Mary Papenfuss

Patients affected by the ImClone scandal have been lost in the media’s rush to cover the tale of Martha Stewart and other key investors who pulled their money out of ImClone stock just before the FDA decision. Some ImClone company officials and the investors, including Stewart, they may have tipped off are facing investigation. But Mendelsohn’s financial interest in Erbitux and his failure to reveal that interest to patients enrolled in clinical trials of the drug broke no federal law or regulation. In fact, Mendelsohn’s stake in a drug his institution was testing is hardly uncommon in the medical community.

And that’s exactly what upsets a growing cadre of healthcare advocates, lawyers and doctors, who believe the bonds between research hospitals and corporations have grown too strong — and too acceptable. “It’s as if financial conflicts of interest were a given of nature or a constitutional right — which they’re not,” said Harvard professor Dr. Marcia Angell, a former editor of the New England Journal of Medicine.

The integrity of clinical trials has come under increasing scrutiny since a series of safety measure meltdowns and deaths during research trials at some of the top medical institutions in the country. Among the factors in at least some of those tragedies is the link between research and corporate funding. Though there’s no indication that participants in the ImClone trials were harmed, healthcare advocates believe that corporate pressures — and incentives — to rush products to market that could have adversely affected Erbitux research have in other cases been responsible for cut corners and patients not being fully informed of dangers in the trials.

“Human nature is human nature, whether you have an M.D. attached to your name or not,” says Vera Hassner Sharav, head of the Alliance for Human Research Protection in New York City. Financial conflicts “permeate clinical trials — from design to selection of subjects to control of data to what’s reported in medical journals.”

“The cat’s out of the bag,” she adds. “It’s not just a problem with five doctors or 25, or a single institution; it’s the system. Yet patients have no way of knowing if their doctor has a vested interest in a study and if that interest may be superseding a concern about a patient’s welfare.”

Mendelsohn, who developed the drug that was to become Erbitux, has said he did not participate in or influence trials at M.D. Anderson. He told a congressional subcommittee recently that he’s convinced Erbitux “shows great promise” for treating end-stage colorectal cancer. Mendelsohn still holds stock in ImClone, but reportedly earned $6.3 million when he sold a portion of his holdings last year to Bristol-Myers Squibb.

Since the Erbitux trials, M.D. Anderson has changed its policies regarding conflicts of interest. Primary-care physicians and principal investigators are prohibited from financial conflicts of interest. Financial conflicts of co-investigators and the cancer center’s president must now be disclosed in the informed-consent document presented to each participant in a clinical trial. “We’re learning,” said Dr. Leonard Zwelling, vice president for research administration at M.D. Anderson. The corporate-research scene is “evolving incredibly rapidly and it’s not federally regulated. What’s right seems to be a moving target.”

“The question is one of perception. No one has questioned people’s motives, but it looks bad. We’re cognizant of that and addressing it. But these issues are relatively new for us in academics.”

The Institute of Medicine (IOM) of the National Academies warned in a report issued in October that fundamental change in clinical trial research — including the management of conflicts of interest — is critical to keep the system from imploding. “Broader federal oversight is needed to ensure that the health and well-being of people enrolled in research studies are better protected,” concluded IOM committee chair Daniel Feldman of Harvard Medical School.

Clinical trials are essential to medicine. Only when treatments and drugs can be compared among different groups of patients participating in a clinical trial can researchers discover what works and what doesn’t — or what’s safe and what isn’t. Major breakthroughs in medicine — from new surgical techniques to vaccines to potent drugs to combat AIDS — are now standard care because research volunteers took the risk to try them. In turn, research institutions are expected to fully inform patients of the risks and to protect them from foreseeable harm.

“No research effort is without at least some risk,” said Feldman when the IOM report was released. “But research should be done only with appropriate safeguards for participants, whose presence is indispensable to the progress that beckons all of us.”

The report was commissioned by HHS following the 1999 death of 18-year-old Jesse Gelsinger. The teen suffered from a relatively mild form of a genetic liver disease, which he controlled through diet. He volunteered to participate in a gene therapy trial at the University of Pennsylvania’s Institute for Human Gene Therapy in Philadelphia, solely to help find a cure for other children.

Despite several negative results using the same gene therapy on monkeys, researchers injected Jesse with massive doses of a genetically engineered virus. His vital organs failed within hours and he was dead four days later. When the National Institutes of Health reminded hospitals after Gelsinger’s death to advise the agency of problems with gene therapy, researchers reported nearly 700 adverse effects and seven deaths in similar trials.

The public and press would never look at clinical trials in quite the same way. “The Jesse Gelsinger case changed the universe,” says Alan Milstein, a New Jersey attorney who has filed lawsuits in several clinical-trial cases and won an undisclosed sum from the University of Pennsylvania for Gelsinger’s parents.

Conflict of interest was a major issue in the Gelsinger case, which illustrated that money isn’t always at the root of potential conflict in scientific research. Investigators can also be motivated by career advancement, fame or the drive to break new ground.

“Money wasn’t God” for James Wilson, the lead researcher in the Gelsinger case, says Milstein. “He was in it for the scientific discovery.” But the financial conflict wasn’t insignificant. Wilson, along with the University of Pennsylvania, held substantial stock in Genovo, a company Wilson founded to market the gene technique used in the Gelsinger clinical trial. When Genovo was purchased by Targeted Genetics Corp. a year after Gelsinger’s death, Wilson received $13.5 million in stock, and Penn got $1.4 million.

U.S. researchers currently conduct an estimated 80,000 clinical trials with 20 million participants annually. Precise participation numbers don’t exist. There’s no tally of people in research and no one tracks the totals of how many people are harmed — or helped — in studies each year.

People volunteer for clinical trials for a variety of reasons. Terminal patients grasp for anything that might prolong their lives. Some who enroll believe their participation will win special attention from their doctors.

Motivated patients can seek clinical trials online and track down hospitals and doctors that offer opportunities for participation in such trials.

More likely, patients are invited to participate in a trial when they arrive at their doctor’s office or hospital for treatment. The number of trials has soared in the last five years and competition for warm bodies is intense. Some doctors collect fees as high as $10,000 for each patient they enroll and retain in a clinical study.

“These fees are becoming an important, if not a main, segment of income for doctors, who are dealing with cost reductions by HMOs,” said Virginia Sharpe, a project director at the Center for Science in the Public Interest in Washington. “Companies who want their drugs tested welcome these physicians with open arms.”

Before the money incentives even kick in, researchers who also treat clinical subjects as patients face an inherent conflict of interest: They must weigh patient risk against the potential for a medical breakthrough. Should an individual’s health be sacrificed to new information if it means that thousands may be saved in the future? “Clinical trials aren’t intended to help patients,” says Sharpe. “They’re supposed to further scientific knowledge.”

Patients often don’t have a clue that these kind of conflicts exist. They tend to believe their doctor has only their best interest at heart, and informed-consent documents are often not worded clearly enough to overcome that preconception, say healthcare advocates.

“There’s a myth among patients that clinical trials are intended to help them,” says Milstein. “Patients always tend to see doctors as their doctor, while doctors may view them primarily as research subjects.”

Federal regulation requires the disclosure of financial conflicts of interest in federally funded research. But an estimated 80 percent of medical research is now privately financed and is not affected by the law. Universities and hospitals are free to design their own regulations concerning financial conflicts. A study in the Journal of the American Medical Association (JAMA) by Mildred Cho, the acting director of bioethics at Stanford University Medical Center, found that hospitals and universities have a “wide variation” on how they manage conflicts of interest and that many rules “lack specificity.” Few hospitals require conflict disclosures to patients.

Cho believes financial conflicts of interest should not be allowed unless a researcher can make a case for it. But she admits there’s little support in the medical community for such a view.

“Journalists and lawyers are trained to be aware of potential conflicts. Doctors are trained to believe they’re only concerned with the greater good,” says Cho. “As a profession, doctors and biomedical researchers don’t see themselves as anything other than advocates for patients. They bristle when you suggest another possibility.”

