Earlier this week, on my way to UNU-Tokyo, I had been poring through some material given out by Prof. Sukehiro Hasegawa, for his session on "Truth, Justice and Reconciliation in a Post-Conflict Society". All the four papers were about the conflict in Timor-Leste, and after going through them, I had been quite convinced that the UN had been nitpiking on legal issues at the cost of long-term peace in the region.
Or was it? Prof. Hasegawa's session turned out to be quite thought-provoking. Firstly, because he was no ivory-tower academic - he had spent most of his career in UN peace-keeping operations in Somalia, Rwanda and finally at Timor-Leste. And secondly, because he did not claim to have the right solutions for ensuring sustainable peace in intra-national or international conflicts.
The moral dilemma facing peace-keepers was illustrated with a simple example.
You are standing by a bend on a road. Just behind you, 10 school-children are
crossing the road. Next to you is an old man and suddenly you see a huge truck
hurtling down the road at 100kmph towards the schoolchildren. You have the followng three choices -
- Do nothing - let the truck plough into the kids;
- Jump in font on the truck, get run-over and - hopefully - save the 10
kids;- Push the old man on the highway, raise alarm and save the kids.
Now, assume that you don't have option-2...what is the right thing to do?
According to John Rawls's 'Theory of Justice', the most important consideration is the issue of 'fairness'. You can agree to an injustice to avoid a greater injustice. But fairness and justice to whom? - the old-man or the children?
Immanuel Kant and Jeremy Bentham has proposed a more utilitarian approach leading to "categorical justice" or "consequential justice", according to which the right thing to do was to favor the option that gave the greatest happiness to the greatest number of people.
In other words, option-3. Sacrifice the old man and save the then children.
And then there is the much older traditon of "retributive justice" supported by the Law of Moses and the Code of Hammurabi - 'eye for eye, tooth for tooth'. A clear predictability of rules and standards is necessary for a society to flourish. If you do not punish the guilty in a consistent manner - irrespective of his social status or 'connections' - there is no effective deterrence. (This brings to mind the pathetic record of the Indian justice system - The Sikh Massacre, 1984; the Nanda BMW hit-and-run case, the Jessica Lal murder case, Gujarat Pogrom, 2002)
In recent history, one of the most prominent opponents to the tradition of retributive justice was, of course, Nelson Mandela's 'Truth and Reconciliation Commission'. There is little doubt that this approach has been successful in dealing with the ghosts of aparthied but it is not something that is easily replicated. Unfortunately, we just don't have people with the stature of Mandela or Desmond Tutu in all the conflict zones of the world.
The UN, therefore, disagrees with Mandela's approach and is more inclined towards the idea of retributive-justice. To erase the "culture of impunity", the guilty have to be held responsible. And this is the approach that was being followed in Kosovo, Rwanda and Timor-Leste.
In the Balkans it was relatively easier to capture the "big fish" and put them on trail. In Timor, all the big-fish slipped away to Indonesia and when the Indonesian courts put them on trail, they were found to be be innocent. But of course.
One of the elements of the broader concept of a fair trial is the principle of equality of arms, which requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his opponent. The prosecution and defence has to be equally balanced.
In the Indonesian courts, the difference between defence and prosection was that of an elephant and a mouse. The prosecution didn't stand a chance. (Apparantly it was just the opposite at the Timor-Leste trails, but this point was not clarified.)
Amidst all the debates and discussions, the two main parties - Timor-Leste and Indonesia - just want to leave the past behind and move on. According to the Jose Ramos-Horta, what the country needs is schools, hospitals and roads. "We don't want internationals or foreigners to come and meddle...many Timorese are fed up with so many foreigners ordering us around".
If the two affected parties don't insist on justice and retribution, why are billions being spent on the international justice system? (Japan pays $1.5b of $7.5b; USA 22% -- the numbers need to be verified).
This is again not the first time that countries are tiring of international justice. In the context of the 14 American states seeking independence from Britain, Baron Montesquieu had said that "collective interest takes precedence over the existing justice system".
Is there a better alternative to the existing process (Truth > Justice > Reconciliation > Peace) ? After WW2, there were the Nuremberg Trails in Germany and the similar trails in Japan. About 10 Japanese officers were found to be guilty and hanged, and reparations were paid to many countries. One can say that 'justice' was administered, but did it really lead to reconciliation and peace? China and Korea continue to get rankled by perceived weak link between Truth and Justice here...
So what is the right thing to do?
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References:
John Rawls - http://plato.stanford.edu/entries/rawls/
Jeremy Bentham - http://homepage.newschool.edu/het//profiles/bentham.htm
Retributive Justice - http://en.wikipedia.org/wiki/Retributive_justice
Code of Hammurabi - http://en.wikipedia.org/wiki/Code_of_Hammurabi
Law of Moses - http://www.bga.com/~wdoud/topics/lawofmoses.html
Equality of Arms - http://www.fittedin.com/forensic-science/99-equality-of-arms.html
Interview with Timor-Leste President, Jose Ramos-Horta, conducted by TVTL (21 Sep)
