International Law and Vengeance
As videos of Muammar Qaddafi’s bloody demise make their way through cyberspace, the world is left to wonder: What means this vengeance? The question for international lawyers is: What’s law got to do with it?
To be sure Qaddafi is not a sympathetic character. This is a man who ordered his own people exterminated like “rats.” If anyone deserved to die a bloody, violent, painful, savage and humiliating death surely it was him. It wasn’t long ago that we were saying the same thing about Osama bin Laden. But here’s the problem with this position: We are supposed to be beyond it. While U.S. and NATO involvement in the killing of Qaddafi is murky, what appears clear is that they were serving as a de facto air force for the Libyan rebels. Such action pushes far past what could reasonably be interpreted out of the U.N. Security Council resolutions authorizing military involvement in Libya. Moreover, as the videos of a bloodied, battered and defenseless—but still alive—Qaddafi show, he had been rendered helpless far before he was killed. Under the Geneva Conventions and the laws of war his killing was clearly illegal.
Our fidelity is supposed to be to the rule of law, not to the law of the jungle. As President Obama said in a speech at West Point in May of 2010, we should promote universal rights, including the right to a fair trial, “even when it’s hard.” Despite this avowed policy, denouncements of the bin Laden and Qaddafi killings have been conspicuously absent from the public discourse. Advocating for due process as opposed to a quick execution of someone as despicable as either Qaddafi or bin Laden (or Anwar al-Awlaki for that matter) is no doubt extremely difficult for the people who actually have to make those decisions. They have lots of angles to consider, not least of which is the issue of exposure. Recall that until the Libyan intervention in March, Qaddafi had been a useful ally in the War on Terror. Who knows what ugly details would have emerged regarding the modalities of his cooperation had he been given the platform of a public hearing. For his part, bin Laden probably would have been all too happy to describe the support he received from the United States during the Russian-Afghan war in the 1980’s. But that’s the point. It’s exactly in the face of uncertainty and risk that the we should all reaffirm our commitment to the bedrock values that we so readily espouse under less trying circumstances.
The Qaddafi and bin Laden episodes are not the first time that our values have been threatened by bloodlust. Acting as defense attorney to the alleged perpetrators of the Boston Massacre in 1770, John Adams, future president and erstwhile patriot took up the unenviable task of defending the indefensible amidst public calls for vengeance. In doing so he found refuge in the law. “The law no passion can disturb,” he said. “’Tis void of desire and fear, lust and anger.” Lest Adams’ words be cast aside as mere zealous representation on behalf of his clients, he reiterated that the law treats both sides equally. “On the one hand,” Adams said “law is inexorable to the cries and lamentations of the prisoners; on the other it is deaf…to the clamors of the populace.” The acquittal of the accused reaffirmed colonial hold on the moral high ground and hastened the American declaration of independence from tyrannical rule.
The legacy of the Nuremberg and Tokyo military tribunals in the aftermath of World War II confirm international commitment to the rule of law. Would it have been easier to summarily execute suspected Nazi war criminals? Did they deserve it? Churchill certainly thought so, yet Roosevelt held firm. In the wake of the most destructive war in human history, the international community showed constraint in its thirst for vengeance.
Such prevarications may be cast aside as irrelevant. The common refrain that “the world is better off without” individuals such as Qaddafi or bin Laden is difficult to counter. These were horrible men. Furthermore, it is often asked: Wouldn’t any trial be unnecessary when the guilt of the accused is so obvious? This is not just a question about who they were, it’s also a question about who we are. When we circumvent the rule law in the interests of expediency, we diminish ourselves and betray our values. Between summary execution and show trials there is room for justice.
And what of peace? Can we honestly say that through vengeance the Libyan people have improved their lot? Would the transition from bloody civil war to good governance and enduring peace not have been better served by a public trial of the man most responsible for untold suffering? If experience has taught us anything it is that the transition from war to peace is a long and difficult one. The killing of Qaddafi may signal a new day in Libya, but the prospects of that new day are not exactly clear. Violence generally begets more violence, not peace. At some point one cycle has to stop so another can begin. It is possible that what comes next in Libya may be worse than what came before.