In a previous article, I explained why Emily Oster’s amnesty call for lockdown, mask and vaccine zealots has stirred up white-hot rage.
An I&I/TIPP Poll conducted on November 2–4 found 39-35 majority opposition to amnesty (Figure 1), and the stronger sentiment was negative by a lopsided 21-12 margin. While Democrats supported amnesty 48-30 percent, Republicans and Independents opposed it 49-27 percent. Support for amnesty dropped dramatically by age, from 52 percent among 25-44 year olds to just 17 percent among 65 and older (my demographic). It’s interesting, the age split.
The victims of casual cruelty, capricious public health diktats and enforcement brutality are owed justice. But what type of justice? It might be helpful to look at examples from the theory and practice of international criminal justice. The sense of justice, fairness and equity is deeply ingrained in human beings. Correct that. It’s also deeply ingrained in some animal species. In the famous fairness experiments by primatologist Frans de Waal, capuchin monkeys were trained to trade pebbles for cucumber slices. When the monkey in the adjacent cage was given the more valued prize of a grape, the first threw its cucumber ‘reward’ out of the cage in anger. Subsequently, even the second monkey refused to accept a grape until its companion was also given the same reward. This segment of the full TED talk by de Waal in 2011 has been viewed 22 million times, has been liked by 243,000 and commented on by more than 15,000. The full talk has nearly 5.5 million views.
The justice sentiment is expressed in collective norms and, in a general sense, in laws. If the dominant perception is that law mostly conforms to notions of fairness and justice, the odd anomaly will not pose a threat to the system of law. But if the opposite perception takes hold, and law is seen to have marched off on a tangent from justice, then the system of law—and the principle of a community based on the rule of law—will be brought into disrepute and collapse under the weight of illegitimacy.
That’s the risk we run. The “deplorables” were arrested, cuffed, fined, tackled roughly to the ground, and had rubber bullets fired at them and assets frozen. If those responsible for these acts of criminality face no legal consequences, will faith in the rule of law and justice system survive undamaged?
Justice done and seen to be done
It’s worth making three arguments about the relationship between justice being done (the domain of law), and being seen to be done (the realm of politics):
- Justice may be done, but not be seen to have been done;
- Conversely, justice may be seen to have been done, but not actually be done.
- Finally, justice may be seen not to have been done.
Calls for amnesty without accountability risk the third outcome, which is why Oster’s call provoked such passionate pushback from many quarters.
The landscape of international criminal justice has changed dramatically over the last three decades. In 1992, tyrants would have been reasonably confident of the guarantee of sovereign impunity for atrocities committed against their own people inside their borders. Today, there is no guarantee of prosecution and accountability. But not a single brutish ruler can be confident of escaping international justice forever: the certainty of impunity is gone.
The international criminal tribunals of the 1990s in Rwanda and former Yugoslavia, set up to try limited numbers of individuals for specific activities and regions, helped to bring hope and justice to some victims, to combat the impunity of some perpetrators and to enrich the jurisprudence of international humanitarian law (IHL). But they were expensive and time-consuming and contributed little to sustainable capacities for justice administration.
The International Criminal Court’s permanence, institutionalized identity and universal jurisdiction, advocates hoped, would build on the ad hoc tribunals, enable an escape from the tyranny of the episodic, and attenuate perceptions of selective justice.
Despite some successes, the hopes held of the ICC at creation remain mostly unrealized. The initiative of international criminal justice, meant to protect vulnerable people from brutal national rulers, has been subverted into an instrument of the powerful against vulnerable countries.
The likelihood of the officials of major powers being held to account for IHL-violating criminal misdeeds was sabotaged by connecting the ICC to the UN Security Council dominated by the five veto-wielding permanent members. This makes the UN as impotent against Vladimir Putin’s aggression in Ukraine as it was against George W. Bush and Tony Blair’s Iraq war in 2003.
Former colonies weigh present rhetoric on human rights against the colonial record of the leading Western powers and find it wanting. During the Second World War, in order to keep British troops supplied with food, the UK ignored a famine in Bengal that killed around four million Indians—the greatest disaster of the 20th century in the subcontinent. Prime Minister Winston Churchill rejected pleas from two successive Viceroys and the UK Secretary of State for India to ship food urgently to Bengal. Shashi Tharoor—former top UN official, author and currently a member of India’s parliament—spoke for many Indians in asking, in an op-ed in The Washington Post in 2018, why Hollywood was celebrating the life of a mass murderer with the film Churchill.
