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Extraordinary Evil, Ordinary Crime:
A Framework for Understanding
Transitional Justice
Miriam J. Aukerman °
I. INTRODUCTION
A. The ProsecutionPreference
The international debate about the use of prosecutions in transitional justice
has focused on the conditions that permit prosecuting those who commit
human rights violations. Some critics suggest that international law
imposes a duty to prosecute a former regime's atrocious crimes, and contend
that states have overstated claims that prosecutions are impossible.' These
critics contend that while governments should not press prosecutions when
there is "a genuine and serious threat to national life,"2
states should assume
"reasonable risks" associated with prosecution, including military discon-
tent.3
Other scholars, however, criticize the proponents of prosecutions for
assuming that prosecutions will be possible in the wake of human rights
disasters. Not only is an amnesty for human rights abusers often a precondition
for securing a smooth political transition,4
they argue, but "tm]any
fledgling democracies have simply not had the power, popular support, legal
tools, or conditions necessary to prosecute effectively."'
* Miriam J. Aukerman is currently a staff attorney for Westem Michigan Legal Services. She has
clerked forJudge Pierre N. Leval of the United States Court ofAppeals for the Second Circuit, worked
forthe New York and Moscow offices of the Ford Foundation, and served as the United States' rcepmntative
forthe Gulag Museum, based on the site of the Perm-36 Gulag camp inPerm, Russia. The author
would like to thank Alex Boraine, David Garland, Priscilla Hayner Charles Pazdernk, John \Witt. and
the editors ofthe HARVARD HumtN RIGHTS JOURNAL for their thoughtful comments on this Article.
1. See Diane E Orenlicher, Setting Accounts:Tke Duty toPrcsrtaeHvt.n RIgtk V:latirs' cfa Pn.rRegime,
100 YALE LJ.2537, 2548 (1991) (arguing that international law requires pmeecution of human
rights violations).
2. Id
3. Id.at 2549.
4. See Paul van Zyl, Dilemmas of TranritionalJustixTk. Casecf Sc:th Afitwuos Trmtb a=JRerm.thlzatt=
Commission,52J. Ia'r'LAFF. 647,651(1999).
5. Stephan Landsman, AlternativeResponsestoSerious HuanRisks Awes: OfPrc masttarJTruth C .--
missions, 59 LAW & CONTMP. PsoBs. 81, 84 (1996); See alsoCharles Villa-Vicencio, Why Perparatt:m
Should Not Always Be Punishuk Where the IntromticnalCrziinal Ccirt arJ Th'ih Cc-zzm:r.s ,if-s.49
EMORY I.J.205, 220 (2000) (describing the challenge ofdeciding whether or not to pro.ecute as Mdiang
between Scylla and Charybdis: "t(rhe duty to prosecute ...can shipwreck non-prosecutonal iruttaives;
HarvardHuman RightsJournal/ Vol. 15
While participants in this debate disagree as to when trials are possible in
practice, they generally share a basic assumption: prosecuting perpetrators of
injustice is the optimal method for dealing with past atrocities. 6 The assumption
that prosecutions are preferable, while perhaps not always feasible,
has fostered a belief that alternative approaches, such as truth commissions,
are an inferior substitute for prosecution. Predictably, strong proponents of
prosecution argue that "[wihatever salutary effects it can produce, an official
truthtelling process is no substitute for enforcement ofcriminal law through
prosecutions." 7
But even those who advocate non-prosecution alternatives
generally concede the desirability of prosecution.3
Such critics tend to justify
non-prosecution alternatives by referring to the difficulty of bringing perpetrators
to trial due to inadequate legal systems, the staggering number of
potential defendants, or the political consequences of trials.9
What accounts for the widespread assumption that the best way to deal
with perpetrators of serious human rights atrocities is to prosecute them?
by nations seeking seriously to move away from past gross violations of human rights. The unbridled
affirmation of national sovereignty, which may allow nations to devise a form of amnesty that bypasses
the demands ofinternational human rights, has, in turn, the capacity to negate the important advances
made in the affirmation of human rights [through prosecution]").
6 See Mary Margaret Penrose, Lest We Pail: The Importanceof Enforcement in InternationalCriminal Lw',
15 Am.U. INT'L L. Rav. 321, 373 (1999) ("Punishment, via criminal prosecutions, is perceived as the
most favored method of combating impunity.").
7. Orentlicher, supranote 1, at 2546 n.32; see alsoJuan E.Mendez, In Defense of TransitionalJustice, in
TRANSITIONAL JUSTICE AND THE RULE OF LAW INNEw DEMOctCIEs 1, 15 (A. James McAdams ed,,
1997) (arguing that using a truth commission as an alternative to criminal prosecution is "f[t]he most
extreme form oftokenism," and suggesting that "[s]ocieties that are in a position to provide both truth
and justice to the victims of human rights violations should be encouraged to pursue both objectives as
much as they can").
8. See, eg., Landsman, supra note 5, at 83 (arguing that the best response is usually the "vigorous
prosecution of perpetrators"); MARTHA MNOW, BETWEEN VENGEANCE AND FORGIVENESS: FACING
HISTORY AFTER GENOCIDE AND Mf.ASSVIOLENCE 58 (1998) (noting that most commentators believe
prosecution is the best option and truth commissions should be used only when prosecution is impossi-
ble).
9. Susan Dwyer, for example, argues that truth commissions are a morally inferior option
only if there is some other strategy a nation could undertake that would be better. For example,
if justice, in the sense offairand comprehensive trials and punishment, could be effected, reconciliation
would rightly be judged morally inferior. But the availability of realistic alternatives
is precisely what is in question in most of the situations in which reconciliation is being
recommended. Whether the establishment of truth commissions and efforts at reconciliation
are morally inferior responses to violent pasts depends on the availability of other morally acceptable
options. Where no such options exist, calls for reconciliation need not be impugned.
Susan Dwyer, Reconciliationfor Realists, 13 ETHICS & INT'L AFF. 81, 97 (1999). Seealso Luc Huyse, To
Punishorto Pardon.A Devil'sChoice, in REINING IN IMPUNITY FOR INTERNATIONAL CRIMES AND SEIOUS
VIOLATIONS OF FUNDAMENTAL HumAN RIGHTS: PROCEEDINGS OF THE SIRACUSA CONFERENCE, 17-
21 SEPTEMBER, 1998 79, 89 (Christopher C.Joyner & M. Cherif Bassiouni eds., 1998) ('[]f the balance
of forces at the time of the transition makes a negotiated mildness inevitable, a truth-telling operation
with fullexposure of the crimes of the former regime is the least unsatisfactory option."); Landsman,
supra note 5, at 83 (arguing that certain violations should always be prosecuted and that, while truth
commissions may sometimes be acceptable when "for practical reasons or on the basis of sound policy,
prosecution is inappropriate," trials are generally preferable); ARYEI NEIER, WAR CRIMES: BRUTALITY,
GENOCIDE, 'TERROR, AND THE STRUGGLE FOR JUSTICE 104 (1998) (describing the amnesty that accompanied
the South African Truth and Reconciliation Commission as the "price the black majority needed
to pay for a more or less peaceful transition").
2002 / A Franeworkfor UnderstandingTransitiona/Justice
Scholars ascribe a wide range of values to such trials. Douglass Cassel, for
example, argues that the International Criminal Courtl u
would contribute to
justice through the "identification, exposure, condemnation and proportionate
punishment of individuals who violated fundamental norms recognized
internationally as crimes, and ...reparations to their victims, by means of
fair investigations and fair trials by an authorized judicial body."" Stephan
Landsman suggests that prosecution "makes possible the sort of retribution
seen by most societies as an appropriate communal response to criminal
conduct."' 2
Moreover, he argues, prosecution can educate and deter, provide
a predicate for compensating victims, enhance the rule of law, and help to
heal a society's wounds. 13
Similarly, David Crocker concludes that "(e]thically
defensible treatment of past wrongs requires that those individuals and
groups responsible for past crimes be held accountable and receive appropriate
sanctions or punishment."'
14
Underlying such justifications is the assumption that atrocious human
rights violations are in fact crimes. The instruments of systemic savagery can
take many forms, from industrialized gas chambers to machete-wielding
mobs, from sophisticated torture chambers to steel-toed boots. But the actions
of individual human rights violators, such as murder, rape, assault, and
torture, are prohibited by almost every domestic criminal justice system.1s
Since the Western conceptual framework for dealing with ordinary crime
revolves around prosecutors, judges, and trials, it is easy to assume that the
same mechanisms should be used to deal with genocide and similar horrors.
Is ordinary crime really an appropriate analogy for massive human rights
atrocities, what Kant has called "radical evil?" 16
Ordinary crime-individual
conduct that violates domestic criminal law and is undertaken for nonpolitical
purposes-concerns individual criminals. Extraordinary evil-massive
or systematic human rights violations prohibited by international
10. In 1992 the UN General Assembly instructed die International Law Commission to draft a statute
for an international criminal court. In 1998 a conference among states was held inRomre. at %htdi
the Statute forthe International Criminal Court was adopted. This statute will enter into force aiter
ratification by sixty states. Sez HENRY STEINER & PHILiP A sasoN. INTERNATIONAL HuI2A.N RoIGnIMIN
CoNTExT 1192 (2d ed. 2000).
