The Saddam trial

In 1992, a year after the first Gulf War, I went to Iraqi Kurdistan as the team leader of a joint Human Rights Watch-Physicians for Human Rights forensic anthropology mission to excavate several mass grave sites in Kurdistan. I am a lawyer, not a forensic anthropologist, and my job was to deal with logistics as well as to take testimony from survivors while the forensic experts, led by Dr. Clyde Snow, undertook the exhumations and physical investigations. (Jemera Rone, still of Human Rights Watch, in fact handled most of the logistical matters such as housing and food - all very difficult in those days - and did a far better job at it than I would have been able to do.)

The team excavated massacre sites that dated from the infamous 1988 Anfal campaign, which HRW concluded was an attempted genocide. (My guess, given the general relaxation of the conditions for concluding genocide, is - absent the diffuse desire by human rights organizations to avoid giving any ideological aid or comfort to the US invasion - Anfal would be counted as a genocide today as much as Bosnia, for example, was.)

We worked on one site that involved men and boys lined up and shot, then buried in a mass grave; we also excavated the graves of several villagers in another location who had died from chemical weapons attacks. The team brought back samples from the bombs that were positively identified as having degradation products unique to sarin gas.

This was all written up in a report, authored by me, called The Destruction of Koreme. I see that it occasionally pops up on web sites dealing with Kurdish issues, although it is very important to know that while the accounts at the particular villages are correct, later investigations by Human Rights Watch showed that some of its descriptions and details of the larger political situation of Anfal, outside the villages we were investigating at the level of Iraqi Kurdistan as a whole, although the best information at the time, were not correct. The definitive work on the Anfal campaign was and is the extraordinary book-length report for Human Rights Watch by George Black (now of Human Rights First). All those reports are available at the Human Rights Watch website, here.

As someone who has worked for Human Rights Watch and other human rights groups, and who is, at one and the same time, both sympathetic and critical today of the role of NGOs in human rights, I have not tended to say too much on the issues I investigated on behalf of these organizations. I would not want anyone, on the one hand, to think that I speak for organizations that in fact I sometimes have sharply criticized (as in this Weekly Standard article) and, on the other, I would also would not want anyone to think that such criticisms are more than they are.

Human Rights Watch and other international human rights monitors have nonetheless indicated their grave unhappiness with the current arrangements for trying Saddam Hussein, whose trial opened today (and was immediately postponed). The objections come down to four things:

• The death penalty. All these groups oppose the death penalty on moral grounds. Fair enough; the question is whether, however, that is grounds to refuse to provide the kind of information routinely offered, for example, in Milosevic's trial. The anti-death penalty stance is offered as an instance, sometimes, of the human rights groups commitment to justice. Well, I too am opposed to the death penalty in ordinary domestic society such as that of the United States. Still, I question whether the human rights groups' insistence that their view of law and justice must prevail is in fact a commitment to justice, in the case of an obvious mass murderer of historic proportions, such as Saddam, or instead to some other principle - such as rubbing home the point that political communities that have traditionally had the death penalty must bow to the sensibilities of human rights elites. Given the monumental proportions of Saddam's slaughter, I would say that there is something deeply unjust and hard-hearted, a certain indifference to justice, in insisting that the standards of Western European elites on the death penalty are the only ones that deserve adherence.
• An a priori view that only "international" venues are suitable for justice in mass human rights cases, not national ones. The international human rights movement has committed itself to the cause of internationalism, largely because it conflates internationalism with universalism, and assumes that only international venues, such as international tribunals, can meet the requirements of law and justice, because being international is the only truly persuasive evidence of being universal, impartial, and so on. Unfortunately, it seems rarely to be noticed that international elites, organizations, tribunals, and so on - while seemingly universal because disconnected from particular geographies - in fact have their own partialities, preferences, interests, and all the rest. They do not exist in some impartial place in space - internationalism is not universalism. It was a mistake for the human rights movement to sign onto the quite separate agenda of internationalism, although the tendency of international elite organizations (ever hoping to use international organs to deliver diktats of international law to "merely" parochial nation-states) to adopt this questionable equation is plain.
• An objection to any venues of justice that don't carry the NGO seal of approval, coupled with an unwillingness to do anything noteworthy that might speak positively of the Bush administration or, more broadly, the United States. One should never underestimate the independent driving force of an NGO movement that feels slighted because it has not had a central seat at the table in designing instruments of justice. And one should never underestimate the comforting, group-hug, warmth-giving, group-bonding feeling that comes in international circles from the shared assumptions of anti-Americanism. It provides an automatic point of connection, of shared values, of shared goodness.
• Concern for a procedurally fair trial. As a certain amount of criticism has been raised on the above points, it is this last that has been the increasingly public focus of human rights groups' complaints. Unfortunately, the reality is that no procedure that could lead to the death penalty, or which did not involve the blessings of the United Nations, or the deep involvement of the human rights organizations, or the deep non-involvement of the Bush administration could ever hope to satisfy the human rights movement as being fair. It indeed ought to stand on its own as a question of fair presentation of evidence, the chance to rebut, all the usual things. Yet when a group such as Human Rights Watch invokes it in this instance, it is essentially impossible to separate out those issues of fairness - which, for example, someone willing to allow the death penalty might still agree with - from the brutal, a prior view that any procedure that allows the death penalty, is conducted by something other than an international tribunal, etc., is by definition procedurally unfair. In the hands of the human rights movement, objections on procedural fairness grounds are simply code for disagreement with the substance of the trial itself.

