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One Way Or Another ....
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Most of us have seen Shakespeare’s Hamlet at some time in our lives, and remember its final few minutes: bodies piling up everywhere, as the Norwegian Ambassador looks around disconsolately for someone still alive to present his credentials to.
Shakespeare was aware that here, as in the Roman Plays, in Macbeth or even in Romeo and Juliet, he was describing a society in which power was everything, and where political figures were essentially indistinguishable from gangsters, with incessant conflict between individuals, families and clans, grievances nursed across generations, and nothing ever forgiven or forgotten.
By Shakespeare’s time the unification and centralisation of England meant that such behaviour was mostly in the past, with. Laws and procedures had mostly replaced gangster ethics: Henry VIII had Thomas Cromwell executed because he got tired of him, but it was at least after a trial of a kind. Yet revenge stories were still popular when Shakespeare was writing, and in fact they never have lost their primitive, atavistic, appeal. Revenge or redress for real or perceived wrongs stirs up something deep and primitive in all of us, and it is still present everywhere in popular and even elite culture today.
This essay is about the political consequences of the atavistic survival of revenge-based thinking into the modern age, and its collision with the increasing imposition of Liberal-state legal norms. The desire for revenge, usually vicarious these days, coexists uneasily with a theoretical attachment to objective legal procedures; but when these procedures fail to deliver a result which we find morally satisfying, we jettison them for something much more primitive.
I will examine three contradictions. First, we habitually confuse Law with Justice, without for that matter being really certain what each concept means. When Law does not give us what we consider to be Justice, we complain. Secondly, whilst we demand the greatest procedural, legal protection for ourselves, we are reluctant to extend this protection to people we don’t like. They deserve Justice, even if it’s rough and ready. And finally, most of us engage in Doublethink most of the time, wanting to think of ourselves as modern, rational and humane, but falling with disconcerting speed into the mental world of Shakespeare’s audience: Hamlet, revenge!, and spending some effort trying to persuade ourselves and others that these two things are actually the same.
Let’s start, though, with a walk through some simple definitions and qualifications. What about “Justice” for example? I ask students sometimes what they think the term means, and mostly the answers are about justice systems: courts, police, laws etc. But actually Justice at its origin doesn’t mean that at all: in Michael Sandel’s happy phrase, it’s about “the right thing to do,” and indeed entire books have been written about the concept of Justice without any mention of crime and punishment. Justice is therefore about our concept of how public affairs should be managed, and how people should be treated. A justice system is a system for trying to make sure that what people believe to be “just” actually happens in practice, and what is “unjust” is sanctioned.
What we think is “just” changes a lot with time and context, and ideally, at least, laws should change slowly, to reflect the changes in attitudes which affect our ideas of what is just and what is not. Good examples are the decriminalisation of homosexuality and abortion in most countries in the 1960s and 1970s, which resulted from gradual changes in social attitudes after the Second World War. Bad examples are any attempt to use law to force acceptance of social changes that public opinion is not yet ready for: this discredits the legal system as a whole.
When we think of “laws” we think immediately of dense technical prose in large books which only specialists can understand: but in fact the origins of Law are really in the popular sense of what is Just. Now of course for most of human history, societies have been mostly illiterate, and the idea of arguing about the nuances of sub-clauses in documents would have seemed ridiculous. Law was basically tradition: the Greek Nomos or the Egyptian Ma’at are often translated these days by “law”, but in reality they basically mean “custom” or “what we do.” In a largely illiterate society, this was a bundle of precedents handed down from the past, which everyone was familiar with. Indeed, written law was regarded with some suspicion until relatively late on: most civilisations before ours have wanted to avoid being tied down too closely by words in making decisions. Great legal cases of antiquity (the trial of Socrates, for example) were a world away from anything we would understand as a legal process today.