11. Douglass Cassel, Why We Nizd tbeInr'itsnar~lCrittzalCc.I, 116 TtE CAIISTIAN C.,TsrVY
532,533 (1999).
12. Landsman, supranote 5,at 84.
13. Id at 83-84.
14. David A. Crocker, Reckoning uwtb Past Wrongs: A Ncrratte Frar.ucrk, 13 Etics & 1sT'L Att.
43, 53 (1999).
15. The author recognizes that this discussion of domestic criminal justice systems and -ordinry
crime" reflects the American framework for criminal prosecutions. Because of the power of the Unted
States, along with other Western countries, in the international debate about pre!_--uton of human
rights atrocities, the criminal justice analogy used in that debate largely relies on Vestern assumptions
about ordinary crime. One of the points ofthis Article, however. isthat different socites have ditfternt
goals and methods flrdealing with ordinary crime. If we apply an ordinary crime analogy to tranittonal
justice, we should recognize these differences.
16. See CARLos SANTIAGO NINO, RADICAL EVIL ON TRIAL vii 11996).
HarvardHuman RightsJournal/ VoL 15
law' -involves individuals committing many of the same actions, such as
the unjustified intentional taking of human life, that constitute ordinary
crimes. The ordinary crime analogy presumes, as Martha Minow puts it, that"even ... massive horrors can and should be treated as punishable criminal
offenses perpetrated by identifiable individuals."1 Yet are genocide and ethnic
cleansing really just more egregious versions of premeditated murder?
Are they merely much larger conspiracies with many more victims? Or are
such atrocities qualitatively different from ordinary crime because of the
numbers of victims involved and because they are typically undertaken or at
least countenanced by state or quasi-state actors for political reasons?
Moreover, would such qualitative differences require different responses and
remedies?
Assuming that the analogy of extraordinary evil to ordinary crime is an
appropriate framework within which to examine transitional justice, one
must ask, why do societies prosecute ordinary crimes? The short answer is
that different societies have different goals for criminal justice. Even within
societies there are often fundamental disagreements about the purposes of
domestic criminal justice. For example, in the United States, there is a de-
17. For the purposes of this paper, terms such as "extraordinary evil," "radical evil," "massive human
rights abuses," or "mass atrocities" are intended as a short-hand for a wide range of conduct, such as that
specified inArticle 7 of the Rome Statute of the International Criminal Court:
For the purpose of this Statute, "crime against humanity" means any of the following acts
when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge ofthe attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental
rules of international law;
(W Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any
other form of sexual violence ofcomparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender... , or other grounds that are universally recognized as impermissible
under international law, in connection with any act referred to in this paragraph or
any crime within the jurisdiction of this Court;
(i) Enforced disappearance ofpersons;
(j) The crime ofapartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious
injury to body or mental or physical health.
Rome Statute of the International Criminal Court, 37 I.L.M. 999 (1998), reprintedin part in STEIN8r,
supra note 10, at 1192, 1193. See alsoJohn E Murphy, Civil Liabilityfor the Commission of International
Crimesasan Alternativeto CriminalProsecution, 12 HARV. Hus. R'rs. J. 1, 19-20 (1999) (distinguishing
crimes against humanity from ordinary crime on the grounds that the former "involve either atrocities on
a large scale or a policy of acting in a preconceived or systemic way," and noting that there has been a
shift away from requiring state action to transform ordinary crime into crimes against humanity); Kristin
Henrard, The Viability ofNationalAmnesties in View ofthe IncreasingRecognitionof IndividualCriminalResponsibilityat
InternationalLaw, 8 MVcH. ST. U.-DETROIT C. L. J. INT'L L. 595, 605-09 (discussing
definitions ofinternational crime).
18. MINOW, supranote 8, at 25.
2002 / A Frameworkfor UnderstandingTransitionalJustice
bate about whether offenders should be punished in prisons or rehabilitated
in half-way houses; whether or not harsh sanctions have an appreciable deterrent
effect; and whether or not reconciliation programs can be attached
effectively to prosecutions. Despite such disagreements, however, in the
West the determination of individual culpability through prosecution is
commonly regarded as necessary to redress criminal actions. The widely held
faith in prosecution-whether the goal is punishment or deterrence, condemnation
or rehabilitation-disguises disputes about the underlying purposes
ofcriminal justice.
This Article, while discussing and employing the ordinary crime analogy,
ultimately questions the utility of this analogy. The aim here is to examine
the reasons why societies prosecute and punish "common criminals," and to
question whether prosecutions are the best method of redressing criminal
actions in the context of transitional justice. Specifically, this Article will
challenge the assumption that prosecutions are always the best way to pursue
justice in societies in transition by arguing that the choice between
prosecution and non-prosecution alternatives should depend on what one is
seeking to achieve.
The best known alternative to prosecution is the truthcommission. However,
truth commissions are not the only alternative; other options include
reports by international delegations, lustration, civil liability, reparations,
and historical inquiry.19 Additionally, each of these alternatives may take
many different forms.20 The purpose of this Article is not to champion any
specific alternative, although contrasts will be drawn betveen prosecution
and alternative mechanisms-particularly truth commissions-in order to
highlight the distinctive features of prosecutions. Rather, this Article will
challenge the primacy of prosecution and will argue for goal- and culturespecific
responses to mass atrocity.As the term "non-prosecution alternative"
suggests, prosecution21 and forgetting are nor the only options available in
the context of transitional justice.
19. See, eg., ML CherifBassiouni, Searchingfor Pce andAdin ng jettca TcNhiviAccngt..c dtt 59
LAw & CONTEMP. PROBS. 9, 20-22 (1996) (listing a variety of accountability mechanisms; Murphy
supra note 17, at 47-55 (arguing fbr the viability of civil liability as an alternative 1o prvAccutons), Roman
Boed, An Evaluation f the Legality andEf/jcai ofLatratica as a Tcl cfTrantt:alJuttte, 37 CoLIi1.
J. TRANSNAT'L L 357 (1999) (questioning the ability of lustration to achieve the goals of transitional
justice); Graciela Fernandez Meijide er al., The Role of Hiocriwalluquiry inCratir AecezalthtyjJr Human
Rights Abuses,12 B.C. THIRD WoRLD UJ.269 (1992).
20. See,eg., Priscilla B. Hayner, Fifteen Truth C':,fissins-1974 to 1994: A Cc=parattwStcrty,16
HUm. RTs. Q. 597 (1994) (describing a wide variety of truth commissions).
21. In this Article the term "prosecution" is used to refer to both domestic and international efforts to
bring perpetrators to trial. Some statesmen and scholars have argued that international prosecutions are
necessary because domestic trials often do not meet due process standards. S, eg.. Seth Mydans, T,
Shape ofJustice Is Undefin d in Cambodia, N.Y. TorEs, Dec. 5, 1999. at A4 (quoting Kofi Annan as demanding
international control over efforts to prosecute Khmer Rouge leaders on the grounds chat
"crimes of such a magnitude demand a judicial process that answers to the highest norms of integrity and
law"). Although there may be differences in the extent to which domestic versus international prosecutions
can meet the traditional goals of criminal justice while simultaneously respecting defendants'
rights, such a comparison is beyond the scope of this Article. See Neil J. Knz. Cc--ng n, Tra th
44 HarvardHumanRightsJournal / Vol, 15
The social and political realities of a particular transitional context will
affect the kind of justice that can be pursued. Before one determines whether
or not prosecution is feasible, however, one must ask if it is even desirable.
Prosecutions are better designed to achieve some goals than others. Nonprosecution
alternatives are indeed a second-rate option when prosecution,
though politically difficult, would best serve the goals of transitional justice,
But one cannot presume the inferiority of non-prosecution alternatives
without first articulating the desired goals of transitional justice. Some goals
can be best achieved through non-prosecution alternatives, regardless of
whether prosecutions are politically feasible. As Argentinian philosopher
and human rights activist Carlos Nino has suggested, "the extent of the
duty of a government.., to prosecute past human rights abuses depends...
on the theory that underlies the justification of punishment."22
In other
words, we must decide what we want from transitional justice before we can
decide ifprosecutions are the best way to achieve it.
B. The GoalsofCriminalJustice:An Overview
In the context of domestic crime, penologists have provided a variety of
theoretical frameworks for justifying punishment and for dealing with offenders
and the crimes they commit.23
These approaches may be classified
generally as: desert/retribution/vengeance, deterrence, rehabilitation, restorative
justice, and communication/condemnation/social solidarity.2 4
This
Atrocities: A Review ofAccountability AMechanismsforMass Violations ofHuman Rights, 59 LAw & CONTIMP.
PRODS. 127, 129-33 (1996) (discussing the advantages and disadvantages ofinternational and domestic
prosecutions).