The impossibility of ever satisfying the critics is, as usual, evident in the New York Times editorial on the Saddam trial today. It takes the US and Iraqi authorities to task for starting with a simple, easy to prove, but admittedly non-representative case of killings, rather than starting with undoubtably true, but much more difficult to prove, charges of genocide in the Anfal campaign. Does anyone really doubt that had the tribunal started with the larger issues of genocide, the New York Times, goaded by Human Rights Watch and all the rest, would then be complaining about vague charges in a capital case, with vague standards of proof? No matter what you do, it will always be wrong - simply because you're doing it.

It is this pure reactiveness, knee jerk, if he's for, i'm agin', view that so characterizes elite liberal groups such as the Times or Human Rights Watch or the ACLU on so many issues these days, far beyond the Saddam trial. Why bother to pay any attention to their reasoning or conclusions when it is so painfully evident that had you done the opposite, the opposite set of complaints would be made? Which is a very bad thing. Because it puts people who care about procedural fairness in this trial in the position of having to judge it entirely by themselves - there is no point in paying attention to what Human Rights Watch, et al., have to say on the subject because you could never possibly satisfy them because, at bottom, well, you know, you're the Bush administration. That's not a good thing, because this trial does need to be monitored. But it needs to be monitored by people who - even if they object to the death penalty, the lack of Security Council blessing, and so on - can bracket those issues and make them separate from pure issues of procedural fairness. That is not currently the leading international human rights organizations.

(Update, Wednesday, October 19, 2005. The best single-stop place for information on the Saddam trial is Grotian Moment, staffed by a very impressive group of contributors and containing law, news, and many other links about the trial.)

The al-Zawahiri letter of July 9, 2005

Here is the text of the letter of July 9, 2005 from al-Zawahiri, number 2 under bin Laden, to al-Zarqawi in Iraq. The unwillingness of so many Westerners to take bin Laden, et al. at their word - to accept that they mean what they say, no matter how crazy or historically weird it may seem to outsiders - is baffling to me. Al-Qaeda and its emulators have been altogether clear, in letters, statements, websites, and innumerable sermons delivered at the mosques of Europe, the Middle East, and even the United States by radicalized preachers of jihad, exactly what they intend. The failure to accept that they mean the strategy they describe and that we are somehow better positioned than they to describe their strategy - the idea that we merely have to reimagine their strategy so as to fit our pacific and nonconfrontational desires - ranks among the most foolish of historical errors. But the road to appeasement was ever thus.

(Update, Wednesday, October 12, 2005. Austin Bay's analysis, here, (thanks Instapundit).)

