The Marsh Arabs of Iraq: The Legacy of Saddam Hussein and an Agenda for Restoration and Justice

While Saddam Hussein's persecution of the Kurds is well known, few are aware that he drained Iraq's vast southern marshlands as part of a deliberate strategy to destroy the lives of the region's inhabitants, known as the Marsh Arabs. The result of this ecocide was that most of the Marsh Arabs, who numbered about half a million in the 1950s, were forced to leave. Only a few thousand remain. The rest fled to refugee camps in Iran or scattered throughout Iraq. For more information, see The Marsh Arab Heritage Project.

Edited transcript of panel discussion held at New York University, October 26, 2004. Cosponsored by Carnegie Council, Environment Conservation Education Program, New York University, the Al-Khoei Foundation (UK), and the Kevorkian Center for Near Eastern Studies, New York University.

• Introduction
• Nik Wheeler
• Nadeem Sayyed Kazmi
• Curtis Richardson
• Rasheed Bander Al-Khayoun
• Joseph Dellapenna
• Anna Sophia Bachmann
• Questions and Answers

Introduction

JOANNE BAUER: My name is Joanne Bauer. It is a pleasure to welcome everyone to our program discussion this afternoon. The Carnegie Council's interest in the plight of the Marsh Arabs grows out of three of our program areas: human rights, environmental values and environmental justice, and the issues surrounding peace reconciliation. Last spring, our publication Human Rights Dialogue focused on the emerging recognition within the human rights community of the importance of environmental protection as a foundation for human rights, and among other cases, the publication featured an essay on the Marsh Arabs' situation by Stuart Leiderman of the University of New Hampshire and our moderator this afternoon Sayyed Nadeem Kazmi of the Al-Khoei Foundation. What makes the situation distinct, as Jeffrey Atik points out in his commentary essay for the issue, is that unlike other instances of rights violations related to environmental destruction wherein the displaced people are accidental victims of unjust development, in this case the victims were targeted on political grounds—a deliberate attempt to undermine people through the destruction of the environment upon which they depend. One of the great privileges of organizing events on such important topics as this is the opportunity to work with some really great groups around town and further afield. One of those is the Environmental Conservation Education Program here at New York University led by Andrew Light. Andrew is a great resource and point person in New York City for environmental specialists of all stripes and it is always a pleasure to have the opportunity to work with him. In addition to the Environmental Conservation Education Program we are pleased to also be working with the UK-based Al-Khoei Foundation and the Kevorkian Center here at New York University. Finally, I would also like to note a major conference on the marshes at Harvard University, "Mesopotamian Marshes and Modern Development: Practical Approaches for Sustaining Restored Ecological and Cultural Landscapes," which begins tomorrow and runs through Sunday. We timed this panel to coincide with this conference and I wish to acknowledge Robert France, the organizer of the conference, who is here today and to thank him for his sage advice and assistance during the planning of this event. We were all treated a few minutes ago to a series of very striking images. These slides were taken by San Francisco-based photographer Nik Wheeler in the 1970s and we are very fortunate to have him here with us today. Nik Wheeler has photographed in more than fifty countries over five continents. His photo credits include more than 150 magazines and book covers. He was the sole photographer for a book published by Collins in 1977 called Return of the Marshes: Life with the Marsh Arabs of Iraq. We asked Nik to join us to share his photographs to give us a window on what the region once was prior to the draining of the marshes and a clearer sense of what was lost. We are pleased to open the program with Nik Wheeler.

Remarks

NIK WHEELER: I first traveled to the marshes in 1974, literally almost thirty years ago to the day. I was assigned by National Geographic to shoot a story on the Marsh Arabs of Mesopotamia. The writer of the story was a British journalist, Gavin Young, who had been many times to the marshes previously in the company of the famous explorer, Wilfred Thesiger. As a result he had very good contacts in the area and obviously that was very important. The marshes in the seventies were a very wild and inaccessible area. There were no hotels, no restaurants, no stores, no forms of commercial transportation, nothing of that kind. Fortunately, Gavin was able to arrange through his contacts, specifically through a local holy man, to have access to a tarrada (a war canoe) and four Marsh Arab boat men who were able to paddle us through the marshes from village to village. We had a minder from the ministry of information, as it was standard practice in those days and probably until very recently if any journalist was on assignment in Iraq that someone from the ministry of information had to be along side them to prevent them from talking politics with any of the local people. We also had a security man from the nearby town of Amara. The first time I was in Iraq President Bakr was the President. But Saddam Hussein was the Vice President and apparently even at that stage he was very much the power behind the throne. Tariq Aziz was the Minister of Information and our trip was sanctioned by him. In retrospect, the plans for the draining and redevelopment of the marshes had probably already been formulated by the administration. It seems as if they wanted a record of life as it was or as it had been in the marshes for posterity before they helped propel it into obscurity. This may be the reason why the Iraqi Government gave us unprecedented access to a region that has always been off-limits to outsiders, even Iraqis, and especially to Westerners. We were even allowed to bring in a shotgun and a box of cartridges so that we could shoot coot and wild duck to have something to eat other than the bony carp that existed in the waters of the marshes. Our first trip lasted for ten days. Once the articles was published in National Geographic, we were then asked to expand the photos and stories into a book which was published: Return to the Marshes: Life with the Marsh Arabs of Iraq, (Collins, 1977). The second time I went back I was provided with a helicopter by the Iraqi government and flew over the Marshes. A lot of the photos you will see were actually aerial shots taken from a Russian helicopter, which flew me from Basra and then all over the area. This was quite an impressive piece of assistance from quite a paranoid government which typically would arrest photographers for taking pictures of a bridge or a school saying that they were military targets. So I was very lucky to have this kind of assistance form the government of that time. Photo Narrative: In the marshes, each family has an individual house on their own little island. The islands are completely artificial and are made from years of construction of tamping down reeds and earth. The water is not very deep, so this does not involve too much do construction. The only way to get around is by canoe. Children from the age of six are given canoes and elders well into their later years travel these channels. Islam is very low-key in the marshes, or it was in those days. There are no mosques. Very few people used to break their routines during the day to pray. They would, when someone died, transport them to Karbala to the huge cemetery there. Otherwise there were very few instances of visible religion in the marshes. There were a number of different industries for Ma'adan or the Marsh Arabs. They liked to fish with spears, and they look down on those who fish with nets. There was a rice mill where the women would bring their rice and have it ground into flour. Another source of revenue was mat making. The mats that were woven in the marshes were taken to the edge of the marsh and then carted to Baghdad or the nearest town and sold. Animals common to this region are: buffalo, which are critical for fodder, milk and dung, which is a major source of fuel when mixed with straw and made into patties and burnt. Chicken and cattle also important animals to the Ma'adan inhabitants. Wild boar, as high as four feet, are rampant in the marshes and extremely dangerous. Birds also abound in this region, especially pelicans and the pied kingfisher. Though there was very limited government presence in the marshes during this time, some of the larger villages had a school for younger children and some even had a clinic for mothers. Even in the seventies, however, one can begin to see that the government was beginning to slowly drain the marshes. I would like to remember the marshes, however, as most of my photographs depict them—fertile and full of life.

