A Problem From Hell

by Samantha Power

  One reason advocates lobbied for U.S. ratification was to give the United States the legal standing to do what it had been unable to do during the Cambodia genocide: file genocide charges at the International Court of Justice. The convention’s reference to the ICJ was typical of the dispute resolution procedures stipulated in more than eighty bilateral and multilateral treaties and international agreements. But in April 1984 Nicaragua had sued the United States at the ICJ for mining its harbors. When the court sided with Nicaragua and accepted jurisdiction, the United States walked out of the case. Neither the Republicans on the Senate Foreign Relations Committee nor the president was prepared to see the United States judged by an international court, so they now conditioned their acceptance of the genocide convention on a potent reservation, an à la carte “opt-out” clause. The reservation held that before the United States could be called as a party to any case before the ICJ, the president would have to consent to the court’s jurisdiction. Only the United States would decide whether it would appear before the World Court. It was the equivalent of requiring an accused murderer to give his consent before he could be tried. If the convention stood any chance of resembling, in John Austin’s phrase, “law, properly so-called,” states had to give the ICJ advance consent so that judges would be empowered to interpret and apply the genocide convention independently, without requesting a state’s permission each time.

  The legal consequence of the U.S. reservation was that if the United States henceforth suspected that another state was committing genocide and attempted to bring the matter before the ICJ, the accused country could assert the American reservation against the United States under something called the doctrine of reciprocity. The United States was effectively blocked from ever filing genocide charges at the court against perpetrator states.26 Proxmire battled against the reservations in the same way he had fought on behalf of the convention. He took to the familiar floor, spelling out the consequences of the American position:

  Under this reservation, the Pol Pots [and] the Idi Amins . . . could escape any efforts we would make to bring them before the Court to account for their actions. Why? Because under international law, they could invoke our reservation against us. If we get to decide which cases go before the Court, so do they. It is that simple.

  If this treaty had been drafted and signed before World War II, would Senator Helms and Lugar argue that Hitler should choose which cases go before the World Court? Does anyone in this Chamber really believe that? I doubt it.27

  Proxmire got strong support from Senator Pell, who, along with seven other senators, prepared a detailed critique of the reservations. “The [sovereignty] package as a whole taints the political and moral prestige that the United States would otherwise gain by ratification of this landmark in international law,” Pell’s report noted. The United States was “defensively embracing a shield that to date has largely been adopted only by countries that may well have reason to fear charges of genocide.”28

  The Senate Foreign Relations Committee split largely along party lines. Nine Republicans and one Democrat voted for the treaty with the reservations; the eight remaining Democrats protested by voting only “present.” One of the few avenues the genocide convention created for enforcement would remain completely off-limits to the United States.

  On February 11, 1986, Senator Dole brought up the U.S. version of the genocide treaty for a full Senate vote, declaring, “We have waited long enough . . . as a nation which enshrines human dignity and freedom. . . . We must correct our anomalous position on this basic rights issue.”29 A week later, thirty-eight years since the unanimous UN General Assembly passage of the law and thirty-seven years after President Truman had requested the Senate’s “advice and consent,” the Senate finally and overwhelmingly adopted a ratification resolution—eighty-three in favor, eleven against, and six not voting. Ninety-seven nations had ratified the convention ahead of the United States.

  Senate supporters gave credit where they believed it was due. Patrick Moynihan (D.–N.Y.) likened Proxmire’s struggle to that of Lemkin and thanked him for an effort that was “without parallel” in the history of the U.S. Senate:

  For 15 years [sic], William Proxmire has asked this body to do what in conscience it ought to have done nearly 40 years ago. . . . When it was not adopted immediately, the man who coined the word “genocide,” Mr. Raphael Lemkin . . . made it his business. . . . He succeeded in bringing about the adoption by the general assembly of the convention, and then he saw the Senate of his own country, his newly adopted country, refuse to agree to ratification. It broke his heart. He died alone and in poverty, and uncomprehending that we could not ratify the treaty. Indeed, we never would have done so were it not for the advent of William Proxmire in this body, who is a kind of person who says if something is worth doing, it does not matter to him that it takes 15 years to do it.

  I would like to salute the Senator, and say to him that he has enlarged the quality of this body, and certainly has made this Senator prouder still to be a Member of it.30

  Proxmire had in fact been speaking daily for nineteen years, or 3,211 times. When we break down this figure into a year-by-year tally, the numbers are daunting. The following table illustrates the number of speeches the senator gave each year.