Sebastian Mallaby on DDT and malaria in Africa

I cannot overstate how astonished and angered I have long been at the way in which African lives are lost to malaria because of the refusal of the rich West, the US but particularly the EU, to contemplate the use of DDT. As Sebastian Mallaby puts it with his customary incisiveness today in the Washington Post, here:

***
Look Who's Ignoring Science Now

By Sebastian Mallaby

Monday October 10, 2005; A19, Washington Post

The flip side of Bush cronyism is hostility toward experts -- toward people who care about what's what rather than who's who. Economists have depressingly little influence on the Bush economic policy. Climate scientists are incidental to the Bush climate-change policy. Health experts seldom decide issues like the provision of clean needles to HIV-vulnerable drug addicts or poor countries' access to generic AIDS drugs. But it's not just the Bush administration that spurns data and evidence. Consider the case of dichloro-diphenyl-trichloroethane, on which the Bush administration is marginally better than the European Union.

DDT, to give that chemical its more familiar name, works miracles against diseases that are spread by insects. During the Second World War, vast quantities of the stuff were dusted over troops and concentration-camp survivors to kill the body lice that spread typhus. Later, DDT was used widely in Latin America to beat back dengue and yellow fever. But the chemical's noblest calling is to combat malarial mosquitoes. In the early 20th century, Dunklin County, Missouri, had a higher rate of malarial mortality than Freetown, Sierra Leone. Between 1947 and 1949, DDT was sprayed on the internal walls of nearly 5 million American houses, and at the end of that process malaria had ceased to pose a significant threat in the United States.

DDT also helped to eliminate malaria in Europe and parts of Asia, and in 1970 the National Academy of Sciences estimated that the chemical had prevented 500 million deaths. And yet, despite that astounding number, DDT has all but disappeared from the malaria arsenal. Some 500 million people still get the disease annually, and at least 1 million die, but the World Health Organization refuses to recommend DDT spraying. The U.S. government's development programs don't purchase any of the chemical. In June President Bush made a great show of announcing a new five-year push against malaria; DDT appears to play no part in his plans.

But the worst culprit is the European Union. It not only refuses to fund DDT spraying: In the case of at least one country, it has also threatened to punish DDT use with import restrictions.

That country is Uganda, which suffered a crippling 12 million cases of malaria in a population of 27 million in 2003. The Ugandans know perfectly well that DDT can help them: As Roger Bate of the American Enterprise Institute recently testified to Congress, DDT spraying in one part of the country in 1959 and 1960 reduced the prevalence of malaria from 22 percent to less than 1 percent. Ugandans also know the record in South Africa, where the cessation of DDT spraying in 1996 allowed the number of malaria cases to multiply tenfold and where the resumption of spraying in 2000 helped to bring the caseload down by almost 80 percent.

So the Ugandans, not unreasonably, would like to use DDT. But in February the European Union waved an anti-scientific flag at them. The Europeans said Uganda might need to institute a new food monitoring program to assuage the health concerns of their consumers, even though hundreds of millions have been exposed to DDT without generating any solid evidence that the chemical harms people. The E.U. proposal might constitute an impossible administrative burden on a poor country. Anti-malaria campaigners say that other African governments are wary of even considering DDT, having seen what Uganda has gone through.

Why does Europe impede Uganda's fight against malaria? The standard answer starts with "Silent Spring," the book that helped launch the environmental movement in the 1960s and that painted a scary picture of DDT's potential impact on the food chain. But this is only half right. The book's overblown claims led to the banning of DDT in the United States in 1972 and its disappearance from aid-funded programs thereafter. But "Silent Spring" was really about the dangers of large-scale agricultural use of DDT, not the limited spraying of houses. Today mainstream environmental groups concede that in the context of malarial countries, the certain health benefits of anti-malarial spraying may outweigh the speculative environmental risks.
So the sin of the environmental movement -- at least of its more responsible exponents -- is not that it's flat wrong on this issue. Instead, it is more subtle. Environmentalists think it's their responsibility to campaign against the damage done by toxic substances, but not to campaign against the damage done by the over-regulation of substances that actually aren't very toxic. Of course, the environmentalists' credibility in calling for necessary regulation would be enhanced if they were willing to denounce unnecessary regulation. But you don't hear them yelling about the European Union's absurd position on Uganda.

