Restricting the pursuit of justice in the post-totalitarian era to individual complaints and personal evidence is not merely a procedural deficiency; it undermines the very concept of justice and implicitly exonerates systematic crime. History, jurisprudence, and international law all affirm one truth: when a crime is state policy, accountability must be the responsibility of the state.
First: Lessons from History (Nuremberg to Argentina)
Modern justice has not been based on the individual efforts of victims, but rather on the will of the successor regimes to cleanse society:
- Nuremberg Trials: Membership in repressive apparatuses (such as the SS and Gestapo) was considered sufficient evidence for prosecution. Not every victim who disappeared in the crematoria was required to file a complaint; orders, documents, and positions served as evidence.
- The Argentine and South African Experiences: These relied on opening archives and systematic confessions. The state possesses the evidence (the archives), and the victim possesses the pain. It is unjust to burden the victim with extracting evidence from the perpetrators' dungeons.
Second: The Legal Foundation (Umar's Policy and Ali's Approach)
Justice in Islam was not a "waiting justice" but a "proactive justice":
- Accountability based on suspicion: Umar ibn al-Khattab's dismissal of governors (such as Sa'd ibn Abi Waqqas) was not contingent upon conclusive criminal proof, but rather upon "public complaints" and a loss of trust, prioritizing the interests of the nation.
- The jurisprudence of banditry and corruption: Systematic torture and enforced disappearance constitute "corruption on earth" and are among the limits set by God. The legal principle states that "public rights are not forfeited by the silence of individuals," and punishments are carried out as soon as the ruler becomes aware of the crime, regardless of the plaintiff's claim.
Third: The Legal and Logical Characterization (Where are the black boxes?)
It is illogical to require the "murdered" victim to be present to file a complaint against their killer, or the "disappeared" person to identify their captor. Adopting the principle of "complaint first" leads to:
- The impunity of the major criminals: those who ordered mass killings without the victims knowing their names.
- Transforming a public crime into a private dispute: as if systematic torture were merely a "brawl" between two individuals.
The legal obligations required of the Ministry of Justice:
- Establishing functional responsibility: Anyone who held a leadership position in a security branch or military prison is considered guilty by virtue of their position until proven innocent (reversing the burden of proof).
- Retrieving the criminal archives: Every security branch has "black boxes" (daily records, arrest warrants, "died during interrogation" reports). The absence of these files constitutes the crime of "concealing evidence," which necessitates the prosecution of those in charge of these branches.
The Ministry of Justice's duty today is to initiate a "public prosecution" against the structure of oppression, not just its individuals. Transitional justice is not complete with judges who were yesterday tools in the system of injustice, but rather with an independent public prosecution that considers "documented videos, testimonies of defectors, and reports of international organizations" as sufficient official evidence to proceed with cases.
Confining justice to the corner of "personal complaints" is a recycling of crime under the guise of legality.
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