JOANNE BAUER:

I am going to read from a summary of an internal inter-agency memorandum ordering the destruction of the marshes. This memorandum was referred to by Max van der Stoel, Special Rapporteur on Human Rights in Iraq who mentioned it in all of his briefings to the UN General Assembly. In the interest of time I will just read the summary.

Plan of Action for the Marshes A private and secret memorandum from the Director of Security for the Governorate of Arbil to the Shaqlawa Security Director. Reports on the security situation in the Marshes, which are being used by "deserters and subversives as bases to launch terrorist operations in accord with organized political directives received from Iran." After delineating the "terrorist activities" of the "hostile groupings," the report lists the steps to be taken "to end the enemy presence" in the marshes, in line with the course of action decided on at a December 5, 1988, conference in Basra "attended by the respected Supreme Commander" and the plan of action for the Marshes adopted in 1987 and approved by "Mr. Leader President (May God Preserve him). Steps include: "technical security operations against terrorist elements in the Marshes, such as poisoning, explosions, and burning of houses against friends and relatives of subversives in the Marsh areas as a lesson to others"; assassination of "hostile elements"; controlling traffic; burning and demolishing houses; use of planes; and "continuing the economic blockade more efficiently to limit provision of their daily living needs," by: withdrawing all food supply agencies, banning the sale of fish, "taking the most severe measures against those who supply food to deserters and unlawful and hostile elements,' prohibiting the traffic of goods, and using tribes. Dated January 30, 1989.

I would now like to hand the floor over to Sayyed Nadeem Kazmi who is the Senior Consultant in Humanitarian Affairs and Head of International Development at the Al-Khoei Foundation in the UK. He has had a long history of involvement with this case, having conducted humanitarian assessments of the marshlands of Southern Iraq and Iran and raising awareness of the plight of indigenous Marsh Arab refugees and internally displaced persons at the international level. In addition he represented the UN at the European Parliament and successfully lobbied Marsh Arabs in key political decisions. I now with pleasure pass the floor to Mr. Kazmi.

Nadeem Sayyed Kazmi (Moderator)

NADEEM SAYYED KAZMI: Welcome to this panel discussion.

In many ways this is quite an auspicious gathering since in my ten years working in human rights advocacy and all things Iraq, the marshes have been the one issue that seems to be rarely revisited even if we look at the period between the two Gulf Wars. It was in 1991 just after the first Gulf War that I first discovered the marshes and found myself quite inadvertently standing on the Iran/Iraq border in Southwestern Iran, having visited the refugees where many Marsh Arabs were beginning to filter from a little causeway called Himmet which was right on the edge of the Iraqi marshes. Nik's photographs bring back some memories, although the first memory I have of the marshes is of a village burning. It was only two months previous to my visit in 1991 that there had been a massive uprising among the Marsh Arabs against the regime of Saddam Hussein. I remember that George Bush, Sr. had encouraged that particular uprising, but did not actually help them. So over the years a kind of resentment had developed amongst these simple people that was coupled with a kind of awe of the foreigner and hope that the foreigners would do something to help them. The Marsh Arabs themselves have never actually lost faith in themselves as a people and it has been remarkable how sturdy and steadfast they have been throughout the years. Before I introduce the panel, I would just like to acknowledge with apologies that both Ambassador Rende Rahim Franke and Kanan Makiya could not make it. The simple reason is that both were traveling. Our panel represents a wide array of expertise: Curtis Richardson is a Professor of Resource Ecology and the Director of the Duke University Wetland Center at Duke University. Rasheed Bander Al-Khayoun is a native of the marshes, who has flown over from London where he works at the Kufa Gallery. Joseph Dellapenna is a well known professor at the Villanova School of Law, whose work I have studied, and admire. Anna Sophia Bachmann is a resident of Port Townsend, Washington and an environmental educator. She has just returned from the marshes. Without further ado, I pass the floor to our first panelist, Curtis Richardson.