22. Carlos S. Nino, The Duty to PunishPastAbuses ofHuman RightsPut into Context: The Caseof Argcttina,
100 YALE L.J.2619, 2620 (1991).
23. See generally PRINCIPLED SENTENCING: READINGS ON THEORY & POLICY (Andrew von Hirsch &
Andrew Ashworth eds., 2d ed. 1998); CONTEMPORARY PUNISHMIENT: VIEWS, EXPLANATIONS, AND
JUSTIFICATIONS (Rudolph Gerber &Patrick McAnany eds., 1972); THEORIES OF PUNISHAtENT (Stanley
E. Grupp ed., 1971); ANDREW VON HIRSCH, CENSURE AND SANCTIONS (1993); NIGEL WALKER, WiY
PUNISH? (1991).
24. Notably absent from this list is incapacitation, rendering the offender incapable of reoffending
through physical restraint. Unlike rehabilitation, incapacitation does not aim to change or improve the
offender in order to make her less likely to offend; rather, incapacitation seeks to impede the person from
carrying out whatever criminal inclinations she might have. See generallyAndrew von Hirsch, Incapacitation,
in PRINCIPLED SENTENCING: READINGS ON THEORY & POLICY supra note 23, at 88,
Because the concept of incapacitation has been almost utterly absent from the debate about how and
why to punish perpetrators of mass atrocities, a detailed comparison of the concept in the contexts of
criminal and transitional justice has been omitted. Several points are nonetheless worth making. First,
prosecutions for human rights atrocities are generally not undertaken where the perpetrators remain an
immediate threat, or where there is a realistic danger that the forces responsible for past abuses will
remain in power or attempt to regain it. As Van Zyl notes, in the South African case, "[t]he former government
and its security forces never would have allowed the transition to a democratic order had its
members, supporters or operatives been exposed toarrest, prosecution and imprisonment." Van Zyl, supra
note 4, at 650. Even after a transition has taken place, potential defendants may be "an integral part ofan
intact military establishment fully capable of bringing down the government if too directly threatened,"
Landsman, supra note 5, at 84. Thus, in the transitional justice context, prosecutions are rarely used to
incapacitate those persons likely to reoffend. In fact, prosecutions may be avoided precisely because they
may make particular perpetrators who remain dangerous even more dangerous. Second, to the extent that
2002 / A Framwworkfor UnderstandingTransitionalJustice
Article will argue that although each of these themes is relevant to transitional
justice, none can blindly be transposed from the domestic context.
Each of the five main Sections below corresponds to one approach, and will
begin with a brief outline of the theoretical underpinnings of that approach
as applied in the domestic context. Each Section then considers the implications
of that approach for transitional justice, highlighting the ways in
which the scale and nature of "radical evil" complicate not only the pursuit
of the five possible goals of punishment, but also the very analogy of extraordinary
evil to ordinary crime.
Prosecution can certainly satisfy a society's demand for retribution in reaction
to massive human rights violations. However, if in reaction to massive
human rights violations a society seeks to achieve another of the possible
goals of punishment, a nuanced inquiry is required to determine which
mechanism would be best suited to that goal. In order to decide whether
prosecution or non-prosecution alternatives are more likely to promote deterrence,
restorative justice, rehabilitation, or condemnation, we need a
clearer understanding of what these concepts mean in the context of transitional
justice, as well as how they might apply in a country undergoing
transition.
If the appropriate mechanism for confronting grave human rights violations
depends upon specified goals, who has the authority to set these goals?
If transitional societies themselves have the right to decide, then we must
recognize that different societies will have differing goals.2
Some societies
emerging from mass trauma will demand retribution, while others will focus
on compensation. Still others may concentrate on rebuilding a shattered
economy or on strengthening democratic institutions. If different societies
want different things, and if prosecution is a more effective tool for achieving
some goals than others, we cannot presuppose that all societies in transition
should choose prosecution.
exile offbrmer leaders serves to insulate post-transition societies from powerful former leaders, itcan be a
form of incapacitation. When faced with the threat of prosecution, abusive rulers may be less willing to
give up power, making it more difficult to incapacitate them. Thus prosecutions, because [hey make it
harder to find a "safe"country of exile forformer dictators, can run counter to the goal of incapa tation.
Third, it is usually impossible to incapacitate all of those individuals who have been involved in past
abuses. Yet it is unclear whether incapacitation of a few key leaders will successfully inoculate society
against the danger that such crimes will be repeated. Moreover, while incapa.itation is justified by the
individual's predisposition towards crime, in cases of mass violence the link between individual
dangerousness and the likelihood ofinvolvement in future atrocities is less clear.Finally; one might think
in terms ofincapacitating a system ofabuse, rather than incapacitating individual offenders. The tmrtment
of Germany after World War I is the classic example of the failure of soetal mcal"actation unposed
from the outside. Disarmament and heavy reparations were supposed to prevent Germany. beltved
to be inherently aggressive, from acting on these intentions. Where incapacitation reflects a society's
decision to check its own worst impulses, however, it need not be so monumentally unsuccessful. One
could, for example, envision a post-transition commitment to civilian control of the armed forces, independence
of the judiciary, and the rule of law as an effort to restrain tendencies towards military coups,
victor's justice, and unbridled vengeance.
25. SeeMAtNow, supra note 8, at 4 (describing differing survivor responses to collective violence).
HarvardHumanRightsJournal / Vol. 15
If, on the other hand, the international community has the right to set
goals for transitional justice, we must ask whether or not the international
community even agrees about what the most important goals should be.26
An indiscriminate duty to prosecute 7
assumes that the international community
shares a fixed hierarchy of goals, agrees that these goals are best
served by prosecution, and feels comfortable imposing such a vision on the
society in question. Certainly there is at least superficial agreement that human
rights atrocities should be prevented and condemned. But this limited
consensus provides little aid in deciding how to prioritize these two goals as
against others, nor does it signify complete agreement that prosecution is
the best way to prevent future atrocities or communicate shared outrage.
Moreover, even if the international community could make a clear choice as
to its goals and the means of achieving them, it is not obvious that such an
international strategy should trump the wishes of the local society.28
Those
who have not suffered cannot presume to determine for those who have what
should be attempted through transitional justice.29
Domestic criminal justice
systems have sometimes been criticized for ignoring the needs and desires
of victims, for "stealing conflicts" from those involved.30
Similar problems
will arise if transitional justice reflects only the priorities of the international
community (or of powerful states within it), and not those of the
affected country.
Of course, the international community does have both a role and an interest
in transitional justice. Just as ordinary crime is not simply an offense
against the individual victim but against the entire society, so extraordinary
evil is not merely an assault on the particular traumatized society but on
humanity as a whole. As a result, the choice of retribution or deterrence,
reconciliation or condemnation cannot be left solely to either the international
community or the local society. Transitional justice must reflect the
needs, desires, and political realities of the victimized society, while at the
same time recognizing the international community's right and responsibil-
26. While particular societies may also suffer from disagreements about appropriate goals and meth.
ods, states-unlike the international community-have governments and political processes for resolving
such conflicts.
27. See, e.g., Orentlicher, supranote I passim (arguing that international law imposes a duty to prosecute
massive human rights violations).
28. An example of the tension between local and international control can be seen in the case of
Rwanda. While the Rwandan government initially requested that the UN Security Council establish an
international tribunal, Rwanda became dissatisfied with various aspects ofthe resulting plan, and cast the
only vote against the establishment of the tribunal. See Penrose, supranote 6, at 342-43.
29. See Paul van Zyl,Justice Without Punishment: GuaranteeingHuman Rights in TransitionallSodcej, In
LOOKING BACK/REACHING FORWARD: REFLECrIoNs ON THE TRUTH AND RECONCILATION CoMiisSION
OF SOUTH AFRICA 42, 52 (Charles Villa-Vicencio & Wilhelm Verwoerd eds., 2000) (suggesting that
one ofthe factors in determining whether a state should be able to derogate from the obligation toprosecute
is whether or not there is convincing evidence that the majority of citizens have freely chosen the
transitional justice policy endorsed by the state).
30. See Nils Christie, Conflicts as Property, in PRINCIPLED SENTENCING: READINGS ON THEORY &
POLICY supra note 23, at 312, 312 (arguing that conflicts can be seen as a form of property the state
appropriates through the criminal justicesystem).
2002 / A Frameworkfor UnderstandingTransitionalJustice
ity to intervene. In practice, the balance between domestic and international
control over transitional justice will likely be determined in large part by
the political realities ofa particular transition.3 1
Nonetheless, we must think
more carefully about the extent to which transitional justice should reflect
local rather than international choices.
This Article does not suggest that any one of the goals discussed below
should be given priority, either in general or with regard to any particular
society considering how best to come to grips with its past. Indeed, since
the choice ofgoals will affect the choice of mechanisms, and since the choice
of goals and effectiveness of mechanisms will depend at least in part on cultural
factors, it would be far from realistic to suggest that any one means of
dealing with the past will always be superior. The main thrust of this Article,
then, is that greater honesty in explaining why we punish those who
commit horrific abuses will clarify what transitional justice can achieve, and
increase the likelihood of achieving it.