The last few centuries have seen the steady practical encroachment of the letter over the spirit of the Law, whilst at the same time popular (and for that matter elite) conceptions of what Justice is, or should be, have not changed that much. This has created a considerable tension, because it is not always the case that what the Law actually says is what we think it should say, or what we are comfortable with. It has also produced a willingness in recent times by political and intellectual elites to use the law as a political weapon, whilst pretending to respect objective procedures. The result has been a whole series of treaties, laws, agreements, conventions and others, seeking to bring clarity and consistency to the messiness of human and institutional relations, not always successfully. Let’s look at some examples of why.
Law is, at least in principle, a coherent and logical construct with procedures and outcomes that should be repeatable. Thus, whilst judges and juries are not machines mechanically producing verdicts, in a properly-functioning system the same body of evidence, competently presented by the different parties, should yield similar results. Where judges differ, for example, they should, nonetheless be weighing the same factors according to the same criteria. In routine criminal trials, or in technical legal cases where there is a great deal of relevant legislation and precedent, this generally happens. The difficulty arises where “the law” is invoked as a weapon in situations which are charged with emotion and often the subject of political campaigns, and where any outcome will disappoint somebody, for political reasons. And there is every sign that this situation is getting worse, as interest groups of every conceivable type seek to use the law as a blunt instrument for achieving political objectives, and believe that it can and should bend to their will.
Criminal law is particularly open to this kind of manipulation because it does actually have a series of strict criteria for what evidence is admissible, what standard of proof is required, and what protection the accused is given. These are often incompatible with the atavistic impulse towards revenge or even “justice,” which can be at the origin of criminal trials, and which affects the way the outcome is perceived. Experienced prosecutors know that evidence is sometimes incomplete or lacking, that eyewitness evidence is between dubious and useless, that witnesses can and do make mistakes or forget things, that the authorities can overlook weaknesses in their own cases and that people can confess to things they have not, and could not, have done. As a result, and depending on the threshold for prosecution, up to a third of prosecutions will come to nothing. But this is not a weakness in the system, it is the system working as it should. I’m far from an uncritical admirer of John Rawls, but I do think that his Veil of Ignorance argument has a place here. Step back from the fury of politically charged struggles conducted in the discourse of law, and ask yourself, what kind of legal system you would like if you didn’t in advance know what role you were going to play: victim, witness, accused? But most of us are incapable of this degree of detachment: we demand legal protections for ourselves which we are then unwilling to extend to those we disagree with or dislike. For example, I’ve had conversations with intelligent, educated women who want the burden of proof in rape cases alone reversed, so that the accused has to prove their innocence. They are quite open that this is to ensure that more men are sent to prison, and that, whilst there will certainly be many miscarriages of justice, this is “justified” by the assertion that in other cases genuine criminals may have “got off.” It’s about collective group punishment, in other words, which is one of the oldest conceptions of “justice” in the world.
Indeed, one of he biggest problems that criminal law encounters in the current politicised and weaponised environment is precisely that its focus is, necessarily, on individuals and their specific circumstances, whereas the political focus is often on groups, or their members, and the criminal is seen foremost as a group member and the alleged offences as part of a pattern.
Much more could be said about this, but in practice, it is effectively impossible for the atavistic urge to “justice” and collective revenge, and the bureaucratic rules-based treatment of individuals, ever to produce results that please everyone. But at least, it can be argued, if what you want is a system of objective law and not the last act of Hamlet, you have to be prepared to accept that sometimes things won’t go your way. In a moment I’ll talk about some of the important international political effects of this reluctance, but before that I want briefly to discuss two other areas where law (in one interpretation at least) and politics have come into ugly multiple collisions.