A revolutionary change in the relationship between academia and private enterprise occurred in 1980 when the Bayh-Dole act became law, allowing universities to patent government-funded research and to license their inventions to corporations. The result was an explosion of start-up companies by professors and marriages between major pharmaceutical corporations and university hospitals.

“It’s unclear if nonprofit institutions ever really benefited from the kind of income the bill intended,” Sharpe says. “What is certain is that it broke down the barriers between academic institutions and private enterprise by introducing many more financial arrangements between the two groups. Research is now predominantly market driven, making academic institutions essentially outposts of private corporations.”

Angell believes the law has turned academic medical centers into “little more than hired hands supplying human subjects and collecting the data.”

Health advocates are concerned about the effects of such relationships on study results. A 1998 report by the Inspector General’s office in HHS concluded last year that IRBs are “inundated with protocols and adverse-event reports,” and that many IRBs are “hard-pressed to give each review sufficient attention.”

The report proposes a number of changes in the system of clinical trials, including increasing the scrutiny by IRBs within federal oversight and improving the ethical training of researchers. It also recommends that participants be continually updated about the risks they face and that anyone harmed in clinical trials be financially compensated without being forced to resort to lawsuits. It urges that each study be examined by IRBs for scientific integrity as well by research ethics review panels (including community and participant representatives) for financial conflicts of interest.

Milstein praised the report. “It identifies the fact that this is a sick system. Sometimes that’s 90 percent of a solution,” he says.

But health watchdogs say the report sidesteps the elephant in the living room: what to do about financial conflicts of interest. “Managing financial conflicts of interest should lie with the research organization,” the report recommends. But Sharav of the Alliance for Human Research Protection insists: “You can’t manage conflict of interest. It has to be eliminated.”

Angell, who characterizes the IOM report as “pretty timid,” agrees. She believes all research on human subjects should be subjected to ethics supervision by bodies independent of the institutions conducting the research. “Current IRBs are creatures of the institutions they supervise, which have an interest in the research,” she says. She also wants an outright ban on financial conflicts. She believes that investigators who receive grant support from industry should have no other financial ties to those companies and that institutions should not be allowed to accept grants with strings attached. That means investigators should design their own studies, analyze the results, and write their own papers — without corporate manipulation or pressure.

A report also issued in October by the Association of American Medical Colleges takes a harder stance than IOM on financial conflicts. “The growing perception that research institutions may have financial conflicts of interest … threatens to weaken public support for research,” the report warns. It calls for a ban on most financial conflicts unless a compelling case can be made for an exception.

The current situation will change only if the public “becomes outraged,” says Angell. Academic institutions “are tax exempt because they’re supposed to be independent organizations, but they’re deep into financial deals with corporations. They can’t have it both ways. That’s creating widespread cynicism about the integrity of research and the outcomes. The public is going to begin to wonder what function these institutions are serving if they’re increasingly set up to make money.”

“These institutions talk about public trust the way a beer company talks about public trust,” she says. “You’ve got to be trustworthy to earn public trust. They want to get the trust without the trustworthy part.”

Ségolène Royal is favored to win the nod on Thursday, when some 200,000 card-carrying Socialists vote to pick their candidate in next spring’s presidential race. The winner will be announced Friday. “Ségo” is the strong favorite among the public, backed in a recent poll by 58 percent of left-leaning voters. For a time, the biggest threat to her candidacy appeared to be the man who shares her bed, Socialist Party leader François Hollande. In this political pairing, unlike the American version, it’s the woman who has the charisma and gets to go first, and the man who’s the stuffy wonk. But just as in the States, the press can’t quite decide whether they’re rivals or co-conspirators.

It’s unsettling to imagine that the French — who didn’t give women the right to vote until 1944 — could elect a female president before the United States.

“It’s a cultural phenomenon I don’t understand,” said Steven Weber, a political science professor who heads the Institute of International Studies at the University of California at Berkeley. It contradicts both the French reputation for chauvinism and the American self-image of equality. Perhaps, Weber suggests, “Americans like to tell people they’re not sexist or racist, but in the voting booth it’s something else.”

Steven Ekovich, an associate political science professor at the American University of Paris, believes the path to the presidency may be less bumpy for a French woman than an American woman. “I think it’s easier to be feminine and feminist in France than it is in the U.S. Right now being a woman is serving Royal very well. If she turns into a maternal scold, that could be a problem. But she’s coming across as sensitive — and strong.”

Ekovich finds the comparisons to Hillary Clinton obvious. “They’re both savvy politicians. They both sense the movement of the body politic. The difference is that Ségolène doesn’t provoke the same passionate negatives that Hillary does, which may be how Americans deal with a woman — or which might have more to do with Bill Clinton.”

But Royal also resembles Hillary in that she is not universally loved by the most stalwart members of her own party. Like Sen. Clinton, she has a tendency to adopt conservative positions in the hope of attracting centrist crossover voters. A recent drop in popularity within the Socialist ranks has endangered a nomination that once seemed certain, and much of it can be traced to party liberals who resent her Clinton-style triangulation.

Like their American counterparts, the French Hill and Bill met at college, the prestigious École National d’Administration, the specialized school that churns out nearly all the French government’s leaders. From the start, according to French journalist Carl Meeus, coauthor of “La madone et le culbuto: Ou L’inlassable ambition de Ségolène Royal et François Hollande” (“The Madonna and the Comeback Guy; or, The Tireless Ambition of Ségolène Royal and Frangois Hollande”), they have decided everything important as a couple, including last summer’s decision not to run against each other.

“François is ready to support Ségolène if she’s better situated [to win],” wrote Meeus in the book, which was published in April. “If he’s convinced she has passed her chance and can no longer mount the challenge, he will tell her and take action. She knows this. She approves of this. She’s intelligent enough and has enough confidence in her companion to believe in his intellectual and political integrity.”

It was Hollande who encouraged Royal, born in Senegal to a French general, to enter politics. After graduation from the École National d’Administration in 1980, both Royal and Hollande joined the presidential campaign for socialist François Mitterrand (who nurtured a clique of so-called Mitterrand muses, including the nation’s first female prime minister, Edith Cresson), and won their first parliamentary seats in 1988. Holland rose to become Socialist Party chief in 1997. Royal is currently president of the Poitou-Charentes region, the only woman in France to head one of the nation’s 26 regions. Royal has also headed national ministries of the environment, children, family and the handicapped, occasionally pregnant and sometimes with toddler in tow, which endeared her to the French.

Royal’s history has kept her in the public eye, yet outside the political vortex, so she has become known without sacrificing her image as someone fresh from the margins. She has demonstrated competence on the job and championed several uncontroversial causes, like a fight against child pornography. She has stayed above the fray, while as a party leader, Hollande has been in the thick of some bruising fights. He strongly supported last year’s unpopular referendum backing a European Union Constitution, which voters rejected resoundingly.

Early this year, as it became clear how popular Royal was, she told the BBC that she would not run against her common-law husband. “I won’t stand against François Hollande,” she said. “It’s unthinkable.” Prior to that, however, they had both apparently been thinking about the job while living together. The decision not to compete against each other was made for them. While “Ségo” topped polls among Socialist possibilities early on, Hollande ranked a miserable eighth, and that’s probably why he opted not to run.

Royal also told the BBC she would support her party’s choice whoever it might be. “I can only be the candidate if the Socialists nominate me — and if I’m able to win. But it could well be someone else who’s in a better position to win.” Nevertheless, she added, “I don’t see why a man can be ready to be a candidate, and not a woman.”

Royal officially entered the race in September. She had already launched a campaign Web platform called Désirs d’Avenir (Desires for the Future), capitalizing on a powerful, modern tool that set her apart from the old guard of the party, exactly what the French seem to like about her. In a recent video on the site she refers to it as part of a “democratic revolution.” Her oldest son, Thomas, runs the “Ségosphere,” a blog for young supporters.

In the flesh, Royal the candidate is crisply attractive in the same kind of power suits and heels favored by Hillary. Ségolène, also like Hillary, can in turns be sharp, amusing, tolerant, tough and cool under pressure. On the stump, she’s mobbed by excited, happy crowds most places she visits.

