By Magok Alier Akuot
February 2, 2014 (SSNA) — Practically there are certain things that confront us needing tough and courageous decisions. […] thing which goes against individual or group interest and whose sacrifice is meant to serve the greatest good. Sometimes in the quietness of our thoughts, we wishfully anticipate they shouldn’t cross our way, and if they do we are sort of caught off guard and must think twice to face the reality of their impacts. There is hardly a middle ground, and if there is it’s no certainty that it serves any good. But in facing them, we are likely to sacrifice that which serves our individual or group interest in favour of society’s interest.
Let us look at one of those dilemmas. Here is a speedy bus driver who is faced with making a tough and disturbing decision. He is carrying eighty passengers on a bus whose lives are in his hand and at the same time confronted with a blind pedestrian whose life he is to spare. The driver does not want to kill at all costs but he has no choice, he is faced with a reality and must make a decision. On the one hand, he has the lives of eighty passengers to save, and on the other he has the life of a pedestrian to spare. The driver is in a fix. No one wishes to be in the situation of this driver. Neither you nor I want to be in that situation, but here is a poor driver, what a pity!
Jeremy Bentham, an English utilitarian philosopher and social reformer, submitted an action is right so long it serves the happiness of the greatest number. Although Bentham’s principle is subject to criticisms, it seems to apply in the driver case. And since there are eighty passengers on the bus, the driver, in accordance with Bentham’s utility principle, is justified to claim the life of [one] pedestrian in order to save the lives of eighty passengers. By doing so, he has not escaped liability for killing a human being. But the judge is likely to reduce his penalty far more less than if he had killed eighty passengers. The argument could be an endless one for lawyers if taken in the interest of human rights law but if faced with similar situations these same lawyers are likely to make the same decision of a driver. That is a reality of what it means to reduce theoretical legal notions into practice. We have seen in this foregoing the disturbing effect of making an informed tough and courageous decision.
The plethora of justice or peace dilemma is one of such difficult scenarios. There is unsettled international debate regarding this dilemma. Essentially, there are two schools which exist: peace versus justice school. The peace school argues while justice is undeniably one of the key values of international law, special recourse should be had as to peace option for states which have had long experience of civil war and which are in a stage of transition. This school suggests nationwide healing and reconciliation process and use South Africa as a reference especially where the peace option was efficiently applied during post-Apartheid era. President Mandela, using Truth, Justice and Reconciliation Commission (TRC) chaired by Archbishop Desmond Tutu, chose to make peace within and between South Africans. Amnesties and immunities were granted to people [who had committed crimes] to testify before the TRC for their crimes. People’s response was in the affirmative. Undeniably victims of the Apartheid may have not liked the idea of people walking scot-free, yet the TRC model served the greatest good for the nation of South Africa. Critics of the TRC model argue that this model may not be applicable in all situations-it fitted only South African situation. This is a valid argument but no better option has been put into practice other than the justice model whose weaknesses we shall see in the next paragraph. Notably, South Africa has emerged as one of the global developing economies much of which is owed to the bold decision made by Mandela using the TRC model.
The justice school argues peace cannot prevail if perpetrators have not been held accountable for their crimes. In particular, victims are likely and not ready to reconcile with perpetrators due to lingering animosity. They conclude that justice is a requirement for a just and lasting peace. Critics of the justice school cite situations where justice was given option over peace but failed. They cite the following as failures of justice model.
In the Lord’s Resistance Army (LRA) case of Joseph Kony before the ICC, the government of Uganda referred the case to the court seeking justice for victims of LRA war in northern Uganda. The government of Uganda later negotiated peace deal with Kony. But Kony, upon learning of his indictment by the court, refused to sign the peace deal citing indictment as his defence. The government of Uganda was caught off court, it realised appreciated peace was more important and sought to withdraw the case from the court but the court refused. More lives including of South Sudanese were claimed by LRA rebellion and up until today justice has never been done for victims of LRA rebellion.
Another failure of justice model is the case of Al Bashir et. Al. In that case, the UN Security Council referred the Darfur situation to the ICC which did investigation and issued arrest warrants against Al Bashir and others. But in doing so, justice has never up until this day been served and innocent lives in Southern Kordofan, Blue Nile and Darfur are subjected to more suffering while more others have been and continue to be lost in the hands of the same perpetrators. Although these could be argued as failure of the court itself, yet in practice it is undeniably apparent that powerful perpetrators do not easily die alone-they die claiming lives of innocent people which is exactly the dilemma we have in South Sudan.
In the last couple of years since independence, folks have been taking up arms against the government. On the one hand, we [the peoples of South Sudan] wanted these folks held accountable for violating our laws, and on the other we also wanted to embrace peace and unity among us. But in seeking justice there was no certainty that more lives could not be lost which is why the peace option was an ideal one. The government while faced with justice or peace dilemma settled for peace as explained in the following paragraphs.
The first example is that of granting amnesty to rebel groups. Many of us have had endless debates on the importance of those amnesties. I am sure if you Google out you will come up with handful of discreet opinion articles on the amnesty debate. Undeniably, the need for peace between and among South Sudanese was revealing which is why the government had been [on numerous occasions] granting amnesty to rebel groups the last of which enabled David Yau Yau signed Peace Agreement with the government a couple of days ago. Painfully others like Peter Gatdet and Yau Yau exploited this as government’s weakness to the extent of hurting the course of South Sudanese struggle. They joined and left at will just like Yau Yau has exploited this violence as an excuse for coming back and let us hope he doesn’t go back!