Nuremberg and Tokyo were instances of victors’ justice after World War II. This was so because of the self-evident double standards in the victors putting on trial leaders and generals of the defeated powers but none of their own. It was victors’ justice also in the sense that political calculations shaped the victors’ decisions on who among the defeated leaders and generals would stand trial. Even so, by historical standards, both tribunals were notable for giving defeated leaders the opportunity to defend their actions in a court of law instead of being dispatched for summary execution.
Anyone who wishes to understand the deep-seated cynicism of many people in the global South about the self-sustaining belief in an exceptional America and a virtuous West should read The Blood Telegram (2013) by Gary Bass about the callous indifference of President Richard Nixon and Secretary of State Henry Kissinger to the genocidal events in East Pakistan in 1971, as fully detailed in a telegram from US Consul General Archer Blood (hence the title of the book) and 19 colleagues from the consulate, the US Aid Agency and the Information Service in Dhaka.
Little wonder that in a Chatham House study of elite perceptions, in contrast to Europeans who emphasized America’s historical “moral leadership,” the US was viewed by many Asian elites as hypocritical, overbearing, arrogant and disinterested in others’ interests, aggressively pushing its own policy priorities instead.
Contradictory logics of peace and justice
The logics of peace and justice can be contradictory. Peace is forward-looking, problem-solving and integrative, requiring reconciliation between past enemies within an all-inclusive community. Justice is backward-looking, finger-pointing and retributive, requiring trial and punishment of the perpetrators of past crimes. Amidst the crisis in Libya in early 2011, shortly after NATO began its UN-authorized airstrikes to help protect the threatened civilians of Benghazi, Washington received tentative peace feelers hinting that Muammar Gaddafi might be prepared to consider power-sharing or leave office and the country. But then Gaddafi and his son were referred to the ICC by the UN. That “boxed” the regime “into a corner” and made it impossible to go forward, said Mohamed Ismail, an aide to Gaddafi’s son Seif.
The ICC issued arrest warrants for Sudan’s President Omar Hassan al-Bashir in 2009. The African Union (AU) took the extraordinary step of formally advising all members not to cooperate with the ICC on Bashir’s arrest warrant, insisting that “the search for justice should be pursued in a way that does not impede or jeopardize the promotion of peace.” In 2013, Ethiopia’s Prime Minister Hailemariam Desalgen accused the ICC of “hunting” Africans because of their race.
Ian Paisley Jr., based on his experience as a UN and European Union peace envoy to Guinea-Bissau as well as a peace negotiator in Northern Ireland, wrote that the ICC has failed “as an instrument for delivering peace.” Had the court been in existence during the Northern Ireland peace process, its intervention “would have driven old enemies even further apart in recrimination and hostility, hobbling the chance for peace.”
Criminal justice processes risk solidifying the very social cleavages that led to the crimes of genocide, ethnic cleansing and crimes against humanity. A better assurance of protection for people is peaceful resolution of conflicts by political efforts, followed by the establishment and development of institutions of good governance. The “punitive and retributive focus of trials” limits the ability to move to post-conflict reconciliation by alternative means of “ensuring accountability, deterring repetition and reconciling societies,” write Richard Goldstone and Adam Smith in their book International Judicial Institutions (p. 3).
The purely juridical approach to justice can trap and suspend communities in the prism of past hatreds. Truth commissions, a halfway house between victors’ justice and collective amnesia, take a victim-centered approach. They helped to establish a historical record and contributed to memorializing defining epochs in the national histories of Chile and South Africa.
The latter case is especially instructive because the apartheid state was an international cause célèbre for a long time. South Africa opted for a statutory body set up by parliament, not merely a presidential commission. The Truth and Reconciliation Commission (TRC) had subpoena powers that carried the carrot of full amnesty but also the stick of criminal prosecution. It held public hearings under shady trees in villages as well as in churches (with the attendant symbolism of repentance and forgiveness) that were televised to a global audience. For many victims it was the first opportunity to tell their stories. For 30 months the TRC was the national story: compelling, gripping, poignant—and cathartic.
Rwanda’s version of transitional justice operated through the local gacaca system of people’s courts, whose overriding goal was not to determine guilt but to restore harmony and social order. Mozambique also offers successful examples of communal healing techniques.
