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By heval hylan
One might think that in a world in which war criminals lead the major states, it is not fair to try just a few them, but not all the others. This explains why the application of legal categories from International Criminal Law (ICL) to the conduct of international relations is a perilous business. One might think that a trial support by solid evidence might be a practical way to establish why Mr. Talabani and Mr. Barzani are war criminals.    
We legal experts sometimes hear the argument that the Saddam Hussein trial is unbalanced because Mr. Talabani and Mr. Barzani are not also being tried for war crimes. This argument has two stepladders: (a) Talabani and Barzani are war criminals, or (b) at least they should be indicted and tried for war crimes.   
There is something like a system of ICL, most clearly embodied in the Rome Statute for the International Criminal Court (ICC), which, however, does not apply to Iraq because Iraq is not a signatory. However, ICL has also been applied against leaders and officials of the successor states of former Yugoslavia, Rwanda, Sera Lion, and Cambodia against some of the people responsible for the genocide in, and in a handful of other cases.   
Many people also think that ICL is binding by force of custom.  I will assume that this is based on fact for the sake of argument, though I have doubts about whether the scope of Customary International Criminal Law (CICL), so understood, would cover much of significance.   
Laws of war and International Law (IL) rules are intended to channel the evils of war and prevent harm to civilians. They were never meant to be suicide pacts or mere aspirational commitments; they were self-enforced treaties that entailed swift and harsh penalties to those that would try to gain an unjust advantage over another belligerent.  
Let me not touch the detailed and complicated jurisdictional issues, but: (i) does any particular court have jurisdiction over Mr.Talabani-Mr.Barzani; and (ii) are Mr. Talabani-Mr. Barzani protected by immunity doctrines. And similar complications, and focus on the substantive law.  I therefore focus on IL, not Iraq’s or Kurdistan’s new draft Constitution.   
The internal war between Patriotic Union of Kurdistan (PUK) and Kurdistan Democratic Party (KDP) was most likely a violation of IL because it was not in self-defense to protect the Kurds.    
Both PUK and KDP leaders gave orders to use excessive force during the internal conflicts. In addition, PUK leaders guided the Iranian forces to enter Halabja and no doubt they had long arms in causing the use of Chemical Weapons in 1988. On the other hand KDP leaders sought help and brought Saddam’s troops to Kurdistan to crash PUK. The war also caused excessive civilian casualties occurred at the time at high levels.    
Torturing internal war prisoners and civilians in temporarily occupied territories by both parties in conflict during the then internal killings, kidnapping, and disappearance of people are well fit within the norms of war crimes legal frame, and also a violation of ICL.  
As far as the Kurdish people know, there are ample of evidence that both Mr. Barzani and Mr. Talabani ordered, approved, knew of, or should have known of the torture and other violation of human rights that occurred. For this reason, a theory of command responsibility would make the sufficient grade.  
The Charter of the International Military Tribunal prohibits, Crimes Against Peace (CAP), War Crimes and Crimes Against Humanity (CAH). Those crimes are defined in the Charter:  
Principle VI
The crimes hereinafter set out are punishable as crimes under international law:   
     a. Crimes Against Peace:
(i)Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements of assurances;
(ii)              Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).   
    b. War Crimes:
  Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment, or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.    
    c. Crimes Against Humanity:  
Murder, extermination, enslavement, deportation, and other inhuman acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.
Barzani and Talabani have committed flagrant and frequent violations of:
1)    The Hague Regulations of 1907 and particularly Articles 23 (e), 46, and 47.
2)    The Convention Relative to the Protection of Civilians in Time of War of 1949 (Geneva).
3)    Protocol I Additional to the Geneva Conventions-1977 and particularly Articles 48, 51, 52 and 54.1 Starvation of Civilians as a Method of Warfare  is prohibited, and Article 55 Protection of the Natural Environment.  
They have continuously violated Customary International Law (CIL) as it existed in 1945 and has developed since. They have also committed flagrant and frequent violations of the rights of the Kurdish people protected by the Universal Declaration of Human Rights (UDHR) of 1948, the International Covenant of Civil and Political Rights (ICCPR) of 1966 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966.   
Perhaps.  But we are all legal realists now, so we need to ask whether it matters if Mr. Barzani and Mr. Talabani are war criminals. Probably YES, because any international court is likely to try them.  However, at the current state of affairs USA and UK have no interest in pressing the question because they would not want to acknowledge that their apprentices could be tried and convicted, nor would they want to risk losing teamwork.  
It is hard to see the moral difference between the leader of a Federal State or a country authorising the use of force in a military method, therefore killing civilians, vs. a common thug in a gang deciding that a drive-by shooting is in order, therefore killing civilians. I recognise the demands of leadership, and if anything, I think those demands should expose leaders to a higher standard of scrutiny then they would face under normal circumstances.  
They are responsible for the safety of more people, as well as having the authority to do more good or bad. On a whole, I think that seeing ‘leaders’ like Mr. Talabani-Mr. Barzani nearly held responsible for their crimes is much more likely to make us all more safe in the long-term. It will make internal war more increasingly unlikely, because all second and third tier leaders will know that they share liability for crimes that happen under their commands.   
There are also moral dimensions to the law. From a moral standpoint, if our presidents are put on trial and removed from office because of pending prosecution by the ICC, then it is easy weaving together strong arguments, and you might agree with some of them because I spread myself too skeletal. But the simple story is this: the ICC could have jurisdiction on Mr. Barzani-Mr. Talabani crimes and might try them at some point.   
The false dilemma of these cases is what to do about Mr. Talabani- Mr. Barzani or other Kurdish leaders involved in crimes against humanity. The answer is simple; the people of a reconstituted Kurdistan should try these men for their crimes against their own people. Yet! the better conclusion is that application of legal categories to these questions of practical international relations and international political morality, without some sense of the larger context, is not helpful.