avoid personal acts of revenge which could slide the country towards a situation of anarchy and breakdown in the transition period from dictatorship to democracy.
A. The Terms of the Amnesty
The other side of punishment is forgiveness. Unlike vengeance, and like punishment through due process, forgiveness can put an end to the cycle of violence which otherwise will go on forever. At the same time as it is calling for certain key individuals to be held accountable for what has happened in Iraq since July 1979, the INC commits itself to a general and irrevocable amnesty for all Iraqi officials and army officers not named in this report or not indicted formally by the Tribunal, once established. Such an amnesty announced by the Kurdish organizations on the eve of the Iraqi uprisings of March 1991 won over to the side of the rebellion virtually all the Kurdish auxiliary units inside the Iraqi army (otherwise known as the Jahsh forces). The INC wants to follow that successful precedent with a view to isolating those individuals responsible for leading, organizing, instigating or participating in the formulation or execution of plans to commit grievous abuses of human rights in Iraq since July 1979, the date of Saddam Hussein’s ascension to the presidency of the Republic. Specifically, this amnesty is a promise that those not listed in this report or not indicted formally by the Tribunal will not be held accountable by the Iraqi National Congress, or any future government in Iraq that might evolve out of the INC, for crimes that these individuals may have committed in the past.
Membership in the Ba‘th party or employment in any branch of the Iraqi government including all branches and divisions of the army, is not in and of itself a crime. Only grievous abuses of the rights of individual Iraqis as defined by various covenants of international law discussed in Section III of this report, titled "The Legal Grounds For Indictment", is deemed by the INC to be a crime.
The all-encompassing amnesty referred to earlier covers all criminal acts against individual Iraqis committed by any army or civilian personnel up to June 1, 1993, the official date of issuance of this report. It does not cover, however, any civil violations which might be legitimately brought against any Iraqi at a later date.
Any Iraqi present or past official, who is not in the list of those charged (See Category A of Section IV), or among those whom the INC wants investigated (See Category B of Section IV), will lose his rights of amnesty if, after the date stated, he commits any major violations of human rights such as those that fall under the jurisdiction of the international treaties and covenants listed in Section III of this report. Having lost their amnesty, in the manner described, these particular individuals will then be tried either by the Tribunal or by a reformed Iraqi domestic court system. At that point, the INC will consider it proper to open up that particular individual's whole past history of violations in the trial proceedings.
B. The Role of the United Nations During the Transition in Iraq
Over many years in Iraq, state violence has been put in the service of implementing administrative decrees issued by the Revolutionary Command Council (RCC), the highest executive and legislative decision-making authority in the land. All notion of procedure has therefore disappeared — both in theory and in practice—from the administration of justice in Iraq. Thus the reform of the entire Iraqi legal system promulgated in 1977 excluded from the "people" of Iraq "all persons who take a political, economical or intellectual attitude hostile to the Revolution and its program. The status of these people shall be defined... by the laws and measures taken by the authorities concerned. Revolutionary political consciousness shall play a decisive role in immunizing public opinion towards them."
Such laws have eroded justice as a practice and as a tradition in Iraq. To avoid a slide into anarchy during the transition from such a deformed order, and to further allay the legitimate fears of present and former civil servants of the present regime (both civilian and military) that are not listed in Section IV below nor indicted by the proposed Tribunal, the INC requests of the United Nations to help any incoming new government establish civil authority and quickly rebuild an impartial judiciary that will assure all Iraqi citizens of the due process of law. Such an all-encompassing reform of the legal system of Iraq will be a top priority of the INC.
The great danger during the transition from dictatorship in Iraq is that individuals (and/or groups) with legitimate grievances, acting alone or as members of self-appointed organizations, will take it upon themselves to wreak vengeance upon those whom they believe have victimized them. This reaction against an original violation does not put an end to the consequences of the original violation. On the contrary it permits the creation of a chain reaction with a terrible self-destructive logic.
Vengeance is not justice. The INC is unequivocally against summary trials and summary executions, and will do everything in its power to stop such actions from taking place. The danger is that such vengeful action could develop a momentum of its own that would be detrimental to the future of all individuals inside Iraq and pose a grave threat to the integrity of the country and the unity of the Iraqi state. This danger is the key motivation behind the INC's call upon the United Nations to consider with the utmost seriousness the proposals of this report.
To help in the prevention of further violations in Iraq during the transition, the INC strongly supports the recommendation of Mr. Max van der Stoel, the U.N. Human Rights Commission Special Rapporteur for Iraq, to place human rights monitors throughout Iraq. It believes that every effort should be made to get those monitors in place quickly throughout the country, and in the largest numbers possible. The INC is also committed to keeping those monitors in place after the downfall of the regime, as we believe their presence can play an extremely positive role in checking and tempering the turbulence that may ensue during the transition.
C. A Future Iraqi Human Rights Commission
The INC firmly believes that the truth is the single greatest protection against the future recurrence of violations in Iraq. A general amnesty to violators from the Ba‘th regime should not be taken to mean that the truth about those violations is going to be concealed from the people of Iraq. The precise opposite is our intention. Following the successful example of countries like Uganda in 1989. the INC is committed to founding an Iraqi Human Rights Commission in Baghdad as a matter of the highest priority in the wake of the fall of the Ba’thist regime. It will be the duty of this Commission to hear and record testimony and to investigate and chronicle the abuses that were committed by government security forces throughout the 1980s. The purpose of these hearings will be to understand the past and to absorb it internally. We believe Iraq's recent past must become forever fused into the country's collective memory. Only then can there be a new beginning.
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