The question of ‘justice’ has spawned debate about whether or not to punish perpetrators in post-conflict societies, the distinction between and comparative advantage of retributive, restorative, distributive or procedural justice. These debates are couched in the language of human rights or reconciliation, reflecting post-conflict societies’ struggles to overcome the legacy of violence and meet the needs of victims, offenders, and the wider community.
Transitional justice processes tend to focus on victims and the imperative to right past wrongs. Justice, in this sense, is variously understood as criminal trials for perpetrators, and fulfilling victims’ right to truth and reparations. Whether to pursue these goals through traditional mechanisms of modern judicial processes elicits concern over their respective inadequacies.
Ideally, justice requires that human rights violations be submitted to an indiscriminate application of human rights law. Criminal prosecution is upheld for its consistency with international human rights law, notably the obligation to punish crime. Criminal justice is believed to have intrinsic worth and is regarded as a basic ingredient of a stable democracy.
It is argued that trials establish a direct responsibility for wrongs committed and, when they result in convictions, clearly identify the perpetrators. Trials emphasise accountability. They are believed to deter future atrocities, although some critics argue that there is no empirical evidence to support this claim. They are also thought to satisfy the need of victims for the full restoration of dignity. In situations where atrocities were committed during divisive conflict, it is thought that prosecutions help to individualise guilt and responsibility, thereby reducing the possibility that the aggrieved continue to hold the perpetrators entirely responsible for their suffering.
Conversely, prosecutions have been found to be impractical and inadequate in contexts of transition. They are lengthy and costly, and therefore unattractive for societies needing to move on quickly and prioritise reconstruction and reconciliation. At the conclusion of a war, it is impossible to prosecute all offenders. Prosecuting some while leaving others can fuel grievance over perceived victimisation or discrimination, regardless of the validity of criteria used to select who to prosecute.
In Kenya, for instance, claims that selected suspects ‘were not the real perpetrators’ and that the list ‘was not representative enough’ triggered political discourse which ultimately attracted public sympathy to the suspects and obscured the quest for justice. Related to this question is the issue of scale and proportion: how many people can reasonably and practically be prosecuted for violations? This is a critical question where violations were not perpetrated exclusively by the state and organised armed groups, but by the ordinary populace as well, where ‘mobs’ participate in inter-group violence or lynching.
This form of societal complicity, or ‘popular agency’, makes it difficult to isolate individual perpetrators. In South Africa, as in Rwanda, the participation of large numbers of community members led to perceptions of community guilt, where actions of a group member were attributed to all members of that group. In Rwanda, it created the perception that all Tutsi were victims, and in South Africa, that all whites were responsible for crimes committed during apartheid. In Cote d’Ivoire, DRC and Sierra Leone, violations by state security forces, ‘private armies’, vigilantes, criminal gangs, rebel groups, and ‘angry members of the public’ blurred the line between law enforcement, on the one hand, and political and criminal violence, on the other, and obscured distinctions between vertical and horizontal accountability. Because of the multiplicity of actors and contexts within which violations take place, prosecution alone as a means to justice is clearly insufficient.
The promising thing is that advances in human rights law, civil society campaigns against impunity and advent of the ICC challenge the granting of blanket amnesties. It is no longer possible to grant amnesty in situations involving serious crimes.
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