C. Assumptions
Before moving to a discussion of each of the different approaches, it is
necessary to identify three assumptions implicit in this Article. First, forgetting
is unacceptable. In part this isbecause victims of horrible atrocities are
simply unable to forget. Without some form of accounting, past atrocities
inevitably fuel future ones.32
A nation's unity, explains Chilean human
rights advocate Jos6 Zalaquetr, "depends on a shared identity, which in turn
depends largely on a shared memory. The truth also brings a measure of
healthy social catharsis and helps to prevent the past from reoccurring." -3
Truth and accountability are essential if traumatized societies are to begin
resolving their political, ethnic, racial, and religious conflicts through democratic
processes, rather than through torture, rape, and genocide. The recent
horrors in Rwanda and the former Yugoslavia can be attributed in part to
the failure to confront earlier ones. By contrast, denazification contributed to
the stability of Germany's post-war democracy.34
As Richard Goldstone, the
former chief prosecutor for the International Criminal Tribunals for the former
Yugoslavia and Rwanda, has noted, "Itheonly hope of breaking cycles
of violence is by public acknowledgement of such violence and the exposure
31. The physical location of human rights abusers, and the willingness of local authonres to hand
them over, are significant Factors in determining the extent of local control over transitional justice. Far
example, the international effiirts to prosecute Augusto Pinochet were possible because he was abroad.
and hence could bearrested. Where international prosecutions depend more heavily on local cooperation,
local communities will have more say in the form oftransitional justice adopted.
32. Kritz, supranote 21, at 127 ('[to suggest] that individuals or groups who have been the victims of
hideous atrocities will simply forget about them or expunge their feelings without wime form of accounting,
some semblance ofjustice, is to leave in place the seeds offuture conflict-).
33. Jos6 Zalaquett, BalancingEthiralImprtites and PclitizalCcwstraints:Tk Dz4=c-a cf Neu Dt=erades
ConfrentingPastHuman RightsVilations,43 HAsTnGs LJ.1425. 1433 (1992).
34. See KRK OSIEL, SS ArRocrn; COLLECrivE MIEMORy, AND THE Lw 193 (1997) (noung dur
trials ofNazi officials allowed for the creation ofa new German identity).
HarvardHuman RightsJournal / Vol. 15
of those responsible for it."
3 5
Victims have a deep need for acknowledgment,
he continues, and they "cannot get on with building the future until their
calls for justice have been answered. '36
Amnesia or blanket amnesties without
any recognition of the past are simply not an option.37
Second, if prosecutions are undertaken, they must comport with accepted
standards of due process. While this may seem obvious, in fact procedural
abnormalities are common in trials undertaken in transitional contexts,3 8
Jon Elster has cataloged the use in such prosecutions of exceptional measures,
including illegal internments, the presumption of guilt, biased selection
of judges and jurors, lack of appeals mechanisms, collective guilt, and
retroactive legislation.39
Moreover, it is not self-evident that punishment
undertaken in the name of transitional justice necessarily requires trials. For
example, as World War II drew to a close, Britain and Russia argued for the
summary execution of their enemies: to them, the crimes were so apparent
that no trial was necessary.4 0
Although a number of German war criminals
were eventually tried at Nuremberg, elsewhere summary executions did take
place; in post-World War II France, between 20,000 and 50,000 alleged
collaborators were assassinated. 41
When trials are eschewed, the criminal
justice analogy is typically replaced by an alternative conceptual framework.
For example, political leaders who have insisted that evidence against those
who orchestrated the recent World Trade Center and Pentagon attacks need
not be sufficient for an indictment in a court of law have done so within the
framework of a "war on terrorism."4
2Within this framework, terrorists may
be punished without trials or due process. However, if the conceptual
framework were to shift back to criminal justice, and suspected terrorists
were to be brought to trial, due process safeguards should still apply, just as
they have in other terrorism-related trials.43
35. Richard Goldstone, Exposing Human Rights Abuses-A Help or Hindrance to Reconciliation?, 22
HASTINGS CONST. L.Q. 607,615 (1995).
36. Id.
37. See Nino, supranote 22, at 2630.
38. SeeJon Elster, Coming to Terms with the Past:A Frameworkfor the Study ofJustice in the Transition to
Democracy, 39 EUR. J. SoC. 7, 24 (1998) (arguing that procedures used in dealing with the past tend to be
exceptional).
39. Id.at 24-26.
40. See MINOW, supra note 8, at 29.
41. Roy C. Macridis, France: From Vichy to the FourthRepublic, in FROM DICTAToRsIP TO DutMocRACY:
COPING WITH THE LEGACIES OF AUTHORITARIANISI AND TOTALITARIANISM 161, 171 (John ff.
Herz ed., 1982).
42. See, e.g., Suzanne Daley, NATO Says U.S. HasProofAgainst bin Laden Group,N.Y. TIMEs, Oct. 3,
2001, at Al (quoting U.S. Secretary of State Colin Powell as stating that although the U.S. had "pretty
good information" establishing the guilt ofOsama bin Laden, "it is not evidence in the form of acourt
case"); Elizabeth Bumiller, Bush Pledges Attack on Afghanistan Unless It Surrenders bin Laden Now, N.Y.
TIMES, Sept. 21, 2001, at Al (quoting U.S. President George Bush as framing the American response to
the September 11, 2001 attacks as a "war on terrorism").
43. For example, the United States postponed the execution of Timothy McVeigh, convicted of the
bombing of the Federal Building in Oklahoma City, until the judiciary could review the government's
failure to turn over materials to which the defendant was entitled as amatter of law.
2002 / A Frameworkfor UnderstandingTransitionaIJustice
While certain procedural deviations may be acceptable-a relaxed application
of the concept of nulla poena sine lege, for example-basic due process
rights should be respected, even when those on trial are accused of genocide.4
There are ethical as well as practical reasons to respect defendants'
rights. By upholding standards of fairness, one can, in Vaclav Havel's famous
words, show that "we are not like them."4
' Due process is designed in part
to protect the innocent from punishment and prevent excessive punishment
of the less guilty. But due process is also what gives legitimacy to trials and
convictions. Much of what prosecutions can achieve, from communicating
reprobation to legitimating societal demands for revenge, depends for its
success on a public belief in the fairness of trials. The failure to adhere scrupulously
to fair trial standards and apply laws equally may lead to the perception
that trials are merely exercises in partisan politics or victor's jus-
tice.
46
Of course, due process requirements must also apply to non-prosecution
alternatives. For example, the ongoing debate about whether truth commissions
should make public the names of offenders reflects the concern that
those individuals have not had the chance adequately to defend themselves.4 7
Arguably, however, there is a critical distinction between due process in the
non-prosecution and prosecution contexts. When applied to non-prosecution
alternatives, due process is an inherently flexible concept. 48
For example, due
process might require more procedural safeguards if a commission can strip
offenders of their jobs than if it can merely publish reports about their conduct.
In criminal prosecutions, by contrast, there is a fairly fixed idea of
what due process means, reflecting in part the severe consequences of a
44. Se, eg., fNow, supra note 8, at 50 (arguing that because one important goal of trals is to promote
human rights, they should be used only where there is a chance for or the percepton of firnts).
45. Quotedin The Center far Security Policy, "Fra'Czzloiaki.&a?Shadzis crr i: Trawtt:, at http:j/
www.security-policyorglpapersl19909O-55.html (last visited Nov. 7, 2001).
46. See Kritz, supra note 21, at 137.
47. For example, Jos6 Zalaquert, a commissioner on the Chilean Truth Commission, has argued that
"[io name culprits who had not defended themselves and were not obliged to do so would have been the
moral equivalent to convicting someone without due process." RrPoRT OF THE CHLEAN NAxtom.
COmmISION oN TatrTII AND REcoILATiON .xtxii (Phillip E. Berryman trans., 1993), Su-ah, Hayner,
supra note 20, at 647-50 (examining the debate about whether or not truth commissions should name
names, and reporting on the practices ofindividual truth commissions).
48. The American jurisprudential approach to due process is helpful in understanding that due process
can mean different things in different contexts. As the U.S. Supreme Court noted in Xtatkt,,i c El.
dridge,
due process generally requires consideration ofthree distinct factors: First, thce prvate interest
that will be affected by the official action; second, the risk of an erroneous dep~nitatn of such
interest through the procedures used, and the probable value, ifany. ofadditional or substitute
procedural safeguards; and finally, the Government's interest, including the functon involved
and the fiscal and administrative burdens that the additional or substitute procedural requirement
would entail....
424 U.S. 319, 335 (1976). In considering 'what process is due," U.S. courts havegenerally attempted to
determine which of the procedural formalities of a trial should be incorporated into the ministrative
proceeding. See Judge Henry Friendly, Soe Kird of Hcarmg, 123 U. PA. L Rrv 1265 (1975) (lsting
possible ingredients ofdue process).
HarvardHumanRightsJournal / Vol. 15
criminal conviction. Despite considerable variation among legal systems,
"fair trials" are generally understood to require a set of basic rights, such as
the right to an impartial tribunal, the right to counsel, the right to crossexamine
one's accuser, and the right to present evidence in one's own de-
fense.49
Respecting due process requirements certainly makes it harder to convict
human rights violators, just as it makes it more difficult to convict common
criminals. While we must be willing to pay this price, it can be dear indeed.
