The same people who emphasize the disunity and lack of leadership among the FSA are eager to attribute summary executions to the FSA. But summary executions pose problems beyond the mere attribution of responsibility. There are issues about the laws and conventions invoked to condemn the executions - I've discussed these issues at excessive length in another post and will be very brief about them here. Then there are questions about due process. These require close examination because due process, 'procedural justice', has become an article of faith. Maybe that's overdone. Finally there are questions about justice in a viciously oppressive state.
Laws, conventions and their application
First, international laws and conventions are just good wishes. Unlike the laws of a state, they're not backed by generally accepted tribunals or enforcement arms - if at all. They're also not the product of anything like a democratic process. So it doesn't do to go on about these laws and conventions as if they were the bedrock of civilization.
Second, the summary executions of the FSA, however similar, should not be equated with those of the régime. The régime is supposedly a state,with an established criminal justice system and all its infrastructure. The FSA has nothing of the sort.
Third, the FSA is not a cohesive body. It's a fragmented, undefined collection of wildly disparate groups. Nothing can be attributed to that collection, including the excesses of FSA fighters. Keep it simple and attribute responsibility to those who perform the acts.
The outrage at summary executions obscures a much more disturbing problem. In settled societies where law and order generally prevails, the insistence on proper judicial procedure is extremely important: we don't want vigilante justice because we have something we presume is much better. And belief in the importance of procedural justice of course helps cement the supremacy of the government, which has a monopoly on these procedures. But those who must live under tyrannical or nakedly unjust régimes - let alone rampantly murderous ones - might well take a different view. They might ask some tough questions.
Due process in theory and practice
What does proper judicial procedure have to do with being just? In theory, nothing. A fair procedure isn't sufficient to produce a just outcomes: perhaps the innocent are mistakenly convicted, and the guilty mistakenly go free. A fair procedure also isn't necessary: an unfair procedure might, even consistently, produce just results. Among these unfair procedures is summary justice. Nowhere is it written that summary justice must fall on the innocent rather than the guilty. One might even wonder if summary justice must always count as unfair: what if there's overwhelming evidence the person judged is guilty?
So much for the theory. What then about the realities? Take the US, with its nice constitutional rights and elaborate judicial apparatus. Only now, when DNA testing has been employed by such movements as the Innocence Project, are we getting some idea of just how often the innocent are indeed found guilty, and in capital cases. (Don't say, 'but in these cases the judicial process was defective'. We're talking realities now, and these are the realities of procedural justice.) But convicting the innocent is probably not even the greatest defect of procedural justice - there are also procedurally just convictions under unjust or stupid laws, like the drug laws which have done much to give the US the world's highest incarceration rate. This is how procedural justice functions in a society most of the world can only envy.
Yet this is only half of what would concern those living under unjust governments enforcing their rule by brutal repression. Anyone with any experience of such régimes will be struck by the utter impunity enjoyed by those on the right side of wealth and power. They do what they like, and the authorities do far worse. So what tends to concern those oppressed by the régime is not simply that the innocent are punished, but also that the guilty - so many of them, with such terrible crimes to their name - go free.
Someone who's lived this - and whose grandparents' grandparents have lived it - can have no rational expectation that procedural justice will produce just outcomes. Now suppose that, at long last, the régime is challenged and its procedures are in tatters, while its erstwhile victims are fighting for their lives. They capture some soldiers of the régime. What now?
Justice in Syria
Is procedural justice a live option? The Geneva Convention was formulated with national armies in mind. National armies generally have the capacity to accommodate prisoners. Fighters in desperate circumstances generally don't. But suppose they can set something up. What then? They could establish tribunals but these, given the viciously partisan atmosphere, will inevitably and rightly be termed 'kangaroo courts'. Or they could wait until victory - assuming it will come, assuming the prisoners will remain prisoners until then, assuming the aftermath of victory will be - what a large assumption! - a just society in which high standards of procedural justice prevail.
And what then? Even then, only the realities of procedural justice, not the ideal, can be expected. There will likely be a new criminal code, and already that makes trial for offenses prior to the code procedurally dubious. Then there will be the matter of evidence. Will there be any? collected by whom? how long ago? according to what approved procedures? Under the circumstances, it's very unlikely that anything incriminating will stand up in court: even international tribunals manage to prosecute only high officials about whom there will be a wealth of authenticated material. The plain ordinary folks of the old régime - the torturers, the murderers and those complicit in their crimes - will likely have little to worry about, at least if proper procedures are in force. On top of everything else, with tens of thousands deserving punishment, justice if it comes will take decades, or forever. Once again, the fighters would have no rational grounds for expecting procedural justice to produce a just outcome.
This is where the hardest questions arise. We cannot robotically insist on procedural justice, which so often is no justice at all. Its very modest real-life virtues have to be weighed not only against its defects but against other imperatives: that crimes are to be punished, and that the punishment must fit the crime. These are not the principles of barbarians frothing at the mouth for revenge; they are respectable elements of academic jurisprudence. What becomes of them when procedural justice, in so many ways, proves inadequate? Does the record of our judicial systems suggest that a judicial apparatus is fairer or more accurate than the snap judgement of the executioners?
Yes, given the resources and security, the FSA could establish a nice-looking judicial system and put on an impressive display of juristic sophistication before it machine-gunned its captives. Would that be better? What if we had videos, not only of the summary executions, but of what is endured by the victims of judicial injustice? When Khatib4FreeSyria (@machkhatib) writes, "Cluster-bombing, rape-and-butchering, child-throat-slitting, livestock-torching, city-leveling #Assad army deserves mercy?" we need to admit that justice really is about what people deserve. Perhaps better to criticize brutalities - and the opposition admits there is much to criticize - than to wax self-righteous over violations of judicial procedure.
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