No one has yet called Royal the French equivalent of the B-word, and her looks have not been attacked as Hillary’s were last month. Mrs. Clinton’s hapless Senate challenger, John Spencer, questioned how Bill could have married such an “ugly” woman. But feminine beauty is clearly playing an important role in the French campaign. In a radical break with tradition, the French magazine Closer printed several pages of Royal on her August beach vacation with her family. Royal sported a firm six-pack above the top of her turquoise bikini bottoms. “Et dire qu’elle a 53!” — and to say she’s 53! — gushed the magazine. Closer insists that the French find Ségolène sexier than Monica Bellucci, Pam Anderson and Scarlett Johansson.

The unsexy Hollande stays out of his mate’s limelight, and tries, implausibly, to stay neutral in the Socialist campaign for the nomination. He doesn’t appear with her at campaign stops. “He’s done a good job of being as neutral as he can be,” says Steven Ekovich. “They’re an unusual couple. They live together … But he’s also the head of the Socialist Party and she’s not the party’s candidate — yet.”

While the public has embraced Royal, within the party she has met with some resistance. Some of it is simple sexism, despite the progressive politics of French Socialists. When told Royal planned to run, former Socialist Prime Minister Laurent Fabius, who’s now a candidate against Royal for the party nod, sniffed, “Who will take care of the children?” And 69-year-old warhorse Lionel Jospin, in tears, decried unnamed usurpers who would “hijack” the Socialist Party.

Other Socialists have more substantive problems with Royal’s politics, problems that would be familiar to liberal Democratic critics of Hillary Clinton. Those in France most likely to embrace a female president are the lefties, but many have begun to fear Royal is a conservative in Socialist clothes or a transgendered Tony Blair. She strayed radically from the Socialist line with her recent proposal that first-time youth offenders be placed in military camps and has made threatening noises about the sacrosanct 35-hour French workweek.

It’s a Hillary-style run to the right with the general election in mind. “She has to appeal to different voters to win,” says Ekovich. “She has to shore up her support on the left but also draw in people from the center-right.”

But within the party, her support has begun to erode enough that the outcome of Thursday’s vote is not a slam-dunk. She faces Fabius and former finance minister Dominique Strauss-Kahn, and if no one of the three gets more than 50 percent of the vote, there will be a runoff on Nov. 23.

If she does get the nod, she still needs to close the deal with skeptical voters, who may like her style but have doubts about her lack of experience grappling with difficult issues. “For me it doesn’t matter if a politician is male or female,” says Paris voter Valérie Berjonneau, 42. “Competence is important, and I don’t think Ségolène Royal would be competent enough for the post.”

Her friend, Valérie Souhonne, will vote for Royal. “I believe in supporting women whenever I can,” says Souhonne, 27. Yet Souhonne still fears old-school French chauvinism. “I know the French. She will not win. The French will not take orders from a woman.”

Royal could prevail simply out of her air of inevitability, à la Hillary. “I suppose I will vote for her because, well, what are the options?” said a female Socialist voter in Paris who chose not to be named. She puffed out her cheeks in the universally understood French expression of frustration. “She is a woman, yes, but we can’t forget she’s also a politician.”

The two are laughing, leaning back in the sun, but they exude a quiet resolve. “It’s an important fight for us,” Christiane explains. “It’s our future. It’s the future of most of France.”

Told that just hours earlier Prime Minister Dominique Villepin had vowed to keep fighting for the Contrat Première Embauche (CPE) or First Employment Contract, which would allow new workers under 26 to be fired any time without cause during a two-year period, Christiane simply shrugs and returns to her book. “Now that we’re part of the European Union, there’s pressure to change,” says Étienne. “But we’re not going to.” Asked what they want, Christiane replies: “Total retreat.” It echoes the call for a “coup de grâce” to the CPE from Jean-Claude Mailly, the head of France’s powerful union Force Ouvriere, one of several key unions that have joined the battle against the new contract.

Protesters like Christiane and Étienne have been largely portrayed in the U.S. press as privileged, dope-smoking slackers determined not to share their jobs with young immigrants and pitching a fit about it. The French, the cliché goes, will never pass up an opportunity to miss a day of school or work to demonstrate. And what are they so upset about? Losing jobs-for-life that promise six weeks of vacation practically from the minute you step in the door. Ridiculous. Isn’t it?

But it’s not a school kid spring fling. Many French see the manifestations as a key battle to preserve an essential element of their economic culture and a fight for the soul of the European Union, pitting their sacrosanct labor stability against a more ruthless economic Anglo-Saxon model. The French newspaper Le Monde reported last month that as of mid-March 66 percent of the French wanted the CPE dumped, up from 55 percent the previous week.

“It’s important not to dismiss what’s going on in France,” says political science professor Steven Weber, director of the Institute of International Studies at the University of California, Berkeley. “This is deathly serious for the European Union. This is exactly the generation the E.U. needs on their side. In a way, it’s a battle for their souls.”

Jean, a no-illusions, pedal-to-the-metal French businessman, supports the protesters, but it’s not something he discusses at work. He’s thrilled about making money as a partner in a new Franco-American enterprise, but is not willing to mow down what he regards as a cornerstone of French economic life — job security. He’s believes the law would stigmatize the young, making them sous employees — second-class citizens.

“It would be a nightmare for an entire generation,” he says. “They wouldn’t be able to rent an apartment or open a bank account without a standard labor contract. There’s an unemployment problem among the young, but the answer isn’t giving companies more power.

“We rely on having stable jobs,” says Jean. “Americans don’t know about that.”

Weber believes the French labor system will ultimately “break” under increasing competitive economic pressures. “Jobs for life are not sustainable,” he says. “The question is going to be how will the costs of that break be distributed? It’s going to be a major test of the society as a whole.”

Villepin hurried the CPE law through Parliament soon after weeks of riots by young people from the immigrant banlieues rocked France last November. He pitched it as a way to increase jobs and cut the 23 percent unemployment rate for the young, which is estimated to be nearly twice as high in the banlieues. If it’s cheaper to hire a young employee, the theory goes, maybe companies will hire two. But can either one make a living?

Students worry that companies will continually replenish slots with CPE labor and young workers will be forced to move every two years, temporarily filling jobs that will no longer be offered to seasoned workers. And if young workers can be fired for no reason, they could be more vulnerable to discrimination based on race, pregnancy or sexual orientation.

The hidden agenda of the CPE is not necessarily only to increase hiring but also to grant companies what economists like to call “flexibility,” a kind of get-out-of-a-recession-free card, by allowing corporations to jettison workers onto welfare rolls without severance costs.

The CPE technically passed last weekend, but the government has recommended that it not be enforced — yet. Union and business representatives are continuing to meet with representatives of the ruling Union for a Popular Movement Party. Several observers expected Villepin, whose public approval ratings have slumped, to resign at his news conference Thursday. Instead he said he’d see the battle for the CPE to the end — but would consider compromises on specifics.

The unions and students, who have mobilized millions of activists in several days of demonstrations, have called for more protests and set April 15 as a deadline to repeal the CPE. In Toulouse on Thursday students blocked transport of parts for a new double-decker plane being manufactured by Airbus, and Paris students spilled onto the tracks at Gare de l’Est to briefly disrupt train traffic. “If the protests keep up, the CPE dies,” declared Jean. But Weber believes the French government “could hang tough. It’s a very critical juncture for France.” Can France preserve what many see as a crucial aspect of its essential character and still survive economically in an increasingly competitive new world order?

Itienne and Christiane are ready to hit the ramparts. “The CPE is not a solution,” says Etienne. Asked what the solution is, he reflects a moment, then replies in English: “Make some noise.”

Antiabortion advocates, emboldened by the appointments of staunch supporters to influential posts within the Bush administration, have been seen to gain some important ground through laws that protect fetal rights. One frequently cited measure, initiated by Secretary of Health and Human Services Tommy Thompson, extends prenatal health insurance to fetuses, rather than their mothers. Recent moves to ban late-term abortion — dubbed partial-birth abortion by the right — also focus on fetal, not maternal, welfare, say choice advocates. Fetal harm laws also have been used to penalize women for using drugs or drinking during pregnancy. And laws that provide for double murder charges in the homicide of a pregnant woman are similarly threatening, some reproductive rights advocates say. By systematically strengthening the legal rights of the fetus, a woman’s right to choose is irrevocably weakened.