All three cases represented deliberate efforts through social and political channels to escape cycles of retributive violence coming out of decades of tumultuous political conflicts congealed around communal identity. Their record of bringing closure to legacies of systematic savagery in deeply conflicted societies is superior to that of institutions of international criminal justice.
The many roles of justice
Justice has many more roles to play beyond simply bringing wrongdoers to account: acknowledging the suffering of victims, educating the public, and deterring future criminal atrocities. Allied and Axis powers from the Second World War are at peace not despite the Nuremberg and Tokyo tribunals, but also because justice cleared the path to reconciliation.
It’s not possible to secure lasting peace without bringing criminal wrongdoers to account. However, these are not solely legal decisions but profoundly political choices with complex trade-offs. The tension—between peace, justice or reconciliation, or peace and reconciliation through justice—must be reconciled on a case-by-case basis. The ethic of conviction imposes obligations to prosecute people for past criminal misdeeds. The ethic of responsibility imposes the countervailing requirement to judge the wisdom of alternative courses of action on social harmony and political stability today and into the future.
Criminal trials for the architects, truth commission for the rest
How does all this apply to the Covid era?
There are indeed parallels to bitter civil wars and sectarian conflicts. We witnessed policy extremism, enforcement of tough lockdown measures and mask-cum-vaccine mandates with excessive use of force and instant hefty fines, and deeply fractured groups of populations where once had existed broadly cohesive societies. Families were torn apart and denied the opportunity to grieve together over the lonely death of loved ones, many friendships ruptured and mom and pop businesses shuttered.
We need, firstly, criminal accountability for the top leaders and officials responsible for perpetrating the most egregious Covid policy outrages. Neither a Senate nor a Royal Commission in Australia and the UK, nor a presidential commission or Congressional investigation in the US, is likely to prove “fit for purpose.” The duration of the emergency measures, the scale of damage and the depth of trauma is much too great for that.
In my view, people who should find themselves in the dock charged with Covid policy crimes include Canada’s Prime Minister Justin Trudeau and, in Australia, people like Daniel Andrews, Premier of Victoria, Michael Gunner, Chief Minister of the Northern Territory and Brad Hazzard, Health Minister of New South Wales.
In September 2021, Trudeau condemned Canadians protesting against vaccine mandates as “racist, misogynistic,” “anti-vaxxer mobs” and “extremists.” In January 2022, he dismissed the truckers’ Freedom Convoy that descended on Ottawa as “a fringe minority of people … holding unacceptable views.” Canada imposed the most sinister punishment of any nominally democratic country in the world by freezing financial assets and bank accounts of protestors and also anyone who donated money to them, without any need for court orders. However, I do admire Trudeau’s chutzpah. During the G20 summit in Bali in November, he was recorded telling China’s President Xi Jinping: “in Canada we believe in free and open and frank dialogue.”
Andrews oversaw some of the most appalling scenes of police excesses and brutality against peaceful demonstrators anywhere in the democratic world.
On July 29, 2021, Hazzard said:
you’re being extremely selfish if you think you can not have a vaccine just because you don’t want to have a vaccine, well you should think about what you’re doing to your family and to the community, and I would say even more than that, what a hide you have, what a ridiculous position is that when you’re going to put health staff at risk, and when you get sick you’re going to expect to come into hospital and get paid for by taxpayers.
Gunner went into an anti-vaxxer meltdown on November 22, 2021. In this video of the furious rant, he looks every inch a wild-eyed fanatic:
If you give a green light, give comfort to, support anybody who argues against the vaccine, you are an anti-vaxxer. Your personal vaccination status is utterly irrelevant…. If you’re out there in any way, shape or form campaigning against the mandate, then you are absolutely anti-vax. If you say pro-persuasion, stuff it. Shove it…. I will never back away from supporting vaccines, and anyone out there who comes for the mandate, you are anti-vax.
On January 6, 2022, he peddled the misinformation that “people who are not vaccinated present the greatest risk of spreading the virus and are the most at risk of becoming seriously ill if they get the virus.” For some inexplicable reason, the fact-checkers missed that.
In addition, we also need the equivalent of a TRC for the bigger cohort of high profile “health influencers” of epidemiologists and medical experts, public intellectuals, CEOs of public sector organizations and private sector companies who imposed vaccine mandates, and media commentators who gave full rein to their inner bullies to shame, vilify, ostracize and otherwise traumatize all who dared to think for themselves and refused to go along in order to get along.
A shorter version was published in Spectator Australia.