In the case of Chilean ex-dictator Augusto Pinochet,' 0 a Chilean appeals
court suspended his prosecution on the grounds that he was not mentally fit
to stand trial."1 Human rights activists argued that Pinochet's illness was
exaggerated and that he "could [have] befen] tried without a violation of
due process."52 But given the court's finding of incompetence, due process
under Chilean law prohibited Pinochet's prosecution.53 Less well-known is
the case of Jean-Bosco Barayagwiza, a Rwandan media leader who incited
Hutus to take up arms against Tutsis and who has been called the "number
49. For example, Article 21 of the Statute of the International Tribunal for the Former Yugoslavia
provides:
1. All persons shall be equal before the International Tribunal.
2. In the determination of charges against him, the accused shall be entitled to a fair and public
hearing, subject to article 22 ofthe Statute.
3. The accused shall be presumed innocent until proved guilty according to the provisions of
the present Statute.
4. In the determination of any charge against the accused pursuant to the present Statute, the
accused shall be entitled to the following minimum guarantees, in full equality:
(a) to be informed promptly and in detail in a language which he understands of the nature
and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to communicate
with counsel ofhis own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal assistance of
his own choosing; to be informed, ifhe does not have legal assistance, of this right; and to have
legal assistance assigned to him, in any case where the interests ofjustice so require, and without
payment by him in any such case if he does not have sufficient means topay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and
examination ofwitnesses on his behalf under the same conditions as witnesses against him;
(0 to have the free assistance of an interpreter if he cannot understand or speak the language
used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt.
Statute of the International Tribunal for the Former Yugoslavia, Article 21, at http://www.un.org/ictyl
basicstatut/stat2000.htm#21 (last visited Oct. 10, 2001). Virtually identical language is contained In
Article 20 ofthe Statute of the International Tribunal for Rwanda. See Statute of the International Tribunal
for Rwanda, at http://www.ictr.org (last visited Oct. 10, 2001).
50. Augusto Pinochet ruled Chile from 1973 until 1990, after taking power in a violent coup. An estimated
3,200 people were executed or "disappeared" during General Pinochet's rule, and tens of thou.
sands more were tortured. Clifford Krauss, Chile's Effort to Try PinochetIs Running Out of Steam, NY.
TmsaS, June 25, 2001, at A3.
51. See Human Rights Watch, Pinochet Decisions Lamented, at http://www.hrw.org/pressl2001/07/
pino0709.htm (last visited Oct. 4, 2001);seealsoKrauss,supranote 50, at A3.
52. Human Rights Watch, supranote 51.
53. Id.
2002 / A Frameworkfor UnderstandingTransitionalJustice
one" culprit in the Rwandan genocide.54
In November 1999, the International
Criminal Tribunal for Rwanda ("CICTR") dismissed the case against
him on the grounds that Mr. Barayagwiza's fundamental rights had been
violated by prolonged detention without trial.5 Respecting the speedy trial
rights of a perpetrator responsible for the deaths of thousands is one cost of
using a prosecution-based approach premised on the rule of law.56
Due process requirements also affect who is prosecuted. For example, in
deciding how to focus the limited resources of the Office of the Prosecutor of
the International Criminal Tribunal for the Former Yugoslavia (ICTY"),
Richard Goldstone and his colleagues had hoped to target those who
planned and ordered the commission of crimes, rather than those who simply
undertook them. But because the Tribunal requires sufficient evidence
for guilt to be proven beyond a reasonable doubt, and because there was often
not enough evidence to establish who ordered the commission of the
atrocities, the Office of the Prosecutor was forced to focus on lower-level
cases where a longer paper trail and more witness testimony were available.17
Thus, the evidentiary requirements of due process may make it not only
generally more difficult to convict, but also particularly difficult to convict
those who are most culpable.
The third assumption implicit in this Article is that prosecutions are necessarily
selective. Often entire societies are implicated in atrociries.5s
As Jos6
Alvarez notes, massive human rights violations "usually involve massive
complicity by large numbers of perpetrators, at all levels of domestic and
international society, and not merely by a select group of government
elites."'59
Most commentators recognize that in the wake ofsuch widespread
guilt, only a small number of even the worst perpetrators will ever stand
trial. Because mass atrocities are generally perpetrated by a large number of
54. Christopher S.Wren, U.N. TriunalWrong to FretTcp Susa. Ruz.mda Says, N.Y TWES, No-. 12.
1999, at A10.
55. I
56. One can disagree about whether or not due process requires a speedy tral for Sgcrdaffa or about
how long a person may legitimately be detained without trial. For example, some jurisdictions have
created exceptions tostandard speedy trial requirements in murder cases. St,eg., N.Y. Cwtsa. Paoc- Lime,
§ 30.30(3Xa) (2001) (establishing that statutory speedy trial requirements are inapplicable for defendanis
charged with murder). Even in the absence of any right to a speedy trial forEtrodaers,however, the
basic problem remains. Due process will sometimes require placing a higher prionty on protecting the
rights ofdefendants than on establishing their guilt. As a result, some of the guilty will go free.
57. See Goldstone, supranote 35, at 617.
58. For example, ofthe Rwandan genocide, Bernard Mfuna has said,
mhe genocide in Rwanda was five times faster dan de one in Germany. even though the
German genocide had gas chambers. If you take the lower figure of 500.000 people killed you
are looking at 5,000 people a day. If you take the higher figure of one million people killed,
you are looking at 10,000 people killed a day without guillotines or gas chambers. Instead,
most of the killings were done with match heads [sic] and spears. This meant dt a large proportion
ofthe population were (sic] implicated for this to succeed.
Bernard Muna, Conferae en War Crime Triunals: Tk Ruardan Tritsal arJis Rdlatsz".skp tiNaut=l
Trialsin Rwanda, 13 AL U. L'n'L L REV. 1469, 1480 (1998).
59. Jos6 E. Alvarez, CrimesofStareslCrimes ofHate Lcscsufr_ Ruar.a,24 YALE J. IN-r*L L 365. 467
(1999).
HarvardHumanRightsJournal/ Vol 15
people, "[pirosecution of every single participant in the planning, ordering,
or implementation of the atrocities in question-not to mention all those
who collaborated with them-would be politically destabilizing, socially
divisive, and logistically and economically untenable." 60 Indeed, even the
strongest advocates of prosecution do not believe that it is possible to prosecute
every perpetrator.61The fact that the ICTY has only two trial chambers
demonstrates that, in Goldstone's words, it only has the capacity to try "a
relatively small number of cases. '6 As of October 2001, sixty-one accused
had appeared in proceedings before the ICTY. Only twenty-three defendants
had been tried, of whom two had been acquitted, and twenty-one convicted.63
As of September 2001, there had been fifty-two ICTR detainees, of
whom one had been acquitted, three had pled guilty, and five had been con-
victed."1
Prosecutions, in part because of the due process requirements involved,
are also expensive. 6' Costs escalate if trials are held outside of the transitional
country, as witnesses and evidence must be transported to the distant forum.
Criminal justice resources-not only funds, but staff and expertise as wellmay
be sufficient to prosecute "only a small fraction of those responsible for
gross violations of human rights. '66
In its efforts to prosecute widely, the
Rwandan government has confronted the problem of inadequate resources.
While at least 1420 people have been tried, Amnesty International has reported
that some trials have been unfair, that tens of thousands of genocide
suspects have been detained for years under horrible conditions, and that due
to the backlog the government plans to introduce a system for handling
lower-level offenders which "do[es] not conform to basic international standards
for fair trials."16
As Paul van Zyl notes, "[clriminal justice systems...
are designed for societies in which the violation of law is the exception and
60. Kritz, supra note 21, at 138-39. See also Report to the United Nations Secretary-General, 16
March 1999, Human RightsQuestions,Including AlternativeApproachesfor Improvingthe Effcctive Enjoyncnt of
Human RightsandFundamentalFreedomsin Cambodia,U.N. Doc. A/5318501/19991231 106 (heteinfter
CambodiaReport] (arguing that prosecutions in Cambodia should be limited to top leaders because an
effort to try all perpetrators would be "logistically and financially impossible for any sort oftribunal that
respects the due process rights ofdefendants").
61. See, e.g., Orentlicher, supranote 1,at 2601 (arguing that international law does not require prosecution
of all offenders).
62. Goldstone, supranote 35, at 617.
63. See Fact Sheet on ICTY Proceedings, at hrtp://www.un.org/iccy/glance/procfact-e.htm (last updated
Oct. 10, 2001). See alsoPenrose, supranote 6, at 368 (noting that during the first six years ofopera.
ion, the ICTY completed only six trials involving nine separate defendants).
64. See ICTR Detainees--Status on 10 October 2001, at http:l/www.ictr.org/ENGLISH/factshects/
deainee.hrm (last visited Oct. 10, 2001).
65. Penrose, writing in 1999, estimated that the ICTR and ICTY had spent approximately
$400 million to obtain a handful ofconvictions. See Penrose, supranote 6, at 391.
