By PaanLuel Wel, Washington DC, USA
August 13, 2011 (SSNA) — Moral obligation demands that there could not be real peace and permanent reconciliation between warring parties without proper justice. Yet, the realization of any genuine social justice is only feasible with deeper understanding of the complexities and adequate resolution of the conflict beforehand.
Since social justice require that each suspects of war crime should be treated according to the level and severity of his culpability and each victims compensated based on the extent of his or her sufferings, the plausible solution, according to the foundational principle guiding ethical judgment, lie in a combined application of retributive and restorative justice so as to hold the perpetrators of violence accountable for their actions and just compensation is rendered to the afflicted victims of the violence.
Many war-ravaged countries in Africa and across the world who had embraced and implemented that premise did so only in the hope that a successful prosecution and conviction of those high public figures would break the cycle of impunity and hence the cyclical violence bred by the impunity among the hitherto untouchable political class or domineering tribal warlords. This is so especially the case in various countries where impunity has entrenched itself among the ruling class, with politicians becoming politically reckless and ethnically provocative uttering words meant to brew and instigate ethnicized violence pitting one tribe against the other.
In those countries, it is feared that those deep-rooted cultures of unaccountability and state sanctioned impunity would breed political complacency on the part of country leadership wherein any future political dispute among the ruling gurus would be seen as the norm rather than the exception. The unavoidable outcome, were no concrete arresting measures are taken, would have been, it is argued, a vicious cycle of periodic violence in the country such as has been constantly witnessed in different countries in the Sub-Saharan African countries.
Justification for the persecution
In those countries, the Cambodian persecution of the Khmer Rouge ringleaders or the Arusha-based persecution of the Rwandan genocide suspects, for instance, has been justified by the theories of a retributive, restorative and compensatory justice as outlined in Kit Christensen book: “Nonviolence, Peace and Justice: A Philosophical Introduction”
Retributive Justice is a process whereby wrongs done by one party or person against the other are made right. The importance of this approach is that it also dissuades people from further involvement in the conflict and hence helps to prevent future crimes and thus break the vicious cycle of deadly violence.
The principles of just retribution is “the ethical idea that those who have wrongfully harmed others deserve to be harm in return, and that the amount of harm they deserve should be proportionate to the amount of harm they inflicted on those others.” This, according to Christensen, is call retributive justice because “crime must be punished, and the punishment must fit the crime” committed.
Restorative Justice, on the other hand, is a “way of dealing with wrongs done to people by others within their community, whereby offenders are confronted with their personal responsibility in causing harm to someone and subsequent necessity to make some kind of restitution to the victim.” The goal, as was done and achieved in post-Apartheid South Africa, is the breaking of barriers built during animositic periods between and among various then warring camps or tribes and the ushering in of the beginning of genuine forgiveness and true reconciliation that would spell the end of the cycle of racial or ethnic hatred and violence in the country.
Compensatory Justice demands that “those who have been wrongfully harmed deserved compensation for that harm, and that the amount of compensation again be proportionate to the degree of harm suffered.” It is in the principle of just compensation that major focus is placed on the victims of wrongdoings and what they deserve as measure by their losses.
What does this mean for the Republic of South Sudan?
For the republic of South Sudan, this would mean that, in order to halt the cycles of violence, save lives and property, and bring peace and development to the country, suspected wrongdoers of all kinds of war-time atrocities, must be punished and justice must be delivered to the victims of the indiscriminate violence meted out upon innocent civilians either by the SPLM/A or the Nasir camp. The argument being that only when the rule of law is upheld could there be real reconciliation and long lasting peace among the people of South Sudan as fairness would only be achievable in the course of delivering justice and in deterring would-be future perpetrators of violence.
Thus, were we to trace that trail undertaken in Rwanda for the sake of long lasting peace and to break the cycle of impunity and relentless violence in the country, the principle of restorative, retributive and compensatory justice both inform and oblige us to pursue the action of seeking justice for the victims of the violence and to hold the culprits fully responsible for their actions.
The main argument is that the cause of justice must be allowed to run its full course lest impunity would take over the new country. This would be so because any failure to successfully prosecute suspected politicians or army officers believed to have organized or participated in the violence crimes would tantamount to the embracement of impunity. And with impunity, the vicious cycle of violence would go on forever as currently the case with the recent massacre of civilian in Fangak by George Athor’s forces.
But can South Sudan Afford successful persecution of her top leadership?
Yet with the deeply entrenched and highly tribalized political system still pervasive in South Sudan, however, any authentic call for justice to take its natural course of action would inevitably threaten the fragile political stability and limited peace currently prevailing in the nascent nation. There are a lot of entrenched political, economic and social factors, reinforce by tribalism, bad governance, corruption and entrenched impunity among the ruling cliques, that account for the impossibility of successfully bringing to trial, least convicting them of the alleged crimes, without instigating a civil war in South Sudan.
First is the highly tribalized and individualized politics where political clouds are based on tribal support and around personality cult. In such atmosphere, the democratic principle of fair play in politics becomes a zero sum game where any slimmest chance of losing face is seen as an existential threat to the tribes and the personalities battling for political supremacy.
