Justice for all

From Jurist:

Indonesia’s justice minister announced Tuesday the opening of a prison wing intended to confine individuals convicted of corruption….The wing was added to alleviate overcrowding in the Indonesian prison system and was also in response to criticism that wealthy prisoners are permitted to live in luxury. Anti-corruption reform has been one of the primary concerns of President Susilo Bambang Yudhoyono, and the opening of the prison wing highlights corruption concerns in the civilian and military branches of the government.

I think this is a great example of how the law can be used to fight corruption and white-collar crime. In a book I’ve been reading, called “The Rich Get Richer, the Poor Get Prison,” the author, Jeffrey Reiman, argues fervently that poor people are disproportionately locked up for crimes like nonviolent drug offenses, while the rich who engage in corruption and white collar crime - which often costs individuals, companies, and governments millions if not billions of dollars - often get off with far less severe sentences because they have access to high-quality counsel. Even if you compare a violent crime against one individual to a corporate crime such as corruption or embezzlement, the corporate crime often causes far more widespread economic damage.

White-collar criminals should be subject to the same laws and penalties because corruption is a serious crime that adversely affects individuals and economies. Yet, we as a society tend to consider violent crime by poor people to be far more threatening than economic crimes. White-collar crimes committed by the wealthy are often looked upon as far less severe. These conceptions have to change if the criminal justice system is to be more fair and equitable around the world.

That’s why I think Indonesia’s focus on treating white-collar and wealthy offenders the same as poorer individuals who commit crimes is commendable. Disparities in sentencing due to socioeconomic status are not only unjust and unfair, but also fail to deter crimes in an effective manner; such disparities need to be seriously addressed, and reforms like this are a good step towards justice sector reform.

Thanks to Running Chicken, I found an excellent new article by Hunjoon Kim and Kathryn Sikkink: Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries. The article basically concludes that:

We find that human rights prosecutions after transition lead to improvements in human rights protection, and that human rights prosecutions have a deterrence impact beyond the confines of the single country. We also explore the mechanisms through which prosecutions lead to improvements in human rights. We argue that impact of prosecutions is the result of both normative pressures and material punishment and provide support for this argument with a comparison of the impact of prosecutions and truth commissions, which do not involve material punishment.

If the article’s findings are correct and the statistical methodology is sound, then this is a great finding and can really help international justice move forward more confidently in the future. I am especially impressed by the finding that the normative impact of prosecutions has actually resulted in deterrence, since many have argued that international justice has not been communicated well on the ground, thus resulting in little impact on deterrence. More quantitative studies should be done on this particular question to further confirm these conclusions.

One of the questions that I had when I first read this was whether there would be a difference between post-conflict transitional justice and justice during conflict - such as the intervention of the ICC. Certainly, post-conflict transitional justice is often undertaken by regimes that are willing to prosecute members of a previous regime, and it would be understandable for those countries to ultimately have a better human rights record. However, the same cannot be said for international bodies undertaking prosecutions during a conflict, as indicted war criminals could simply exacerbate repression and continue to flout international law.

However, they addressed these questions as well, finding that prosecutions under civil wars do not have a different impact on repression than those in peace; indeed, prosecutions during civil wars may even lead to greater improvements on human rights records than prosecutions during peacetime. This is an incredible and truly groundbreaking finding, because it has applied statistical methods to the peace v. justice argument that has thus far been based on mostly qualitative case studies.

Indeed, I do think that many people are coming to the conclusion that the peace versus justice is a false dichotomy. While there was at first much backlash regarding cases in Uganda and Sudan, ultimately those who are indicted are responsible for massive human rights violations; while “peace” might depend on them temporarily, it would probably be best in the long-run if those responsible are simply taken out of the picture. I think the question now shouldn’t be whether we should wait to indict a war criminal or not, but should be about the enforcement of these arrest warrants. Faster and more efficient ways of apprehending war criminals would not only contribute to the deterrence effect, but it would also reduce the possibility of an indicted perpetrator continuing to wield power and exacerbate conflict at home.  Certainly, the challenges are numerous — but I really do think the next step should be to innovate better ways to arrest war criminals and gain international cooperation for their work, rather than to continue the debates about peace versus justice.