66. Van Zyl, supranote 4, at 651.
67. Amnesty International, Rwanda: The Troubled Course ofJnstie, at http:l/www.amnesty-usa.org/
news/2000/14701500.hrm (last visited Oct. 9, 2001). See also Amnesty International, Annual Report
2000: Rwanda, at http:l/www.web.amnesty.org/web/ar2000web.nsf1785alacb99d4e7d4802568f8OO3cb
05917d4208bcf86ce147802568f200552963 (lastvisited Oct. 9, 2001).
2002 / A Frameworkfor UnderstandingTransitionalJustice
not the rule. Once the violation of the law becomes the rule, criminal justice
systems simply cannot cope."68 The result, he concludes, is a defactoamnesty
for many.69
While selective prosecution is used in virtually every legal system "
u and
prosecutors everywhere are faced with the need to concentrate their limited
resources on the most culpable offenders, selective prosecution after genocide
or massive human rights abuses presents a qualitatively different challenge.
In a functioning criminal justice system, a prosecutor's decision not to proceed
typically reflects a lack of evidence (so that a conviction is unlikely), an
understanding that the defendant's actions were justifiable (so that a defense
to the crime exists), or a recognition that the crime was relatively insignificant
(so that obtaining a conviction is not an efficient use of resources).
Selective prosecution in the transitional justice context, on the other hand,
takes place despite compelling evidence that the perpetrators have committed
the most heinous ofcrimes, and have done so without justification.
The inevitable selectivity of prosecution does not render it an unacceptable
approach. Despite this limitation, trials can achieve important criminal
justice goals. Nevertheless, the narrow scope of prosecution--due in part to
the requirements of due process-is central to an assessment of how well
prosecution can fulfill each of the five possible goals of criminal justice.
H. CRMIINAL JUSTICE As TRANSITIONAL JUSTICE
A. Desert/RetributionVengeance
1. Theory
Desert theory is premised on the relationship between punishment and
culpability. "Retributivism is a very straightforward theory of punishment,"
writes penologist Michael Moore. "W]e are justified in punishing because
and only because offenders deserve it."'
Unlike other theories of criminal
justice, "just deserts" is thus explicitly backward-looking. For a pure retributivist,
there is a Kantian categorical imperative to punish, whether or
not punishment will prevent future crime.72
While desert theory is distinctive
in its concern for the past rather than the future, it is like most other
approaches to criminal justice in its focus on the offender. Victims may re-
68. Van Zyl, supranote 4, at 661.
69. Id.
70. See Orendicher,supranote 1,at 2601-02 (noting that selectivity in prosecutns is a common teature
ofalmost all legal systems).
71. Michael S. Moore, The Moral Wch of Ranrduttn. in PRINCtPLrD Sa'N1-NcIu Rt.Di.tNS O.%
THEORY AND PoLicy supra note 23, at 150, 150.
72. SeeWALKER, supranote 23, at 77 (discussing Kant's view that society has an ebligation to exe-ute
the "last murderer," even if society is about to come to an end). Some scholars are pcrmmtse retnbutists"
who hold that criminals lose their immunity from punishment, but beiese that punshment is not
mandatory and should be justified by other goals. See Nino, iara note 22, at 2620 (d.nbing the "putmissive
retributivist" position). This Article concentrates on pure retrnbuttvtsm, since such a vew t ms
to be the predominant reributivist approach in the context of massive human rights atrcittes
HarvardHumanRightsJournal / Vol. 15
ceive satisfaction from the knowledge that the perpetrator is punished.73 But
because crime is an offense against society as a whole, it is society, and not
the victim, that determines the perpetrator's guilt and the appropriate level
of punishment. Moreover, decisions about the seriousness of the offense are
based on the offender's moral culpability, not on the degree of harm suffered
by the victim.
Three basic questions usually arise in considering approaches to punishment:
who should be punished, how much should they be punished, and
why should they be punished? Desert theorists generally agree on the answers
to the first two questions.7 4
Regarding the first question, desert theorists
believe that punishment should be restricted to those who have committed
crimes.75
As for how much to punish, desert theorists rely on the
principle of proportionality, the notion that the severity of a sentence should
be proportional to the seriousness of the criminal conduct.7 6
The related requirement
of ordinal proportionality determines the degree to which a crime
should be punished relative to other crimes. 7
The real debate in desert theory
concerns the third question: why punish? The tension among desert
theorists-like the skepticism of critics of retribution-is grounded in a
deep discomfort with vengeance. Revenge, some fear, will lead to a downward
spiral of violence and recrimination.78
Moreover, explains scholar Jeffrie
Murphy, one tends to think "that it is only primitives who would actually
hate criminals and want them to suffer to appease an anger or outrage
73. A theory of mandatory retribution, unlike most other approaches to criminal justice, may even
imply that victims have a right that their abusers be punished. SeeNino, itipranote 22, at 2621:
Almost all views ofpunishment, with the exception of mandatory retribution, deny that anybody
has a right that someone else be punished for a past crime. Punishing those who have relinquished
their right not to be punished [by committing a crime] is not due to the rccogni
tion that the victims or their relatives have a right to that punishment. It is a consequence of a
collective goal imposed by the policy ofprotecting human rights for the future.
74. Andrew Ashworth, Desert, in PRINCIPLED SENTENCING: READINGS ON THEORY AND POLICY Ilpra
note 23, at 141, 141.
75. See id at 143. Although this limitation may seem obvious, desert theorists attack approaches like
deterrence and incapacitation on the grounds that they would logically allow for punishment that is not
based on the commission ofa crime. See, eg., Andrew Ashworth, Deterrence,in PRINCIPLED SENTENCING:
READINGS ON THEORY AND POLICY supra note 23, at 44, 46 (noting that deterrence theory may require
punishment of the innocent for the greater social good); Alan H. Goldman, DeterrenceTheory: Its Moral
Problems, in PRINCIPLED SENTENCING: READINGS ON THEORY AND POLICY supra note 23, at 80, 81
(arguing that deterrence theory cannot explain why the innocent should not be punished without importing
retributivist ideas); Von Hirsch, supranote 24, at 89 (explaining that in incapacitation theory the
justification for sentencing is based on the likelihood of future offending, not on any past criminal be-
havior).
76. Ashworth, supra note 74, at 143.
77. See id.; VON HIRsCH, CENSURE AND SANCTIONS, supra note 23, at 18. Ordinal proportionality requires
parity (crimes of similar seriousness deserve comparable punishments), rank-ordering (the relative
severity of punishments should represent the level of social disapproval for different crimes), and spacing
(the severity of punishment should reflect not only whether the first crime is more serious than the second,
but by how much).
78. MINOW, supranote 8, at 10.
2002 / A FrameworkforUnderstandingTransitionaIJustice
that is felt toward them. Good people are above such passions or at least
they try to be."79
Desert theorists have responded to the "vengeance problem" in several
ways. Some have sought to prove that retribution and vengeance are not the
same thing, or that retribution can be justified without reliance on the concept
of revenge.80
Other theorists, notably Susan Jacoby, have sought to rehabilitate
the concept of revenge itself.81
Jacoby argues that we should recognize
that criminal justice is based on revenge82
and stop pretending that
"justice and vengeance have nothing, perish the uncivilized thought, to do
with each other."8 3
Law serves to channel vengeance, thereby both discouraging
less controlled forms of victims' justice, such as vigilantism,' and
restoring the moral and social equilibrium that was violently disturbed by
the offender.8 5
Some desert theorists, while avoiding the term "vengeance," rely on the
similar concept that "[m]ost people react to [atrocious crimes) with an intuitive
judgment that punishment (at least of some kind and to some degree)
is warranted."8 6
Under this theory, qualms about the legitimacy of retribution
blind one to the fact that the belief in punishment is actually moti-
79. Jeffrie G. Murphy, RaributimHairdAn Essa) cn Crinisrcal L rad -aml tk Ew;:.-i, m LiAu.m"
AND RESPONSIBILITY 351, 353 (R. G. Frey & Christopher W Morris eds., 1991).
80. Jean Hampton, fbr example, argues that retribution is justified as a way to reassert the victim's
value as a human being by negating the evidence of superiority implied by the wrongdoer's offense. How
a society reacts to an individual's victimization is a reflection of how valuable society thinks that individual
is. Thus the failure to punish denies the human value of victims. So Jean Hampton, A Nro Tk.ry q
Retribution,in LIABuar- AND REsPONsiBIIsu ; Supra note 79, at 396-412. Similarly. Martha Minow seeks
to distinguish retribution and vengeance by arguing that
[r]etribution can be understood as vengeance curbed by the intersentuon of someone other than
the victim and by principles of proportionality and individual rights. Retribution motivates
punishment out of fairness to those who have been wronged and reflects a belief that wrongdoers
deserve blame and punishment in direct proportion to the harm inflicted.
