Shun Justice Without Compassion

by Julian Burnside

Julian Burnside

In 1945 the allied forces mounted the world's first prosecution of war criminals. Europe lay shattered, and the world held its breath in horror as the first films of Belsen concentration camp were made public. In his closing address at the first Nüremberg trial, Robert Jackson, chief prosecutor for the US, said - "It is common to think of our own time as standing at the apex of civilization, from which the deficiencies of preceding ages may patronizingly be viewed in the light of what is assumed to be "progress". The reality is that in the long perspective of history the present century will not hold an admirable position, unless its second half is to redeem its first."
In the aftermath of World War II, it looked as though the second half of the 20th Century might, indeed, redeem the first. In 1948, the Universal Declaration of Human Rights set the style for human rights thinking. Its prefatory words set the tone - "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law ..." The Declaration articulated - in high prose - the essential values of a dignified humanity.
Subsequently the International Covenant on Civil and Political Rights embodied as binding commitments most of the ideals of the Universal Declaration of Human Rights. It made great promises. Its signatories - almost every country in the world - promise each other to secure for their citizens the essentials of a decent human existence. But neither the rhetoric nor the promises were able to prevent the genocide in Rwanda, the terrible ethnic cleansing in former Yugoslavia.
They were powerless to prevent the stain of Apartheid in South Africa, the widespread disappearances and torture in Chile arranged by General Pinochet, or the killing fields of Pol Pot's Cambodia. While the resounding phrases of the Universal Declaration were being crafted and polished, America was making a secret deal with Japanese war criminals. These men, scientists, had run the notorious Unit 731 in Harbin.
There they performed medical experiments on untold thousands of Chinese civilians. These experiments, including vivisection of pregnant women without anaesthetic, were as bad as anything done by Mengele in Auschwitz but they are less well known. The Americans granted the Japanese scientists privacy and immunity in exchange for their research results. The origin of recognisable human rights discourse can be found in the 18th Century.
- Leaders of the French Revolution proclaimed the ideals of 'Liberty, Equality and Fraternity'.
- In the Groundwork for the Metaphysics of Morals (1785), Immanuel Kant propounded the Categorical Imperative - "Act only on that maxim through which you can at the same time will that it should become a universal law".
- In 1791 Tom Paine published The Rights of Man - and was prosecuted for treason.
- In 1776 the American colonists signed the Declaration of Independence. Its opening words are as memorable as they are noble - "...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness..."

Alas, the ideals of the French Revolution were not evident in the Terror, which settled in blood the accounts of ages. One hundred years later, a French Army captain, Alfred Dreyfus, was falsely prosecuted for alleged espionage, but the prosecution was a monstrous fraud, driven by the deeply ingrained anti-Semitism in the Army and the Church. A hundred years after the Declaration of Independence, the US Supreme Court was forced to interpret the words of the preamble, in a suit brought by Dred Scott. He was a slave who had lived for thirteen years in a state which had renounced slavery. Relying on English precedents, he sued for a declaration that he was a free citizen of the United States. The Court held, by a 7:2 majority, that the words "all men are created equal" did not refer to African Americans. The language of the judgment is shocking to modern ears - "The question before us is whether (African American slaves) compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for ... citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority ... They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect ... (they were) bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it." (emphasis added)
It is not difficult to articulate the core elements of any human rights framework - we should acknowledge as inalienable rights those conditions which are generally regarded as indispensable for a decent human existence. Human rights do not depend on, or arise from, membership of a particular society. They arise from the circumstance of being human. With few exceptions, the elements of human rights coincide with the dictates of morality. Nevertheless, the history of the past two and a half centuries could well lead to a conclusion that human rights are really a discretionary extra - something to be allowed when time and circumstances permit. Those who speak out against breaches of human rights proceed from an assumption that human rights are a given, that they are fundamental to human existence, a necessary aspect of being human. I adopt that assumption myself. But can it be demonstrated, or is it simply an axiom adopted by some but not by all?
The American philosopher John Rawls propounded an interesting, and straight-forward, test for a Just Society:
- Each person has an equal right to the most extensive scheme of equal basic liberties compatible with similar schemes for all;
- Social or economic inequalities must satisfy two conditions
- they must benefit the least advantaged members of the society
- they must be attached to offices and positions open to all under conditions of fair and equal opportunity.

