The Iraqi Special Tribunal: A lack of objectivity concerns the victim nation
Kurdish Media, UK
Aug. 25, 2006
8/25/2006 KurdishMedia.com – By Shakhawan Shorsh
Putting Saddam Hussein and other perpetrators on trial for genocide
and crimes against humanity is certainly a positive step toward the
prevention of future similar atrocities. This is also a relief for
the victims. If the Anfal campaign is recognized as genocide, it
would no doubt have moral and political importance for the Kurds.
However, this does not prevent anyone from revealing the negative
elements of the tribunal.
The Iraqi Special Tribunal is a national tribunal that conforms with
Iraqi laws from 1958, 1968, 1969, 1971, and 1979. The tribunal also
includes international laws concerning genocide, crimes against
humanity, and war crimes. The establishment of the tribunal was
mainly carried out by the Coalition Provisional Authority (CPA), led
by the United States. There has been harsh criticism about the
legality of the tribunal; however, this article will focus only on
the legitimacy of the tribunal in connection with the Kurds as the
victim nation.
The Americans and their Iraqi allies established the tribunal without
asking for the opinion or for the support of the Kurdish nation.
Kurdish leaders may have been powerless in terms of the establishment
of an Arab-dominated Iraqi tribunal, but Kurdish leaders did not
provide any explanation on this issue either. They did not explain to
the Kurdish nation the reason that an Arab-dominated Iraqi tribunal
was better than an impartial international tribunal. Even with the
argument that the Kurdish issue is an internal Iraqi issue, the Kurds
deserve a neutral international tribunal, such as the ICTY in the
former Yugoslavia. The Jewish people did not have national territory
problems, so the Nuremberg tribunal was not German, nor did it have
German judges.
The first few days of the trial for the Anfal genocide showed Kurdish
witnesses appearing in court, surrounded by Arab judges, Arab
defenders, and Arab accusers. The Iraqi constitution regards Arabic
and Kurdish as equal official languages, but the language of this
sensitive tribunal is Arabic. For Kurds, Arabic is the language of
oppression, of the Anfal genocide, of Arabization, and of ethnic
cleansing. The Kurdish language and people are again undermined by
the language of the oppressor. And still, all of the legal statements
in this trial are in Arabic. Many of the victims are villagers and do
not understand what is being said or what is going on. Unfortunately,
the translator has difficulties in translating what the victims are
trying to say. This is a clear deficiency in the trial and may
influence the final result.
There are a few judges that are Kurdish only by identity; they must
speak in Arabic and behave like other Iraqi judges. Nobody can see
any difference between them and the Arab judges. We have seen this
before in the Dujail case, led by a Kurdish judge, and now the Anfal
genocide trial is led by Arabs. In this way, the tribunal is
attempting to demonstrate its impartiality between the different
ethnic and national groups. The setup of this tribunal is also meant
to demonstrate harmony between the Iraqi ethnic groups, as the
"democratization" process proclaims.
First of all, neither the Arab judges nor the Kurdish judges can be
impartial about past cases of ethnic conflict. An Arab judge cannot
be impartial toward the Kurds, as the case is related to the Kurdish
genocide committed by Arabs. The daily violence and killings between
the ethnic groups shows the extent of the division of Iraqi society.
The judges belong to their ethnic communities; therefore, with the
lack of capacity in court, the chaotic political atmosphere, and the
nature of the long-term conflict, they can hardly escape their ethnic
backgrounds and political beliefs. Second, the participation of a few
Kurdish judges was very likely decided in order to encourage the
support of Kurdish leaders. The interests of an oppressed people were
ignored here. Furthermore, this Iraqi tribunal is undermining the
Kurdish issue, which is a struggle toward self-determination. A trial
concerning the Anfal case led by Kurdish judges would be criticized
for favouritism, as the judges would belong to the victimized group.
This is understandable. The point is that Arabs should not be
involved in a trial involving their own victimized group. The Arab
judges, in this case, belong to the oppressors’ ethnic group; they
cannot be morally or legally neutral. Actually, the few Kurdish
judges do not make any measurable difference.
Nevertheless, the small Dujail case is not comparable with a case
like the Anfal genocide. Not all mass killings have the same
characteristics. The killing of the Shiites did not have the same
political motive as the Kurdish mass killings. Therefore, it is
possibly acceptable for Arabs to put other Arab perpetrators on
trial, but the situation is not the same for the Kurds. Mass killing
of the Kurds was motivated by eliminating a non-Arab national group,
while the killing of Arab groups was not occurred due to dissimilar
nationality.
This tribunal makes use of rules, such as rule number 7, article 1,
from 1958, which deals with the crime of occupation of another Arab
country. The Arabs involve every rule that is in their own interest.
This is not the same as the Kurdish interest. For instance, the Kurds
have suffered under Arabization since the establishment of the Iraqi
state, and there are many episodes and documents proving this.
However, there is not a single article in the statute of the tribunal
regarding this crime. Arabization should have a clear definition.
Arabization can be seen as a type of ethnic cleansing with particular
characteristics. Arabism is central for Arabization, for instance a
cleansed territory of the targeted group settles only by Arabs; the
victims in some areas are forcibly pushed to accept Arab national
identity only, and so on.
Article 12 from the statute concerns crimes against humanity, which
includes crimes such as extermination, but this in itself cannot
encompass the crime of Arabization. The text is vague, does not give
a precise definition of ethnic cleansing, and does not sufficiently
deal with the ethnic cleansing committed against the Kurds.
After annexing the southern part of Kurdistan into Iraq, the Kurdish
issue was regarded as internal Iraqi problem. However, this did not
change the essential nature of the Kurdish struggle for national
freedom. The conflict between Arabs and Kurds has always been based
on two different ethnic nationalisms, which have contradictory
aspirations and aims. The Arabs – representing the Iraqi state –
tried to assimilate and cleanse the weak Kurdish minority, while the
Kurdish minority struggled for their lost land and national freedom.
Ethnic cleansing, Arabization, and genocide are the result of a
long-term ethnic conflict between these two national groups. From
this point of view – as is acceptable for any ethnic conflict –
neither the Arabs nor the Iraqi state have the right to judge the
genocide, for which the Iraqi Arabs and the state is responsible.
They do not have the right to write their own victims’ history. Would
the Armenian people accept a Turkish court and Turkish judges in
connection with the Armenian genocide? I do not think so.
From: Emil Lazarian | Ararat NewsPress
