When justice may miss the mark

Justice is always mutable. Too often, justice is political - a kind of mass salve and a means to soothe the pains of the past and to assuage collective guilt. Justice doesn’t always bring settlement. For instance, justice is often separated from the notion of forgiveness, which, many have argued, is the foundation stone for anyone to move ahead, whether from crisis and pain or simply from bad personal choices. The notion of settlement, the ability to go forward without being crippled psychologically by the past, is not necessarily embedded in the heart of justice.

Justice, it seems is for lawyers and statesmen while settlement is for the victims to sort out themselves.

What brings all this to mind is news of a spate of trials of various despots around the world. One such trial concerns the Belgian government's pursuit of Hissene Habre, who ruled the country of Chad from 1982-1990 and left a litany of human rights abuses and regional sore-spots that still exist today.

Another is the trial of former Khmer Rouge operative Kaing Guek Eav (aka Duch) in Phnom Penh, the first of a number former Pol Pot lieutenants to face local courts.

There is alos news that the trial of former Peruvian president Alberto Fujimori is expected to conclude soon, with the possibility of a 30-year prison sentence of hanging over him for past abuses of his constituents in Peru.

Finally, news has emerged in the last day or so that the International Criminal Court is pursuing an indictment of Sudan's murderous leader Omar al-Bashir. He looks to become the first sitting head of state to have an ICC arrest warrant hanging over him.

These cases refer to alleged abuses carried out many years ago. On one level, time passed shouldn't stand in the way of justice - as one who has been to Tuol Sleng prison (now opposite a travellers' lodge), where Duch was the commandant, and who has visited refugee camps in Rwanda where the victims of genocide and systematic abuse are rotting their lives away, time lags do not reduce the horror nor do they invalidate the power of the injustice perpetrated.

But, on the other hand, there is a strong sense that retroactive justice is undermining justice now, and in the future, and is diverting from the real needs of the traumatised.

For one, it is clear that many current despots are less willing to go quietly as long as the spectre of international justice hangs over them. The result is they are reluctant to engage with international diplomatic efforts and will often disallow access for humanitarian aid givers, lest they become witnesses to the horror in their midst.

Deals are likely to be struck with the major players getting off to spend some quality time in a court-free zone until their gentle demise in old age, leaving smaller players to take the hits and those who have suffered most to go to their graves bereft of a sense of settlement.

This dynamic is largely the reason behind Robert Mugabe remaining as the de facto leader of Zimbabwe. When it was still possible for him to leave his presidential office with some dignity - albeit manufactured - he and his henchmen were clearly spooked by the possibility that the Hague was to be their next destination.

In fact, the opposition MDC in Zimbabwe, in calling for him to step down and respect the fact he lost the elections of March 2008, were careful to add that they would enact an amnesty on him and would not pursue him through the courts. Clearly, others would, hence the reluctance remained.