Righteous Vengeance and the Limits of Law

The political upheavals of the Arab Spring are all uprisings against tyrants guilty of suffocating oppression, in some instances culpable over the course of brutal decades. Once these despots are inevitably deposed, the questions remains how precisely to bring them to justice. Should they be tried in their native lands, the scenes of their crimes? Or should they be handed over to an international court, established in order to dispassionately mete out justice untinctured by revenge? Also, is execution an appropriate sentence for those charged with crimes against humanity? Or is such an austere penalty as morally questionable as the crimes it sanctions?

Just as Libya and Egypt have recently had to grapple with these questions soon a new government in Syria will likely have to. While the war between the rebels and the Syrian government’s forces promises to be a protracted one, the House of Assad is now a house of cards, precariously balanced on the precipice of regicide. It is only a matter of time before Assad has his day in court, but unclear what kind of court he will eventually face.

There are two questions to carefully consider in these cases, one procedural and more more philosophical. The procedural issue has to do with the organizational integrity of a new nation’s judicial system, especially one borne out of the tempestuous crucible of tyranny and revolution. New political systems, and the cultures that promote their flourishing, don’t sprout out of the ground spontaneously and so there might be insuperable practical limitations placed upon the a new court’s proper functioning. In this case, a strong argument could be made for outsourcing a trial to some third party.

The second question is more complex, and has grave reverberations for a fledgling country’s national identity, its sense of self in the wake of historical trauma and exuberant liberation, both experiences that can be dizzying and judgment clouding in their own right. How important it is that a nation bring to justice its own abuser? And is this necessarily personal dispensation of punishment always an act of revenge that falls short of purportedly objective justice?

It might be useful to look at the Israeli experience bringing Adolph Eichmann to justice to get a firmer grip on the problem. Upon the conclusion of Adolph Eichmann’s trial in 1961 for, among other things, crimes against humanity, the court delivered the following raison d’etre for the death sentence it delivered:

“Just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations-as though you and your superiors had any right to determine who should and who should not inhabit the world-we find that no one, that is, no member of the human race, can be expected to share the world with you. This is the reason, and the only reason, you must hang.”

Rather than preemptively accept Hannah Arendt’s famous thesis regarding the banality of modern evil, the Israeli court judged Eichmann’s transgressions against his fellow man so dark and treacherous he was no longer fit to walk amongst them and breathe the same air. The judgment was delivered solemnly and unceremoniously, as if it was sadly demanded by the stark necessity that the carriage of evil be met with an unflinching response. This decision, and the entire trial itself, was besieged by a farrago of angry criticism not merely for what was purportedly its violation of international law but also its lack of humaneness, or the choice of the cathartic satisfaction of vengeance over the moral demands of justice.

The United States was largely be spared such criticism since Bin Laden was taken on the battle field and not in the courtroom, even though his apprehension would have likely concluded with a guilty verdict delivered by a military tribunal and execution. Still, it has become immediately apparent that the central categories of law enforcement, crime and punishment, while helpful, are not capacious enough to adequately capture either the depth of Bin Laden’s bottomless contempt for human life or the visceral character of our defense against it. Upon hearing the news, Americans celebrated jubilantly in the streets, not simply because ‘justice has been done”, as President Obama benignly put it, but because we had vanquished an enemy who devoted his life to our destruction, a much more personal matter than injustice simply. In turn, we exalted our killing of Bin Laden, and not only the administration of punishment from any quarter. It would not have been nearly as satisfying if he were captured by the French and tried at the Hague.

It’s not entirely clear that President Obama’s address following Bin Laden’s killing, measured and crafted to conspicuously avoid triumphal notes, is commensurate to the event. He qualified the victory by reminding us and the world that “our war is not against Islam” and that “Bin Laden is not a Muslim leader”, familiar bromides, however disputable, meant to placate those who might not share our satisfaction. He congratulated Pakistan for its cooperation while glossing over the likelihood that Bin Laden could elude us for so long, and hide in plain sight, precisely because of Pakistani hospitality. He took up the mantle of American exceptionalism, extolling the “greatness of our country”, but linked that greatness to our commitment to “stand up for our values abroad, and our sacrifices to make the world a safer place”, rather than our refusal to cow before evil, and our ferocity in destroying it when it threatens our shores. He spoke piously of the way in which the 9/11 attacks brought us together “united as one American family” but neglected to note the common bond clearly forged by the collective desire for revenge.

Revenge is not identical to justice in every case though our modern sensibilities, now hardwired to embrace due process and the rule of law, has a tendency to caste them as fundamental adversaries. Both require, as Adam Smith pointed out in his Theory of Moral Sentiments (1759) a peculiar combination of sociability and a-sociability; both justice and revenge are the province of socially gregarious people who cohabitate but also requires a desire to wreak punishment upon others, the capacity to experience revulsion and indignation in response to another human being.

Revenge is far more personal and less abstract and therefore more palpably emotional—it is what we pine for when what we love, what we consider to be our own, is precipitately harmed or destroyed. The longing for revenge, then, is inextricably tied to the ardor of patriotism, since patriotism is an abiding love of the land we call our own, and the fellow citizens we share, as President Obama declared, a “love of community and country”. It is unreasonable to demand that Americans look at Bin Laden’s death as the impersonal achievement of justice, since his injustice was squarely and intentionally directed at us, because of who we are.

We can expect no less from the long tortured people of Syria, who suffered Assad’s degradations as personally as they were delivered. It is not clear that any genuine justice could be other than their justice, or that a spirit of vengeance is inconsistent with the demands of morality. Of course, Assad will not receive a “fair” trial, if by fair one means bound by the presumption of innocence. No man or woman in the world could suspend their belief in such a manner, and no man-made law governs the unspeakable atrocities for which he is responsible. These are the moral limits of positive law, and of nations.

It is instructive to remember that Eichmann was charged not only with crimes against humanity in general but also crimes against the Jews in particular. Similarly, we should also reflect on how fundamentally important it was to Israelis that Eichmann be tried in a Jerusalem court, and not merely before some ad hoc international tribunal. This is surely not because such a tribunal couldn’t be trusted to find Eichmann guilty but because it was necessary that his guilt be pronounced upon by Jews, the people who suffered so gravely at his hands. Americans should guard against rejoicing too exuberantly, and should remember that the thousands of their fellow citizens who have fallen on and since 9/11 remain dead, that terrorists worldwide continue to malevolently gather against us, and that the world, as always, scrutinizes our behavior to garner new inspiration or to fuel longstanding cynicism. Nevertheless, Bin Laden was our enemy and killed our kind, and so we deserve to enjoy the satisfaction that comes with righteous vengeance, even if that is ultimately a meager consolation for our sacrifices. Syrians deserve nothing less.

Ivan Kenneally is the Editor in Chief of the Daily Witness.

Category: Philosophical Asides