Fairness, International Law, and Crimes Against Humanity

Ali Hassan al-Majid, better known as “Chemical Ali” was sentenced to death by an Iraqi court last week. The sentence—death by hanging—was carried out on Monday.

Checmical Ali playing card issued by U.S. military forces in 2003.

Checmical Ali playing card issued by U.S. military forces in 2003

Ali was convicted of crimes against humanity for his role in a series of chemical weapons attacks against Kurds in northern Iraq under regime of Saddam Hussein in the 198s. The campaign resulted in the destruction of an estimated 4,000 Kurdish villages, the death of more than 180,000 and deportation of an estimated 1.5 million Kurds. His willingness to use a number of chemical weapons, including mustard gas, sarin and VX nerve agents, earned him the nickname “Chemical Ali,” though Kurds often referred to him as the “Butcher of Kurdistan.” Ali’s sentence and execution marked the highest level execution of a former Hussein-regime official since the execution of Saddam Hussein in 2006.

Crimes against humanity were defined during the Nuremburg Trials at the end of World War II as “Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.” The definition was later clarified by an Explanatory Memorandum to the Rome Statute of the International Criminal Court (ICC), which explained that crimes against humanity are

particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder; extermination; torture; rape and political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of falling into the category of crimes under discussion.

The trial of perpetrators for crimes against humanity has often been difficult and controversial. Accusations that the Sudanese government has engaged in crimes against humanity in operations in Darfur, for example, have generated tension between the ICC and the African Union. Similarly, the trials of individuals involved in the Rwandan genocide has led to diplomatic standoffs between the post-genocide Rwandan government, the United Nations, and the government of France.

The challenge often centers on accusations of politically-motivated trials and the dangers of “victor’s justice,” where the rules of war (and more generally of right and wrong) depend on the nationality of the winner. Critics of the U.S. anti-terrorism policy often claim that the United States is engaged in victor’s justice in its decision to use water boarding against individuals with suspected links to terrorism. This claim is based on the decision of the U.S. government to try (and ultimately execute) Japanese soldiers after World War II on charges of war crimes for water boarding American soldiers.

Clearly, the situation in Iraq is different. But the case does beg the question of fairness in international law. We all know that “to the victor goes the spoils” and that “history is written by the victor.” But does international law allow for equity and fairness that are the foundation for contemporary legal systems?

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