In fact, many abortion rights groups, feminist organizations and domestic violence associations opposed the California law that makes it a crime to kill a fetus, a law that’s on the books in some form in 22 other states. But the apparent united front among these activists masks internal dissent about what positions these groups should take on laws that increase penalties for attacks on pregnant women. And the question is asked by both sides: Can pro-choice activists support laws that demand higher penalties for killing a fetus at the same time they call for a woman’s right to terminate a pregnancy?

The debate is critically important now in light of startling new data revealing that homicide is the number one cause of death among pregnant women in America.

“It’s a tough issue,” says Frances Olsen, a UCLA law professor and specialist in feminist legal theory. “My view is pro-choice and pro-protecting fetuses that expectant mothers have created. I think there should be a larger penalty for attacks on pregnant women — especially when the pregnancy may be the reason for the attack.

“But it’s a dilemma for activists,” she acknowledges. “On the one hand, fetal homicide laws make a lot of sense. On the other hand, they’re being promoted too much by people who don’t have women’s interests at heart. There’s always a problem of laws being misused. But it’s outrageous that we can’t try to protect something so important to women because it can be used against it.”

Women’s rights activists have been reluctant to speak out against state fetal harm laws because of concern for Laci Peterson’s family. By all accounts, Laci, who was eight months pregnant when she disappeared from her home last Christmas Eve, desperately wanted the baby boy she was carrying, and her parents are devastated by her death and the loss of their grandson. The body of the fetus — at first believed by police to be an infant — was found last week on the shore of San Francisco Bay about a mile from Laci’s body. Investigators believe the fetus was expelled some time after Laci’s death.

In the wake of the controversy over Stark’s comments, NOW’s national office is declining to discuss the issue “out of respect for Laci Peterson’s family,” said spokeswoman Rebecca Farmer. But several representatives of various organizations said privately that despite violence to pregnant women, fetal harm laws present too “slippery a slope,” in the words of one, in the struggle to protect abortion rights.

Rebecca Whiteman, a senior health member of the Family Violence Prevention Fund in San Francisco, is particularly torn by the Peterson case. Her organization is one of those leading the battle to better protect pregnant women; it also publicly advocates choice. “We’re terribly sad about what happened to Laci Peterson,” says Whiteman. “This case rattles our society to the very core about how we think we support and nurture pregnant women, and we hope that it leads to increased medical screening of pregnant women for any signs of intimate partner abuse and help prevent similar tragedies in the future.”

Nevertheless, she said, the Family Violence Prevention Fund does not support fetal harm laws as the way to end the violence.

Dr. Jeffrey Edelson, a University of Minnesota professor and expert on domestic violence, has called such fetal laws “cynical.” He believes if women are adequately protected by society, so too will their fetuses.

Not all state laws concerning fetal harm are created the same, however. Section 187 of the California Penal Code makes it a crime to murder “any person or fetus.” The law specifically excludes legal abortions, or acts “solicited, aided, abetted, or consented to by the mother of the fetus.” The age of a fetus is not specified in the law, though the state Supreme Court has ruled that murder charges can only apply to fetuses older than 7 weeks.

Scott Peterson was arraigned Monday in Stanislaus County Criminal Court on a double murder charge under Section 187, specifically that he “did willfully, unlawfully, feloniously and with malice aforethought murder Laci Peterson” and “Baby Conner Peterson, a fetus.”

It’s the second murder charge, concerning “Baby Conner Peterson,” that could land Scott on death row if he’s convicted. A second murder would be the “special circumstance” required under California law for the death penalty.

UCLA professor Robert Goldstein, a constitutional law and abortion rights expert, sees no contradiction between the California law and abortion rights, and he believes the law would withstand a constitutional challenge.

“There’s no problem if the state chooses to protect women from violence of others who seek to interfere with their reproductive autonomy,” he says. “In whatever guise these laws are put forward — as claiming to protect the fetus — they serve to protect the reproductive autonomy of the legal person involved from private violence.”

The California law is particularly protected from a constitutional challenge, according to Golden Gate University Law School dean Peter Keane, because it only involves the “killing of a fetus against the will of the mother and doesn’t interfere with a woman’s right to autonomous control over her own body.”

“I don’t think either faction of the abortion debate gets any play with this particular law,” he added. “The exemption takes it out of that category entirely.”

Though the California law hasn’t been tested in the U.S. Supreme Court, murder of a fetus has been used successfully in three other capital murder convictions in the state since 1988 — and withstood appellate challenges, according to a spokesman for California Attorney General Bill Lockyer.

Similar laws in other states have been used to penalize pregnant women for behavior believed to be potentially damaging to a fetus. In 1998, Wisconsin made a fundamental change in its child protection laws to allow judges to confine pregnant women who chronically abuse drugs and alcohol. South Dakota has enacted similar legislation. And in South Carolina, a woman who admitted using cocaine during her pregnancy was convicted of homicide after her baby was stillborn. The conviction was upheld this year by the state Supreme Court. Similar murder convictions have been upheld in other states.

The debate over the legitimacy of a double murder charge in the Peterson case will not end when the jury announces its verdict. But it is possible that the case, and the image of Laci Peterson’s parents mourning their daughter and grandson, will force some compromise among the ranks of pro-choice activists. For those who advocate choice, there are many who believe that Laci Peterson made one — she chose to have a baby — and that her choice, as much as another woman’s choice to get an abortion, should be enshrined, and protected, by the law. Others, though deeply affected by the Petersons’ tragedy, are unmoved.

“Unfortunately,” said one activist, who wanted to remain anonymous, “we don’t have the luxury of judging this law on its merits. We have to worry about the political battle down the road.”

U.N. analyst Bruce Jones, deputy director of the Center on International Cooperation, a research institute on multinational responses to world problems based at New York University, rejects the idea that the credibility of the United Nations is at stake; nor does he speculate that the United States could fail to rebuild Iraq without the help — and endorsement — of the United Nations. But the author of “Peacemaking in Rwanda: The Dynamics of Failure,” and onetime chief of staff to the United Nations special coordinator for the Middle East peace process, insists that neither the U.N. nor the U.S. can function well without the other.

“I think people concerned about the Iraqi people, about stability in the region, and the stability of world order can conclude that it’s necessary for the U.N. to play some role in postwar Iraq,” says Jones. And, he adds, “There are U.S. officials looking into the reconstruction of Iraq who realize that with all of its wealth, the United States doesn’t actually have all of the resources or the capacities it would need to carry out the reconstruction of Iraq.”

The world, says Jones, has had an epiphany in the lead up to the war: “My sense is that what we’re witnessing is the first encounter with the reality of American hyper-power.” It is a lesson, he adds, that the U.N. must take very seriously. “It’s meaningless to talk about a credible world organization that doesn’t have the active participation of the only world superpower,” he says.

Indeed, even as Secretary of State Colin Powell visits Turkey and Brussels in an attempt to mend fences with U.N. member nations, and discuss postwar Iraq, it is still not clear how flexible the Bush administration will be in modifying its post-invasion plans to satisfy its European allies or the U.N. The administration’s initial governance plans in Iraq reportedly involve an American civilian team, comprised of 23 ministries, to run the country. Members of the interim government, according to Britain’s Guardian newspaper, already have begun arriving in Kuwait.

So far, the U.N.’s role has been limited to humanitarian aid. Last week the Security Council revived the organization’s Oil for Food Program, which provides medicine and food to the Iraqi people but had been suspended the day before the invasion. Wording in the resolution reviving the aid was changed following Russia and Syria’s contention that references to “relevant authorities” in Iraq could be interpreted as legitimizing future powers there and effectively condoning the Iraqi invasion.

Salon recently discussed the future of the United Nations and what role it should play in post-invasion Iraq with Bruce Jones, who believes that the war in Iraq was likely without or without the backing of the Security Council. Now, he says, begins the delicate process of finding common ground for all U.N. member states, perhaps a legitimate security issue, that would unify the body — and, he hopes, might facilitate reform of the council, which he describes as “an outmoded instrument that has not ever truly been able to live up to the challenge of managing international security issues.”