  Senators who had opposed the convention throughout its tortured floor history applauded the reservations that had so eviscerated U.S. ratification of the treaty. Senator Helms, who would later warn that the 1998 treaty to create an International Criminal Court to prosecute perpetrators of genocide, war crimes, and crimes against humanity would be “dead on arrival” at the U.S. Senate, voted with eleven others against even the watered-down ratification package. Yet he applauded its toothlessness. Thanks to the reservations, he claimed, “the sovereignty of our Nation and the freedom of our people have been protected against assault by the World Court.” He said, “We might as well be voting on a simple resolution to condemn genocide—which every civilized person does.”31

  Some on Proxmire’s staff were relieved. Howard Schumann, the senator’s chief of staff, who worked for the senator for twenty-seven years, recalls his sense of gratification in 1988. “We worked so long—it felt like we were watching paint dry all those years,” Schumann says. “When ratification finally came, it was a great event, like the birth of a first child.” But for the staffer most intimate with the law, the victory was as bitter as it was sweet. Larry Patton had devoted a decade and a half of his life to meeting the legal objections, and he found the triumph tainted because the version that actually survived the committee was not the one he had fought for. “We lost the reservations fight,” Patton remembers. “I thought that they took away one of the few mechanisms in place to make the Convention effective.” Still, the Proxmire team decided to accept and support the flawed ratification resolution. “At least as a state that had finally ratified the law,” Patton says, “we could henceforth use our diplomacy to denounce genocide and maybe even stop it.”

  Remarkably, though it seemed the long struggle was over, Senate critics continued to stall. Full ratification required the passage of “implementing legislation” that would make genocide a crime under U.S. federal law. The months passed, and Proxmire grew angry as the treaty lay fallow. “Why do I rise today to speak on this subject?” Proxmire asked in February 1988. “I rise because it is now two years since the Senate of the United States by an overwhelming 82 to 11 vote ratified the Genocide Convention. In that two-year period the Congress has failed to finish the job. This is incredible. In fact, it is a disgrace to this U.S. Senate.” Proxmire noted that the implementing legislation had been drafted and the respective chairmen of the House and Senate Judiciary Committees had introduced the measure, but no hearings had followed. Indeed, Proxmire said he had heard “not a whisper indicating any concern or any action.” The irony was bitter. The genocide convention had finally earned Reagan’s sincere support in 1985. It had won the overwhelming backing of the Senate in 1986. And he
re it was 1988, and, in Proxmire’s words, the Congress had gone “sound to sleep”: “We should take a special international prize for gross hypocrisy. The Senate resoundingly passes the ratification of the Genocide Treaty. We thereby tell the world that we recognize this terrible crime. Then, what do we do about it? We do nothing about it. We speak loudly but carry no stick at all.”32

  It was not until October 1988 that the Senate got around to passing the Genocide Convention Implementation Act, which was named the “Proxmire Act.” The U.S. law made genocide punishable in the United States by life imprisonment and fines of up to $1 million. It passed only after Strom Thurmond (R.–S. Car.), a longtime opponent of the convention, gave up on his insistence that the death penalty be required. Thurmond dropped his objection only in exchange for the confirmation of Republican judges whose appointments had been stalled in the Senate Judiciary Committee.

  President Reagan signed the implementing legislation in Chicago, credited Lemkin for his role, and declared, “We finally close the circle today. I am delighted to fulfill the promise made by Harry Truman to all the people of the world—and especially to the Jewish people.”33 Proxmire says he was not invited to the signing.

  The sovereignty package revealed a go-it-alone approach to treaty ratification and a hostility to international law that was not new, but that rubbed U.S. allies the wrong way. By December 1989, nine European countries (Denmark, Finland, Ireland, Italy, the Netherlands, Norway, Spain, Sweden, and the United Kingdom) had filed formal objections to several of the conditions the United States included in its ratification resolution.

  Although Proxmire believed that ratification of the genocide ban would spur Senate ratification of other human rights treaties such as the International Covenant on Economic, Social, and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention on the Rights of the Child; and later the international treaty to ban land mines, none has passed.

  On October 19, 1988, Proxmire stood up in a deserted Senate chamber to speak about the genocide convention one last time. He noted that the belated Senate passage had prompted New York Times columnist A. M. Rosenthal, the man whom Lemkin had hounded in the late 1940s and early 1950s at the United Nations, to write a column entitled, “A Man Called Lemkin.” Proxmire, then seventy-two, rose a little more slowly than he had twenty-one years before, when he had pledged to carry forward Lemkin’s crusade. Proxmire requested that Rosenthal’s article be published in the Congressional Record. “It is a tribute to a remarkable man named Raphael Lemkin,” Proxmire said, “one individual who made the great difference against virtually impossible odds. . . . Lemkin died 29 years ago. . . . He was a great man.”34

  With the Reagan administration’s support, the U.S. Senate had finally ratified the genocide convention. But when the president and the Senate got their first chance to enforce the law, strategic and domestic political concerns caused them to side with the genocidal regime of Saddam Hussein. Far from making the United States more likely to do more to stop genocide, ratification seemed only to make U.S. officials more cautious about using the term.

  Peter Galbraith

  A Kurdish widow holding up photographs of family members “disappeared” by Iraqi forces.