The result is that there's no counterweight to consumers' food-safety paranoia, and politicians refuse to countenance DDT spraying "just to be on the safe side." This cowardice is no different from the Bush administration's indifference to scientific sense on climate change, though you won't catch the environmentalists saying that. And the consequences are rather more immediate. Think what being on the "safe side" means to malaria's victims.

mallabys@washpost.com

Alvaro Vargas Llosa on the myths of Che

Alvaro Vargas Llosa has emerged in recent years as one of the most insightful commentators on Latin America. Here is his take on the cult of Che, here. Thanks RCP.

(Also, here is where you can get the very cool anti-Che t-shirt.)

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October 8, 2005
Ten Shots At Che Guevara
By Alvaro Vargas Llosa

Che Guevara fans are preparing to commemorate one more anniversary of the revolutionary’s death, which took place thirty-eight years ago at the Yuro ravine in Bolivia. It’s an appropriate time to address ten myths that keep Guevara’s cult alive.

The last time I visited the Museum of Modern Art in New York, an American student wearing a Che Guevara T-Shirt and a beret caught my eye (the fact that Nicole Kidman happened to walk in at that very moment may have had something to do with my noticing him). I asked him politely what exactly he admired so much about that man. Here are the ten reasons he mentioned— and my response.

1. HE WAS AGAINST CAPITALISM. In fact, Guevara was for state capitalism. He opposed the wage labor system of “appropriating surplus value” (in Marxist jargon) only when it came to private corporations. But he turned the “appropriation of the workers’ surplus value” into a state system. One example of this is the forced labor camps he supported, starting with Guanahacabibes in 1961.

2. HE MADE CUBA INDEPENDENT. In fact, he engineered the colonization of Cuba by a foreign power. He was instrumental in turning Cuba into a temporary beachhead of Soviet nuclear power (he sealed the deal in Yalta). As the person responsible for the “industrialization” of Cuba he failed to end the country’s dependency on sugar.

3. HE STOOD FOR SOCIAL JUSTICE. In fact, he helped ruin the economy by diverting resources to industries that ended up in failure and reduced the sugar harvest, Cuba’s mainstay, by half in two years. Rationing started under his stewardship of the island’s economy.

4. HE STOOD UP TO MOSCOW. In fact, he obeyed Moscow until Moscow decided to ask for something in return for its massive transfers of money to Havana. In 1965 he criticized the Kremlin because it had adopted what he termed the “law of value”. He then turned to China on the eve of the Cultural Revolution, one of the horror stories of the twentieth century. He simply switched allegiances within the totalitarian camp.

5. HE CONNECTED WITH THE PEASANTS. In fact, he died precisely because he never connected with them. “The peasant masses don’t help us at all,” he wrote in his Bolivian diary before he was captured—an apt way to describe his journey through the Bolivian countryside trying to stir up a revolution that could not even enlist the help of Bolivian Communists (who were realistic enough to note that peasants did not want revolution in 1967; they had already had one in 1952).

6. HE WAS A GUERRILLA GENIUS. With the exception of Cuba, every guerrilla effort he helped set up failed pitifully. After the triumph of the Cuban revolution, Guevara set up revolutionary armies in Nicaragua, the Dominican Republic, Panama, and Haiti, all of which were crushed. He later persuaded Jorge Ricardo Masetti to lead a fatal incursion into that country from Bolivia. Guevara’s role in the Congo in 1965 was both tragic and comical. He allied himself with Pierre Mulele and Laurent Kabila, two butchers, but got entangled in so many disagreements with the latter—and relations between Cuban and Congolese fighters were so strained—that he had to flee. Finally, his incursion in Bolivia ended up in his death, which his followers are commemorating this Sunday.

7. HE RESPECTED HUMAN DIGNITY. In fact, he had a habit of taking other people’s property. He told his followers to rob banks (“the struggling masses agree to rob banks because none of them has a penny in them”) and as soon as the Batista regime collapsed he occupied a mansion and made it his own—a case of expeditious revolutionary eminent domain.

