International Criminal Justice and the Shari'a
It is with some regret that I say that the recent ICC prosecutorial requests for indictments of Qaddafi and his son Seif Al Islam are somewhat concerning to me. No doubt this might come as something of a surprise to some readers, given my unapologetic embrace of the Arab spring, my belief that something deep and important is happening, my hope that other Arab nations will join Iraq and Lebanon in the practice of democratic politics, but there is something somewhat troubling that seems to be going on nonetheless. My concern isn't so much that Qaddafi doesn't deserve it, surely he does, but that so many others do too. I am concerned about the massive inconsistencies in the application of international justice that threaten to undermine the entire system.
To understand the dilemma, one may look first at the inconsistency of American foreign policy toward, say, Syria and Bahrain on the one hand, and Libya on the other. Richard Haass tells us that inconsistencies of this sort are unavoidable, and that may well be right, in any event I hardly wish to enter into policy debates with our eminent pundits or political theorists respecting the matter. I might only point out that this isn't much of a theory of justice, nor do I think it is defended as such by its proponents. That is, one is more or less arguing the absence of international justice, at least in any sort of manner that one would consider remotely acceptable in the domestic context. One is more or less throwing up one's hands, suggesting that the world as it is cannot create a consistent and sensible system of justice and so one must more or less muddle through as one can, trying to put forward a moral vision of the world but aware of inherent limitations in seeking to do so. That's the embarrassingly reductive one paragraph version, the Irony of American History by Niebuhr is the more deeply theorized and careful version. It does, however, make something of a mockery of the idea that there is a "duty" of international humanitarian intervention, as the duty is not applied by any nation for its own sake at the expense of considerable blood and treasure. Yes, the U.S. will stop a massacre in Misurata, will the international community do the same to stop a Chinese massacre in Tibet if it were to arise, let alone a Syrian one? So much for the duty then, better to describe the world as it is than as we would pretend it to be.
And so it is, and so perhaps it must be. But if there is to be criminal justice, I maintain, it cannot so operate. Could anyone imagine a legal expert standing before a distinguished audience, and in seeking to justify an unconditional release of Dominique Strauss-Kahn to Paris, indicate that "inconsistency is avoidable" in criminal justice. Would anyone seriously say, as they would as to interventions in Libya but not Syria, that the U.S. has interests, they include alliances with France, those interests must be paramount over those of a 32 year old chamber maid? Would anyone reasonable or sensible consider such a position anything less than deeply offensive and inimical to core understandings of how a just society should conduct itself? I hope not.
So if criminal justice is to work, it must work consistently. And I am starting to fear that the International Criminal Court, no doubt unwittingly, no doubt in spite of its good faith, is beginning to seem so haphazard in its application of rules, so clearly an extension of the political interests of the security council, that one has to wonder what kind of justice this is supposed to be. I do not mean that the prosecutors at the International Criminal Court fabricate charges at the request of the Security Council, or that they pursue charges of questionable provenance. Surely they do not. I mean that they are directed to particular persons and events, and that they focus on those persons and events, and are prevented, either de jure or by political realities, from doing much about anything else. Qaddafi may be guilty, let's state the matter more forthrightly and say almost surely he is, but the butchers who rule Bahrain are not considerably better. They may speak English better when they call in their Saudi friends to massacre civilians, they may dress better, most importantly they may have spent valuable time developing better friendships and alliances, but better, from a humanitarian perspective, they are not. Ask human rights activists about China, and one hardly hears heaps of praise on its policies in any number of areas, from arbitrary detention to fearsome repression. Beijing's rulers of course need fear nothing, as they are neither signatory to the ICC charter nor may the Security Council pursue charges against them absent their consent, given their veto power.
This of course has always been the case, and has been a frequent criticism of the ICC, but so long as those who have been brought before it have truly been the dregs of humanity's rulers, Charles Taylor and Omar Bashir, it may have been easy to dismiss it. Whatever Bahrain has done, whatever China has done (recently, post Cultural Revolution), it has not committed genocide in the Darfur. But the situation grows more precarious, as one Arab dictator ruthlessly supressing his people, unloved by the Security COuncil, finds himself under potential indictment, and with others, using live ammunition and similar disregard for human life, the possibility is not even remotely raised, nor could it be unless the Security Council authorizes it. Whatever this is, it is not justice, any more than it would be if Obama would need to be consulted before an influential French banker could be arrested for rape, and Obama decided that he would reserve such permission for alleged rapists who had no influence.
This fuels fires, it creates dangers. Hezbollah can then claim that the entire investigation into Hariri's assassination is sham, for what can one expect from international crminal justice, which seems only to focus on the unpopular and the isolated. Rather than embracing it as a useful tool of international relations, it is easier to dismiss as inimical to the shari'a, unIslamic, rigged in its core against Muslim interests. For those of us interested in the promulgation and spread of international justice norms, and fervently believing that Muslim societies would like to see the same, if it could be done properly, this is not helpful, at all.
The matter deserves consideration it has not received. Something is rotten in the state of international criminal justice.