One is international law, where there is a debate even about where the subject objectively exists, or at least whether it counts as “law.” There’s no doubt that it wears a heavy legal disguise and uses procedures and terminology that resemble other kinds of law, but the debate between those who think it’s a kind of law (essentially international lawyers) and those who think it isn’t (essentially everybody else) can never be resolved. The basic point is enforceability: international law has not been, and cannot be, enforced, except against small and weak powers, and many would argue that that is not enough. Rather, international law is best understood as a discourse; a body of speech and actions that serves to structure and enforce the understanding of a given international situation, and prevent challenges to those with the power to establish this discourse. And like all discourses, the international law one can change rapidly: I’ve commented several times before about the speed with which, at the time of the Kosovo conflict in 1999, it was suddenly recalled that the post-1945 presumption against military intervention in other countries had “always” been contingent on that country “respecting human rights” or some similar formula. The result, partly through doctrines such as Humanitarian Intervention, the Responsibility to Protect and Preemptive Retaliation, which have no status in international law, has been a concept which essentially caters for what the powerful wish to do whilst condemning the behaviour of others. And even if that was historically the practice anyway, it is increasingly becoming the dominant theory, too.
What has changed, though, is the increasing belief that law (international law in this case) should conform to our contemporary, normative, ego-based view of the world: a system which not only serves our purposes, but also embodies our norms, even as they change. Above all, the Law should not prevent us from doing what we want to do, or what is “right.” Just before the invasion of Iraq, I recall a conversation with an American government official who mentioned a meeting he had just attended, where a Great Person had complained that “if international law prevents us from overthrowing Saddam Hussein, there must be something wrong with international law.” Disturbingly many lawyers at the time seemed to agree. But this ego-driven approach, requiring the law to tell us we are right, actually seems pretty common. During the Bosnia crisis I was at a seminar of angry academics, many of whom were demanding that we “stop the killing” by killing people they disapproved of. I pointed out that many of the wilder ideas being put forward went against international law, but “this is too serious to worry about international law” said a Professor of International Law sitting next me, crushingly, while from across the table another participant ventured the opinion that states which oppressed their own peoples shouldn’t expect to benefit from the protections of international law anyway. As these two examples show (and there have been many since) international law is, indeed, not just a discourse of power, but also a discourse of people who want power, or who want the vicarious thrill of seeing death and destruction meted out to people they dislike, but under a safely legal camouflage. It’s the job of lawyers in such circumstances to find rational-sounding justifications for the unacceptable, but then that’s what lawyers are ultimately for, I suppose. But in the eyes of most of the world this misuse of the law is itself unacceptable, which is why the Chinese, the Indians and the Russians talk about the return to a law-based system, as opposed to the current obsession with a “rules-based” system where the rules are made by a self-appointed clique. (A simple way of conceptualising the difference is to consider Chicago in the 1920s, where there was a law-based system, albeit largely corrupted and ignored, but at least official, and a rules-based system originated and enforced by the various gangster groups in the city.)
A related case is “human rights” law, which is essentially a series of treaties, laws and declarations which can be parsed, albeit with some effort, as though they were actual laws. The difference is that some are actually enforceable, though often with difficulty, against ordinary people. The problem here is a conceptual one: most HR law is so vague and internally incoherent that it is very difficult to extract any consistent sense from it. Many key documents were either drafted so long ago that they no longer reflect the current world, or alternatively are so contorted in their language in an effort to please everyone that they can support almost any interpretation. The result has been that judges, often scholarly specialists with little experience of the reality of the subjects they are evaluating, assailed with complex and often mutually incomprehensible arguments from political lobbies, finish by making what are essentially political judgements, depending on how they feel, or on their reading of the political winds at the time. This takes away not only the legitimacy of elected governments and parliaments, but any option for ordinary citizens to have their voices heard against the power of lobbies and the media. There’s much more that could be said here, but for the moment let’s just note that this kind of “law” is in practice just another way for the western Professional and Managerial Caste to impose its norms and desires on the rest of us; all the more easily because the lawyers who argue the cases, the media that report them and the judges that decide them are all members of the same caste. This is another case where law is clearly just a reflection of power, and is discredited as a result.
The greatest example of the abuse of the concept of law, however, is probably the application of criminal law to armed conflict, or more precisely the way it has developed over the last thirty years, and its politicisation into a PMC weapon for the suppression of irritating leaders and governments. This is the concept of International Humanitarian Law, which began with noble enough ideals, but which has since been completely captured by the international power system.
