Your recent article “Confronting impunity through the ICC: is Africa ready and waiting?” Has triggered a number of considerations that I wish to submit here.
The issue that troubled me most is the suggestion that amnesty may be a way forward in a situation of peace negotiations! While one may have to accept a certain delay in carrying out justice for purely tactical reasons, such as the perpetrator has still such an enormous nuisance value - as was the case after the fall of both Pino...read more
Your recent article “Confronting impunity through the ICC: is Africa ready and waiting?” Has triggered a number of considerations that I wish to submit here.
The issue that troubled me most is the suggestion that amnesty may be a way forward in a situation of peace negotiations! While one may have to accept a certain delay in carrying out justice for purely tactical reasons, such as the perpetrator has still such an enormous nuisance value - as was the case after the fall of both Pinochet and Videla in the case of Chilli and Argentina - that to indict them would lead to the conflict flaring up again. Of course this must be avoided! But does that imply that people such as Taylor and his like should be immune from justice? After the horrendous deeds they perpetrated? If such people are to walk about scot-free, then what is justice all about?
Justice is central to the functioning of all societies! No society condones murder and theft. Justice serves as a frame that tells everyone that not every thing is permitted, it is the limits within which human passions - the destructive ones - are contained. To do away with justice is opening a Pandora box that will require a strong and very wise man to close again, possibly thousands of deaths later!
It doesn't take a great deal of imagination I don't think to put oneself into the shoes of the victim of one of these atrocious conflicts and imagine that one is sitting in one's damaged house considering the devastation of one's life, the loss of one's kin with perhaps no known burial site, one's property stolen or destroyed and one's neighbour - the known perpetrator - going about his business, untroubled, having possibly gained from it all! I suggest that this is a case for taking the law into one's own hands which, all will agree, is conducive neither to peace nor to the rule of law!
Furthermore, the trial of the perpetrators is the time for the community as a whole to learn what has happened and for the victim to receive public recognition for what it endured which opens the way to support and help from the community. The court itself may grant compensation. The trial is also the time when the past is looked into the face no matter how painful it may be, a necessary and unavoidable step if it is ever to be put to rest, to become a thing of the past.
Reconciliation has an agenda and a timetable of its own! But what ever its pace it starts with justice which is to say, the culprit brought to books. Also, literature and psychiatrists alike have described what they call the "moral trauma", suffered by those who committed a terrible deed. Some will say "serves them right!". But this does not improve the society to which the perpetrator belongs and it is desirable that he too be given the chance to start afresh, having had the possibility to "redeem" himself through paying for his crimes. (The master minds and hardened criminals are likely to be immune to moral trauma).
Or course national justice is preferable to international justice whenever possible. In particular it would be best for the victims to have their case heard within their own community. But how often is it possible? The extraordinary undertaking of the Truth and Reconciliation commission in South Africa was "pulled off" by two outstanding fellows, Archbishop Desmond Tutu and president Mandela. How many post conflict situations are there where two such wise men with immense moral credibility could "pull off such a trick"?
The decision of whether justice should be carried out in an international or a national court of justice should be considered carefully on the ground that all too often one finds that the people holding key positions before the conflict and during the conflict are the same again in the post conflict situation.
I dare say that the people who most probably (it is for the court of justice to decide!) carry a heavy responsibility in the unfolding of the devastating events should not be entrusted with the carrying out of justice.
In some instances the judiciary ceased to exist as a result of the conflict, as was the case in Rwanda where the whole legal body had become so perverted that it could not be of any use after the genocide.
One thing seems obvious: kangaroo courts for the sake of exercising justice nationally rather then internationally does not serve the cause of justice nor does it satisfy the innate need for fairness that is common to all humans.
National or international, justice should be the concern of all. If one considers the sometimes huge international effort in bringing food and drugs to the victims of armed conflicts over long period to time, (not all of it useful) perhaps some of that effort could be diverted towards the training of the legal staff, the (re) establishing of a functioning, fair and independent judiciary, endowed with sufficient means to carry out this most important of tasks.
To conclude, I suggest that tactical postponement may have to be tolerated in order to prevent worse evil. But amnesty? NO! Amnesty is a dirty word that should be banned lest we allow a horrible past to intrude into the present and hijack the future! It must always be remembered that the operative word for a peaceful future, for a harmonious world, is Justice.
