CIAO DATE: 08/07

Georgetown Journal of International Affairs

Georgetown Journal of International Affairs, Volume 7, Number 2, Summer/Fall 2006

 

Indicting Zarqawi for Genocide
Raj Purohit and Golzar Kheiltash

 

Excerpt

Raj Purohit is a senior fellow at Citizens for Global Solutions.

Golzar Kheiltash serves as legal analyst for the International Law and Justice Program at Citizens for Global Solutions.

“There can be no more important issue, and no more binding obligation,
than the prevention of genocide.”
—Kofi Annan, speaking at the Stockholm International Forum, January 2004.

The latest attacks against Shiite civilians in Iraq under the direction of Al Qaeda point person Abu Mussab Al Zarqawi, coupled with a statement of incitement made by Zarqawi himself on September 14, 2005, should act as a warning to the international community that a campaign of genocide is potentially underway in Iraq.  Zarqawi, often called the second in command for Al Qaeda after Osama Bin Laden, has become a key player in the religious power struggle in Iraq. A Jordanian, Zarqawi has utilized the war in Iraq as a sectarian battleground, deliberately stoking the already intense fire between the politically stronger Shiite majority and their embittered Sunni counterparts. In fact, for a number of months it has been apparent that Zarqawi has been coordinating attacks on Shiite groups in an effort to spark a broader sectarian conflict that could trigger a US military pullout.

The leading international legal document that defines and prohibits the crime of genocide is the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter, “Convention”), adopted by the UN General Assembly on December 9, 1948. The Convention defines genocide as acts of violence “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”  Importantly, the Convention makes it unlawful not only to commit such acts, but to incite others to do so as well.  In law, incitement is generally defined as “the act of persuading another person to commit a crime.”1   

This article argues that acts of violence targeting Iraqi Shiites for which Zarqawi and his followers have claimed responsibility, in conjunction with statements made by Zarqawi himself, constitute genocide, the incitement thereof, and conspiracy to commit the same. Furthermore, this article argues that prosecuting Zarqawi for genocide either instead of, or in addition to, terrorism offenses would be both practically feasible and legally, politically, and morally desirable.  In setting forth this argument, the next section will describe the factual basis for such an indictment, highlighting those acts and statements from the past year that constitute evidence of genocide, incitement thereof, and conspiracy.  The succeeding section will in turn discuss in greater detail the law of genocide, elaborating, among other things, the elements of the offense itself, the specific conduct prohibited by the Convention, and the legal concepts of incitement and conspiracy.  The fourth section will then argue that indicting Zarqawi for genocide and related offenses offers certain advantages—legal, political, and moral—in comparison to indicting him for terrorism.  To conclude, the last section will offer some recommendations and argue that the International Criminal Court would be one, and perhaps the most, appropriate forum for prosecuting such a case...

1Blacks’ Law Dictionary, 8th Edition.