How devastating is the U.S. Iraqi invasion to the U.N.’s credibility?

Not nearly as devastating as commonly argued.

I think there’s been a totally false debate going on about both the role of the U. N. and the damage to it. The defenders of the U.N. have been painting a picture of it as central to international security, and central to international politics, and the absolute arbiter of legitimacy. Quite frankly, anybody who works in or with the U.N. knows that it’s none of those things. Even in the 1990s, which was an ambitious decade for the U.N., a very expansive decade, it was never central to international security in any real sense.

That idea, that image of the U.N., is a caricature. It’s an important actor in international security, but I don’t think any serious analyst would make the claim that the U.N. is the central element of international security. Never has been. That said, it’s also the case that the lack of relevance, the appeasement of the U.N., its facile nature, its irresponsibility are also equally overstated. The death of the U.N. is too frequently told and always over-told. The U.N. was as threatened, if you listen to the rhetoric, by the fact that it was bypassed over Kosovo. It was as threatened by its failure in Rwanda, Somalia and other places. But it’s the only collective international instrument we have.

But isn’t the U.N.’s image — deserved or not — important in maintaining a collective sense of world stability?

It is important. But you have to ask yourself where the damage is done. Is it being done broadly at the international level or is it done in Washington? One of the interesting things is that if you look at the image of the U.N. internationally, the perception is that it stood up to the United States against a war that was broadly perceived internationally as illegitimate. The damage is in terms of the domestic debate within the United States, within this administration, over what should be the relationship between U.S. power and the United Nations.

My own personal view is that those in the international community who see this as some kind of moral victory for the U.N. in the sense of resisting U.S. power are hopelessly romantic and naive if they think that the institution can survive without working in concert with American power. The experience of the 1990s shows that the U.N. works effectively when it works in concert with American power — not subcontracted to it, not subservient to it, nor resisting it: in concert with it.

When in the 1990s did the U.N. and U.S. work together effectively?

If you look at the difference between the U.N.’s performance in Rwanda, for example, and its performance in East Timor. There are similarities — a rapidly breaking, yet foretold, crisis, a prior U.N. presence. In the one case, Rwanda, there was no real response from the Security Council — only a very late and very partial response that colossally failed to save hundreds of thousands of lives. In the case of East Timor, a very rapid response saved probably tens of thousands of lives.

I think there were two factors there: One was an important learning of lessons inside the U.N. from what happened in Rwanda, and moral leadership from Kofi Annan and his chief lieutenants. But surely the more important one was the fact that American influence was brought decisively to bear on Indonesians at the critical moment that enabled the U.N. to do what it needed to do.

What role should the U.N. play in Iraq?

My answer, which will no doubt be unsatisfying, is it’s too early to tell. Much depends on how the course of the war develops, and the still unknown question of whether the bulk of the Iraqi people will respond to a defeat of the Hussein regime — if that’s what occurs — as a liberating fact, even if they aren’t necessarily keen about an American presence. We simply don’t know yet, what will be the balance of the Iraqi population’s perception. That will hugely shape what options are available to the U.N.

The benefits that the United Nations brings to bear in that context are twofold. It has a certain technical capacity in terms of civil administration and post-conflict governance, rule of law and reconstruction in all sorts of sectors. It has lots of problems with that technical capacity, but it has some capacity. What it should also bring to bear is legitimacy. If it isn’t seen in the eyes of the Iraqi people as a legitimate actor, then its technical capacity can’t really be brought to bear. It becomes just a subcontractor of the American government. That’s not of any use either to the Iraqi people, or actually to the United States.

If the United States wants the U.N. to help it do something in postwar Iraq it has to accept that the United Nations’ technical capacity can’t be subtracted from the question of its legitimacy. If the U.N. isn’t perceived as a legitimate actor there, it won’t be able to do anything constructive. The question of how a potential U.N. role will be perceived by the Iraqi people, and by the international community at large, cannot be divorced from what technical function it should take on. And we simply don’t know yet what the contours of that will look like.

Nor do we know what role the U.S. is willing to allow the U.N. to take.

That’s right. We don’t know that yet. My sense is that there is a significant debate inside the administration on that issue. And, obviously, various European governments are making initial statements about what they think the U.N.’s role should be. I expect that will be an issue that will be negotiated in the coming weeks and possibly even months. My sense is that it’s slightly too early to start into a real debate about what the U.N. should do. We need to know a little more about the lay of the land in postwar Iraq.

I think people concerned about the Iraqi people, about stability in the region, and the stability of world order can conclude that it’s necessary for the U.N. to play some role in postwar Iraq. I think if an appropriate and legitimate role can be identified and implemented, it will help ensure that what happens in postwar Iraq will be something that is in the interest of the Iraqi people and of the region. It will also help restore a certain sense of order in world politics.

It seems we’ve always seen a split between the richest nations and developing countries in U.N. debates. This time, we witnessed a division between America and some of its European allies. Is this a sign of a new emerging European Union force led by France and Germany that will complicate other issues before the United Nations?

That’s not my sense of things. You often see divisions within the European Union; they’re just kept under wraps. If you look into European Union politics on pretty much every major foreign policy issue, there are significant differences among France, Germany, Britain, Spain, depending on the issues, and also between the major Western European actors and the new European Union members like Poland. It’s usually the case that the mechanisms of the E.U. are brought to bear to wrap those in some kind of common cloak. But the differences are pretty significant. I don’t think it’s the case yet that the European foreign policy mechanisms have actually generated common understanding of or common positions on foreign policy issues.

Why do U.S. officials want United Nations help — at least with humanitarian aid — in Iraq now? Do they merely want to share the financial burden? Are they still seeking the imprimatur of international legitimacy on the invasion? Or do officials recognize the value of helping to restore the U.N.’s standing by inviting its participation?

I can’t speak to the motivations of American officials. But it’s instructive to note that during this whole debacle over the Iraq issue at the U.N., at precisely that moment, the U.S. was pushing North Korea by virtue of the fact that it was going to bring the issue of the withdrawal of North Korea from the inspections regime to the U.N. Security Council. And who were its allies on the Security Council? Britain and France. That cooperation continues.

In other words, the U.N. Security Council was — and still is — being used by the U.S. for other reasons. What would seem to me a logical view coming out of the major superpower, is that absent an existing alternative, we need to continue to work with this institution to do certain kind of things, although we might start to think of a process of deep and serious reform of the United Nations Security Council.

I think what’s interesting about that, virtually every major defender of the U.N. has in their own time in their own way also called for serious reform of the U.N. Security Council. The U.N. Security Council is an outmoded instrument that has not ever truly been able to live up to the challenge of managing international security issues. They don’t have credible, effective regimes for managing the proliferation of weapons of mass destruction, for example. No one yet has come up with a proposal for reform. Nobody yet has come up with a clear definition of where that goes.

Why would the U.S. want the U.N. in Iraq? I can think of a number of reasons. If the U.S. overthrows the Iraqi regime it will, in strictly legal terms, be the occupying power under the Geneva Conventions. It will have responsibility for the protection of the Iraqi people. That’s not necessarily a comfortable role over a very long time. I can see the U.S. wanting to shift that burden. There are U.S. officials looking into the reconstruction of Iraq who realize that with all of its wealth the United States doesn’t actually have all of the resources or the capacities it would need to carry out the reconstruction of Iraq.

I think some also understand that in the Arab world to reconstruct an Iraqi regime without the participation of the U.N. is going to pose a serious legitimacy challenge to whatever emerges and make it much more difficult for neighboring governments or the broader Arab world to recognize it — and that will pose major complications for any nascent regime.

You referred to the “debacle” of the Iraqi situation in the Security Council. How should it have been handled?

