The Ideal Framework for Transitional Justice

Maximizing both Restorative and Retributive Justices

Can we find an ideal balance between Restorative and Retributive Justices (from AlanKent ®).

The governments and institutions practicing transitional justice usually prioritize the punishment of perpetrators over addressing the needs of victims. Now — although said trend has been present in cases such as Bosnia and Rwanda — this does not imply that retributive justice is more valuable than restorative justice. Hence, the seeming prioritizing of punishing perpetrators is not a testament to its superior worth, but rather simply manifests the relative simplicity of retributive justice compared to its restorative counterpart. Indeed, it is clearly much “easier” — and I by no means wish to denigrate the complexity of said task — to indict and prosecute a habitually well-defined, recognized set of criminals, than attempting to assist countless victims through numerous ill-defined avenues. Not only is retributive justice’s scope much narrower, but there exist countless legal precedents of how one should deal with perpetrators of mass atrocities (some procedures are even inscribed in international law); on the contrary, there is little basis upon which one can strategize victim reparations. For starters, how is a government — or institution — even supposed to know what victims require?

Having established the reasons behind the overwhelming prioritizing of retributive over restorative justice, it is important to note that both are quite fundamental, as they hold respective significance. For starters, retributive justice is essential for the initial securement of peace; the possibility for further turmoil will persist until all major instigators of the mass atrocity are prosecuted (Minow, p. 26). The dismantlement of the system that fomented the initial atrocity is a must for the promulgation of a harmonious environment. Moreover, by taking proper legal action against the perpetrators of a mass atrocity, the (usually newly established) government of a country — or its international benefactor (i.e. an international tribunal) — establishes its credibility and demonstrates that no individual is above the law (Minow, p. 25). Through such a proceeding, the prosecuting entity diminishes the probability of future mass atrocities under its jurisdiction, as the legal action undertaken against perpetrators serves as a deterring precedent (Minow, p. 46).

The pursuit of restorative justice plays an equally critical role. While the more-immediate prosecution of perpetrators secures the peace required for further reconstruction efforts, addressing the needs of victims lays the foundation for the fomentation of long-lasting harmony; by acknowledging and acting upon victim’s necessities, the restoring entity reduces the rancor and disgruntle victims may feel towards their societal counterparts (Minow, p. 79). Moreover, victim solidarity and acknowledgement has served as a key catalyzer of reconciliation, a universal goal of all transitional justice seekers (Minow, p. 79). Compare the cases of Rwanda and South Africa; while there is still substantial room for victim reparations in the latter, the fact that South Africa’s Truth and Reconciliation Commission (TRC) provided an authentic forum for the participation of wronged witnesses — allowing for the long-overdue acknowledgment of their suffering — fomented the reconciliation between perpetrators and the aggrieved, as in the case of Mbelo and the mother’s of the “Gugulethu 7” (Long Night’s Journey into Day). In Rwanda, the gacaca trials were founded primarily to deal with the massive number of génocidaires, thereby somewhat sidelining the needs of the genocide’s victims (Human Rights Watch). The pursuit of reconciliation in Rwanda was particularly hampered by the perceived lack of proper acknowledgment of the victims’ suffering; as voiced by an aggrieved citizen, “even when the killers ask forgiveness [through the gacaca trials], it’s from the government and the Rwandan people and the victims, but they never name our names” (Gourevitch). South Africa has clearly made greater strides in its reconciliatory efforts than Rwanda; while it is unfair to lay the blame completely upon Rwanda’s seeming inability to address victims’ needs, we must highlight the importance of tending for the necessities of the aggrieved. Indeed, even partial attempts at addressing the needs of victims — as proven by the South African case study — facilitate the establishment of an authentically harmonious environment and accelerates reconciliation (Long Night’s Journey into Day). Overall, since both retributive and restorative justices are fundamental, we should attempt to find a balance between said processes, one that allow us to maximize each avenue’s benefits. However, there are several constraints we must take into account.

Ideally, transitional justice should consist of the following: in the short-term — immediately following the conclusion of violence — the prosecution of perpetrators should be prioritized, due to its fundamentality for the propagation of peace. In a concomitant fashion, the government or institution leading the charge for transitional justice should begin to lay the groundwork for the long-term pursuit of victim reparations. Once all major instigators of the mass atrocity are successfully dealt with, focus would then be shifted towards the pursuit of restorative justice. Hypothetically, the process of prosecuting the main perpetrators of a mass atrocity should take a couple of years, thereby allowing for the seemingly-prompt addressing of victims’ needs (compared to real-life standards). Additionally — in our perfect world — the government or institution pursuing transitional justice would have all the necessary means to handle both retributive and restorative processes, even simultaneously at times. Thus — at least theoretically — we could and should pursue both the prosecution of perpetrators and the addressing of victims’ needs in comprehensive manners.