CURTIS RICHARDSON: I was in Iraq after the war in 2003 and during March of 2004, working with a team of Iraqi scientists from the University of Basra and Baghdad looking at the ecological state of the marshes. What most people do not realize, what I did not realize, is that to get into Iraq at this time right after the war you have to go by military convoy and you had to be quite careful. These areas were quite beautiful in the past, but now they had not only been drained, but were covered with minefields and had armaments in every direction. I will start with a brief history of the water flow of this region, in particular the Mesopotamian marshes. Turkey and Iran control the water for Iraq. "The Garden of Eden" essentially exists in the middle of this desert region. It became the Sumerian culture and flourished because of water—water being far more important to humans than oil in everyday life. In 1973, there were 15,000 square kilometers of marshes. After the uprising and after the Gulf War, the Glory River [a shallow canal 2 kilometers wide] was constructed in 1993 and essentially the whole central marsh, the size of the Everglades, 660,000 hectares, was gone. The only remaining marsh in 1993, the Hawizeh, on the Iran border, is politically split in two so that part of it is in Iran and part is in Iraq. This marsh represents a mere seven percent of the original marshes and was only serendipitously saved because of dykes that were blown up, which resulted in the release of water through former control structures. As of March 2004, twenty percent of the original marsh areas has been reflooded. This happened in part because the last two years have had really high levels of snowfall which have turned into spring runoff and thus we are able to see areas that have had water released into them. It is important to understand how essential trans-boundary issues are key to this restoration. The Attaturk Dam system is a large dam system put in place in Turkey in the last ten years. Turkey can now control five times the control of the Euphrates River. Iran is also putting in dykes and dams and Iraq created thirty-three dykes and dams as well. The water is now being shifted from the south to the central parts of Iraq for agriculture and urban use. Moreover, almost all the Euphrates flow can be now be contained within Turkey. The Tigris and Euphrates, which are the key to the restoration of the marshes, can be looked at in the following way: Turkey can control fifty-six percent of the Tigris river; Iran twelve percent; Iraq thirty-two percent. Of the Euphrates eighty-eight percent can be controlled by Turkey and they have the dams in place to control almost the whole river if they chose to. Syria and Iraq control only nine percent and three percent respectively. Thus, Turkey and Iran have almost total control of the hydrology of the marshes. We need to understand that, even before Saddam began draining the marshes, from 1937-73 the marshes had a natural cycle of flooding and a draining. But once the drains were put in place, this cycle and the natural pulse of water and sediment which keeps the marshes going was interrupted. During the last thirty years under Saddam extensive drainage programs have really changed the system. When I arrived in the region in June 2003, the status of the marshes was as follows: thirty to forty percent of the Hawizeh had turned into a dustbowl; the Hammar Marsh villages had all been destroyed, people had been moved eight times in ten years, into the desert, and the Sanaf had been totally dyked, so that there was hardly any vegetation, no fish and the region had mostly turned into a desert. There were high levels of selenium, a trace metal which is very toxic. Our goal over this last year was to determine if we could restore these wetland areas. Again, at this point, about twenty to thirty percent of the area has been re-flooded, and that may be all you can hope for in good water years. But the question is, will restoration occur? It will depend on environmental conditions and the chemistry. The salt and the ions that are in there, things like selenium and sulfur, are toxic to plants under certain conditions. We have to look at carefully at where we put the water. So we actually drove about 2,500 miles over the last two years of field studies testing water and soil. Examining soil samples in three different sites in 2003, we found that in the Sanaf there was no possibility for re-growth due to toxic salt conditions while in the Hawizeh there was a good chance for restoration, and the Hammar Marsh was in the middle, in terms of restoration potential. In the summer of 2004 we picked two case study marshes to see if we put water in these areas if restoration would actually occur. Just because there is water does not actually mean that they will be restored. We need to know whether the water quality will allow for plant and animal species recovery. Let's go back and look at the Hawizeh Marsh and compare the natural Hawizeh with the Suq Shuyukh. This is the one area where the Shi'a population, moving from Iran, has to a limited extent moved back into the interior of the marsh. There are a small handful of villages where people have actually started bringing their cattle back in and rebuilding some of their structures, some of the moudifs [large arching buildings of ancient design made of reeds]. They are coming back and moving in to this area because they have no other place to go. They have no other skills and they are not wanted in the cities. They told that us that at least in the marshes they could try to do a little fishing and maybe to grow some rice. My concern is that this area actually has the worst water quality, with high sulfur, high chlorides and very high sodium. None of us would want to drink this water with these very high levels, especially if we had heart problems. The sulfur is going to cause toxicity problems. And yet because it is getting the most water, this is the area that most people have moved back into. The last area I will look at is the Abuzarag Marsh, which is growing nicely. This area is getting very good fresh water from the Tigris. The students at Basra University have been studying the plants, the algae, and water quality. The historical values for algae in Iraq, which is an indication of productivity is within historic ranges, so productivity is coming back. In terms of phytoplankton the number of cells per unit volume is within the historic range—so algae are growing. The key species, the reed grass, has growth in grams per square meter of between 800-3,600 at all these sites except part of the Hawizeh. I think these two examples of productivity are very good representations of what's happening in Iraq marsh restoration. To sum up, water levels were higher in 2003-2004 than in the last five years. Available water for restoration suggests fifteen to thirty percent of the former marshes can be restored. That number will change if Turkey cuts off the tap. Iraq has been trying to talk to them; they have not had much response. Water quality was much better than I originally expected. Yet poor quality drinking water is an enormous problem, which I did not have time to talk about except to say that the Marsh Arabs do not have adequate quality water to drink and they suffer greatly from diarrhea (And then there are always salinity problems from the toxic ions). The key to success in any of these marshes is that water must flow through the marshes to reduce these toxicity problems. Iraq had fabulous engineers, great mathematicians, very skilled people. When they were told to drain the marshes, they drained them. And now you've got mile after mile after mile of dykes throughout Southern Iraq. This has got to go back to its normal flow or we are going to have toxicity problems. Some scientists believe that the marshes have been restored about fifty to sixty percent. The fish species are approximately half their normal size. These assessments are making the locals very optimistic about their future. So, what is the future of the Iraq marshes? Well, it will depend on a number of factors: international support for marsh restoration, research and monitoring to test the best areas for restoration given the limited water supply, and an integration of agriculture and marsh management. All these factors are critical. I must thank my wife and kids for allowing me to go last time and USAID for sponsoring this project. NADEEM SAYYED KAZMI: Thanks very much for that, Curtis. There is a striking the contrast between Nik's photographs and Curtis's. It will be interesting to discuss this question of the full reflooding of the marshes in greater detail later.

