Monday, March 18, 2013

Summary justice in Syria

World leaders from Iran and Russia to the US and UK seem deeply shocked at summary executions in Syria.  Numerous journalists, NGOs and bloggers tag along.  The outrage may have teeth to it - 'may have' because, though it puts people off arming the rebels, it's not clear that these tender hearts would have favored arming the rebels under any circumstances.

The charges of summary executions are correct.

No doubt the opposition in Syria kill some innocent people, and some people who may be guilty but not obviously so.   These are big problems, and no doubt the opposition's efforts to deal with them, even if sincere, are and will remain inadequate.   There is also little doubt that Western countries, even in wartime, have not practiced summary justice on a comparable scale.  Finally it is no longer as easy to claim that the rebels simply don't have the resources to keep prisoners until their guilt or innocence can be determined in a court of law.

It would be great if these were good enough reasons to suppose that there is some better alternative to summary justice.   But this is far from obvious.  The concerns about summary executions in Syria do not indicate a crisis of justice in Syria.   They indicate an unwillingness to recognize an extreme crisis in the nation-state systems of justice held up as a far superior alternative.  Courts of law, it seems, are not very good at determining guilt or innocence.   This holds for both the courts of nation-states and the international courts of justice.

Nation-state courts

Only one nation-state court system, the American, has been subjected to anything vaguely like scientific study.   Its workings have been scrutinized by The Innocence Project, which reviews previous convictions in (mostly) capital cases and relies heavily on DNA testing.   The result has been proof positive that, in numerous death-penalty trials, the wrong person was convicted.   Limited resources have confined the investigation to a few thousand cases, but these provide some basis for estimating the incidence of wrongful conviction among the rest.   The Project's investigators state that
We will never know for sure, but the few studies that have been done estimate that between 2.3% and 5% of all prisoners in the U.S. are innocent (for context, if just 1% of all prisoners are innocent, that would mean that more than 20,000 innocent people are in prison).
So the low estimate is 46.000; the high estimate 100,000. Large numbers, but not large percentages - are things really so bad?   Well, the estimate doesn't really tell us how many innocents are in prison.   It gets its percentages by comparing the number of exonerations to the number of cases reviewed.  But there most be more wrongful convictions than exonerations.  'Exoneration' involves proof of innocence.  The reviews often couldn't deliver proof:  they were impeded by lack of evidence, the passage of time, and uncooperative authorities. So no one would claim that the process succeeded in proving the innocence of every wrongly convicted person.  So the estimates are for the minimum percentage of innocents wrongfully convicted, those whose innocence could be proven.  So we don't know how much worse things really are.

There is a still greater problem:  when considering nation-state justice as an alternative to summary justice, you want to know not only if the innocent are convicted, but also if  both the innocent and the guilty get a fair hearing.  So you need to know not only of wrongful convictions in the nation-state system, but also of those convicted without a fair trials.   Well in the US, 95% of those convicted  of serious crimes receive no trial at all, because they have made a plea bargain.   Presumably very few of those can be counted as equivalent to fairly convicted.  No wonder lawyers are writing books with chapter titles like "The Myth of the Rule of Law in Capital Cases".   (And probably judicial procedures in non-capital cases are less, not more, fastidious.)  And if the rule of law is a myth in these cases, in this all-dressed-up judicial system, it's no longer obvious why that system is preferable to 'summary executions'.

Summary executions aren't just any sort of extra-judicial killings.  There are extra-judicial killings we can be sure are atrocities, when 2 year old or 80 year old civilians turn up with their bodies battered and mutilated.   Of course is it the régime that does this, not the FSA, not even The Islamists.  But these are not the cases that Western commentators are moralizing about. Their concern is with executions following quick and unofficial trials.  CBS, for example, 'confronted' a 'Jihadist' leader with a video which shows men being executed

They die quickly, by firing squad.

CBS journalists Clarissa Ward  and Scott Pelley call this 'revenge killing'.   On what grounds?   They show no sign of knowing anything about the trial, about the accusations,  about their truth or falsity, nor about what testimony led to convictions.   In most cases, human rights and media types who preach to opposition fighters haven't the slightest idea whether the trial was fair or whether the men are guilty.   All they know is that these events transpired without the false front of fairness and justice behind which lie the judicial travesties that send men to death in the United States.   Death and worse, but Americans do enjoy a good  joke on late-night TV about men who suffer years of oral and anal rape in prison, quite possibly at the hands of mentally disturbed sadists.  This a kind of coup de grace to the integrity of the justice system:  its flawed processes fill prisons where gross and grotesque violations of the rule of law are not only tolerated, but viewed by the citizenry with amusement.  So much for the pretensions of nation-state justice.

International courts

But, someone might say, don't compare extrajudicial killings to nation-state systems.   Compare them to the work of the International Criminal Court.  This court is sometimes taken very seriously.

The ICC may gather some of its prestige from an earlier creation,  the International Court of Justice.   It's gained respect from issuing advisory opinions on international disputes, something like a nation-state's civil courts.   Its verdicts are binding only if the parties antecedently agree to make them so.

The ICC, on the other hand, is something of a joke except to those who invoke it to amplify their piety.   It pretty well makes up rules of evidence and procedure as it goes along.   Its founding statue is not recognized by two Security Council members, the US and China- but in many cases a prosecution can occur only on Security Council approval!  More important, in the ten years of its existence, it has issued warrants for only 21 people, holds five in custody, and has actually convicted a grand total of one, with an appeal pending.   Hence the humor in the notion that the ICC offers some sort of recourse for victims of oppression.


The inadequacies of nation-state and international justice begin to make the case for summary justice.  The realities of political crime and punishment complete it.   The indisputable fact is that war criminals almost always escape punishment, and often go on to enjoy very good lives.  Even in a tightly controlled environment such as occupied Germany only a tiny fraction of Nazi criminals were convicted.   In Cambodia, hardly anyone will meet any form of punishment.  In Guatemala, the vile Rios Mott, 86, is only now on trial for crimes which ended 17 years ago.   And it's these leaders who are most likely to be prosecuted, not the lower-ranking monsters who do most of the actual killing, torture and mutilation.   This is hardly surprising given that 'due process' demands investigations which, by the time they occur, are too distant from evidence and reliable testimony to be fruitful.   Of course in Syria, to all these reasons for skepticism must be added faith that a reliable criminal justice system will in some unfathomable future arise - and if reliable, a system that far exceeds those currently operating in countries like the US today.

In short, Syrians have a choice between 'summary justice' and none.  That's what they'd likely get if they were foolish enough to heed the fifth-rate moralizing of Western commentators and human rights organizations.  These commentators, if they deserved their prestige, would take to heart the real possibility that summary justice in Syria is probably no more unjust than what is delivered (and not delivered) by national and international courts.
Note:  this updates an earlier piece on the same subject.

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