Now, grounded in reality, the above formulation is clearly not achievable. For starters, concerning the need for prompt prosecution of all major instigators of a mass atrocity, one only needs to analyze the cases of former Bosnian Serb leaders Ratko Mladić and Radovan Karadžić — whom it took more than a decade to simply apprehend — to comprehend the complexity (and usually extensive duration) of attempting to process all major perpetrators (Clark). Clearly, a competent and sizable police corps, coupled with an experienced and prolific judicial body, are required to achieve the swift processing of all the main masterminds of a mass atrocity. Both elements are evidently unobtainable in a country recently emerging from a widespread campaign of violence (Human Rights Watch). By the same token, it is quite quixotic to believe that a government dealing with a wide array of pressing issues — incited by the recently-concluded mass atrocity — will attend to victim reparations (at least in the short-term) (Brankovic, p. 17). As a direct consequence of the initial dismissal of victims’ needs — and the resultant lack of planning for future reparations — the necessities of the aggrieved have not been dealt with fully in Bosnia, Rwanda and South Africa (the latter’s issues mostly concerning victim reparations). However, it is unrealistic to demand that an already outstretched and recently-developed government deal swiftly with the wide-array of victims’ needs, as it is probably already outweighed by other more crucial tasks (i.e. restoring the peace, rebuilding governmental institutions, etc.). Finally, it is also unreasonable to trust that a recovering country — or even an ad hoc international body — will dispose of the necessary resources for the proper addressing of victims’ needs; for instance, the South African government was never able to canalize sufficient funds for the compensation of apartheid’s aggrieved parties (Brankovic, p. 16–17). Similarly, whilst developed by the more prosperous United Nations, neither the ICTY nor the ICTR had enough resources to establish comprehensive reparation programs (Neuffer, p. 79–81). Overall, it is quite clear that — although a perfect execution of both retributive and restorative justices is most certainly desirable — it is quite unrealistic to expect that it can occur.

Thus, I wish to conclude by proposing a more viable alternative (i.e. a realistic form of balancing both justice avenues). Although the comprehensive pursuit of both retributive and restorative justice may be unachievable, there is certainly room for improvement concerning the historical precedents of transitional justice. It is my belief that those pursuing transitional justice should adhere to the following standards: if willing to concede a portion of its sovereignty over the matter, a country recently emerging from a mass atrocity should condone the formation of an internationally-led tribunal (similar to the ICTY/ICTR) that would henceforth prosecute all major perpetrators. Ideally, said internationally-led tribunal would be located within the country itself — if conditions allow it — to ensure that there exists sufficient interaction betwixt victims and the court’s procedures. In a parallel fashion, the local government would therefore exclusively focus on ensuring that all of the victims’ necessities are met. Whilst both tasks are still quite daunting — even when divided between the aforementioned entities — their separation will be certainly conducive to a swift management of the assignments.

The above formula is certainly not flawless; there are still countless considerations and hurdles that must be dealt with prior to its execution (especially due to the need for coordination between the local government and the international taskforce). Nevertheless, I feel that the aforementioned stratagem maximizes the available resources through specialization, making it a quite alluring avenue of action.

The novelty of transitional justice makes it a concept adept for adjustment; indeed, there is still substantial room for growth in terms of how we attempt to address the aftermath of a mass atrocity. Specifically, we must increase the amount of assets devoted to the addressing of victims’ needs, all while ensuring that the greatest amount of major perpetrators are brought to justice. Both restorative and retributive justices are fundamental for the creation of an enduring harmonious environment, and must therefore be approached in the most evenhanded and comprehensive way possible. However, the constraints that exist in the realm of transitional justice forces us to compromise, as the resources at the disposal of a crisis-emerging government are not sufficient for a thorough pursuit of both restorative and retributive justice. Therefore, I believe that a coordinated approach — with specialization as its true compass — between the international community and the local government is a must if we wish to ensure that our transitional justice goals are met in a prompt fashion.

Sources

Brankovic, Jasmina. “Accountability and National Reconciliation in South Africa”. Ediciones InfoJus: Derechos Humanos 2, no. 4 (2013): 1–17. Web.

Clark, Janine N. “The ICTY and the Challenges of Reconciliation in the Former Yugoslavia”. E-International Relations. 23 January 2012. Web.

Gourevitch, Philip. “The Life After”. The New Yorker. 04 May 2009. Web.

Minow, Martha. Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. Boston: Beacon, 1998. Print.

Neuffer, Elizabeth. The Key to My Neighbor’s House: Seeking Justice in Bosnia and Rwanda. New York: Picador, 2001. Print.

“Rwanda: Justice After Genocide — 20 Years On”. Human Rights Watch. 28 March 2014. Web.