Traditionally, warfare was as ruthless and cruel as dynastic politics, of which it was often a part. Greek city states cheerfully practiced genocide against each other, and the Roman Empire, one might say, was carved out over mountains of corpses. Precisely because much warfare was dynastic, or a zero-sum struggle between Empires and principalities, extermination was the normal method of fighting: after all, so long as a single male relative or member of the royal line was left alive, the war might flare up again at a later date. It was normal for all surviving males of a city to be massacred and the women and children sold into slavery, after the city had been burned to the ground and everything of value stolen. (This kind of behaviour was regarded as admirable, and epics were written about it.) Nor was this kind of behaviour limited to Europe and the Middle East: the wars of the Samurai were at least as bloody: go and watch Kurosawa’s Ran for example.
The first moves to control warfare were made by commanders and national governments rather than lawyers. It made good practical sense to treat the local population well, and to extend to the enemy’s wounded the consideration you wanted for your own. Military professionalisation, mass conscript armies, modern logistic systems and the development of an international military caste all made it easier for governments to accept proposals for limitations on warfare, at least between peer states. This is not the place to go into the long and tangled history of attempts to “humanise war: I want rather to start with where we are now, by looking at some of the practical problems of applying Law to War, and how these problems have produced a poisonous atmosphere of hatred and the desire for revenge, led by the international PMC, and as a way of destroying its enemies.
Unlike rules for trying to make war more humane, which were often originated by the military themselves, ideas for criminal investigation and punishment have virtually always come from outside actors, often with a very limited comprehension of the reality of conflict, but a great deal of moral fervour. In some cases (the Nuremberg process is the obvious example) trials were the least bad solution to an obvious problem: there, that the leaders of the Nazi regime could not be allowed to live. Thus, the verdict came before the evidence, which came before the charges which came before the investigations. But it’s doubtful if there was any better solution, just as it’s doubtful if Nuremberg should be a precedent for anything.
The fact that no similar trials were held for half a century afterwards is less because there were no crimes and atrocities than because there was no political need, or will, to address them in the same way. It was only in the early 1990s that a combination of increasingly powerful NGOs, a crusading media, satellite television and the realisation by states that the discourse of criminal law could be politically useful, combined, first in the case of the Former Yugoslavia and then Rwanda to produce international criminal courts. In the case of the Former Yugoslavia, moreover, several of the successor states were weak, and one was under military occupation. In the case of Rwanda, the dictatorship in place was more than ready to see its opponents shipped off for trial. Such a combination of circumstances had not occurred before, and was never really to do so again.
Pressure for the ad hoc tribunals for the Former Yugoslavia and Rwanda came not from criminal lawyers, well aware of the potential problems, but from a coalition of media figures, human rights lawyers, political opportunists and western governments looking for “something” that they could do to quieten enflamed public opinion. It’s fairly clear in retrospect both that these various interest groups had little idea of what would be involved, and that that likely difficulties in any case left them unmoved. The thought process went essentially (1) I have seen terrible things on my TV (2) someone must be held responsible and punished. The trial, inasmuch as there had to be one, was seen as a formality. Madeline Albright, affectionately known (by herself anyway) as the “Mother of the Tribunal” apparently assumed that the Yugoslavia Tribunal would last perhaps a couple of years, indict try and convict some twenty Bosnian Serbs, and then close down. None of the progenitors of the ad hoc tribunals, full of rage and the desire for vicarious revenge, ever devoted much thought to such mundanities as evidence, witnesses, proof and a fair trial.
This was the first and most fundamental weakness of the ad hoc tribunals, and remained the case for the International Criminal Court and subsequent efforts. Human rights lawyers were scandalised that witnesses (“victims” in their parlance) were allowed to be cross-examined: they argued that this would be too traumatising. When Slobodan Milosevic, himself a capable lawyer, decided eventually to recognise the Yugoslavia court and to conduct his own defence, he completely destroyed several prosecution witnesses, which caused horror and dismay among the HR community. After all, argued one pundit in, I think, The Guardian, Milosevic’s victims didn’t have a fair trial, so why should he? Surely nothing as banal as evidence could be allowed to stand in the way of a guilty verdict? And once you allowed the defence to question the validity of the evidence, any result, even acquittal, was possible.