My sense is that the diplomacy in the U.N. was flawed. I think the U.S. administration as a whole too frequently shifted the basis of its rationale for a war with Iraq and undermined the credibility of its own initial case. I think that President Bush’s diplomacy in the U.N. in November leading up to U.N. Resolution 1441 and Secretary of State Colin Powell and U.N. Ambassador John Negroponte were, frankly, masterful in that stage of the game. But in the later stages, there was too frequently a shift in the rationale for war in Iraq that undermined the credibility of their own arguments. At the same time, a number of member states were rapidly committing themselves to somewhat inflexible positions. There was a growing inflexibility of both camps as the debates evolved, and that undermined any real chance of developing a consensus on the Security Council.

American officials clearly changed the definition of what it would take not to go to war against Saddam Hussein. But how were they masterful in the initial stages of the negotiations?

The early stages were masterful for two reasons. One, the decision of Bush to come to the U.N., to bring it to the U.N. personally, hit all of the right notes diplomatically in terms of suggesting the possibility of a kind of concert between U.S. power and the broader interests and legitimacy of the United Nations.

Most people in and around the U.N., if you speak to them one on one, accept and understand that the U.N. can’t function as a serious institution without the backing of the United States. It’s meaningless to talk about a credible world organization that doesn’t have the active participation of the only world superpower. Bush’s decision to bring the Iraqi issue to the Security Council in a very substantive way in November generated a willingness to engage the various member states on their core issues. In the details of the management of that discussion, Powell and Negroponte were extremely successful in getting a unanimous resolution — one of the high points, I would say, of American diplomacy in recent history.

But that clearly fell apart afterwards when the perception among member states around the U.N. was that the Bush administration was too ready to find a material breach of 1441.

My own perception is slightly different. I believe that had there been a proper inspections process over time, backed by a full consensus of the council, we would still have ended up with a war in Iraq. I think it is unlikely that the inspections process, even if well-managed and robust, could have created the kinds of conditions that would have allowed the Hussein regime to take the kind of steps required by 1441 and ultimately would have ended up in a breach and a clash. That might have been a war backed by a U.N. Security Council resolution, but it would have been a better thing than a war not backed by the Security Council. But it would still have been a war.

Are you saying the inspections process wasn’t proper?

Not at all. I’m saying that had the inspection process continued, I think at some stage some element of substantial weapons capacity would have been discovered. The requirements in 1441 are of such a deep and strategic nature that I think it’s unlikely that the Hussein government would have taken the steps required to comply with 1441 and so would ultimately have found itself in material breach.

And an invasion would have been backed by the Security Council?

Yes. That’s my sense. And there are critical differences in a war backed by the Security Council, not only in terms of its legal implications, but in terms of alliance building around the execution of the war itself.

One of the things I think we’re seeing is that a number of Arab governments that would have not been unhappy to see Hussein fall have been forced into a position of active opposition to the war — for two reasons. One is the absence of a Security Council resolution and two, because in terms of popular Arab politics, the idea that Arab governments should be less vociferous in their opposition to the war than France or Germany is completely untenable. So those Arab governments have to take stronger positions than the European powers. But many of those Arab governments very deeply dislike the Hussein regime and Hussein personally and would be quite happy to see him go. But the diplomacy around them forced them into a difference kind of stance.

What are the major factions vying for control of the U.N. and what parallel universes can you envision for the organization?

I think the question supposes more coherence to the system than actually exists. My sense is that what we’re witnessing is the first encounter with the reality of American hyper-power. America was the single dominant power during the 1990s, but the nature of the challenges and the nature of the issues were such that by and large the collective interests of the U.N. were generally not in direct conflict with those of the United States.

This Iraq business is the first instance, in a very kind of rough way, in which the broader membership of the U.N. has come head-to-head with the fact of a substantial difference of view with the United States. I think everybody’s left with this perception now that there’s this very, very difficult challenge to manage between, on the one hand, a solo superpower, and a global organization whose function is supposed to mean cobbling together some kind of global legitimacy. Now global legitimacy doesn’t have to mean every state agreeing on every issue, but it should mean a cumulation of collective will toward certain objectives and certain goals.

Most people looking realistically at the United Nations understand and recognize that the U.N. cannot function without U.S. power. By the same token, if the United Nations is simply seen as a tool of U.S. power and there’s no shared sense of values and purposes and goals, then it loses its legitimacy and it has no particular function or purpose. It doesn’t bring anything to the table.

It’s a difficult balance. I think the challenge is to find issues which are seen universally, or at least widely, as legitimate security issues where U.S. interests and U.S. power could be seen in concert with a wider set of concerns — and to try to build more effective and more credible institutions within the U.N. framework for dealing with those security challenges.

What kind of issues could unify the U.N.?

I think the place where you could probably do the best work at this stage of the game is probably regarding weapons of mass destruction. I don’t see anybody on the international stage other than a very small number of actors as regarding widespread proliferation of weapons of mass destruction as being a good thing. I don’t see any major state having an interest in that and virtually all states having an interest in quite the opposite.

To protect its image as a neutral observer and advocate for human rights, HRW rarely opposes — or supports — war, and hasn’t taken a stand for or against an American invasion in Iraq. Rather, it’s already bringing pressure to bear on the U.S. government to wage as good a war as possible — by limiting civilian casualties and suffering. That means careful choice of weaponry and targets, and acceptance by the U.S. of its responsibility to quickly respond to the humanitarian disaster that could be triggered by an invasion — and to prepare for the horrors Saddam Hussein may unleash on his own people in the face of his defeat.

Kenneth Roth, the quietly intense executive director of HRW, spoke to Salon recently from his office in Manhattan about building a better war. He talked about America’s troubling history in Iraq, the risk of dangerous alliances with brutal Saddam opponents and the potentially catastrophic fallout from an Iraqi war. Roth also discussed HRW’s productive tension with the antiwar movement. While Human Rights Watch has been criticized by some peace groups for its pragmatic approach to war, Roth admits his group needs the movement to maintain world focus on the plight of Iraqi civilians. He worries, though, that once war breaks out, demoralized protesters will abandon their concern for the Iraqi people “at the moment of greatest need.”

How do you build a better war?

That question probably strikes most people as odd because many people are opposed to any war. Even if you accept that war is sometimes necessary, there’s no avoiding the fact that war can be devastating, not only for the soldiers being shot at, but also for civilians. War does have an inherently evil component to it, even if it is sometimes necessary.

What Human Rights Watch and other groups like us try to do is to say: If it comes to the point when there is a war, for better or worse, how do you make sure that the consequences to civilians are minimized as much as possible? We use as our legal framework the Geneva Conventions, which do not prohibit war; they regulate war. They accept the fact that in the course of a war it’s acceptable for one soldier to be shooting at another soldier. What they aim to do is to protect as much as possible people who are not combatants, either because they are civilians or because they are injured combatants or they are captured combatants.

All of these people are protected under the Geneva Conventions, and a soldier no longer is privileged by laws of war to shoot these people. Instead, a soldier has a duty to protect these people. Human Rights Watch sees as our responsibility enforcing these rules. We’ve tried to push warring parties, whether it’s the Pentagon or Saddam or anyone, to do everything possible to spare civilians the consequences of war.

Elliott Abrams, who’s in charge of planning for a post-invasion Iraq, has said that the U.S. government has spent months preparing to provide aid to Iraqis after a U.S. military assault, and that military targets have been “carefully tailored” to spare civilian lives. Are you reassured by that?

He’s certainly saying the right things. The proof will come in the pudding. It’s essential first that Pentagon bombers do everything they can to avoid the further destruction of Iraq’s infrastructure. We already saw the devastating consequences from the Gulf War in 1991 when U.S. attacks on electricity had a cascading effect compromising sanitation facilities, water purification, hospitalization, refrigeration — many elements of modern society that depend on electricity. That cascading effect had profound health implications for the civilian population and led to a very substantially increased death rate.

It seems that the Pentagon has learned a lesson from that. Certainly, in Yugoslavia, the attacks on electricity were done in a way that did not destroy the generators, which are the most difficult to replace, and as a result the humanitarian consequences were less severe.

We hope that the Pentagon has learned not to go after any aspect of the infrastructure on which the civilian population depends. The Iraqi civilian population is already 60 percent dependent on rations from the government. Those rations will naturally end as soon as the war starts. The U.S. government, if it proceeds with an invasion, had better be prepared to pick up that slack very, very quickly even in the midst of what could be very difficult fighting. If not, there may be a quite severe humanitarian cost to this war.

