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.)