Late last year I reluctantly decided to attend a talk which I thought
would be quite tiring and uninteresting. At the end I only ended up assisting because
of the persuasion of a colleague, but to my surprise after a couple of minutes
I soon realized that I was taking part in one of the most interesting
discussion that I had been a part of in a long time.
The main speaker of the talk was Professor
Daniel Komakech the Head of The Department of African Studies at The Institute
of Peace and Strategic Studies from Gulu University, in northern Uganda[i]. I
cannot recall the exact topic of the talk, but his presentation soon turned to
the issue of Joseph Kony, the mythic leader of the notorious Lord’s Resistance
Army and his arrest warrant issued by the International Criminal Court in
October 2005. It was at this time that professor Komakech mentioned for the
first time a very interesting term that I had never heard before in my academic
career, ‘colonized justice’.
Throughout my academic studies I have devoted a
good amount of time and effort into studying the diverse manifestations,
effects, and long term legacies of colonization around the world, yet the idea
of justice as being something that could be considered as ‘colonized’ had never
occurred to me before. “Why is it that the community and the people that are
the direct victims of the LRA’s atrocious acts not
the ones that are going to be able to judge Joseph Kony” asked Professor
Komakech, “Why is it that an international tribunal, in a country most people
in northern Uganda barely know about, presided by judges that Ugandans can
hardly identify with, and most likely sentenced according to laws entirely foreign
to them; can then be considered as justice” he continued.
“How interesting”, I said to myself after
hearing this strange and exiting new argument. Could
it be possible that the international community’s approach to persecuting people
that commit unspeakable crimes in little know regions of the world be
fundamentally wrong? Could a prestigious institution within the international
justice system like the International Criminal Court be not much more
than a glorified promoter of colonialist values and ideas? Could it be possible
that our quest to bring a broader level of justice to the world is nothing more
than what William Easterly called “the white man’s burden”?[ii] Is
it possible that justice has become not much more than a publicly tradable commodity?
All of these were questions that quickly raced through my head as I was hearing
the words slowly coming out of the lecture’s mouth.
Nevertheless, as revolutionary and
innovative as these thoughts might be I certainly did not feel quite
comfortable yet with taking such a cynical view of the numerous efforts taken
by the international community to tackle mass violations of human rights around
the world. I could theoretically understand the ideas and motivations behind
the concept of ‘colonized justice’, but certainly one could also argue that the international community has a
right, if not a duty, to intervene in some capacity in those cases where a state is unable or unwilling to carry out any type
of judicial action against the perpetrator of egregious and globally
condemnable crimes. And yet somehow, as I was hearing professor Komakech speak,
this idea of the international community’s duty to intervene did not seem to resonate
with me as strongly as it had so many times before.
Is
there an alternative?
I then naturally began to ponder, to imagine
what could be a possible alternative to international interventions in the realm of judicial prosecutions. If we start
considering this idea of justice as something than can be colonized, how then
do we reconcile this concept with our desire to prevent widespread
violence and grave abuses of human rights around the world? Surely we can agree
that the need for a certain level of justice is vital in order to bring and
preserve at least the most basic level of peace, security and stability in conflict
and post-conflict areas around the world.
It was at this moment that Professor Komakech
proposed an interesting paradigm shift from our traditional, mechanistic, colonized
view of justice, into what he termed ‘organic justice’[iii].
This new approach tries to move away from a linear, interventionist, almost
exclusively punitive view of justice were the perpetrator is seen as person
that needs to be detained, tried and punished, and if the state where the crime
takes place is unable to carry this out then it is the responsibility of the international
community to do so; into an approach that rather prefers to see the perpetrator
of a crime as a person that through his acts has destabilized the relationships
of the entire community, it is then the role of the
community to repair these severed relationships.
Organic
justice in a way sees the destabilization of the relationships within the
community of paramount importance because of this puts the community in a very
vulnerable state and if these damaged relationships are not properly healed
then survival of the entire community is directly threatened. Organic justice
thus intends to move away from an approach were the focus is on which law was
broken and who needs to be charged as responsible, into one were the attention
is on how to restore the balance of the community by looking into who has been
harmed, what are their needs and what is the level of responsibility of the
perpetrator.
Traditionally
punitive approaches generally tend to maintain a level of alienation between
the perpetrator and the community, which also often prevents the perpetrator
from seen and understanding the effects of his actions on the community. Organic
justice on the other hand intends to move away from the idea that the
international community has the exclusive resources and know how to bring peace
and security to the affected areas, and rather chooses to engage throughout the
entire process the direct victims of the crime in the development of local
approaches and initiatives to peace making and relationship healing.