It’s worth adding, also, that many Iraqis will try to survive this war by fleeing to Iraq’s borders and trying to enter the neighboring countries. So far, of the neighbors — Iran, Kuwait, Saudi Arabia, Jordan, Syria and Turkey – - only Iran has indicated a willingness to allow refugees to cross the border and to seek refuge, and even there it’s been a somewhat grudging acceptance with some fairly strict limits on the numbers. Everyone else has said they will not permit refugees to flee into their territory. That’s a clear violation of international refugee law, but more importantly, it would mean potentially sending people to their death or to very severe humanitarian situations. We know that there is no such thing as a safe haven in a country at war. Refugees or displaced people should have a right to flee a country at war. We hope that the U.S. government will put pressure on Iraq’s neighbors to live up to their international legal duty to allow these people in.

What else can be done to make a war in Iraq more civilized?

Human Rights Watch has been focusing our attention on the various parties to a potential war in Iraq — not only the U.S. government but Saddam’s forces, the anti-Saddam opposition, and the neighboring governments of Iraq. We have concerns with respect to each of them.

With the U.S. government our worry is that, first, they not use certain weapons which we know are likely to cause significant civilian casualties — for example, cluster bombs. We know that these weapons can be devastating if they’re used near civilian populations. During the Yugoslav war, roughly a quarter of the civilians who died as a direct result of the NATO bombing died because cluster bombs were used near populated areas.

So a very simple lesson for the Pentagon to learn is that it simply should not use cluster bombs anywhere near civilians. In Afghanistan, the Pentagon seemed to have drawn that lesson to a significant extent. We need to make sure that they follow through in Iraq. These are the only dumb weapons that the Pentagon considers using in populated areas and it’s time to end that exception.

Another issue with respect to the Pentagon is that we know that Saddam is going to use human shields to try to protect his military facilities. That’s a war crime that Saddam and his forces would be committing. But that does not relieve the Pentagon of the responsibility of weighing the military advantage of attacking a particular facility against the civilian cost, including the potential loss of lives of the human shields. Secretary of Defense Rumsfeld has simply talked about Saddam committing a war crime and has not accepted the remaining responsibility on U.S. forces to balance the relative military advantage to civilian cost.

A separate set of concerns has to do with the behavior of Iraqi forces. We have every reason to fear that Saddam Hussein, if he sees that his end is near, will bring as many Iraqis with him as possible. This is a man who, by our count, has been responsible for a quarter of a million deaths during his reign. He does not have the ordinary human inhibitions against mass slaughter. So we fear that he will attempt to use whatever chemical or biological weapons he has at his disposal. If he doesn’t have those, he will simply use machine guns or artillery to kill as many people as possible, particularly the Kurds in the north or the Shi’a in the south, whom he sees as more generically opposed to his rule.

The question is, how do you prevent that? Obviously, there may be certain military steps that can be taken. But one of the most important things would be to signal to Saddam’s lieutenants that if they follow his orders to kill civilians, they will be prosecuted for war crimes and crimes against humanity. That’s an important message to send. It’s one that President Bush — on occasion — has articulated, but it runs counter to the Pentagon’s desire to minimize talk of prosecutions for fear that the threat will discourage people from defecting to the U.S. side.

The flip side of our concerns about Saddam’s forces is that we are also deeply worried about the behavior of the anti-Saddam opposition. We know that during the uprisings that followed the Gulf War, Kurdish forces in the north and Shi’a forces in the south killed large numbers of Ba’a Party officials or other perceived Saddam supporters. They simply summarily executed these people. Again, we have reason to fear they will pick up where they left off if suddenly a security vacuum is created. If Saddam’s forces begin to topple in, say, southern cities like Basra, Karbala, Najaf, the anti-Saddam opposition may believe they can proceed to settle scores that may have been lingering for a decade or more.

Again, the way to avoid this is, on the one hand, to send a strong message that people who commit these atrocities will be prosecuted. Second, it’s important for the Pentagon — as its forces presumably rush toward Baghdad for the ultimate battle — not to ignore the security vacuum that will be created in the south, but to vigorously patrol those areas to try to avoid reprisal killings.

That runs counter to the Pentagon’s instincts to avoid any risk to its forces. Undoubtedly, patrolling in newly occupied territory is risky. But the responsibility to ensure security to prevent atrocities would lie with the United States if it becomes the occupying power. And that requires the kind of vigorous policing that the French and the British in the past have been willing to do, but the U.S. has been extremely reluctant to do in places like Kosovo or Bosnia, but which they will absolutely have to do in southern Iraq.

Are you concerned about accommodations the U.S. might make with other Iraqi leaders in an effort to ease the way for an American occupation?

If you look at Saddam’s crimes, you have crimes like the Anfal genocide of 1988, in which 100,000 mostly Kurdish men and boys were rounded up and executed. Now Saddam may have directed this, but this is not something any single man can do by himself. There were other people, like Ali Hassan al-Majid — otherwise known as “Chemical Ali” — who oversaw the gassing and executions of many Kurds. There were other lieutenants. It would be awful if under some misguided effort to retain a viable Iraqi state people like this were given a “get-out-of-jail-free card” in return for simply cooperating with the U.S. invading forces.

We think it’s important — not only as a matter of respect for Saddam’s victims, but also as a matter of deterring future Saddams — not to forget the crimes that these people have committed, but to hold them accountable. We want the Pentagon to resist the temptation to forgive and forget with the hope that it will somehow make a U.S. occupation of Iraq easier.

Are we in danger of picking the wrong partners in the war on terrorism as we did in the war on communism?

Yes. One of the things we saw during the Cold War was that it provided a readymade excuse to ignore human rights. You saw this in the U.S. support for the Contras in Nicaragua, the murderous Salvadoran government. In Africa you could see it in U.S. support for Mobutu in Zaire or Siad Barre in Somalia, Doe in Liberia. There were a range of vicious tyrants around the world whom the United States supported militarily, economically, because they were on our side in fighting communism.

That kind of logic, we fear, is picking up again today in the name of fighting terrorism. Not only is that simply wrong morally in a very straightforward sense in that the U.S. should never be on the side of murder, torture and repression, but it is also profoundly counterproductive.

If the United States is going to win the fight against terrorism, it cannot do that by itself. It’s going to need cooperation from people around the world to help with law-enforcement efforts to dissuade would-be terrorists. But the United States will not be able to gain that cooperation if it sends the signal that the ends justifies the means because that’s precisely the warped logic of terrorism. Terrorists believe that the ends of their vision of a just world somehow justify their means of blowing up the World Trade Center. That logic is one that we have to be very careful not to embrace ourselves — accepting murder or torture or repression in the name of the very laudable goal of fighting terrorism.

If the United States is going to gain the cooperation of Indonesians or Pakistanis or Afghans, people who we need to identify and single out terrorists for arrest and prosecution, it is essential that we not signal to them that we are not indifferent to the fate of their countrymen whether in a U.S. detention facility or through U.S. support of repressive governments in their country.

What is the best way to fight terrorism?

I am absolutely convinced that terrorism can be beaten and defeated through lawful means. Use vigorous law enforcement efforts — at times maybe even military force, if necessary — but make sure that the United States maintains the high ground, make sure the entire war is fought consistently with human rights standards.

That means, for example, not supporting the warlords in Afghanistan simply because it’s cheaper than supporting an international peacekeeping force. That means in the case of, say, Pakistan, not simply writing off efforts to reestablish democracy there simply because Musharraf happens to be on our side in fighting terrorism. Rather, make clear to the Pakistani people that the United States stands with their democratic aspirations.

It means when it comes to detention facilities — for example Bagram Airbase in Afghanistan– the United States repudiate the apparent practices there of torture, that, according to the Washington Post, are being engaged in right now. The Post detailed the so-called stress and duress techniques that U.S. interrogators were using at Bagram, and the Bush administration to this day has not denied those well-documented allegations. Instead it is apparently nodding and winking and saying, “Yes, indeed, this is something that is going to go forward.” That sends a horrendous signal to the rest of the world that suggests that whenever they are facing a serious security threat they, too, can torture.

