Here’s a thought: Imagine Osama bin Laden emerging from a cave, offering a ceasefire. In return, he wants immunity from prosecution. He won’t take up arms again, but wants an assurance that he won’t face trial or punishment.
Maybe some al Qaeda apologists will accept it, and those against the war in Afghanistan and Iraq will try to get their governments to seize this olive branch and close this blood-soaked chapter. But many, if not most, will instinctively want to reject the offer. The instinct that will guide them is the instinct for justice and, in some cases, revenge.
A fine line that is: revenge and justice. Revenge is a base instinct, with a drawn sword; justice is bewigged and clothed with noble intentions. The rule of law sets the boundary of permissible behaviour, with the state stepping in when someone breaches public order. You send aircraft into buildings, attack civilians unprovoked, lay a siege at railway stations and five-star hotels, blow up bazaars and mosques, and the state will get you, try you and punish you.
But the world is complex; reality is nuanced; and opinions differ. Even within families of 9/11 victims, some want revenge, others justice; and some want to forgive: This why judges need to be impartial and consistent in applying the law.
It is not easy to forgive. To call the South African transition a miracle does not recognize the political pragmatism behind the truth and reconciliation commission. Trying apartheid-era crimes would have kept South Africa imprisoned by its past. The commission was the result of Bishop Desmond Tutu’s compassionate vision: The commission granted immunity to those who admitted apartheid-era crimes, provided they told the truth and expressed remorse to the victims. Collective forgiveness is often easier than individual forgiveness; seeing someone who has done wrong leading a normal life can be painful for the victims. If the pain and suffering are not acknowledged, and no apology offered, some people could take the law into their hands. Lalit Maken and Arjun Das, who were never tried for their alleged role in the massacre of Sikhs in 1984, were murdered; this year, the Congress party chose not to field Jagdish Tytler as a candidate for the Lok Sabha election.
Genuine remorse can work: Recently, relatives of the victims of botched killings of innocent Iraqis were satisfied when the British officer who commanded the unit offered a genuine, heart-felt, personal apology. For some victims, an acknowledgement and apology are enough; some want compensation; some could want harsh punishment. That is why we have judges.
The delicate pas de deux between granting immunity and opposing impunity seems difficult to choreograph. It makes sense to deny immunity to those accused of genocide, crimes against humanity, or war crimes. That’s an absolute, and many lawyers practising international criminal law will rightly insist on prosecuting such crimes, even though such insistence could delay peace accords. Like our hypothetical bin Laden, many bad guys won’t give up arms unless they are promised immunity. Purists don’t like it, but peace accords are often compromises. It is an imperfect world. There should be no rest for perpetrators such as the Bosnian Serb Radovan Karadzic, the late Serbian president Slobodan Milosevic, and the Liberian dictator Charles Taylor, who have all faced trial; and there is no statute of limitations for such crimes, as the Simon Wiesenthal Center has shown, tracking down Nazis, leading to trials of the kind the octogenarian John Demjanjuk now faces in Munich.
But what about crimes that are less severe? Think of Pakistan. The National Reconciliation Ordinance, which dropped prosecution against exiled politicians so they could return and run for office, was an imperfect compromise, a nod-and-wink between an unelected general and tainted politicians.
But who can cast the first stone? Chief justice Iftikhar Chaudhry defied General Pervez Musharraf in 2007 and his removal became the rallying cry in Pakistan. But in 2000, he chose to be sworn in under Musharraf’s controversial provisional constitutional order, and he got elevated to the Supreme Court because 11 judges refused to be sworn in under that order. In 2005, he validated Musharraf’s rule. Pakistan’s politicians aren’t perfect, but as Asma Jehangir, who chairs Pakistan’s human rights commission, points out, they have fallen foul of standards of probity introduced by another unelected leader, General Zia-ul-Haq, who defined probity such that it would rule out anyone he did not consider clean. Whenever Pakistan’s constitution gets invoked, it is useful to ask: which one, and who wrote it?
It is for Pakistan to decide if the crimes of its politicians are grave enough to imperil a fragile political order. If other governments can reconcile with custodial deaths, torture and assassinations when wrongdoers admit truth, can Pakistan address impunity and immunity in an imaginative way? Justice, revenge, and reconciliation are layered terms; being tone-deaf to nuances is an odd way to say that justice is blind.
Salil Tripathi is a writer based in London. Your comments are welcome at email@example.com