The second example [withdrawal of Sudan People’s Liberation Army (SPLA) forces from Panthou] was one of such dilemmas. Folks were unhappy with that decision and I am sure they are still unconvinced of the merits of that withdrawal. It was a tough decision which cost lives of our forces. But in seeking peace with disappointing sister Republic of Sudan [which classified us as enemy State number one] our government authorised the withdrawal of SPLA forces. There was fear of an eminent war with Sudan and we didn’t need to go to war after only a couple of months after independence. So withdrawal was not as bad as others opined.
Admittedly, the justice or peace dilemma is as endless as the driver case. All it needs is a bold decision which must serve Bentham’s utility principle. Practically, states respond according to reigning own situations. States should always genuinely subscribe to the letter and spirit of peace on the one hand, while not depriving victims of justice on the other. How to do this is a question that must be had in relation to crimes committed in the violence. It needs a boundary drawn between international crimes [crimes which are of concern to the international community namely genocide, war crimes, crimes against humanity and the crime of aggression as defined under section 5 of the Rome Statute of the International Criminal Court] and crimes against domestic laws, for instance treason. But if prosecuting such international crimes will jeopardise the chance of concluding binding peace, then it is better that peace should be given chance in the first instance and justice later as discussed in the preceding paragraph.
Back to my case which is that of the four political detainees, I opine that in giving peace prime chance, these folks should be released. Here is why I think so. I am not unlearned that they have been accused of trying to overthrow a constitutional government. Yes they are political suspects whose guilt shall be proved beyond a reasonable doubt before competent court of law. The crime for which they have been accused [treason] is a crime against the state since it violates domestic laws. So the state, as a person of international law, needs justice done. In the meantime, we need peace but Riek continues to threaten to thwart efforts of peace if these folks are not released. So what am I saying? That they should be set scot-free? Hell no! But partly yes. To give a short answer of why it is a no or yes answer, we know that releasing an accused from detention does not mean setting them scot-free. Otherwise we could not be making sense of a bail, could we? Under normal circumstances [holding suspects under detention] means investigating them and releasing them on bail. That is a yes part. The no part depends on how the government intends to handle the accusation itself-whether or not it [government] wants to drop its suspicion. If the government drops the accusation in the interest of making a lasting peace, then the answer is a yes, but if it maintains the accusation and frames treason charges then the answer is in the negative.
It should be noted that other serious crimes have been committed in the violence but the perpetrators [who are still at large] have not investigated let alone prosecuted. One of those accused of treason [Dr. Riek] should as well be investigated and prosecuted for heinous crimes committed by his forces against innocent South Sudanese. Mark me well; I am only mentioning Riek as a suspect who [alongside four political detainees] has been accused of treason. I am not under illusion the government forces under Kiir’s command are not suspects of these horrendous crimes. They are but my analysis is restricted to only those accused of treason otherwise I would be confusing if I entered into the question of criminal accountability. So it is a question of treason as a crime against domestic laws vis-à-vis international crimes. Many [victims] will be satisfied if Riek is prosecuted for horrendous crimes committed by his forces than prosecuting him for treason.
I have done some reflections on Riek’s threat of no peace if the four folks are not released. It is like terrorists demanding ransom before they release the only son of a president. On the one hand, the president needs justice done for the act of kidnapping, and on the other the life of his son is at stake. In the end, money doesn’t count as much as his son’s life nor does justice after the death of the son which is why the president will be justified to pay them money in order to secure the life of his child. So the president does as the terrorists instruct and secures the release of his son. This sounds like Riek’s threat, right? Sure it does a great deal.
Like the president who needed his son alive, we also need peace to reign without preconditions. But Riek uses this as a weapon of strength and I am sure those folks under detention do not like someone using them as political bargaining tools. But yes, we have to acknowledge that he [Riek] is a terrible mafia whose threats cannot be taken lightly lest more lives are lost. So what do I suggest? Good question. It goes like this, release the four detainees and let’s give peace chance in the first instance, these folks are influential in the peace process and are not as bad as Riek whose forces along with primitive members of our national army have killed in thousands innocent South Sudanese. Our second option will be to investigate both for treason accusations and for heinous crimes. We are miles away from vindicating the process of justice although we will not sleep as if realising peace is the only goal.
If we weigh the urgency of justice or peace as two parallel notions and in appreciation of Bentham’s greatest number principle, we realise the importance of releasing these four gentlemen in order to expedite lasting peace, and to further ensure folks who are responsible for the death of thousands of innocent men, women and children are held to account. And why not if David Yau Yau who has claimed lives of innocent people in Jonglei could be pardoned and given chance to sign peace with the government [he rebelled against] then the four comrades [under detention] whose contribution is far more greater than that of Yau Yau deserve some decent respect to be released with further investigation to be conducted against them just like seven released detainees may be summoned for investigation in case there is probable belief they participated in the alleged coup attempt.
The author is a South Sudanese Master of Laws student at the University of Sussex. He can be reached at: [email protected]