The Israeli philosopher Avishai Margalit built on this by posing the question, "Will a Society which satisfies Rawls' test of a Just Society also be a decent society?"
Put differently, is a Just Society consistent with the presence of humiliating institutions? The question is important, especially where we are concerned with the rights of outsiders - people who are not members of the society in question. Rawls is concerned with the rules which members of a given society may adopt for the distribution of the goods of that society. Margalit's question tests a society by its institutions - a society which tolerates humiliating institutions is not a decent society, regardless whether those humiliating institutions have local, or more remote, consequences. If a society tolerates a humiliating institution it undermines the decency of that society, even though that institution may be used to humiliate only outsiders. What does Margalit's question mean?
Imagine a village in which food aid is to be distributed. Each villager needs one kilogram of rice. A just distribution may be achieved by visiting each house in the village and handing out the appropriate number of rice parcels. An alternative means is to drive through the village and tip the rice parcels off the back of the truck, with police on hand to ensure that no-one tries to take more than one package. Both methods result in an equal distribution, and thus satisfy Rawls' test. But the second method is humiliating. As Margalit says - "The distribution may be both efficient and just, yet still humiliating... The claim that there can be bad manners in a Just Society may seem petty - confusing the major issue of ethics with the minor one of etiquette. But it is not petty. It reflects an old fear that justice may lack compassion and might even be an expression of vindictiveness. There is a suspicion that the Just Society might become mired in rigid calculations of what is just, which may replace gentleness and humane consideration in simple human relations. The requirement that a Just Society should also be a decent one means that it is not enough for goods to be distributed justly and efficiently - the style of their distribution must also be taken into account" Of all the goods which must be equally distributed, the most fundamental is self-respect.
Self-respect precedes other basic goods - freedom of thought, speech and movement; food and shelter; education and employment - because self-respect is necessary if a person's existence is to have any meaning at all. Without the possibility of selfrespect, a person's life has no point; pursuit of life's goals is a meaningless exercise. Margalit's argument may be criticized as a reflection of middle-class indulgence. It is an easy criticism, because it is easy to postulate circumstances where a person might sacrifice self-respect in order to gain food or shelter. So much may be conceded, but the answer is obvious. It is true that in the short term, a person may choose food rather than self-respect. Typically, this will be when the person is starving. But what of the longer term? Will a person continue with a will to live when they are denied the possibility of self-respect; when they are denied the possibility of a life worthy of a human being? As a matter of theory, but also as a matter of observation, it seems that the answer is less obvious.
In Australia's detention centres the conditions are such as to diminish, if not to deny altogether, the self-respect of asylum seekers. They are fed adequately, they are housed safely. But they are addressed by numbers rather than names; they are told in every way imaginable that they are unwelcome in this country; their life stories are contested in every detail, with a view to defeating their claims for asylum. They are treated like animals. These circumstances produce behaviour which is utterly uncharacteristic but, according to psychiatrists, utterly predictable. They harm themselves, they kill themselves, they damage the environment in which they are held. Children fail to flourish, and regress into infantile behaviour.
Pre-pubescent suicide, which is almost unheard of elsewhere, is common in Australia's detention centres. Adults become listless and depressed, or they become desperate and aggressive. Beyond all these symptoms is the dominant theme reported by a huge majority of detainees - a feeling of abject hopelessness. Whilst it would be easy to attribute this to the fact that they are denied another basic good - freedom - the fact is that these symptoms of hopelessness are rarely seen in ordinary prisons. The obvious explanation is that a prisoner understands the reason for their incarceration, even though they may contest it. Refugees cannot understand why they are locked up like criminals, even though they have committed no offence. At some deep level, they must rationalise it as reflecting a deep unworth in themselves.
Mandatory indefinite detention of innocent people is profoundly wrong. It is a denial of fundamental human rights. It is a denial of the ordinary right to liberty. It is, in every detail, a humiliating institution which denies the humanity of its victims, and diminishes the humanity of everyone who tolerates it.
For so long as the regime of mandatory indefinite detention continues in Australia, we cannot claim to be a decent, or a just, society.

Julian Burnside is one of Australia's best-known lawyers. He has acted for OK Tedi natives against BHP, for Alan Bond in fraud trials, for Rose Porteous in various actions against Gina Rinehart, for the Law Institute in relation to the Max Green affair, and for the Maritime Union of Australia in the waterfront dispute against Patrick Stevedores. Julian Burnside studied law and economics at Monash University, was admitted to practice in 1975, and became a QC in 1989. In 1981 he founded the Victorian Society for Computers and Law and was inaugurated as a life member in 1998.