MiNow, supra note 8, at 12. Such victim-based desert theories are attractive, and may provide a helpful
way to distinguish between retribution and vengeance. In the popular imagination, retribution is intv-d
often understood as a way of providing relief to victims. Certainly some victims do find satisf ation in
knowing that their abusers will pay. It is critical to remember, however, that ultimately retribution is
about the offender's culpability, nor the victim's suffering. A rerribunvist punishes attempts, though they
cause no harm, but not accidents, though the harm caused may be severe. Moreover, retributivists determine
how much to punish depending on how much the offender deserves it, not on how much the victim
wants the offender to pay. The benefits for victims are thus better understood as side-effects of, rather
than justifications foir,a retributive approach to punishment.
81. SusAN JAcOB's WiLD JusTc: THE EVOLLMoN OF REVENGE 6 (1983) (the question is "not
whether retribution perse is a 'firbidden' objective of criminal justice but which forms of revenge are
consistent with the aims ofa just society").
82. Id.
83. Id at 8.
84. SeeidL at 10.
85. Seeia at 291.
86. Moore, supra note 71, at 152. Moore continues:
Many will quickly add, however, that what accounts for their intuitive judgment is the netd
fir deterrence, or the need to incapacitate such a dangerous person, or the need to reform the
person. My own view is that these addenda are just "bad reasons for what we believe on instinct
anyway." ...
HarvardHumanRightsJournal / Vol. 15
vated by the desire for retribution.87 The problem with such intuition-based
arguments for retribution is that not everyone shares the desire to punish;88
in fact, some victims plead for clemency for their tormentors. Nor does
sympathy for the retributive victim's desire that her wrongdoer suffer necessarily
mean that such suffering is justified, or even morally right. As Nino
argues, retributivism "presupposes that it is sometimes appropriate to redress
one evil with another evil. However, when I add the evil of the crime
to the evil of the punishment ... my moral arithmetic leads me consistently
believe that we have 'two evils' rather than 'one good."'89
2. Desert/Retribution/Vengeancein TransitionalJustice
How effective is prosecution in achieving the goal of retribution against
those who commit massive human rights abuses? Because it provides a legitimate
way in which to impose severe punishment, prosecution is better
suited to retribution than other forms of transitional justice. In the face of
atrocity, both individuals and societies have a powerful need to call those
who caused the suffering to account. It is difficult to accept that the worst
perpetrators of genocide and war crimes should escape responsibility.
In fact, advocates of prosecution emphasize its retributive qualities. Some
openly use the image of "getting even." Aryeh Neier, for example, expresses
the wish that in establishing the ICTY, the international community had
simply stated, "[flrom now on, those who commit great crimes will pay,"90
Generally, however, retribution is more politely described in terms of combating
impunity or bringing perpetrators to justice. For example, Diane
Orentlicher writes that the world community "has resolved emphatically
that it will not countenance impunity for massive atrocities against persecuted
groups."91 Similarly, the argument for prosecutions made in a recent
report to the United Nations by a group of experts assigned to assess possibilities
for transitional justice in Cambodia is that "crimes such as those of
the Khmer Rouge deserve punishment as a matter of morality and fundamental
considerations of justice. '92 The UN Security Council resolution that
established the ICTY likewise speaks of the world's "determintation] ...to
bring to justice" those responsible for the atrocities.93 Although not framed
87. Jeffrie Murphy, for example, argues that due to an unwillingness to acknowledge retributive emotions,
many people prefer to believe that punishment is grounded in social utility or the demands of
justice; in fact, however, the criminal law "institutionalizes certain feelings of anger, resentment, and
even hatred that we typically (and perhaps properly) direct toward wrongdoers." Murphy, supra note 79,
at 352.
88. See WALKER, supra note 23, at 72.
89. NINo, supranote 16, at 137.
90. Neier argues, however, that the actual motivations for the establishment of the tribunal were more
complex, and included reasons of political expediency. See NmER, supranote 9, at 111-33.
91. Orentlicher, supranote 1,at 2595.
92. CambodiaReport,supranote 60, 99.
93. Reprintedin STEINER, supra note 10, at 1146.
2002 / A Frameworkfor UnderstandingTramitionaljustice
in the language of vengeance or retribution, the underlying assumption of
such statements is that such horrible crimes should not go unpunished.
Prosecution is not, ofcourse, the only way to exact retribution. Lustration
can strip perpetrators of their jobs or remove them from elective office."'
Through civil suits, victims and their heirs can exact financial penalties from
those who committed abuses.9
' National truth commissions can "generate
social opprobrium," 96
turning perpetrators into social outcasts and forcing
them to face victims on television. However, the sanctions imposed through
alternative mechanisms-sanctions such as social opprobrium, ostracism,
money judgments, or loss of jobs and privileges-simply are not proportional
to the crimes committed by human rights violators.' As we have
seen, because courts afford defendants far more due process protections than
truth commissions or lustration committees, prosecutions can legitimately
sanction behavior more severely. As a result, "It]he greater the felt need for
punishment, the more seriously the prosecution option must be consid-
ered."98
In other words, if one adopts a retributive theory of transitional justice,
prosecutions have significant advantages over other accountability
mechanisms.
While prosecutions may be more effective than other approaches in
achieving retributive goals, true retributive justice is almost always unachievable
in the wake of radical evil. This is true for several reasons. First, it
is often impossible even in prosecutions to impose a punishment that is proportional
to the crime. As Minow argues, massive human rights atrocities
"call for more severe responses than would any ordinary criminal conduct,
even the murder of an individual .... And yet, there is no punishment that
could express the proper scale of outrage."9
"" What punishment would be
proportional to such heinous offenses? Theoretically, one could torture torturers
and rape rapists. But societies committed to human rights and individual
dignity must not take this path. Killing killers remains a popular
form of retribution in many domestic criminal justice systems. However,
while certain courts of transitional justice, such as that established at Nuremberg
after World War II, have condemned human rights abusers to death,
the death penalty now clearly violates international human rights norms.",,
Even if capital punishment is used, it cannot satisfy the requirements of or-
94. For a description oflustration, see, for example, Bassiouni, !s'ranote 19, at 21; Bcd, Lp'ra note
19.
95. See Bassiouni, supra note 19, at 22.
96. Landsman, supranote 5, at 89.
97. See id. at 88 ("The truth commission's one real shortcoming is lhat it cannot match pro-an-uctons
with respect to the fulfillment of the important policy goals regarding punishment,-.
98. Ld at 88.
99. MsNow, supranote 8, at 121.
100. See, eg., Second Optional Protocol to the International Covenant on Civil and Political Rights.
Aiming at the Abolition of the Death Penalty, prcdfcr gratureDec. 15, 1989, rt rtidin CLNTL ion
THE STuDY oF HumttAN RIGHTS, WE'arI'rrY-FIVE HutmAN RIGHTS Docutrms 33 (1991). Both thr ICT'Y
and ICTR prohibit the death penalty.Ste Penrose, supranote 6. at 374.
HarvardHumanRightsJournal / Vol. 15
dinal proportionality because it fails to distinguish the punishment of radical
evil from the price paid by an ordinary murderer.10 1
Moreover, where a
perpetrator's actions may have caused the deaths of thousands, the loss ofone
life is not a punishment that adequately reflects the gravity of the crime.
Adequate retribution is impossible unless those inflicting punishment
violate the rights of human rights violators, and even then the punishment
often fails to approach the horror of the crime. "U[ustice," explains theologian
Donald Shriver, "falls limp before monster-sized evil."'1 2
In the final
analysis, however, the ultimate futility of retribution should not be a reason
to discount the utility of prosecution. Even if human rights violators can
never be punished enough, they can still be punished severely. And if the
desired goal for transitional justice is retribution, inadequate penal sanctions
imposed after trial are still preferable to grossly inadequate civil liability or
public shaming.
The second and more fundamental critique of a retributive approach to
transitional justice is that it depends on the concept of blame, which requires
character evaluation.10 3
As Nino has argued, the viability of character
evaluation in the context of radical evil is unclear. 1 Noting Hannah
Arendt's puzzlement that Adolf Eichmann organized mass murder in order
to advance his career rather than to cause harm to others,' 0 5
Nino concludes,
Of course, banal evil is still evil. But are we prepared to blame a
character which we evaluate as banal rather than full of burning
hatred, sadistic inclinations, and cruelty? Even if retributive punishment
were justified in general.., it may be unsuitable for radical
evil.10 6
Yet perhaps it is easier to blame the banal than Arendt and Nino recognize:
we might find a technocrat who believes that managing the details of geno-
101. Ofcourse, if a society has banned capital punishment for ordinary crime and then introduces it
to punish human rights atrocities, such a distinction might be achieved. In Peru, for example, the government
ofAlberto Fujinori tried retroactively to create an exception to that country's prohibition on
capital punishment in order to punish Abimael Guzman, leader of the leftist guerrilla movement, the
Shining Path. See NINO, supranote 16, at 142. Allowing exceptions to human rights principles can be
dangerous, however. "Should we also make an exception," asks Nino, "to abhorrence of prisoner mistreatment,
imitating what we condemn the prisoners for doing?" Id.
