Saddam Hussein, still awaiting the verdict from his first war-crimes trial, this week is again before Iraq's special criminal tribunal, where prosecutors are seeking to prove the most difficult charge in international criminal law: Genocide.
"It's extraordinarily difficult to prove genocide," says Michael Scharf, a Case Western University law professor who helped train judges and prosecutors participating in the Iraqi Special Tribunal. "I believe the Iraqi investigating judges reached the conclusion that if they didn't make the attempt to prosecute him for genocide, he would go down in history as a minor thug and not as a Hitler or a Pol Pot."
Mr. Hussein and six aides are charged in a new trial with crimes connected to his regime's most infamous atrocity. The Anfal Campaign, named after a chapter in the Koran usually translated as "The Spoils of War," led to the deaths of more than 100,000 people – mostly Kurds – according to Human Rights Watch.
The aim was to depopulate a swath of Kurdistan where separatists thrived.
Prosecutors appear confident that they will be able to prove the charge of genocide. In remarks on the opening trial day on Tuesday, lead prosecutor Munqith Farun alleged excesses so great that "it was as if genocide was not enough" to the perpetrators.
But Mr. Scharf says winning a genocide conviction "will be a close call" unless documentary evidence is produced that at least part of Hussein's intent was to destroy the Kurds – rather than to neutralize regime opponents. While Scharf thinks the other charges, like crimes against humanity, will be proven, the fight over the genocide charges is likely to be hard-fought from both sides. "There is no defense they can come up with that justifies the use of chemical weapons on civilians, and his lawyers know that," says Scharf. "But one of their main agendas here is to make sure that Saddam does not go down in history as the first head of state convicted for genocide."
Scharf points out that if Hussein is not convicted of genocide, he could still be convicted of lesser crimes sufficient for life imprisonment or execution.
From 1987 to 1989, and under the command of Hussein's cousin Ali Hassan al-Majid, Iraqi forces bombarded villages with conventional and sometimes chemical weapons then swept through on the ground, rounding up and killing surviving men, and, in some cases, forcing families out of the region, replacing Kurds with ethnic Arabs.
Up to 2,000 villages were razed, and at least 40 chemical attacks recorded. Though the campaign formally opened in 1988, operations with the same objectives began as early as late 1986.
So far, the prosecution is building slowly, with eyewitness accounts from survivors of early attacks.
While in the first trial, in which Hussein was accused of ordering 148 people murdered in Dujail village in reprisal for a 1982 assassination attempt, witness names were withheld and they testified from behind curtains. But witnesses in the Anfal trial, who live in much safer and autonomous Kurdistan in northern Iraq, have confronted Hussein directly.
"My complaint is against Saddam Hussein, Ali Hassan al-Majid ... and everyone in that box,'' said Adiba Ola Bayez, gesturing to the enclosure where the defendants sit during the trial. "May God blind them all."
Ms. Bayez is a survivor of an August 16, 1987, chemical attack on the village of Balisan. She provided a frightening account of fleeing to a bomb shelter in town, but realizing something was wrong when she noticed a strong "rotten apple" smell. Soon after, she and her five children began vomiting, then went temporarily blind.
Shortly after the attack, she and other survivors were taken to a prison camp, where four victims of chemical poisoning died in front of her.
She said 29 Belisan residents were herded into a bus by Iraqi forces, and were never seen again. While at the camp, her husband's uncle was also taken away. "Anfalized,'' she said, using the Kurdish term for the thousands who were secretly executed in those days. "Anfalized with the other men."
The documentary evidence that all this did occur is overwhelming. Testimony from thousands of survivors has been gathered over the years, as have video and photographic records of the aftermath of the attacks.
Iraqi government records, now with prosecutors, also detail the campaign.
The defendants – among them Mr. Majid, who came to be known by regime opponents as "Chemical Ali" for his use of sarin nerve gas and mustard gas on villagers – are expected to argue that the use of force in Kurdistan was appropriate in the context of Iraq's then-raging war with Iran, pointing out that Kurdish rebel units were aided by the Iranians.
Defense lawyers have indicated the men will contend that civilian casualties were regrettable accidents during offensives against rebels.
On Wednesday, the defense alleged that all civilians had been evacuated from the area at the time, and that all who remained were Kurdish rebels, often called peshmerga.
They are also likely to point to the international support Hussein's Iraq received at the time, including from the United States, which was aware of his use of chemical weapons against Iran in the 1980s but continued to support him, hoping to keep the Islamic Republic in check.
Scharf anticipates that the defense will seek to disprove the genocide charges by framing the offensive "not as an attempt to destroy [the Kurds] as a group, but rather to remove them from territory that was being used as a base of insurgency by people who were allied with his enemy Iran."
Scharf adds that the absence of strong Western condemnation at the time may be used by the defense to argue that his tactics were seen as broadly acceptable, and that the serious charges of today are a function of politics.