Differing Conceptions of Justice

Hello! First, thanks to Julian and the rest of the Opinio Juris team for inviting me to guest blog here for a while. I’m very excited to represent the IR perspective, and hope that I can bring something interesting to the table.

I’d like to start off by addressing one of the more interesting and relevant questions: How is justice conceptualized in international politics and law? Waking up this morning, I’m greeted in the morning news by pictures of Saddam Hussein sitting in the dock. This amazing sight raises the question (or at least it does for me) as to what the purpose of the trial should be. At first glance, the question seems to have an easy answer: to provide justice. But that begs the question: What is justice? There are always different formulations of justice working simultaneously in any trial, and while these formulations may sometimes coincide, they do not always. For instance, procedural justice (the right to a fair trial, the right to be free from unwarranted search and seizure, etc.) can obviate the demands of retributive justice (vengence, punishment, etc.). Now, in a domestic society, where the risks any one person poses to the society as a whole are low, procedural justice tends to dominate. That is, when the established procedure is violated, a person goes free, even when it is clear that person may be guily and deserving of punishment (and no, I didn’t say O.J.).

Which conception of justice should “win” out in Iraq? Should Hussein be given a fair trial at all costs, to demonstrate the superiority of the rule of law? Such an approach could go a long way to establishing the legitimacy of the Iraqi regime, and perhaps even to placating the Sunni part of the insurgency. However, if anyone can be judged guilty without trial, it must be Hussein. Would allowing him to walk free because a sufficient evidentiary chain linking him directly to massacres and genocide could not be established be “just?” Would it undermine the faith of the Shiites and Kurds that a government can protect them against a Baathist resurgence? Executuing Hussein (the likely outcome) will likely be a critical step in creating an emotional release valve that makes it possible for the Shiites and Kurds to move forward and permit the Sunnis to participate in the New Iraq.

The approach of the international community writ large seems to prefer the emphasis on procedural justice. I’m thinking not only of the pressure placed on Iraq to move the trial out of Iraq and perhaps even into an international tribunal, but also of the trial of Slobodan Milosevic. In its attempt to provide Milosevic with a fair trial, the ICTY has now dragged on for several years, and the end does not appear to be in sight (as Julian has previously pointed out). Many IR scholars believe that the odds are decent that Milosevic will walk, mainly because of the difficulty in proving the chain of command linking his orders directly to genocidal behavior or war crimes.

Is this really in the best interests of the international community, let alone the Iraqi people? I’m not so sure, and I don’t know what the answer to this problem should be. However, it is clear that sometimes “justice” gets in the way of politics. Should Pinochet go on trial if it makes it less likely that future dictators will accept immunity agreements to step down and allow a democratic tradition? As for Hussein (and Milosevic as well), my sense is that is more important for Iraq, and for the international community, that he be punished for his crimes than he be provided procedural justice.