JURIST Guest Columnist Mark Kersten, an MPhil/PhD candidate at the London School of Economics and Political Science, says that Gaddafi's death is just one example of worrying trend, in which legal justice is being replaced with targeted killings...
Hillary Clinton thought it was funny. Millions rejoiced and took to the streets in celebration. Some were simply disgusted. Others worried about what it all meant for Libya and for justice. Indeed, the reactions to the death of Muammar Gaddafi have been remarkably mixed and contradictory. In particular, there has been a vast gulf between those who see Gaddafi's killing as having finally served justice to a man who reigned, at times brutally, over his police state and those who viewed his killing as a concerning demonstration of injustice. Perhaps even more worrying is the reality that, rather than being exceptional, Gaddafi's killing is part of an increasingly acknowledged trend, which may challenge not only international law, but the nature of justice itself.
Numerous scholars, diplomats, human rights activists and lawyers often proclaim that we live in a world where impunity is outdated. This high rhetoric represents the belief that international criminals, including heads of states who perpetrate war crimes, crimes against humanity and genocide, have no place to hide. Even if they escape justice now, accountability will catch up with them eventually.
Kathryn Sikkink, for example, recently published The Justice Cascade, wherein she argues that we have been in the midst of a tectonic normative change in how the world deals with human rights abuses and international crimes. Today, Sikkink argues, the world expects that leaders who abuse their people will be held to account. That is the conclusion we should draw, according to Sikkink, from the experiences of Argentina's junta trials, the indictment of Pinochet, and from seeing Slobodan Milosevic in the dock. Does Sikkink's notion of a "justice cascade" represent an accurate reflection of the way the world is or is it instead a form of talking norms into reality?
It is worth wondering whether part of the reason so many observers were so shocked by Gaddafi's death was because they believed in the justice cascade. Surely if a justice cascade existed, Gaddafi would have been presented alive, in front of his victims, in a cold courtroom, rather than dead, his corpse lying half-naked in a cold storage container.
Indeed, it seems that the belief in a settled norm where leaders who commit international crimes are held legally accountable is an expression of hope of where international politics could go, rather than a reflection of where it actually is. Shaping the belief that a norm of international accountability exists is a selection bias in the narratives of transitional justice. For example, most studies tend to look at only one type of mechanism, with criminal prosecutions being by far the most popular. The result is that much greater attention has been paid to the fact that leaders like Pinochet and Milosevic sat in the docks of international tribunals, than to the fact that the use of amnesty laws to protect perpetrators of human rights violations has actually increased in recent years.
Remarkably, it was not until 2010 that the first truly comprehensive quantitative analysis of various transitional justice mechanisms was produced. The conclusions drawn from the study by Tricia Olsen, Leigh Payne and Andrew Reiter run in direct contradiction to what many have for so long believed. They demonstrate evidence that the use of trials with amnesties has a positive effect on democratization and respect for human rights and that when taking into account the increased number of national transitions from violent autocracy to peaceful democracy, the frequency of trials has not actually changed at all.
The extent to which expectations were created that Gaddafi would face his day at the International Criminal Court (ICC) masked the reality that his killing was, unfortunately, no surprise. Nor was the fact that his death was called "justice" surprising. Killing Gaddafi only comes as a shock if we are blind to the trends that suggest that killing Gaddafi and calling it justice was not unlikely. It is worth remembering that following the assassination of Osama Bin Laden, President Barack Obama declared that anyone who questioned whether Bin Laden's killing was just "should get their head checked."
In his thoughtful and thought-provoking article for JURIST, Kevin Govern laid out an emerging trend wherein "extensive tracking, investigation and a lengthy trial process for trying tyrants and terrorists may be supplanted by the trend of foreign intervention, targeted killings and domestic extrajudicial sanctions of foreign intervention, targeted killings and domestic extrajudicial sanctions." The proof is in the pudding; the killing of individuals like Bin Laden and Gaddafi, as well as the dramatic increase in the use of drone strikes by the US, is symptomatic of a shift in practice towards eliminating enemies rather than ensuring they face justice in front of judges.
Scholars, pundits and diplomats can debate ad nauseam that the Bin Laden assassination is not the same as the Gaddafi killing, which is not the same as using drones. They would be right they are not the same. However, they do have two troubling key elements in common: first, they suggest an increasing practice of eliminating inconvenient enemies by killing them; and second, they have been framed as just and necessary acts.
A remarkable feature of the "Arab Spring" was the demonstration that a region of the world not known for being a champion of international criminal justice was speaking in the language of accountability, respect for human rights and the rule of law. More recently, however, hopes for justice and accountability have been challenged on a fundamental level. The fact is that killing leaders like Gaddafi is in direct contradiction to what international criminal law and justice attempt to do. Such acts are in contravention of any possible "justice cascade." Not only does killing remove the possibility of such leaders ever being held legally to account for their crimes, but framing Gaddafi and Bin Laden's deaths, among others, as justice brings the "justice" served by assassinating and killing enemies into the same moral space as the "justice" served by holding individuals to account by trial.
The palpable trend of killing adversaries rather than bringing them to account in front of a panel of judges, whether in The Hague or elsewhere, presents perhaps the most significant normative challenge to the possibility of living in a world where international criminal justice is the rule and not the exception. For some this may be painting a picture a few shades too stark. My premise is rather simple; to ensure that legal accountability becomes the new norm, advocates of international justice need to stop talking about the world in which they wish we lived and start dealing with the shortcomings and injustices of the one in which we do live.
Mark Kersten is a PhD student in International Relations at the London School of Economics. His work focuses on the effects of the International Criminal Court on peace processes in Libya and Uganda, as well as how different actors view the relationship between peace and justice. Mark is also the creator and author of the blog Justice in Conflict.
Suggested citation: Mark Kersten, Targeted Killings Increasingly Supplant Legal Justice, JURIST - Hotline, Nov. 2, 2011, http://jurist.org/hotline/2011/11/mark-kersten-targeted-killing.php.
This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at firstname.lastname@example.org