Our next speaker is Rasheed Bander Al-Khayoun. DR. RASHEED BANDER AL-KHAYOUN: First of all I would like to say how pleased I am to be speaking at an event that is concerned with my 'first place'—the place of my childhood and youth. I offer sincere thanks to those listening and to the organizers for bringing about this conference, and all that may follow from it in terms of calling for the revitalization and development of the area of the marshes, or what we call the al-Ahwar, of southern Iraq. The attempts of Iraq's former regime to drain al-Ahwar had various motives. In addition to political and security motives, there were also sectarian motives, because, as you know, the area is entirely Shi'ite, except for the Mandean Sabean (a very ancient religion that appeared even before Judaism and Islam, its roots going back to the Sumerian civilization). Drying up the marshes would mean drying up the rural culture and heritage, which could not survive outside of its watery environment. Shi'ism, after all, has a long history in the al-Ahwar and is inscribed within the culture and literary heritage of the area. In addition there were economic motives: the state wanted to develop the area for agriculture and exploit the wealth of oil that exists beneath the water. The people of al-Ahwar realize that they inhabit an ancient place. Yet they refer to hills within the marshes by the name of ishan without knowing that it is a Sumerian word meaning "hill," and without realizing that their marshes were within the range of the Sumerian civilization. I believe that it is because of the Iraqi government's preoccupation with creating nationalism that people have forgotten that the marshes they are living in are the Sumerian land. And yet the people do have a distinct culture within Iraq which was expressed through stories, such as the ones my mother would tell me, and was passed down by her forebears. How well I remember, growing up in al-Ahwar, looking upon foreign tourists with surprise and with a degree of amusement. For what did living on water mean? Or catching fish from a bed made of reeds? What did it mean to live alongside snakes in a single house? What does it mean for the moon to plunge into the broad surface of the water? And other magnificent scenes to which we paid no account, for they were part of our daily life which we were accustomed to, and which we did not see as new or surprising. At that time we considered the astonishment of strangers to be courtesy or flattery, and a pleasant response to our generous hospitality. Is it not surprising and beautiful at the same time that a person cannot remember when he learned to swim? After I moved to the city to study and to work I was surprised by the presence of closed in swimming pools for teaching this skill, because I learned to swim at the same time as I learned to crawl and then to walk. British orientalist Lady [E.S.] Drower gave expression to my surprise at the existence of classes teaching people how to swim in dry cities when she said, "The people of the marshes have many of the features of water birds. They are cheerful, enjoy jokes, are fond of laughter, and are passionate about singing. Their homes are dry even with water all around. No sooner does a child start to walk than you find him swimming in the water. They are like the birds of the water, and they will remain like that, probably to the end of time." The people of al-Ahwar need water because it is necessary to raise cows or ducks or to grow rice. But their spiritual need for it far surpasses their material need, since draining the marshes means putting the boat out of service and an end to reciting the poetry specific to al-Ahwar, and to singing, which can only be performed in that theatre of water and reeds and rushes. Indeed, draining the marshes means the death of a way of life that people have practiced for tens of centuries. There is no doubt that the people want their environment to return to its natural state. As my mother told me when she still kept two cows—in spite of the draining of the region—the thirst of a cow, and the duck's search for a pool to swim in, reveals the falsehood in all the claims of the previous regime concerning the benefits of draining the al-Ahwar. That people of the marshes and their land were about to disappear forever. But now, they can see that there is a great opportunity that a revival of their previous lives and the survival of their land is about to happen in front of their eyes. With the reflooding that has begun to take place, in the centre of al-Ahwar the floating islands of land are rising up just as the water level rises, once more lifting up the people and the water buffalos and the guard dogs. At the edges of al-Ahwar there are again large boats and platforms made from reeds. But for the people of al-Ahwar the solution is to work to prevent the floods, which usually come in spring or autumn. It may be that severe floods were disastrous, but the harm done by them cannot match the destruction of draining the marshes dry. The intellectuals from among the people of al-Ahwar, from among those who continued going back to the region and who still have family remaining there, realize that global tourism is the future that beckons, and they do not hesitate to call the region the "Venice of Iraq". But this demands that certain conditions be fulfilled, the first of which is organizing the channels of water, and secondly building hotels, both on the water and on land, and restaurants, and providing other services. Furthermore, these facilities should be built with materials from the local environment, like reeds and rushes, and tourism should be active in winter, not in summer, so that tourists can fully enjoy al-Ahwar. Tourism alone, however, cannot be the future of the region. We also must consider rearing fish and birds and growing plants required by industry. Few if any people of al-Ahwar know about this gathering in New York, yet the people of Al-Ahwar are aware of the possibility that the region may become a nature reserve under the protection of the United Nations. They see the reserve as a way of bringing their people within the bounds of civilizations and civility. But they also see it as a way of safeguarding the region from the bad moods of local authorities, who have not given up the dream of one day exchanging cars—which bring pollution—for boats. Future means of transport should only include boats, since this is an exemplary way of minimizing pollution and preserving the al-Ahwar culture as this method is inscribed in its heritage. While the people are not by any means against introducing modern necessities, such as electricity, they prefer, of course, to keep their boats as a way of transport for there is no need for cars! A few days ago I received an email message in which my nephew, whom I last saw as a child, said to me: "Uncle, I am Rabbi, writing to you from al-Jabayish by means of the Internet." The letter inspired an article I wrote in al-Sharq al-Awsat newspaper: "Bringing Back al-Ahwar…Verdant Green with Internet and Satellite." The water has arrived and with it the swimming fish and birds, and this time it comes with all the advantages of a technologically advanced civilization. Having the Internet in the Al-Ahwar is a great development, especially considering that under the former regime even Baghdad itself was deprived of satellite broadcasting and the Internet. The people al-Ahwar want their marshes back, but in a better way. They want the means of modern life to be available to them, they don't want floods that disrupt their way of living, they are keen to renew their life but not at the expense of their natural environment. They would welcome the services and the creative potential for this area as a visiting world site such as a sanctuary of past and present development of new Iraq. As they once did, they would like to be able to cultivate rice—one of the best kinds in the world. All the people dream of is the marshes full with fishes, birds, cows and buffalos with modernized passageways and islands, because it is this vision that is in harmony with their spiritual heritages as found in their songs, poems and tales. I wish to end this presentation with thanks and appreciation for your concern in this area where I belong. NADEEM SAYYED KAZMI: Thank you Rasheed. Thank you also for challenging my longheld cynical views about encroaching globalization with your perspective on the internet. I would now like to turn the floor over to Professor Dellapenna. JOSEPH DELLAPENNA: I am a lawyer and a law professor so I approach these questions somewhat differently from the other panelists. My questions relate to how laws and legal institutions can be used both to deter the destruction of ecosystems, as you saw in the Iraqi marshes, and perhaps as a tool for helping in the restoration. The term "ecocide" describes the utter destruction of an ecosystem. It describes the result rather than the purpose. It has been used by some legal writers in books and articles, but it is not yet a recognized legal concept; there is no treaty, no law, no statute recognizing it. The concept underscores the importance of the integrity of ecosystems as central to human survival and thriving. The draining of the Iraqi marshlands is a clear act of ecocide. The destruction of the integrity of the marshes affects not just the people who live in the Iraqi marshes, although it is obviously essential to their thriving, but also people at a great distance away. As the largest wetland in southwestern Asia, it was the most important stopover for migratory birds flying from north-central Eurasia to Eastern Africa. This is only one example of how destroying an ecosystem can have ramifications on human populations as well as animal and plant populations vast distances away. A great deal of the fish in the gulf region spawn in and around the marshes and of course the endemic species live their life in the Marshes. During the Iran-Iraq war, little damage was done to the marshes themselves. Earlier we saw pictures of exploded and unexploded artillery shells and bombs, the results of warfare in the region. During the eight-year long war between Iran and Iraq, the marshes themselves were not much damaged, however, because the Iraqis, in fact, used flooding as a defensive tool to prevent entry by Iranian troops. After the first Gulf War of 1991, under Saddam Hussein's "Plan for the Marshes", up to ninety percent of the marshes were destroyed in a period of less than twelve months. Once one recognizes the destruction of the Marshes as an act of ecocide, the problem, of course, is finding a legal basis for enforcing the ethical judgment condemning ecocide. On the one hand, the destruction of the Iraqi Marshes violates the terms of the Ramsar Convention on Wetlands of International Importance (1971). But that doesn't give you an international law that you can apply for several reasons. The convention requires the conservation of wetlands of international importance, which clearly the Iraqi marshes are. Iraq, however, has not ratified the convention and the convention has not yet become customary international law, so it does not bind nations that have not ratified it. So if you were to charge someone in Iraq with violating the Ramsar convention, their perfectly valid legal defense would be that it does not apply and is irrelevant to this marsh because Iraq did not ratify the convention. There are other possible international treaties that come into play:

• The International Covenant on Civil and Political Rights (1966), which many people would conclude is customary law, requires that people be given a voice in decisions affecting their lives. It is very obvious that the Ma'dan of the Iraqi marshes were not given a voice.
• The International Covenant on Social, Cultural, and Economic Rights (1966) has been interpreted by the United Nations Human Rights Committee as supporting the proposition that there is a human right to water. Many people would argue also that this has become customary international law, and clearly the Iraqi government's actions have violated that right.
• ILO Convention no. 169 on Indigenous and Tribal Peoples (1989), refers to people following a traditional, pre-industrial lifestyle, which I think fairly accurately describes the inhabitants of the Iraqi marshes. They are not to be disturbed in the resources they need to continue that lifestyle.
• The Espoo Convention on Environmental Impact Assessment in a Transboundary Context (1991), requires that before undertaking any activity that would significantly impact the environment there must be an impact assessment to raise and consider the environmental of the activity. It also requires public participation in this process by persons likely to be affected by the activity. Iraq did not undertake either process before destroying the marshes.
• The Convention on Biological Diversity (1992) requires that States not undertake activities that will significantly decrease regional or global biological diversity. To the extent that the destruction of the marshes might have driven some endemic species to extinction, there clearly was a violation of this treaty. Even for migratory species, if it could be shown that the destruction of the marshes led to a sharp decline in the numbers of the species able to survive the migration, it might be that the destruction of the marshes violates the obligations under this Convention.