Thus began the transformation of the HR lobby from a nice but ineffectual group of well-meaning people into the Death Commandos of the PMC, using the law (or one interpretation of it) to destroy people they disapproved of. Human rights, it turned out, couldn’t be allowed to protect absolutely everybody, and HR advocates saw nothing problematic in arguing for the kidnapping and detention without trial of people they they identified as malefactors, even if they hadn’t actually been charged with anything. In this view, the courts were in practice little more than the punishment arm of the HR community, and the job of the investigators was to find the necessary proof of guilt, or at least something that resembled it. A classic example is the regress of Geoffrey Robertson, a British QC and “human rights” campaigner who had previously defended unpopular causes. During the fervid atmosphere of the late 1990s, when enthusiasm for courts was at it height, he had written of the need to ensure that various evil-doers were put in prison for “the crimes of which they are guilty.” Several other legal experts who, unlike Robertson, had not slept through the lectures on criminal law at Oxford, were obliged to point out that none of these people had been tried, let alone found guilty. The law can be tedious sometimes. I subsequently saw that Mr Robertson was to be featured in a BBC Radio mock “trial” of Slobodan Milosevic, and I read a little further to find out how he would handle Milosevic’s defence, only to discover that he was appearing for the prosecution. So much for unpopular causes.
The effect of all this has been essentially to ruin any credibility that international courts ever possessed. But in fairness it should also be said that they have often been asked to do an impossible job. Let me finish with two examples. The first is the slightly technical but very important concept of Command Responsibility, which has recently been extended not just to military commanders, but to political leaders a well.
We have to begin by remembering that in armed conflict people get killed, including innocent people. The laws of war distinguish between “military targets” that may be attacked, and others that may not. They also make anyone who is carrying weapons or playing an active part in the conflict an allowable target, even women and children. In most conflicts today these distinctions are useless, though, since there is no real dividing line between those participating in the conflict and those not, and most adversaries do not accept our concept of the law of war anyway. In this sense, the law of war diverges more every year from the reality of war, which can never be a good thing. Typically, a twenty-year old Corporal on a Peace Mission, far from home in a country whose language he does not speak, could be confronted with a teenager approaching him at the entrance to the compound wearing earphones and sunglasses, carrying a backpack and refusing orders to stop. The corporal may have five seconds to decide whether to fire (and possibly open himself to a murder charge and an international scandal) or not to fire, and possibly become the victim of a suicide bomber.
In theory, commanders are supposed to give clear and firm orders to stop mistakes and violations occurring, and are responsible for what their soldiers do. But this responsibility is understood, even by HR lawyers, not to be absolute. No commander can spend their time suspiciously watching the behaviour of every soldier: what the military call the Chain of Command is supposed to take care of at least some of that. But court cases have been fought about just how far that responsibility extends. A classic case was that of General Stanislav Galic, commander of the Bosnian Serb forces besieging Sarajevo for three years. In spite of the impression give in the media, most of the casualties were military, from the fighting around the town, but there were also cases of the civil population being killed by mortar or small arms fire. Those weapons were not accurate enough to support a charge of deliberate killing, and there was no evidence that the shooting and mortaring was deliberately ordered, but Galic was nonetheless charged with not having made adequate efforts to control his troops. He claimed that he had done everything he could, but, slightly to the surprise of those watching the trial, the judges decided that he hadn’t done quite enough, and found him guilty. (Another group of judges might, of course, have concluded differently).
But for all the vicarious satisfaction from the jailing of a military commander, the real targets of hate are political leaders, and the doctrine of command responsibility has increasingly been extended to them. Of course this requires proving a habit of a political leader giving orders to a military leader, including to commit crimes. This is seldom possible, and the cause of much frustration among HR activists, for whom leaders like President Bashir of Sudan, President Assad of Syria or Laurent Gbagbo of the Côte d’Ivoire, become hate figures who must be destroyed, one way or another, but with some kind of legal camouflage to make us feel better about it.