Now, this reestablishment or healing of
relationships is done according to a process that seeks to engage the
perpetrator and the victims through mutual discussion and dialogue. This
process of open dialogue should lead to a level of mutual understanding of the
causes and effects of the perpetrators actions in the community, and it should
also take into account the needs of the perpetrators together with those of the
victims. I believe this last point is fundamental in order to obtain a lasting
and sustainable peace.
Organic justice does not seek to reject the
marvelous progress achieved by the international legislation that seeks to
promote and protect human rights around the world, but rather hopes that we tread carefully when we see the presence of the
idea of an ‘universalized justice’[iv]. It
talks about the ever present need to decentralized justice and move it to the
communities where the crimes take place and where the relationships have been
most damaged. One could even argue that there would
be an increased effectiveness of this approach in those areas with a severe
lack of state presence, where the idea of the state is tremendously abstract or nonexistence, and where the existence of local communal forms of organization dominates.
It is important to note that this approach sees
justice as a broad, holistic, open-ended process, meaning that it should not
only touch upon all levels of communal life,
but it should also be a never ending process that requires constant work and
attention.
Organic justice and deterrence?
It was not surprising to see how controversial professor
Komakech’s views about justice were, even despite the fact that the great
majority of those attending the lecture were almost entirely fellow African professor
or African university students.
A very interesting argument was quickly raised
during the question and answer period which was the idea of ‘deterrence’. It
has traditionally been argued that one of the main strengths of punitive
justice is that it deters future offenders from committing a crime, but the
concern of how would this work in the case of organic justice was a feeling
shared by the great majority of the attendees.
With regards to this comment, Professor Komkech
stressed how the idea of deterrence as a way to stop aggression has always
relied on the fear of punishment as a method of discouraging undesired
behaviors, yet maybe we could ask ourselves how effective this approach is in
preventing crime, and specially how is it supposed to how is it supposed to be
implemented in conflicts that span borders and which are located in regions of
the world where there is hardly any presence of the state. I would personally
agree that if we suppress a person through coercion and fear it might do what you
want, but genuine redemption and understanding are generally sacrificed, and so
one must ask oneself how sustainable and profound would peace be then.
It is interesting to note that
organic justice cannot be uniform and so it can be perceived by several
communities in very different ways, but we could also argue that local
communities should not be seen as machines that cannot find ways to coalesce
and work with each other. In a sense, we could argue that structures are
impersonal and mechanistic, and so this lack of structure in organic justices
is not a weakness, but rather the source of its power and adaptability.
Final thoughts
As we contemplate all the full implications of
this view on justice, we can come to the realization that this approach has very
clear challenges. Nevertheless, this approach does not seek to deny and
invalidate the traditional punitive approach to justice, but rather to force us
to rethink our assumptions and ideas about peace, justice, colonization.
It is hard not to value the role played by
international courts or internationally established tribunals in those cases were
the main perpetrator of crimes and violence is the state itself. It is truly
remarkable the work done by the International
Criminal Tribunal for Rwanda in Arusha, Tanzania; and The Special Court for Sierra Leone in Freetown,
Sierra Leona; as well as the International Criminal Court’s indictment
of several government functionaries responsible for promotion mass violence
after the 2008 electoral process in Kenya[v]. An indictment support by a good
number of Kenyans who do not believe their own government is interested investigating
the responsibility of many of this people the incitement of mass violence and
killings.
Organic justice is not without its
challenges, most notably in those cases were the crimes committed are so
atrocious that the community has been left deeply traumatized and depleted of
their own ability to reconnect with themselves. Perhaps it is in these
situations when the international community can be most effective by
facilitation the development of local methods of relationship healing and
forgiveness.
I believe we should have a renewed respect for
the capacity of local populations to engage in process that would bring justice
to their communities, and to value the traditional customs, traditions, and
methods of conflict resolution, justice making, and healing that peoples around
the world have. Perhaps the difference lies on
whether the affected community feels engages in the healing process, perhaps at
the end justice is found in the hearts of the community, not in the hells of
the jail cell.
[i] This lecture with was given by
Professor Daniel Komakech, Head of The Department of African Studies at The
Institute of Peace and Strategic Studies from Gulu University, in the United
Nations Mandated University for Peace campus in El Rodeo de Mora, Costa Rica, on
October 23, 2012.
[ii] Easterly, William (2007). The White Man's Burden: Why the West's Efforts to Aid the Rest Have Done So Much Ill and So Little Good. New York, New York. Penguin.
[iii] The term ‘organic justice’ can also be referred to as ‘restorative
justice’, nevertheless for the purpose of this article I will give preference
to the former term over the latter.
[iv] Zehr, Howard (2002). The Little Book of Restorative Justice. New York, New York. Good
Books.
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