Why the Killing in Darfur is Genocide

In the “Anfal trial,” the Iraqi High Tribunal (“IHT”) in Baghdad convicted five former Iraqi high officials of genocide, crimes against humanity and war crimes committed in 1988 against the Iraqi Kurds. The evidence presented at trial—which included both voluminous documentary evidence as well as eye-witness testimony—demonstrated the clear existence of a genocidal campaign by the former Iraqi government and military, which eliminated an estimated 182,000 Iraqi Kurds in 1988, including through the use of chemical weapons (the eight-phased “Anfal campaign”). Ali Hassan al-Majid al-Tikriti (“Majid”), known by the moniker “Chemical Ali,” and four others were convicted—three of whom (including Majid) were sentenced to death. Saddam Hussein al-Majid al-Tikriti (“Saddam Hussein”) was dropped from the proceedings after his execution following the verdict in the Dujail trial.

In the Anfal Trial Chamber judgment, the judges explained fairly persuasively how genocide, crimes against humanity and war crimes were committed against the Iraqi Kurds. The primary weaknesses of the Trial Chamber judgment include: (i) a less persuasive job in examining individual criminal responsibility; and (ii) a failure to address fair trial problems that arose during the trial, such as insufficiently detailed charges. On appeal, the Cassation Chamber judges did not seriously grapple with the merits of the case. This article evaluates the successes and failures of this trial and judgments.