Dutch Court Concludes Anfal Campaign Wasn’t Genocide

A little over a year ago, I noted that a Dutch court had sentenced Frans van Anraat, a chemicals dealer, to 15 years in prison for selling Iraq a key component of the mustard gas that Saddam used against the Kurds during the Anfal campaign. Last week, a Dutch appeals court upheld van Anraat’s conviction for complicity in war crimes, but rejected the prosecution’s claim that he should have been convicted of complicity in genocide instead:

An appeals court increased a Dutch businessman’s war crimes sentence from 15 to 17 years Wednesday for selling Saddam Hussein raw materials for poison gas attacks that killed thousands of Kurds, saying the trader was “driven by naked greed.”

The Hague Appeals Court upheld the complicity in war crimes conviction handed to Frans van Anraat in 2005 for selling chemicals to Saddam and agreed with trial judges that he was innocent of complicity in genocide.

The four-judge appeals panel said they increased the sentence because Van Anraat, 65, was motivated by greed and repeatedly sold chemicals knowing they were being turned into mustard gas. Seventeen years is an unusually long prison term by Dutch standards, where 20 years is the maximum unless a suspect is sentenced to life without possibility of parole, or convicted of a terrorist crime.

The appellate court’s decision to uphold van Anraat’s acquittal on the complicity in genocide charges seems sound, given that the trial court specifically concluded that van Anraat was not aware of Saddam’s plan to solve Iraq’s “Kurdish problem” through genocide. As the ICTR made clear in Akayesu, although complicity in genocide does not require the defendant to share the principal perpetrator’s specific intent to destroy the group as such, it does require proof that the defendant was aware of the genocidal plan itself:

[T]he intent of the accomplice is… to knowingly aid or abet one or more persons to commit the crime of genocide. Therefore… an accomplice to genocide need not necessarily possess the dolus specialis of genocide, namely the specific intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such. Thus, an accused is liable as an accomplice to genocide if he knowingly aided or abetted or instigated one or more persons in the commission of genocide, while knowing that such a person or persons were committing genocide, even though the accused himself did not have the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.

The appellate court, however, did not simply conclude that van Anraat was unaware of Saddam’s genocidal plan. It also held that the Anfal campaign did not amount to genocide:

In its written judgment, the appeals panel said there was insufficient evidence to establish that the poison gas attacks on Kurdish villages in 1987 and 1988 amounted to genocide.

That is, to say the least, a shocking — and indefensible — conclusion. The Anfal trial, which is still in progress, has been no more fair than the Dujail trial. As Human Rights Watch has ably documented, though, there is no question that the Anfal campaign itself, which killed between 50,000 and 100,000 Kurds, was genocidal both in intent and in effect:

The Anfal campaign was the culmination of a long-term strategy to solve what the government saw as its “Kurdish problem.” Since the Ba’ath Party coup in 1968, the Iraqi government had deemed the Kurds as a threat to the nation. Baghdad forced many Kurds to leave their homes and relocated them in the Kurdish “Autonomous Region.” It then “Arabized” the formerly Kurdish areas by enticing Arab tribespeople there with offers of relocation benefits. “Genocide in Iraq” shows that in the mid-1980s the government began to demarcate special areas within the Autonomous Region that it declared to be off-limits. The residents of these “prohibited zones” were, with very minor exceptions, Kurds who after the October 1987 census were defined as non-Iraqi nationals and traitors. In 1988, they were marked for destruction.

The “prohibited zones” were large areas that covered most of rural Iraqi-Kurdistan. The government had lost control of these regions because it had deployed so many troops to fight the war with Iran. By declaring these areas off-limits, Baghdad sought to regain control over them. Although the “prohibited zones” did not include all Iraqi Kurds, they were home almost exclusively to Kurds. The report shows that the vast majority of residents were civilian men, women and children. Many of the villages in the “prohibited zones” were rarely visited by Kurdish guerillas. The Ba’ath Party government simply treated all persons present in the zones alike without distinguishing between combatants and civilians.

… In official pronouncements, national boundaries dissolved and age-old ethnic identities were recycled. Government propaganda alleged that “the Kurds” had allied themselves with “the enemy Persians” against “the Arabs.”

The treatment of those who were loyal to the government was no different, which shows that the official policy was based not on political loyalty but on ethnicity. Even pro-government tribes and/or members of the pro-government Kurdish militia, the National Defense Battalions, were warned that they and their families would not be spared if they chose to remain in their villages in the “prohibited zones.”

[snip]

The pretext for the policy was the presence of the Kurdish guerilla organizations, which had been using some of these sectors as bases for their insurgency. But what had begun as a counter-insurgency effort against rebels became a murderous campaign against a distinct part of the Kurdish population. “Genocide in Iraq” shows that the repression against the Kurds of the “prohibited zones” escalated from economic embargo to air and artillery bombardments to the systematic slaughter of everyone present.

Interestingly, the Dutch appellate court admitted that “at the very least, there were powerful indications that the Iraqi leaders had genocidal intent.” Why the court still refused to conclude that the Anfal campaign involved a genocidal plan is thus even more mysterious.

If we have any Dutch readers who know more about the appellate court’s decision, I hope they will respond to this post in the comments.

UPDATE: Reader AnneJ has kindly provided the following translation of the critical sentence in the decision:

The Court determines that a final judicial decision on the very important question that is highly relevant from an international perspective, whether certain acts in the indictment by certain people amount to genocide, must be based on a more solid foundation than was presented to the Court.

Concluding that genocide was not adequately proved may be slightly better than concluding that genocide did not take place — but not much better. The appellate court did not have to upset the trial court’s finding that genocide occurred in order to affirm van Anraat’s acquittal on the complicity charges, because the trial court held that, even if genocide did occur, van Anraat was unaware of the genocidal plan. The fact that the appellate court nevertheless went out of its way to contradict the trial court thus seems to indicate that, in fact, it did not believe that genocide took place — not simply that the prosecutor failed to prove that it did (itself questionable, given the trial court’s decision).

My thanks to AnneJ for her help!

UPDATE 2: It has been suggested in the comments that the trial court and the appellate court could have reasonably disagreed about whether the Anfal campaign was genocidal, because “the trial court made the assessment that Anfal was genocide… on the basis of a single report, without examining witnesses, engaging in any sort of comprehensive investigation into Saddam & Co.’s genocidal intent etc.” That description of the trial court’s efforts is incorrect. Although the court did, in fact, take into account a report on the situation in Iraq written by the U.N.’s Special Rapporteur of the Commission on Human Rights — including, it is important to note, specifically considering a number of the original Iraqi documents contained in the report — it also took into account literally dozens of (1) statements made in court by live witnesses, (2) witness statements taken by the court’s examining magistrate, (3) witness statements taking by the Dutch national police, and (4) witness statements taken by Belgian investigating officers. That testimony documented every aspect of the Anfal campaign, including the nature of Kurdishness, the regime’s hatred of the Kurds, and the specific genocidal acts the regime committed during the campaign. I thus stand behind my contention that the appellate court did not simply disagree — reasonably or otherwise — with the trial court about the quality of prosecution’s proof, but actually believed (and so held) that the Anfal campaign did not amount to genocide.

(To add insult to injury, Dutch courts use the lowest standard of proof of any civil-law country in Western Europe: whereas the other civilian countries use either an “intimate conviction” or a “reasonable doubt” standard, the Netherlands uses a “gained the conviction” standard. See my essay on the Iraqi High Tribunal here for a survey. A number of civil-law scholars have criticized the Dutch standard for being too low.)