NOAH’S RAINBOW SERPENT – observations by Ian MacDougall

Politics Trumps Justice

Sholto Byrnes is Assistant Editor of the New Statesman.

Norman Geras has a piece on his blog critical of Bynes’ position on ‘forgiveness of Robert Mugabe’.

Should we forgive Robert Mugabe? I’m not sure who the ‘we’ is supposed to refer to, but I know what my answer is – no. Sholto Byrnes, assistant editor of the New Statesman, writes a column in today’s Independent encouraging the opposite line of thought. He only manages to make the case, however, through a series of confusions.

There is an argument that can be put forward for not bringing political leaders who are responsible for major crimes to trial, and this is that there are political considerations that outweigh the demands of justice. A peaceful transition from dictatorship to democracy may be thought to justify this form of political settlement. But, first, no forgiveness of those who are guilty need be entailed; and, second, the thing that is sacrificed by foregoing criminal prosecutions is not revenge, but justice. Byrnes, putting forward the argument for an accommodation in Zimbabwe that lets the ‘old dictator become an old ex-dictator’, obscures both of these points.

My own view is that politics has trumped justice at just about every turn in the modern post WW2 world: even ‘victors’ justice’. There were excellent reasons for not bringing to trial and hanging those responsible for the 50 million or so deaths in WW2 – save for a symbolic few. The US in 1945 was seeking to build goodwill with the postwar governments and populations of the defeated Axis powers (Germany, Italy and Japan), as was Britain. As in life generally, it is not too hard to find excellent reasons for not doing as a society what a majority of the individuals within it incline to do.

Geoffrey Robertson QC has written an excellent piece, at somewhere just below white heat, on the recent decision by the Scottish Government to release the Lockerbie bomber Abdelbaset alMegrahi, who was convicted of killing 270 innocent people on Pan Am flight 103, and served 8 years before release on appeal: one year for every 35 dead. Bernie Madoff, the Wall Street scammer who merely defrauded thousands of people of billions of dollars, has no doubt reflected on the irony of that situation from the inside of the prison to which he was sentenced to a 150-year confinement. (John Pilger, by the way, contends that al-Megrahi is likely innocent.  He is supported by Gareth Peirce, a defence lawyer who sets out a strong argument in the LRB. But the issue can only be properly decided by an appeal court, which circumstances have ruled out in this case.)

Silmilar political considerations underlie the recent decision by East Timorese President Jose Ramos-Horta to release without charge or trial Martinus Bere, a former leader of an Indonesian-backed militia allegedly responsible for some of the 1999 mass murder and destruction in his country. (My understanding is that the A$1 billion damage bill for all that was quietly picked up by the Australian Government (ie unknowingly picked up by the Australian taxpayers) in the interests of maintaining good relations with the perpetrators of the outrage: the Indonesian Government, and specifically the Indonesian military.)

The Scottish Government’s decision to release alMegrahi would have been less controversial if it had the overt support of a significant majority of the surviving relatives of the Lockerbie victims. But the politics of these situations always demands action in haste and taking those most likely to object by surprise with an irreversible decision: irreversible because of the hasty geographic relocation of the alleged or guilty perpetrator to safety from further legal reach.

A similar controversy surrounded the Iraqi Government’s 2006 decision to execute former Iraqi dictator Saddam Hussein. Below I reprint an article I wrote at that time on that subject, previously published online at Webdiary.

The Scottish Government, for consistency, will no doubt shortly extend the principle and release every convicted murderer in every Scottish gaol; plus (lest justice not be seen to be done) everyone convicted of lesser crimes. It should save it an enormous amount of revenue.

JUSTICE, PUNISHMENT AND REVENGE

The trial and execution of Saddam Hussein has given us all cause to think over some basic issues, particularly in relation to capital punishment. In my case, this has led to significant revision. But first, let’s take a look at some responses in the media on the issue.

I begin with the piece by Richard Dawkins at the Guardian site Comment is Free, which has stimulated a lively discussion there since January 3. Dawkins argues that Iraq had “…an opportunity to set the world a good example of civilised behaviour in dealing with a barbarically uncivilised man. In any case, revenge is an ignoble motive. ” [My emphasis – IM]. Dawkins argues further that Saddam would have been more valuable alive than dead, particularly for academics in the field of psychopathology and future historians of the various wars he started.

The Iranian-Australian playwright Mammad Aidani, in Why a death penalty opponent finds relief in Saddam’s end (The Age, January 3), said:

It is not just his brutal actions that our bodies remember; his name arouses a deep fright in our emotions, in our psyche. My mother tells me that in our city, women call their violent husbands, fathers and fathers-in-law “Saddam Hussein”, so that the men’s actions receive the public opprobrium they deserve.

I wept when my body remembered, once again, the colossal pain from his military invasion. He used his first chemical weapons in my city and on my people. This killed many of my friends and displaced my family, who became “internal refugees” in their own land.

“I consider myself as being deeply wounded by Saddam’s invasion of my city of birth, Khorramshahr, in south Iran, facing Basra.”