The problem with all of these conventions is that it is debatable whether they apply. Since Iraq has ratified few or none of them, you have to argue whether they are customary international law, and that is a debatable proposition. The Berlin Rules on Water Resources, approved by the International Law Association in August 2004, has taken the position that the last three conventions are now part of customary international law. It remains to be seen whether international tribunals or national governments will accept this proposition. There is a crime, however, that is not debatable. The crime of genocide emerged in the wake of World War II, was codified in the Genocide Convention, ratified by almost every country in the world and because of this the UN treats it as definitively accepted as customary international law. So the Genocide Convention is binding even on States that have not ratified it. Genocide is defined in the Convention as: "The killing of members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting conditions of life calculated to bring about the physical destruction of the group; preventing births within the group; forcibly transferring children from the group; with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group." I think the intent element is clearly present and the only room for argument is whether the forbidden acts have been done. And in this case from a lawyer's point of view, the interesting innovation that Saddam made is using ecocide as a tool for genocide to destroy a clearly defined separate group within the country. Evidence of genocide in the case of the Marsh Arabs is that nothing was done with the land after it was drained. A tiny amount was developed for agriculture, but the marshes, by and large, were turned into desert and left unused and utterly useless. Dams and massive drainage canals were built mostly without any apparent agricultural or other developmental purpose. This denies any claim, of course, that this was a project to increase agricultural land or develop the land for other uses. Literally nothing was done with the land. So there is no defense saying, "We didn't really mean to destroy the Marsh Arabs we simply wanted to develop this waste land." In any case, today the argument that marshes are wasteland is not widely accepted. The draining of the marshes and the drying of the land destroyed a way of life and forced the migration of a people. The marshes were destroyed in order to destroy the Marsh Arabs. You heard the summary of the memorandum that Joanne Bauer read at the start. It followed promptly after the Shi'a uprising in 1991. The marshes, for thousands of years, had been a place of refuge for opponents of the government. Some of the people from the Shi'a uprising took refuge in the marshes. The draining was preceded by a propaganda campaign inside Iraq depicting the Marsh Arabs as "monkey-faced" people, and this is a literal quote. Again this is evidence of intent to destroy a people and not simply some misguided development project. The one way to be sure that regime opponents could be controlled was to destroy the region—which took place almost immediately after the 1991 uprising. The target was the cultural and social cohesion of an identifiable ethnic group. Now you might say, what is the point of establishing genocide? Saddam Hussein committed so many crimes, what does one more crime matter? There are other people who were involved besides Saddam, some of whom either did not commit other crimes or for whom it is hard to prove they committed other crimes. They, at least the higher levels of government, should be answerable to this crime as well. Can you use law as a tool for restoring the marshes? Here are some ways that we might. First, punishing those responsible would deter future attempts to destroy these marshes or other ecosystems. Second, Iraq could ratify the Ramsar Convention and other international legal instruments, which would bring into play processes for international evaluation of future plans for the marshes. This way if someone comes along and says let's undo whatever restoration there is you've got a set of international mechanisms for evaluating the proposals. Third, you can devise national legislation to implement the protections contemplated by international law. However, there are political and legal problems that the Iraqis would first need to overcome. The most central political problem is one of weak infrastructure, which in many cases requires reconstruction, not merely rehabilitation. This includes systems for the delivery or management of water. And the needs are greater than the funds or available personnel to do the job. All over the country, there are needs for systems for delivery and management of water. A great deal of the country's infrastructure was damaged, either through combat or more likely in the case of water, through neglect, because you had twelve years of sanctions when maintenance of many systems was simply abandoned. Choices will need to be made regarding whether to prioritize investment in the marshes or other systems, which will require manpower and money. The laws that are enacted will reflect those choices, but the law will not dictate those choices.

Iraq needs to develop an appropriate law for allocating and protecting water resources. A new national water law is under consideration. A sound new national water law would need to be based upon the following premises:

1) water is a public good;2) water is an ambient resource;3) water must be conjunctively managed;4) water management must be integrated with the management of related resources;5) water is subject to economic incentives.