8. HIS ADVENTURES WERE A CELEBRATION OF LIFE. Instead, they were an orgy of death. He executed many innocent people in Santa Clara, in central Cuba, where his column was based in the last stage of the armed struggle. After the triumph of the revolution, he was in charge of “La Cabaña” prison for half a year. He ordered the execution of hundreds of prisoners—former Batista men, journalists, businessmen, and others. A few witnesses, including Javier Arzuaga, who was the chaplain of “La Cabaña”, and José Vilasuso, who was a member of the body in charge of the summary judicial process, recently gave me their painful testimonies.

9. HE WAS A VISIONARY. His vision of Latin America was actually quite blurred. Take, for instance, his view that the guerrillas had to take to the countryside because that is where the struggling masses lived. In fact, since the 1960s, most peasants have peacefully deserted the countryside in part because of the failure of land reform, which has hindered the development of a property-based agriculture and economies of scale with absurd regulations forbidding all sorts of private arrangements.

10. HE WAS RIGHT ABOUT THE UNITED STATES. He predicted Cuba would surpass the GDP per capita of the U.S. by 1980. Today, Cuba’s economy can barely survive thanks to Venezuela’s oil subsidy (about 100,000 barrels a day), a form of international alms that does not speak too well of the regime’s dignity.

Alvaro Vargas Llosa is a Senior Fellow and director of The Center on Global Prosperity at the Independent Institute. He is the author of Liberty for Latin America.

Malcom Maclaren & Felix Schwendimann on ICRC customary law study

This is a very interesting review in the German Law Journal of the new ICRC customary international humanitarian law study. It can be found here, in html, in two parts, or here in a single pdf. It is interestingly critical of the study; I have still about three hundred pages to complete reading before I make my own comments. But I highly recommend this review.

Opinio Juris adds Roger Alford

I see that Opinio Juris blog has added Roger Alford, of Pepperdine Law School, as a regular contributor. What a great addition and what a great blog! It is one of the very few "must read" blogs on my personal list. And Tony D'Amato's guest posts back in the summer were characteristically provocative and insightful.

The history of the word "democracy"

David Wootton (pictured), writing in the TLS of September 23, 2005 ("Oxbridge Model"), has an engaging account of the history of the terms "democracy" and "republic." He reviews a new book by John Dunn, Setting the People Free: The story of democracy, and in the course of it discusses the rise of these two words in political discourse. (Unfortunately, the review is not publicly available online at the TLS.)

Wootton notes that for the ancient Greeks, the word democracy needed to be

"fitted into a sixfold classification of types of government: monarchy and tyranny; aristocracy and oligarchy; democracy or polity and democracy or mob rule. The problem with 'democracy' was that it wasn't clear if it was the name for a good form of government, a bad form of government, or a paired set of good and bad forms of government ... From the very beginning the word was slippery."

The word "republic," he goes on, comes from the Romans. The Romans, Wootton says, "had no word for democracy," so they paraphrased "the concept into Latin as government by the people." This led them to introduce a new term, res publica, which "included the three good forms of government and excluded the three bad forms." Then, in Renaissance Florence, at the time of Savonarola, a "remarkable linguistic revolution took place: the only real republic, it was argued, was a popular government ... Monarchies were always tyrannies; aristocracies were always oligarchies, which were themselves forms of tyranny."

Fast forward to the American and French revolutions. They were carried out, Wootton tells us, in the name not of democracy, but of republicanism. But anyone who understood this language "could see that the world 'republic' occupied an intellectual space previously occupied by 'democracy'. Just as democracy had been a slippery term, so too was its substitute, republic, but the direction of slippage was now different: there was an alternative modern definition of republic that was anything that was not a monarchy." Quoting Robespierre, "democratic or republic, these two words are synonymous." It is not until this age of Enlightenment revolutions that the difference often ascribed to democracy versus republic takes hold - the idea of a republic as a representative democracy, rather than direct Greek democracy. And yet, in another peculiar linguistic twist, after the French revolution, American began calling themselves "democrats" precisely in order to distinguish themselves from the French revolutionaries who, pace Robespierre, called themselves republicans.

Thus, says Wootton, the real beginning of modern democratic theory "lies not in ancient Athens but in ... the written constitution, the separation of powers. And these ideas date to ... the English Civil War."