The solution chosen for the Milosevic trials, out of desperation more than anything else, amounted to Guilt by Association, dignified as the doctrine of Joint Criminal Enterprise. Effectively, this argued that Milosevic was guilty because he was part of a circle of people, some of whom had influence over people, some of whom were alleged to have given orders that resulted in crimes. Yet pundits who read past the first page of the Bosnia and Croatia indictments would have been startled to see that it was not claimed that Milosevic was responsible for, ordered, or even knew about, any of the crimes listed in the indictments. But he was nonetheless guilty of them. In effect, therefore, any senior military or political figure could be charged and convicted of responsibility for anything, and indeed attempts at similar indictments have been made since, with variable results. Caught between the elite PMC desire to destroy hate figures one way or another, and the mundane practicalities of criminal trial procedure, courts have been driven more and more towards being purely political institutions, as was predicted at the time, and as is evident in the sick farce of the indictment of President Putin, after which no-one will take such courts seriously any more.
The second is the tendency of courts, under pressure from the media and PMC elites, to rewrite the law to make prosecutions and guilty verdicts easier. The classic example is he crime of Genocide: a complex crime which is only provable if you can establish the internal state of mind of an individual beyond a reasonable doubt. As has been documented, the 1947 Convention was essentially a Cold War construct, designed to put the Soviet Union on the defensive about forced movements of population after 1945. It was never intended as a basis for prosecutions. But it was a handy term, and journalists and HR militants soon applied it to the events in Rwanda in 1994. Reading into the political crisis there the usual neocolonial western discourse of “ethnicity” and “race,” they managed to convince judges with no knowledge of Africa that Genocide had indeed been committed. Once the situation became clearer after expert testimony, the court faced a massive political problem: they would be torn limb from limb unless they brought in verdicts that the evidence did not justify. The answer was to change the definition of Genocide such that a subjective conviction that there were racial or ethnic differences involved was enough. (It was true that the Tutsi aristocracy had long cultivated the myth that they were a superior species racially, and this had been absorbed both by European colonists and by the Hutu peasantry. But it wasn’t true.) One way or another.
Something similar happened with the Srebrenica trial in The Hague. The case seemed unpromising at first sight: the dead were soldiers of the 28th Division of the Muslim Army, who had fled the town after a much smaller Bosnian Serb force attacked it, taking most other men of military age with them. By no stretch of the imagination were the dead a “group” in terms of the Convention. But the Prosecutors tried an ingenious argument: after the Bosnian Serbs captured the town, they arranged to transport the women, children and old men to Muslim-held territory in buses. Thus, it was argued, the Muslim “presence” in the town was “destroyed,” thus Genocide, which would have been avoided had they simply been left to fend for themselves. To general surprise the argument was accepted, although the tortured prose of the judgement suggests that the judges were not really convinced, but wanted to find a way of sending a political message about what was by far the worst single atrocity of the war. The effect of all these judgements has been effectively to destroy any meaning the concept of Genocide might once have had
I began by suggesting a tension between the atavistic desire for punishment and revenge, and the concern to erect at least a minimal legal umbrella to make us feel less like characters from Hamlet. But the effect of this tension has been to degrade political speech everywhere. It’s common now to see individuals we don’t like referred to as “war criminals:” a meaningless term that can only be parsed as “people I don’t like and who I would wish to see in front of a court and convicted on some charge or other so I can feel better.” One way or another. Questions like “why is Henry Kissinger not on trial in The Hague?”, much posed recently, are not intended to be taken literally, since five minutes Internet search on jurisdiction will provide an answer. The real question is “why does the world not arrange itself to suit my desires for punishment and revenge?” We have a choice, and we can live in the world of Hamlet and Al Capone, or we can live in a law-based world where we have to accept that we can’t always have what we want. But in practice, all of us would actually like to live in both worlds according to circumstances, even if we would be ashamed to admit it.
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