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Compensation for the Victims of Chemical Warfare in Iraq and Iran

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Compensation for the Victims of Chemical Warfare in Iraq and Iran Compensation for the Victims of Chemical Warfare in Iraq and Iran By Liesbeth Zegveld* A. Th e Case against Van Anraat It has been two decades since the end of the Iran-Iraq War. Yet, Iranian and Kurdish victims of Iraq’s chemical warfare are still seeking judicial redress.1 Recently they fi led claims for compensation in the criminal case against Frans Van Anraat. Iraq’s chemical warfare programme relied heavily on foreign suppliers. Th e Dutch businessman Frans Van Anraat sold huge quantities of the chemical thiodiglycol (TDG) to the regime of Saddam Hussein. Th e material was crucial for the production of mustard gas. Th is gas was used by the Ba’athists in the war against Iran and in their attacks on Kurds in 1987 and 1988, which included the Anfal campaign. Van Anraat sought refuge in Iraq. From there he managed to return to his home country, the Netherlands. Van Anraat was arrested in the Netherlands in December 2004, on criminal charges of complicity in war crimes and genocide.2 On 9 May 2007, Van Anraat was convicted for complicity in war crimes.3 He was convicted of violating the 1925 Geneva Gas Protocol,4 as well as interna- tional customary law prohibiting the use of chemical weapons in an international * Professor of international humanitarian law, in particular on the rights of women and children at Leiden University, and lawyer in Amsterdam. Th is article is an adaptation of a presentation held at the 30th San Remo Round Table on Current Issues of International Humanitarian Law, 6–8 September 2007. 1 At the same time, the Iraqi Special Tribunal has sentenced three key perpetrators to death. 2 See on the criminal law aspects of this case H. van der Wilt, “Genocide, Complicity in Genocide and International v. Domestic Jurisdiction. Refl ections on the van Anraat Case”, Journal of International Criminal Justice 4 (2006), 239–57. 3 Court of Appeal Th e Hague, 9 May 2007, LJN: BA4676 and District Court, 23 December 2005, LJN: AU8685. English versions of the judgments are available at www.rechtspraak.nl. 4 ‘Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare’ (Th e Hague Convention of 17 June 1925). Text of the Protocol is available at www.opcw.org/html/db/cwc/more/geneva_protocol.html. Both Iran and Iraq were party to the Gas Protocol. Ferstman et al. (eds.), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity, pp. 369–382. © 2009 Koninklijke Brill NV. Printed in the Netherlands. 370 Liesbeth Zegveld armed confl ict and indiscriminatory attacks.5 During the war, Iraq also used chemical weapons against its Kurdish minority population, in particular in an attack on the town of Halabja in northern Iraq in March 1988. Th e 1925 Geneva Protocol does not cover the use of chemical weapons against its own population. For this reason the indictment also included common article 3.6 Th ese violations constituted not only a war crime committed by Van Anraat, they also constituted a tort under Dutch law against those who had suff ered damage as a result of these crimes. Fifteen victims of the Iraq chemical attacks, both from Iran and Iraq, joined in the criminal case against Van Anraat. Th ese victims submitted to the Dutch Court a claim for compensation for the damages and injuries they had suff ered. In this article I will discuss a few matters that are outstanding in this compen- sation case of the victims.7 But let me fi rst address the following question. 1. Compensation for Violation of the Law on Conduct of Hostilities Among cases of civilians, combatants, prisoners of war and civilian detainees, cases of civilians and combatants seem to be the most diffi cult. One of the rea- sons for this is that they seem to allow for less clear establishment of conduct in violation of international humanitarian law.8 Th is being the case, the question arises whether there is any reason to assume that compensation for violation of the law on conduct of hostilities (Hague Law)9 would be diff erent from compen- sation for violation of the rules protecting persons in the power of a party to the confl ict (Geneva Law)10 or international humanitarian law in general. Th e answer 5 Th e Dutch War Crimes Act (1952) penalises violations of the laws and customs of war (article 8). Th is Act has been replaced by the International Crimes Act in October 2003. 6 Article 3 common to the four Geneva Conventions of 1949, available at www.icrc .org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions. 7 Th e author acted as a lawyer representing the victims who joined as a civil party in the criminal proceedings against Van Anraat. 8 H. Fujita, I. Suzuki and K. Nagano (eds), War and the Right of Individuals. Renaissance of Individual Compensation, Nippon Hyoron-sha Co., LTD. Publishers, Tokyo 1999, 13. 9 Th e Law of Th e Hague are those provisions that aff ect the conduct of hostilities. It consists of, among others, the 1907 Hague Convention Respecting the Laws and Customs of War on Land (Hague IV), the 1907 Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague V), the 1907 Hague Convention Relative to the Laying of Automatic Submarine Contact Mines (Hague VIII) and the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or other Gases, and of Bacteriological Methods of Warfare. Also Additional Protocol I and II to the 1949 Geneva Conventions con- tain rules on the conduct of hostilities. 10 Th e Law of Geneva is a body of rules which protect victims of war who fi nd themselves in the power of a party to the confl ict. It is laid down in, among others, the 1949 Geneva Convention (I) for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, the 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and .
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