Some of these premises might appear to be self-evident, but they are all too often overlooked. The legislature must also choose between characterizing water as common property, as private property, or as public property, and between using public regulation or tradable permits as primary management tools. For reasons that are too complex to develop here, I would argue in favor of a public property/managerial regime over other possible approaches. I will return at the end of this brief discussion why such an approach is also most consistent with the shari'a rules on water. The international dimension comes into play when we discuss the rivers feeding into the marshes, which are shared by Iran, Iraq, Syria, and Turkey. Each country seeks to increase its use of the shared waters. There are no existing agreements sorting out competing use rights claims. Customary international law is too uncertain to provide an adequate managerial scheme by itself. Conflict can be avoided (or managed) only through a new treaty including most or all of the States in a single legal regime. Customary international water law is created by state practice based upon the conclusion that such practice is required by law (opinion juris). Discovering what rules result regarding transboundary or national waters can require complex studies, but the rules are summarized in certain standard summaries. These include: The Helsinki Rules on the Uses of International Rivers (ILA 1966); The Convention on the Law of Non-Navigational Uses of International Watercourses (UN 1997) [PDF 317KB]; The Berlin Rules on Water Resources (ILA 2004). The basic premises of customary international water law (according to the Berlin Rules) include the duty to cooperate, participatory management, conjunctive and integrated management, equitable utilization, sustainable use, and minimization of environmental harm. The working out of these premises require careful negotiations among the interested states. Ideally, they would create institutions for cooperative management of the entire basin, but at the least the states must agree on a formula for allocating and protecting their shared waters. I will end with a short aside on Shari'a law's interpretation on water law. Under most schools of Shari'a law, water in its natural state is considered a communal resource that cannot be owned or sold. One can own the instruments by which water is exploited (a well, dam, ditch, or canal), but even these are subject to the right of chafa (the right of persons or animals to satisfy their thirst) and chirb (the right to irrigate). Customary rights within particular communities are recognized and enforced. The application of these concepts at the international level is not entirely clear, but a short story might help clarify the issue. In 1996, I was on a lecture tour of Turkey to speak about the customary international law of transboundary waters. These talks were of interest because nearly all of the waters in the Euphrates and most of the water in the Tigris originate in rains and snows in the mountains of Turkey. After my talk in Adana, Turkey, in which I explained the rule of equitable utilization, the regional of the Welfare Party (the Islamist party of the time) asked me, "What would I say to someone who said that Allah gave us this water, it is ours to do with as we please." I said, "I really don't want to get into a discussion about religion tonight, but I will agree with you. Allah gave you the water. And if he wanted you to keep it, he would have stopped the rivers at the border." That is the bottom line, both in international water management and in national water management. Water is an inherently shared resource. No one person, group, or community can appropriate the water to his, her, or its own use without regard to the effects on others. With that guiding principle in mind, working out new national water legislation and a regional water agreement is possible. And without such an agreement, the water necessary to meet the needs of any person, group, or community can never be secure. NADDEM SAYYED KAZMI: Our next speaker is Anna Sophia Bachman.

ANNA SOPHIA BACHMANN: I was in Iraq for the majority of this year, primarily working independently. My background is in environmental issues and in Iraq I was working mostly on water related issues. I spent the majority of my time in Baghdad working with indigenous Iraqi NGOs and working with the Ministry of Environment. Based upon my experience working with a certain sector of environmental NGOs, I will address the state of local Iraqi NGOs. These local groups that have been forming since the fall of the regime and NGOs in Iraq are very different from the type of civil society organizations that we Westerners are familiar with. When I was in Iraq (from February to July 2004 and again from mid-September to mid-October 2004) I found out that the Ministry of Environment had tried to do an environmental assessment of the Tigris River through the City of Baghdad in March of this year. After three days of doing that survey they approached a US military base. Although they were just doing their work, they frightened the base people and so were shot at, pulled to shore, handcuffed, hooded, and interrogated. As a result three days of their survey data was destroyed. When I heard about this I got the idea of suggesting to them that we could try to do the survey again and this time I would play the go-between and try to get all the permissions that we needed to go through the area of the Tigris River that goes past the various bases and the green zone (in the latter case, no one is normally allowed to go by along the river). I got an Iraqi police escort and I also invited several of the Iraq environmental NGOs that I had been working with and we were able to do that survey on July 11, 2003. Iraqi NGOs tend to reflect the male-dominated hierarchical society in which they are based. They generally tend to be focused towards academic projects. Under the previous regime it was very safe to study a problem. You got into trouble with the regime when you actually tried to do anything about it. Thus, to be activist is really a foreign concept. Many of these NGOs are actually quite disconnected from their counterparts both inside and outside the country. Part of the reason they are disconnected from many Western environmental groups is a language barrier. They also have a very serious problem sharing information with each other. This stems from a long history of repression in Iraqi society that led people to be very protective of their information and careful about whom they would shared it with. Iraqis tend to be pretty suspicious of one another and pretty unwilling to network with natural allies. I had one researcher tell me, "I can't share my information with a researcher who is doing similar work. He might steal my work! Or he will use it against me." So these ideas are still very prevalent. Iraqis also face a problem of lack of experience in running organizations. Basic ideas about creating a board of directors, developing a work plan, a structure, transparency, accountability to your members, figuring out how to write a fundraising plan—these are things that Iraqis do not know how to do. For thirty years these types of organizations did not even exist in Iraq and suddenly there are actually quite a large number of them starting up. But they are floundering because they don't know how to organize themselves. Finally, some of the groups I work with appear not to be legitimate. For many people NGOs have become a means of survival for many professionally-trained people who are out of work—as many professionally-trained people in Iraq are. It is understandable given the situation in Iraq. One of the projects I am currently working on is environmental education of youth on the Tigris River. We work on boats and the idea is to help them clean up the river and then for the children to take this education back into the classroom. Recently we expanded the program to focus on the marshes. There is a lot of opportunity in environmental education, and when I describe this idea to Iraqis they tend to be very enthusiastic about it. I also worked with Iraq's government, in particular the Ministry of the Environment (although it is the Ministry of Water Resources that is most involved with the marshes). As Western organizations go into Iraq to try to work on the marshes or any of the environmental issues, they are going to be dealing with the local people and the ministries to some extent. The ministries share some of the same problems as the NGOs, but they have an especially rigid hierarchal structure making fear of punishment a central characteristic of how these ministries operate. Permission, usually in writing, is needed for just about everything. As I already mentioned, I organized a survey on the Tigris River in July 2003. Despite my many attempts to convince them otherwise, to date, they will not share that information from the survey with anyone, let alone me, who did all the foot work to conduct the survey. In my last meeting with a representative from the Ministry, I asked him three questions. "Is the river polluted?" He answered, "Yes." "Can the ministry clean up the river on its own?" He answered, "No." "Isn't the Ministry going to have to be able to share information with those people who are interested in cleaning up the river for that river to be cleaned up?" And he admitted, "Yes." And he threw his hands up and said, "It's out of my hands, I don't have the permission to give it to you." So these are issues that are going to dog the Iraqi society for a long time to come. They are completely understandable. They are disturbing from a Western perspective, but establishing a strong and healthy civil society, just like democracy, does not happen overnight. And an Iraqi civil society, as the U.S. government may be envisioning it, may take many years to form. However, it appears that the United States was not very interested in developing civil society among indigenous groups. I see no evidence that they were very interested in funding any of the Iraqi environmental NGOs (of any other NGO's for that matter) that were forming in Iraq itself. As long as the Iraqi government gives some kind of lip service to democracy and the rule of law, I sometimes think that the Americans will be quite happy. In the end Iraqis will likely reject many aspects of the kind of civil society that we impose there and in the short run; these old patterns that were created under Saddam will endure and even proliferate, but hopefully dissipate over time. And eventually the country will have to forge its own path in creating the kind of vibrant, purely Iraqi civil society with Iraqi NGOs who are taking ownership of things like the marshes and protecting them for posterity. NADEEM SAYYED KAZMI: Thank you, Anna. I think one of the important aspects of the marsh situation is education within Iraq itself and that it is important for Iraqis themselves to be educated about the marshes and of course other environments within their own country and the country they are building now. I will now turn to the floor for questions and answers.

