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Tuesday, May 31, 2011

Khaddafi Arrest Warrant: Some Thoughts on Peace Vs Justice (non)-debate

Last week, the Prosecutor of the ICC announced that he was requesting arrest warrants again Khaddafi, his son and the director of military intelligence for crimes against humanity. The request has already been commented on on numerous blogs. Mark Kersten has produced an impressive number of posts over at Justice in Conflict. You can also read Dapo Akande's post on EJIL Talk! and David Bosco at the Multilateralist.

This situation raises a number of issues that could fill entire books. In this post and the next, I will propose a quick series of comments on some of them.

Today, a few thoughts on the discussed political impact of the indictments.

Indeed, on the more political end of the debate, the issue has been raised on the effect of the indictments on Khaddafi, and whether this will really contribute to peace, or on the contrary push the regime into a corner from which it will be harder to dislodge it. In other words, it's the traditional Peace Vs. Justice debate. I've always followed that debate with some puzzlement, because i'm not actually sure it's capable of a solution, both methodologically and normatively.

Methodologically, how does one evaluate the two in order to measure failure or success of a given policy? Usually, beyond the entrenched positions on both sides ("no peace without justice" on the one hand, and "no justice before peace" on the other), it's difficult to identify solid criteria that allow for a clear analysis. The two main obstacles, for me are the perspective adopted and the timeline.
As regards the perspective, it depends who is looking at the situation. For the immediate victims of mass atrocities, the answer might not be the same as for the bystander civilians who suffer from the conflict. While for a portion of the population, the simple end of hostilities is all they want, the victims and their relatives will want justice. How do we quantify these competing expectations?
As regards the timeline, what period of time do we look at to say that a solution worked? 6 months? 2 years? centuries? Today, policymakers tend to see things in extremely short term. We expect western democracy to work in countries that have never known it in a matter of years. The same goes with the oft-referred to, but elusive concept of "reconciliation". I'm not sure we have the tools to know immediately the effect of a given policy. In fact, this debate always reminds me of the answer apparently given by a Chinese official when asked in the 70s about the impact of the French Revolution: "it's too soon to tell".

Normatively, even if you could identify in hindsight what worked, it doesn't mean that you can draw conclusions for what might work in the next case. A typical example is amnesties. You can say that blanket amnesties sometimes allowed for a reasonably peaceful political transition, which gave way a few years later to prosecutions (e.g, Argentina). But this cannot be a model for future policy, because if you say from the start that the blanket amnesty will be repealed 10 years later, it kind of defeats the purpose of the amnesty in the first place.

More generally, linked to my previous point on the temporal dimension, if one reasons over centuries rather than decades, history shows that in fact all modern States were built on massacres without justice, and in most cases, there aren't any obvious problem today (you don't see the Italians holding a grudge against the Germans for the sack of Rome or the French holding grudges against Italians for the defeat in the Gallic Wars). Does that mean that this could be a model for today? Probably not, because the bottom line, is that at some point societies make moral choices, irrespective of utilitarian considerations.

Which brings me to my last point. The objective here is not to pass judgment on whether the moral choices made are sound or not. What is interesting is that, methodologically, the two "sides" of the debate are often not really talking the same language, so will never reach a compromise. In a way, and totally unoriginally, they are just continuing the age-old moral philosophy debate between utilitarians, who evaluate the goodness of an act through its consequences, and the proponents of deontological ethics, who look at the intrinsic goodness of an act (in a nutshell of course, there are other nuances to these two trends). It is certainly a fascinating debate, but unlikely to have a solution from an intellectual point of view, even if it seems that the "deontologists" have the upper-hand today.

In conclusion, because we have chosen a certain moral approach to justice today (which is still variable depending on the situation, as the debate on the death of Bin Laden showed), which implies accountability for certain acts, such as crimes against humanity, to put it bluntly, the issue of peace is irrelevant in that framework. It might not be the right choice, but even if they might be occasionally compatible in practice, we have to stop trying to pretend that we can reconcile the two conceptually.


  1. Dov,

    You can easily defend the peace over justice position from a deontological perspective (i can give you quite a host of avenues to do exactly that) - or, as a matter of fact, the justice one from a utilitarian standpoint (more simply put, by reference to deterence, even if it of course never works)... As usual, the methodologies and moral theories used do not necessarily prejudice the legal theoretical outcomes...

    Concerning the reconciliation of both approaches: i totally agree; cela tient de la quadrature du cercle and, as for any other circle, it is reluctant to be squared ;)

    On the historical perspective: ethnic cleansing used to be called state building - not particularly PC, and hence rarely mentioned in these times of ultra-PCness, but still true...

    Great post as always! M-la-maudite-

  2. I would like to start by thanking you for placing this debate in precisely the theoretical landscape where it belongs and subsequently questioning that landscape itself. It is *exactly* the right way, in my opinion, of assessing the peace-justice debate.

    No one will win the "peace versus justice" debate, not because arguments on either side aren't compelling (they often are based on well-reasoned logic) but the debate isn't there to be won in any real sense. Views will always depend on context and sometimes even different moments in the same context. As you clearly note, it may also depend on moral/ethical inclinations as much as empirical facts. Further complicating the debate is the plethora of contradictory evidence, not only between cases but within them. Lastly, by-and-large, the "peace justice debate" has managed to almost entirely neglect conflict and peace studies, especially conflict resolution streams. The result is little understanding of what conceptions of peace exist, how these different conceptions affect attitudes of various actors, and, importantly, how the inclusion of justice and accountability actually affects negotiators, not only in theory, but at the negotiating table. As I have mentioned before, my PhD work tries to tackle precisely these issues.

    I'll end with one dissenting argument. For a long time I would have agreed with you that there is a division between those of deontological, moral imperative persuasion and those who could be said to be utilitarian or consequentialist. I think one of the interesting developments in debates on international criminal justice, however, is that all sides now argue from a largely consequentialist perspective. While I disagree with her on a range of issues, Leslie Vinjamuri recently argued this point convincingly. Proponents now typically extol the consequences of ICJ: that prosecutions will act as a deterrent, can marginalize peace spoilers, will return dignity to victims, and will turn retributive violence into retributive justice. You rarely hear anyone these days only saying it matters because of its inherent moral worth.

    Once again, thanks for your thoughtful and thought-provoking words.