Interestingly, Aidani is a PhD student in psychology, and is obviously more interested in the relief felt by Saddam’s victims as a result of his demise that the potential loss to psychopathology.

Johann Hari in Is hanging tyrants always wrong? wrote in the Independent of the ecstasy of his friends in Baghdad on hearing the news, and of how it forced him to question whether he opposed the death penalty “in all times and places”.

This is a strange jolt. For me, opposition to hanging has always been manifestly moral. Should the state take a defenceless, unarmed prisoner and break their neck? Obviously not. It is a sign of civilisation that you treat even the most depraved and despicable people with decency. And yet – I have to admit it – when I saw Saddam’s snapped corpse, I was pleased. I spent some time in ‘his’ Iraq. I saw the raw terror at the mention of his name. I saw the Marsh Arabs, rotting in rusting desert huts after Saddam poisoned their marshes and slaughtered their families for the “crime” of calling for democracy. So when my friend Ahmed – whose father was murdered by Saddam’s goons – said in a 4am phone call that he felt his dad was finally at rest now, the anti-death penalty arguments died on my tongue.

So should there be an exception for tyrants, the Mussolinis and Caecescus? This question forced me to go back to first principles. I do not believe in killing people to meet some abstract, quasi-religious standard of ‘justice’, where a death must be avenged with a death. No: the only justification for using violence, ever, is a utilitarian one – to prevent even more violence occurring. “

But after consideration he concluded: “Today, Iraqis have achieved one sort of victory over their tyrant. But the greater victory would have been to say – you hanged; you tortured; you butchered; but we will not do that. We are better than you. ”

So we have an answer to his original question: Yes. Hanging tyrants is always wrong.

Consider also this excerpt from Geoffrey Robertson QC’s interview with Scott Bevan on the 7:30 Report (27 December 2006), shortly before Saddam died:

SCOTT BEVAN: Given that it is within 30 days, practically is there any way out for Saddam Hussein now?

GEOFFREY ROBERTSON: Well, again, this was decided years ago. It was I was part of the debate with the Americans over whether the death penalty should be imposed or whether we should have an international court in which there would be no power to impose the death penalty and the Americans and the Shi’as, of course, plumped for this Local Court with judges being able to be controlled by the State, in order to ensure that Saddam was hung. Of course, we said that is wrong. That will only make him a martyr. That will rev up the civil war. They said, well, you can’t keep him alive, life imprisonment in Iraq would be out of the question. So, we looked to the British government and said, “Well, why don’t you make Saint Helena available again” – where they put Napoleon. That’s the kind of alternative that you have to come up with, because certainly Saddam cannot be left life imprisonment in Iraq. But providing some kind of alternative to the death penalty, to this blood will have blood, to this idea that vengeance must always result in killing would, I think, have been a step forward for the international community and it’s a missed opportunity that we have a process which has been an unsatisfactory legal process which is going to lead a man who in all probability is guilty, but the guilty of genocide in a trial that has not finished and will not be allowed to finish to sheet home the responsibility for that worst of all crimes.

Saint Helena is a very isolated subtropical island in the South Atlantic. Following his arrival in 1815, Napoleon Bonaparte was first quartered at The Briars, but spent most of his stay at Longwood House, from which base he was free to roam the island, and to converse with the members of the large garrison of British troops sent there to prevent a rescue by the French. Though in Saddam’s case the issue is now academic, there are a number of possible candidate monsters for the island still very much alive. Putting someone like Saddam there raises the question of his living conditions, and how many troops would have to be garrisoned there to either protect him (and I cannot think of a her) from would-be assassins on the one hand, from sea-borne rescuers on the other, and from any other psychopaths also imprisoned there. A further issue would be protection of the 5,000 odd inhabitants of the island from the prisoner/s. According to David Hirst, before he was out of his teens, Saddam had personally murdered four people, and God knows how many in all. To prejudge the psychopathologists’ studies, the circumstances of Saddam’s miserable childhood as described by Hirst go a long way towards explaining his vicious personality.

Arguably, the foundation on Saint Helena of an international institute of psychopathology and the quartering of UN peacekeepers and police there could boost the island’s lethargic economy.

The columnist Hazem Saghiya wrote in the Arabic-language London daily Al-Havat:

“Saddam filled the graves with his countrymen, such that it is even harder to forget…[Also] the number of the victims is not simple. The number of those murdered by Saddam… ranges between a million and a million and a half… We now face a schism in Arab culture… Those who want to oppose the U.S. in obliviousness and want to mobilize all efforts to this goal [of resistance]. But even if [all] agree [we should forget] and even if all agree to struggle against [the U.S.] – the road they take will lead to a new Saddam and new graves…”

According to Saghiva, Saddam’s victims (presumably across Iraq, Iran and Kuwait) number 1.25 million plus or minus 250,000. That is a lot of people, and a horrifying lot of blood. (At around 5 litres per victim that is a maximum of 7.5 million litres by the above estimate, and equal to the volume of a large farm dam or a small lake. That is the reality that was Saddam.)