Questions and Answers

QUESTION: I had no idea this was going on in Iraq at the time. I had never even heard of this ecocide before this event. How did the international community allow this to happen? My question is how will the upcoming election affect the redevelopment of the marshes if Bush or Kerry gets elected? CURTIS RICHARDSON: The last part of the question is very interesting because the United States to this point has only put $4 million into the restoration of the marshes. The Canadians have put in $3 million, the Italians are putting in $10 million, but the USAID program for actual marsh restoration is very limited. Ambassador L. Paul Bremer and others have gone to the marshes, but other needs were considered so great that they have not been given attention. My personal opinion is that they could have stabilized the small villages of the lower third of Iraq with simple seeds and some aquaculture and some other basic things that probably could have been done for $50 or 100 million dollars to start off. But this was not done. What will happen it the future I do not know; that's an open question. The program that I am being funded by and the USAID runs out in December, so what will happen then I do not know. QUESTION: Is it feasible in any way that the marshes could be brought back to where they used to be when Mr. Wheeler photographed them during the 1970s? We also must bear in mind that the marshes are sitting on a reserve of 1 billion barrels of oil, known as Majnun Oil field. CURTIS RICHARDSON: I think you've answered part of the question. What I tried to tell you tonight was that yes, there is great potential. The plants and the animals are there and will come back. I can't say every species will come back as we haven't had a full record yet, but I believe we will have areas that will be the case, I won't say parks, they will be much smaller, they will not be the contiguous marshes that we had in the past. You will not have all fifteen thousand square kilometers. You will have large blocks but not the full area, because I think the needs for water from the cities to the central part for agriculture are going to usurp that water. They are simply not going to allow all that water to go south. Now other people may argue against that, but that's my assessment. But I think we can have fantastic restoration in many areas. Also remember the marsh Arab population that is there is reduced from what is once was. And we talked to the village people who say that they want the marshes but also that they want to have more agriculture, and thus they would like to live on the edge of the marshes. Only certain people would like to go back and live in the interiors as they have done for centuries. There needs to be a survey done of how many people would like to go back. I think I am optimistic that it could be done if the international community gets off the dime and can help. QUESTION: Since it has been about ten years since the marshes have been destroyed, in large part, how much knowledge has been lost and will need to be relearned and reestablished for marsh living? RASHEED AL-KHAYOUN (translated by Dr. Ahmed Ferhadi): The al-Ahwar has its own heritage and is distinguished from the region, from the rest of Iraq and the rest of the world. It has its own specific poetry, its own arts and even its own temperament in love. Some people in the al-Ahwar area love living between reeds and rushes. The women have more rights than other Iraqis and none of this temperament has been lost. Such a loss would require a whole a generation, sometimes it requires a hundred years. So because of the brevity of the period of destruction, the heritage has remained intact and the spirit is still there and with the return of the water, those arts will return. Everyone in the al-Ahwar region is a poet and that the spiritual heritage is still there. NADEEM SAYYED KAZMI: I think that is a very appropriate moment to end on. I would just like to acknowledge a partner of mine, Stuart Leiderman. He and I wrote the article for Human Rights Dialogue. And I want to thank Joanne Bauer and her team at the Carnegie Council for creating this opportunity to discuss the Marsh Arabs here in New York.