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Justice against peace?

About the author
Frédéric Mégret is a researcher in international law at the University of Paris I.

Let us step back from the details of the bloody war in Iraq and imagine a hypothetical scenario.

Saddam Hussein, the quintessential cold-blooded survivor, is contemplating all options available to him in the last hours of the US ultimatum. For a split second, the Arab League proposal that he should go into exile comes into his mind. The last chance to avoid a war of potentially devastating consequences for his people and the entire world rests on his choice at that moment.

There are, Saddam reflects, many examples of glorious exiles. Napoleon’s hundred days, for one, perhaps holding the promise of one last swift return? There are other cases of at least comfortable exile, from Baby Doc Duvalier to Idi Amin. Saddam might not be allowed to roam freely from one Riviera to the other, but can contemplate enjoying the bourgeois amenities in the suburbs of some Arab cities.

Exile, presented as an act of sacrificing himself for his own people in front of an overwhelming foe, might in this circumstance have offered Saddam the attractive possibility of striking a heroic figure to the Iraqis and the Arab world. There would be other justifications: concern for his family, and the fact that several of his closest aides – albeit discreetly and with the infinite devotion that characterises all such advisers – would probably be amenable to such a course.

But suddenly a thought crosses Saddam’s mind. Exile? Where and for how long? Where are today’s equivalents of St Helena? He recalls Slobodan Milosevic, who stepped down from power only to be hauled before an international tribunal in the Hague before its international judges. An even worse fate occurs to him, of being caught by American troops and flown back to the US (or, worse, Guantanamo ) and spending the rest of his life in a high-security jail with the likes of Noriega.

Nowhere to hide, nowhere to run. The passing thought of exile – one for which Saddam has little taste anyhow – is rejected as quickly as it came. The butcher of Halabja makes up his mind. He will die standing, next to his kin, next to his people, defending the motherland.

A hypothesis is just that. It is likely that Saddam, loving power even more than his own survival, did not even entertain the possibility of exile for a split second.

Yet, if there was even the remotest chance that the second Gulf war could have been averted in a way that would have satisfied the objectives both of disarmament and of regime change, then would that chance not be worth giving the most serious attention to?

After all, if Saddam himself would not have considered the possibility, then perhaps Tariq Aziz or Taha Yassin Ramadan or other high Iraqi officials must in principle have wondered whether they might commit ‘treason’ in exchange for, at least, safety from prosecution under foreign skies.

The price of justice

The point, of course, is that – for reasons good or bad, and despite the media presentation of exile as a straightforward process – exile has largely ceased to be a viable possibility for dictators looking for a face-saving way out of the crises they have brought about.

International criminal justice is by some counts only making slow headway, but it has already made enough that most of the dictators and warmongers of this world have to live with the quasi-certainty that one day they will be held accountable for their crimes.

The result is clear: through abduction, extradition, transfer to an international criminal tribunal, trial in absentia, use of universal jurisdiction (or any combination of these), the places of peaceful refuge available to retired dictators have begun to disappear.

There is every reason to think that this is a welcome development, to be saluted by all forward-looking defenders of human dignity, one that brings a modicum of morality to international relations. There is also reason to believe, however, that international criminal justice may sometimes be a mixed blessing, as long as is not combined with sensible thinking about its real-world consequences.

For arch-defenders of international criminal justice – and there are many – the possibility that peace and justice may be at odds is hardly ever entertained. This suggestion, which is associated with the cynical Realpolitik of the past, was rejected throughout the 1990s under the catch-all slogan that “there can be no peace without justice”. That may be right. It is probably also true that there can be a lot of justice without peace, and perhaps even a lot of war as a result of just a little craving for justice.

Most of the time, these latent problems will be characterised as temporary: international criminal justice may cause upheaval in the short term, but it is a highly desirable goal for the long term, holding out as it does the promise of a universal rule of law. But the project of international criminal justice would be difficult to sell, if for the sake of attaining perpetual peace in a distant future, it led in the meantime to many brutal deaths.

The politics of justice

This probably explains why the defenders of international criminal justice have been remarkably discreet about a possible trial of Saddam Hussein and his lieutenants. Only a few (like the British MP Ann Clwyd, as profiled by Rosemary Bechler in openDemocracy) have even raised the question of why Saddam has not been indicted. The answer probably lies in some of the complex dilemmas opened up by international criminal justice in a world of states.

Many people would have supported prosecuting Saddam for gassing the Kurds. But few these days – especially those of the mild, consensual liberal sensitivities associated with the promotion of international criminal tribunals – would want to be seen as pushing that agenda in the face of war.

This is not only because of the possibility that Saddam would be deterred from exile by the prospect of prosecution. It is also for the subtler reason that international criminal justice has a way of legitimising the use of force in international relations. Indeed, to be seen to call for Saddam’s prosecution in the present context could only have been interpreted as an encouragement of the US military campaign, adding the righteousness of criminal justice to what was already an inflamed crusading rhetoric. It is, after all, the US congress that has been most associated with international calls to try the Baghdad dictator, a prominent feature in the US’s propaganda apparatus legitimating the war.

This is problematic for those associated with calls for criminal accountability in international law, since the use of force was precisely what international criminal justice was designed to mitigate. By now, in fact, some international criminal justice enthusiasts may even be slowly coming to terms with the possibility that there may occasionally be things that are even more important than justice. It is one thing in international forums and scholarly journals to say that “there can be no peace without justice”; it is quite another to take a gamble with the lives of millions of people, by pursuing a course that may well encourage what one wishes to avert.

One thing at least seems certain. Not trying Saddam Hussein for his crimes might be an injustice. But risking the lives of thousands because all other doors to a peaceful solution have been closed in the name of an uncompromising ideology that puts criminal liability above all else is an even greater injustice. What many in the human rights movement fail to see is that, paradoxically, even arguments in favour of a dictator’s impunity may be arguments that are fundamentally inspired by considerations of justice – at least if one ascribes to that word the more general meaning that an entire population should not be made to pay for the acts of one individual.

This is noteworthy, because the whole ‘international criminal justice movement’ established its credentials throughout the 1990s by rejecting politics and claiming that a global system of criminal justice could be established that would be free of the calculations associated with the immoral vested interests of past players. But can these defenders, in their heart and conscience, be so sure that the ideology underlying international criminal justice did not, even marginally, increase the likelihood of the Iraq war?

It is impossible to be certain. But it is necessary to live with the possibility that adherence to international criminal justice may occasionally be at the cost of innocent lives. Perhaps partisans of international criminal justice are beginning to learn about the very politics that they claim to abhor. That would be a welcome sign of maturity.

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