Finally, we call upon Phillip Adams of The Australian to give us, in his own distinct blend of verbosity and condescension, the following:

Yes, Saddam was a monster. No arguments there. Yet that strengthens the argument against his execution, not for it. The greater the crime, the greater the symbolism of lifelong incarceration. The noose may be news – good news for many – but that news is quickly forgotten. So even if you don’t view the death sentence with unqualified disgust and repugnance, even if you don’t see it as undermining the dignity of any state or any people who carry it out, you must be able to dimly perceive that a moment’s vengeance carries a fraction of the moral authority of judicial restraint.

The precedent could be Hitler’s deputy, Rudolf Hess. He was imprisoned for 46 years, from May 1941 to August 1987, firstly in Britain and then in Berlin’s Spandau Prison on sentence from Nuremberg. Few humanitarian voices were raised on his behalf, or over the fact that he went mad in solitary confinement.

I take as a given that we humans have a strong sense of justice, and a need to see it done and to live in just circumstances. This appears to be closely associated with our ability to empathise with others. We also share with many other animals, including the taxonomically higher ones, an inclination to at least defend ourselves when attacked, and also to defend by counter-attack. With other animals, fights between members of the same species are usually brief, and end with the establishment or rearrangement of a dominance hierarchy. But with humans this goes further. Grievances and grudges can be nursed for years, at least until accounts are seen to be settled. This is the reality behind the old saying, ‘revenge is sweet.’

But revenge has been seen by generations of sages the way Dawkins, Robertson and most of the others quoted above see it: as ‘ignoble’, disgusting, repugnant, uncivilised and objectionable. Were I inclined to regard St Paul as an authority on the matter, I would add at this point the obligatory quote from Romans 12: “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord. Therefore, if thine enemy hunger, feed him; if he thirst, give him drink: for in so doing thou shalt heap coals of fire on his head.” So vengeance and punishment can take a novel and oblique form, a bit like refusing to whip a masochist. But the need for them is acknowledged as being still very much there.

So perhaps we should clarify the issue and ask at this point: Given that it is so often seen as desirable, just what is wrong with revenge?

The commonest answer I have encountered is threefold: first, It does not bring back the dead; second, it makes the avenger morally no better than the wrongdoer; third, it is highly likely to start a vendetta: a train of reprisals and counter-reprisals that can become unstoppable. Hence in the traditional Mosaic law, the maximum permissible retribution, and under strict regulation, was an eye for an eye; a tooth for a tooth; one life for one life. Not two eyes for one, or a mouthful of teeth for two.

Hence in the Judeo-Christian-Islamic tradition a death for a death has long been regarded as just and acceptable, provided the whole thing ends there. But in modern times, further objection to the death penalty has been based on the fact that justice systems have proven fallible, and the innocent all too frequently get hung. One such injustice is too many.

In cases like Saddam Hussein’s however, guilt is established by the clear and simple fact that he was head of the Iraqi government in the period in question, and at the very top of the hierarchical death machine that was the Iraqi state. Whether or not in a formal and procedural sense he had a fair trial, there cannot be the slightest doubt that he ordered, presided over and was ultimately responsible for murder on a truly staggering scale. There was absolutely no way he could be found not guilty, except by the most hopelessly partisan stooge court of all time.

This leads to my next question: if we concede and agree that revenge in and of itself is base and undesirable, precisely what is the difference between it and punishment? Is there not an element of revenge in any punishment; an attempt even through mercy, kindness, feeding and watering, to heap at least a few coals of fire on the head of the transgressor? How can the revenge motive be excluded from imprisonment (with or without hard labour) exile to Saint Helena, Devil’s Island, the South Pole, or variations thereon? Try as I may, I cannot find a neat watertight barrier that distinguishes punishment on the one hand from revenge on the other, making it possible for us to find a holy grail of revenge-neutral punishment.

For the record, I used to be totally against the death penalty. Now I would not oppose it in the case of a mass murderer like Saddam Hussein, particularly if the victims want it. Then I add this as the clincher: it brings at least a measure of peace to the minds of his Iraqi, Iranian and Kuwaiti victims, because whatever else happens, Saddam Hussein will never, ever return to power. Not a chance in a billion billion; that is, provided they did not hang one of his doubles. Hopefully also, the hanging of Saddam may deter certain would-be Saddams from believing that under the cloak of state sovereignty, they can indulge their sadistic and murderous passions to their hearts’ content. To revisit Hari: “No: the only justification for using violence, ever, is a utilitarian one – to prevent even more violence occurring.” Quite so.

But Dawkins has perhaps unwittingly opened a further issue: If the Saddams of the world are to be kept alive as valuable scientific assets for study, should they not be treated as if they were zoo specimens of an endangered species? Shouldn’t they have the best of everything, if only to prolong their lives as far as possible, and the studies that can be done? On this view, a Saddam should not be banged up for life and left to rot physically and mentally as Hess was. Rather, he should be given the best food, medical attention, entertainment and living conditions possible, and the most congenial company.

Now that would really stimulate the economy of Saint Helena.

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