These suppressed economic and political frustrations are likely to burst into the open whenever any opportunity, like the 2010 disputed election results, avail itself as an outlet through which pent-up anger and disillusionment is expressed by the long depressed and oppressed public. Consequently, it is natural to expect South Sudanese suppressed anger and frustration exploding uncontrollably leading to possible trial or election violence across the country similar to the situations in which Kenya or Zimbabwe or Ivorians found themselves in.
Secondly, there are cocktails of other age-old ethnic feuds that date back to the pre-colonial era between the Nuer and the Dinka Bor communities which were rekindled, fueled and exacerbated by the 1991 split in the SPLM/A that unfortunately went along tribal lines. The introduction of modern weapons, unlike traditional spears, only added to the intensity and the gravity of the conflict. Hence, what would have been an otherwise healthy politico-ideological contest among the political leaders was used as a pretext and a window of opportunity to settle old scores between the Dinka Bor and the Nuer communities.
Therefore, any plausible solution to these problems must address each and every one of these issues since they are intertwined in such a way that no one solution can fit them all. Yet, solving one problem, like Dr. Machar reported apology to the Dinka Bor community, won’t mitigate the situations at all since other aggrieved communities, with the same kind of grievances, would demand others to apologize or even to compensate them.
Thus, one could rightly claim that any pursuit of a retributive, restorative and compensatory justice, especially the one being conducted at The Hague for the case of post-election violence in Kenya or in Arusha, Tanzania, for the case of Rwandan genocide, would lead to more conflicts and violence in the new republic of South Sudan. South Sudan is still highly polarized along tribal lines just as it was during the war for independence. Any reckless measures, even if meant for the overall betterment of the nation, would just but revive and reignite the bitter memories of the war time antagonism.
Justification for not pursuing the persecution of war-time atrocities in South Sudan
But if South Sudan can’t achieve meaningful peace without first addressing the question of real justice for the victims of war-time atrocities, how then could it possibly reconcile the dilemma of bringing justice to the victims of the violence and thus attain real peace and true reconciliation without destabilizing the country?
We may not be entirely under the same political and socio-economic circumstances as the rest of the African countries but the prudence to learn from their blunders and to emulate their successes is an imperative stride to prioritize as we deal with our own messes. There are many highly contestable approaches that can be applied to help tackle the problems of war time atrocities committed by various players and participants of the war.
The most practical and reasonable approach is to apply logically consistent, peace-enhancing, and pluralistic approaches that would apply to and address each and every problems in South Sudan so as to prevent or reduce the chances of any future conflict. Secondly, the approaches must not only be seen but also believed to have delivered social justice to the victims since there can’t be genuine peace and meaningful, permanent reconciliation without proper justice.
The new unprecedented political reality ushered in by independence, supplemented by these peace-enhancing measures and aided by sustain political goodwill from above, would change the game. By so doing, nothing would remain as usually the case in our presently acrimonious South Sudanese political arena in years to come.
The principle of utilitarianism and the concept of care might, perhaps, allow us to eat our cake and still have it: postpone justice by not persecuting potential perpetrators of war crimes and abuses but still achieve genuine and permanent reconciliation among our communities, long lasting peace and sustainable development in South Sudan.
The principle of utility as advanced by John Stuart Mill decrees that we act so as to maximize the benefit and minimize harm for everyone affected. That is to say, any state or Hague persecution of our potential leaders implicated in the war crime would be morally justified if only it appears to lead to more good consequences and fewer bad consequences for all contending parties whose interests are at stake, compare to the alternative choices. It is unjustified; on the other hand, if it appears it will lead to less good and more bad/evil for all concerned, compare to alternatives.
In the theory of utilitarianism, it is always the case that the end justifies the means. As South Sudanese, we would do or don’t do certain actions based on their consequences. For the case of bringing justice to the victims of the war-time atrocities and realize long lasting peace in the country, the consequences of not pursuing justice and for pursuing justice, both for the short term and in the long term, must all be weighed and analyzed before any action is taken or a certain courses of policies are deemed pursuable.
The concept of care, meanwhile, “requires us to actively take responsibility for the welfare of others with whom we are in relation, protecting them from harm while maintaining the viability of the relationship itself, and acknowledging everyone’s needs as exclusively as possible.” This is to say that the government of South Sudan, under whose care the welfare of South Sudanese people rest, must take responsibility for their wellbeing, protect them from any ramification of pursuing persecution against war criminals and ensure that the viability of cordial mutual relationships are established among and between feuding tribes. (Dinka and the Nuer in this case, though there are numerous others.)
Therefore, even though it might be the case that there could never be real peace and genuine reconciliation without proper justice for the innocent victims of the war-time atrocities committed by and on South Sudanese themselves; it is equally truly the case that for South Sudan to realize and relish long lasting peace and meaningful development, South Sudanese must be prepared to tradeoff proper social justice for long lasting peace and sustainable development.
That is the dilemma of delivering justice without killing the peace or achieving genuine peace without delivering social justice to the victims and avoids appearing as if you are condoning impunity. Therefore, as we go about debating the meaning and the possible implications of Dr. Machar reported apology to the Dinka Bor community, let’s us remember that it is not only the question about forgiveness as much as it is about what is practical and of more benefit to our country and its people.
You can reach PaanLuel Wël at firstname.lastname@example.org (email address), PaanLuel Wel (Facebook page), PaanLuelWel2011 (Twitter account) or through his blog account at: http://paanluelwel2011.wordpress.com//