How do you pressure governments to build a better war?

The most important tool we have is the tool of exposure. Human Rights Watch for the most part is composed of investigators who go to the trouble spots around the world and speak to the eyewitnesses, the victims, the people who have firsthand knowledge about human rights abuses. By writing up their findings in the form of the reports we regularly issue we expose these atrocities to public scrutiny. Fortunately, the public generally believes in the human rights standards that we uphold. When we show that the United States government or anybody else is falling short of those standards, the public is unhappy with that and the government in question finds it embarrassing. That process of shaming can be a very powerful tool to push governments anywhere in the world to be more respectful of human rights.

We also at times will invoke additional diplomatic or economic pressure. For example, we might go to the World Bank or to major donor governments and say: Don’t extend this grant or loan unless the following human rights abuse is stopped. In extreme cases we will encourage prosecution of offenders. We’ve been a major proponent of the creation of the International Criminal Court, the new global war crimes tribunal, that is now in the process of being established — a major priority for Human Rights Watch. What that represents is a clear statement by the international community that even if tyrants can compromise their own national judicial system as a way of preventing their prosecution at home, there will always be an international tribunal sitting in The Hague, waiting to receive them as soon as they step outside the cozy confines of their own country and are subject to arrest elsewhere.

You’ve referred to U.S. reconstruction in Afghanistan as being done “on the cheap.” Can you explain what you mean?

The United States has obviously done a tremendous service to the Afghan people by ridding it of the Taliban. If you look today at Kabul, the capital, where there are many international peacekeepers and a significant international presence, life is far, far better than it was before the Taliban were overthrown.

The problem is that the United States government as well as the Europeans have been unwilling to devote the political and military capital to extend a serious peacekeeping presence outside of Kabul. Instead, what they have done is essentially bought security in the rest of the country on the cheap by delegating it to various warlords.

Human Rights Watch recently sent a team to the western Afghan city of Herat to see what life is like under a warlord, in that case Ismail Khan. What we found was that women had been packed up back in their burqas, they were for the most part denied the right to travel outside without a male relative; many were denied the right to go to school. There was no public dissent; people who dared to say negative things about Khan’s government risked death threats and torture. There was no civil society, no independent press. It was essentially Taliban redux — life under the Taliban without the Taliban. That is hardly what most Americans thought they were doing when the Taliban was overthrown, but that is the cheap way to reconstruction in Afghanistan.

Now the Bush administration is pledging that Iraq will be different, but its record in Afghanistan hardly gives a reason for confidence. If all that the Bush invasion of Iraq accomplishes is to substitute one tyrant for another — awful as Saddam has been — that will be far, far short of the grand promises of a new democratic Iraq that we hear increasingly emanating from Washington. Frankly, I have to accept those pledges with skepticism, given the awful record that the United States has had in Afghanistan outside of the capital.

What will happen to the Kurds if the U.S. invades Iraq?

In many ways the Kurds have never had it so good as the last decade. They have suffered horribly under various regimes, and of course the worst case was the Anfal genocide. They have been the target of repeated use of chemical weapons. They have been ignored or compromised or betrayed by the United States on many occasions, including even during the 1991 uprising, after the Anfal genocide, after the United States had continued giving commodity credits and loan guarantees to Saddam despite his commission of this genocide. After Saddam invaded Kuwait and lost the Gulf War, the United States still refused to come to the aid of the Kurdish uprising but allowed Saddam to use helicopters to crush that uprising. Only belatedly did the United States establish a no-fly zone in the north which ultimately has led to the creation of the Kurdish mini-state or quasi state that has existed in northern Iraq for the last decade. So the Kurds have been betrayed and have suffered horribly for years.

What they fear now is yet another betrayal. I think that they fear that whatever autonomy they have been able to secure, whatever civil society that’s been allowed to emerge in northern Iraq — and indeed, there’s a relatively free atmosphere in northern Iraq — that this will come to an end if Saddam’s overthrow leads to the emergence of another thug on the order of Ismail Khan in Herat. Unless the United States really lives up to its expressed aims of establishing democracy in Iraq, there may be a stronger centralized government that reasserts its control over Iraq’s Kurdistan under circumstances of far less freedom than the Kurds enjoy today.

Human Rights Watch could be criticized for not being aggressive enough in fighting for human rights by advocating military action against particularly repressive regimes. On the other hand, antiwar activists could criticize the organization for not taking a stronger stand against a war in Iraq — or any war, for that matter — to protect what could be considered the ultimate human right — to live. How do you negotiate a path between those two positions?

This is an issue that often comes up and it’s a very difficult one. It’s important to note that there is a difference between pacifism and support of human rights. The two are similar in many respects. I think people come to the two causes out of quite similar motivations. But a pacifist is against war in any circumstance. A human rights activist accepts that sometimes war is necessary whether you like it or not. We see our role as trying to mitigate the harm that arises to civilians in the course of war.

Have you supported any wars?

The only kinds of wars that we have supported have been on the very rare occasions when we feel that war is the only way to stop genocide — or comparable mass slaughter. For example, we did support a war — unfortunately without success — in the case of the Rwandan genocide, where we urged anyone to intervene. No one from the international community did. It really took, ultimately, Rwandan forces from Uganda to come in and stop the genocide.

Similarly, we urged military intervention in the case of Bosnian genocide, particularly just after the massacre in Sbrenica. There, within a month or so, the U.S. government and its allies did heed the call from Human Rights Watch and others, and that genocide was brought to an end.

It’s only in the extreme cases in which war is a lesser evil to the systematic slaughter of civilians that Human Rights Watch will take a position on whether there should be a war or not. In any other circumstance we are strictly neutral.

In the case of Iraq, even though Saddam has been responsible for genocide in the past, that of course was at a moment when the U.S. was supporting him. While we are fully aware of Saddam’s horrendous past human rights record, there is no serious allegation that today he’s committing the kind of mass killing that would lead Human Rights Watch to call for his overthrow.

So why would we go to war with him now?

The U.S. has offered a range of justifications, and because Human Rights Watch doesn’t take a position on whether there should be a war in Iraq or not, I’m not going to comment on them. The one thing I can say is that the claim that this is being done for human rights reasons has an element of truth in that, undoubtedly, this is one of the worst regimes and the Iraqi people will probably be better off without Saddam.

But one has to look at it also somewhat cynically because at the moment of the most intense killing by Saddam, whether it was the use of chemical weapons during the Iran-Iraq War or Saddam’s genocide against the Kurds, these were all moments when the United States was supporting him. The U.S. gave him ongoing intelligence support while he was using chemical weapons against Iranian troops. The U.S. continued to give him commodity credits and loan guarantees after he had slaughtered the Kurds.

So to suddenly say that Saddam’s horrendous human rights record justifies war — it’s difficult to sustain that in light of the U.S. government’s abysmal record of standing up to Saddam when it really mattered.

Are we going to war no matter what?

I don’t think it’s inevitable in the sense that there could still be a coup. It’s conceivable that Saddam could choose to go into exile. There are a number of things that could happen that might avoid a war. But it seems increasingly unlikely that anything the Iraqi government could do in terms of compliance with Security Council standards would be sufficient to deter an administration that seems quite determined to go to war.

What will happen to the antiwar fervor once war breaks out?

Clearly, there have been massive demonstrations throughout the world against the war. There is a danger that if war proceeds, everybody just throws up their hands and says, “Well, that’s Bush, what can we do about it?”

I worry about that. Frankly, I think that it’s much more likely than not that there will be a war, despite public opposition. In that circumstance, it’s essential that pressure be brought on the Bush administration — both because of its own conduct and its capacity to affect Iraqi conduct — to do everything possible to spare civilians.

My fear is that at the moment of greatest need — when war might break out — that the mass mobilization we’ve seen over the last few months suddenly throws up its hands in despair. That is the moment when we need the help of every one of those protesters.

I hope that everybody realizes that even if they lose the battle over whether there is a war or not, there is still another battle to be waged, a critically important battle — and that is the battle to spare civilian lives in the midst of war.