  Chapter 8

  Iraq: “Human Rights and Chemical Weapons Use Aside”

  In March 1987, a year after the U.S. Senate ratified the genocide convention, Iraqi president Saddam Hussein appointed his cousin Ali Hassan al-Majid as secretary-general of the Northern Bureau, one of five administrative zones in Iraq. The Iraqi dictator vested in al-Majid supreme authority. “Comrade al-Majid’s decisions shall be mandatory for all state agencies, be they military, civilian [or] security,” Hussein declared. The new Northern Bureau chief set out to use these absolute powers, in his words, to “solve the Kurdish problem and slaughter the saboteurs.”1

  Ever since Iraq had gone to war with Iran in 1980, Hussein had been especially concerned about his “Kurdish problem.” Kurds made up more than 4 million of Iraq’s population of 18 million. Although Hussein’s security forces could control those in the towns, Baghdad found it difficult to keep a close watch on rural areas inhabited by Kurds. Armed Kurds used the shelter of the mountains to stage rebellions against Iraqi forces. Some even aligned themselves with Iran. Hussein decided that the best way to stamp out rebellion was to stamp out Kurdish life.

  Al-Majid ordered Kurds to move out of the homes they had inhabited for centuries and into collective centers, where the state would be able to monitor them. Any Kurd who remained in the so-called “prohibited zones” and refused to resettle in the new government housing complexes would henceforth be considered a traitor and marked for extinction. Iraqi special police and regulars carried out al-Majid’s master plan, cleansing, gassing, and killing with bureaucratic precision. The Iraqi offensive began in 1987 and peaked between February and September 1988 in what was known as the Anfal campaign. Translated as “the spoils,” the Arabic term anfal comes from the eighth sura of the Koran, which describes Muhammad’s revelation in 624 C.E. after routing a band of nonbelievers. The revelation announced: “He that defies God and His apostle shall be sternly punished by God. We said to them: ‘Taste this. The scourge of the Fire awaits the unbelievers.’” Hussein had decreed that the Kurds of Iraq would be met by the scourge of Iraqi forces. Kurdish villages and everything inside became the “spoils,” the booty from the Iraqi military operation. Acting on Hussein’s wishes, and upon al-Majid’s explicit commands, Iraqi soldiers plundered or destroyed everything in sight. In eight consecutive, carefully coordinated waves of the Anfal, they wiped out (or “Saddamized”) Kurdish life in rural Iraq.

  Although the offensive was billed as a counter-insurgency mission, armed Kurdish rebels were by no means the only targets. Saddam Hussein aimed his offensive at every man, woman, and child who resided in the new no-go areas. And the Kurdish men who were rounded up were killed not in the heat of battle or while they posed a military threat to the regime. Instead, they were bussed in groups to remote areas, where they were machine-gunned in planned mass executions.

  Hussein did not set out to exterminate every last Kurd in Iraq, as Hitler had tried against the Jews. Nor did he order all the educated to be murdered, as Pol Pot had done. In fact, Kurds in Iraq’s cities were terrorized no more than the the rest of Iraq’s petrified citizenry. Genocide was probably not even Hussein’s primary objective. His main aim was to eliminate the Kurdish insurgency. But it was clear at the time and has become even clearer since that the destruction of Iraq’s rural Kurdish population was the means he chose to end that rebellion. Kurdish civilians were rounded up and executed or gassed not because of anything they as individuals did but simply because they were Kurds.

  In 1987–1988 Saddam Hussein’s forces destroyed several thousand Iraqi Kurdish villages and hamlets and killed close to 100,000 Iraqi Kurds, nearly all of whom were unarmed and many of whom were women and children. Although intelligence and press reports of Iraqi brutality against the Kurds surfaced almost immediately, U.S. policymakers and Western journalists treated Iraqi violence as if it were an understandable attempt to suppress rebellion or a grisly collateral consequence of the Iran-Iraq war. Since the United States had chosen to back Iraq in that war, it refrained from protest, denied it had conclusive proof of Iraqi chemical weapons use, and insisted that Saddam Hussein would eventually come around. It was not until September 1988 that the flight of tens of thousands of Kurds into Turkey forced the United States to condemn the regime for using poisonous gas against its own people. Still, although it finally deplored chemical weapons attacks, the Washington establishment deemed Hussein’s broader campaign of destruction, like Pol Pot’s a decade before and Turkey’s back in 1915, an “internal affair.”

  Between 1983 and 1988, the United States had supplied Iraq with more than $500 million per year in credits so it could purchase American farm products under a program called the Commodity Credit Corporati
on (CCC). After the September 1988 attack, Senator Claiborne Pell introduced a sanctions package on Capitol Hill that would have cut off agricultural and manufacturing credits to Saddam Hussein as punishment for his killing of unarmed civilians. Influenced by his foreign policy aide Peter Galbraith, Pell argued that not even a U.S. ally could get away with gassing his own people. But the Bush administration, instead of suspending the CCC program or any of the other perks extended to the Iraqi regime, in 1989, a year after Hussein’s savage gassing attacks and deportations had been documented, doubled its commitment to Iraq, hiking annual CCC credits above $1 billion. Pell’s Prevention of Genocide Act, which would have penalized Hussein, was torpedoed.

  Despite its recent ratification of the genocide convention, when the opportunity arose for the United States to send a strong message that genocide would not be tolerated—that the destruction of Iraq’s rural Kurdish populace would have to stop—special interests, economic profit, and a geopolitical tilt toward Iraq thwarted humanitarian concerns. The Reagan administration punted on genocide, and the Kurds (and later the United States) paid the price.