102. DONALD SHRIVER, AN ETHIC FOR ENEMIES: FORGIVENESS IN POLITICs 82 (1995),
103. Character evaluation may not be required for determinations of criminal guilt pcr se, since it is
the individual's mens rea to commit the prohibited act, rather than the motivation of the offender, which
is critical. Still, the structure of the penal law-which builds in defenses like duress or self-defense, and
does not punish accidents that cause serious harm-suggests that the motivation and character of the
offender are central to an understanding of individual culpability. Under a retributive understanding,
punishment is justified not simply because an offense was committed, but also because the offender is
blameworthy and should get what she deserves.
104. NINo, sapranote 16, at 142.
105. Eichmann, who organized the mass murder ofJews in Nazi Germany, was tried and convicted in
Israel in 1961. See STEINER, Supra note 10, at1138.
106. NINO, supra note 16 at 142.
2002 / A Frameworkfor UnderstandingTransitionalJustice
cide will further his career more reprehensible than a hate-filled murderer.
Moreover, societies regularly punish crimes that are undertaken in pursuit of
commonplace goals. While the burglar's incentive may be a bigger paycheck
and the drug pusher's motive may be a promotion in the drug ring, retribution
may still be appropriate. Nevertheless, Arendt's and Nino's insights are
powerful. Radical evil involves horrific acts that even ordinary criminals
would find appalling. 0 7
It is often committed by average people who would
never commit ordinary crime. How can one understand intent in such circumstances?
Perhaps, as Nino suggests, the proper response is to suspend
reactive judgments (much as one might do with the insane), because the
perpetrators of mass atrocity "have gone beyond the pale of humanity by
rejecting the framework of interactions that blame presupposes."""
Character evaluation in the aftermath of mass human rights violations is
further complicated by the difficulty of assigning individual responsibility,
especially in the case of lower-level participants. Minow argues that
[the central premise of individual responsibility portrays defendants
as separate people capable of autonomous choice-when the
phenomena of mass atrocities render that assumption at best
problematic. Those who make the propaganda but wield no physical
weapons influence those with the weapons who in turn claim to
have been swept up, threatened, fearful, mobilized. 0 9
Of course, individuals always have choices. As the German philosopher Karl
Jaspers wrote shortly after World War II, "I, who cannot act otherwise than
as an individual, am morally responsible for all my deeds, including the execution
ofpolitical and military orders. It is never simply true that 'orders are
orders."'110
But individual autonomy in the context of dictatorship or mass
violence may not be the same in the context of ordinary crime. Unlike ordinary
criminals, who violate social norms by committing crimes, individuals
who are swept up in mass violence do not step outside the prevailing moral
framework. Rather, they succumb to intense social pressure. While this does
not relieve such individuals of moral agency or responsibility, it does make
them more difficult to judge. Former German President Richard von Weizsacker
has noted a widespread and unfortunate tendency among young Germans
"to believe that then people were evil but today they are good."'I As
Reinhold Neibuhr has quipped, the universality of sin is the only concept in
107. The revulsion ordinary criminals feel for homfic crimes is well-demonstrated by threk. tht
prisoners convicted of especially egregious acts, like child molestation, frequently must be held in pra:"rive
custody to prevent assaults by those who are detained for lesser offenses.
108. N No, supranote 16, at 141.
109. INow, supranote 8, at 46.
110. KARL JASPERS, THE QUESTION oF GERAN GUILT (1948), ct,,is rt',4d t:I Tng smO.,,L
JUsTICE 157, 159 (Neil Kritz ed., 1995).
111. Quotedin SHRIVER, supra note 102, at 84.
HarvardHumanRightsJournal / Vol 15
the Judeo-Christian tradition that is empirically verifiable.112 Those who
have never faced such choices should not be too quick to assume that they
would have acted differently.
In addition to the conceptual obstacles to a retributive understanding of
transitional justice, prosecutions themselves complicate the retributive
framework. The first difficulty lies in the relationship between retribution
and vengeance. Ethnic conflicts around the world, in which each side justifies
the atrocities it inflicts by referring to the wrongs it has suffered, demonstrate
the tendency of vengeance to lead to a downward spiral of violence.
Prosecutions are designed to channel these demands for vengeance and to
break the cycle of personal revenge. As Minow explains, in order
to avoid such escalating violence ... (one must) transfer the responsibilities
for apportioning blame and punishment from victims
to public bodies acting according to the rule of law, This is an
attempt to remove personal animus, though not necessarily to excise
vengeance. Tame it, balance it, recast it as the retributive dimension
of public punishment.11 3
Whether or not we equate retribution and vengeance,114 it is clear that in
the context of transitional justice prosecutions founded on a desire for retribution
will have many of the drawbacks of vengeance. Where prosecutions
are publicly perceived as a form of victor's justice, they will be unlikely to
break the cycle of violence. As Jos6 Alvarez notes, "[the majority of the
thousands detained in Rwanda's jails today report, and perhaps genuinely
feel, that 'they have done nothing wrong' and are being victimized merely
because they were on the 'wrong side of the war."'115 Even if prosecutions
satisfy demands for revenge from Tutsis, they may stoke the desire for
vengeance by Hutus. Nino describes a related problem in Argentina, where
human rights groups, by adopting an "all-out retributive" approach and
demanding that all the guilty be punished, ended up undermining their
own credibility, fanning a backlash by military and government forces
against the trials, and ultimately weakening the impact of those trials that
did take place.'16 Nino suggests that although
many people approach the issue of human rights violations with a
strong retributive impulse, almost all who think momentarily
about the issue are not prepared to defend a policy of punishing
112. Citedinid.at 83.
113. MINOW, sipra note 8, at 11-12.
114. See stpranote 80.
115. Alvarez, supra note 59, at 468.
116. Nino, supranote 22, at 2635.
2002 / A Frameworkfor UnderstandingTy-amitionalJustice
those abuses once it becomes clear that such a policy would probably
provoke, by a causal chain, similar or even worse abuses.'1
'
The second difficulty is that prosecutions, as we have seen, are necessarily
limited and selective. Retribution theory, by contrast, is predicated on the
notion that everyone should get their just deserts. In the wake of genocide or
other mass violence, many people in society will "deserve" to be punished.
Yet prosecutions, even at their most extensive, will only reach a few of the
culpable. Many offenders who raped, tortured and killed will never be tried.
As will be argued below, a deterrence-based rationale for prosecutions can
account for exemplary prosecutions ofgenocidaires.A retributive one, by contrast,
cannot.
118
Selective prosecution further undermines retributive goals because prosecutors
rarely succeed in targeting only the most culpable. "IThe actual set
of individuals who face prosecution," notes Minov, "is likely to reflect factors
far removed from considered judgments about who deserves prosecution
and punishment."'1 9
The failure to prosecute all equally culpable individuals,
however, violates the principle of proportionality, which dictates that
like crimes should be treated alike. 2 0
Proportionality is further undermined
when prosecutions target lower-level offenders while ignoring more blameworthy
ones, since such decisions do not reflect the relative level of social
disapproval accorded to different crimes.121
Yet accepted legal principles
may make it extremely difficult to convict those who orchestrated abuses
rather than simply carrying them out. For example, reunified Germany
found it difficult to hold East German leaders adequately accountable for
ordering that fleeing citizens be shot, and decided instead to prosecute several
young East German border guards.'2 2
Such selective, limited prosecu-
117. Id at 2620.
118. Proponents of prosecuions frequently elide the two rationales. Orentlicher. for example. aes a
retributive line in arguing that "atrocious acts committed on a mass scale against racial. religious, or
political groups must be punished." Orenlicher, .upra note 1, at 2594. Yet in defending selective prosecution,
Orentlicher argues that fill prosecution is unnecessary for effective deterrence. Id at 2601.
119. AftNow,.supra note8,at31.
120. See, eg., Nino,srpranote 22, at 2620 (arguing that because retributive theory values punishmmt
above all else,and because selective prosecution may be necessary to protect democra retributive theory
raises the question of equality before the law).
121. Neier provides an example of how easily lower-level offenders can be equated with thow who
plan and organize atrocities. In 1992, Lawrence Eagleburger, then acting U.S. Secretary ofStare, included
a Bosnian Serb soldier, Borislav Herak, alongside Yugoslav President Slobodan ,alilevd and Bomian
Serb leaders Radovan Karadik and Ratko Mladi4 on a list of ten potential .r crimes defenants. The
twenty-one-year-old Herak, who had committed rwenty-nine murders, imas clearly a foot soldier i the
conflict, bur Bagleburger felt compelled to add his name to the list of those who masterminded the ethnic
cleansing because Herak had been profiled in Tki New )kr VTTh-a. For a detailed acount of the=
developments, see NwER, supra note 9, at 125-27.
122. For a description of these prosecutions, see 'DNA RossNawiRG, Tnt HMu.roD LA.ND; F^ciNG
EuRoP'es GHOSTS AFTER ComiuNisM 261-305, 340-51 (1995). Rosenberg argues that the rder
guard prosecutions did not comport with public notions ofculpability.
(Miost East Germans were repelled. They felt the border guards had taken the hit for a chain
of superiors leading at least to Honecker and possibly to the Kremlin-most of whom would
HarvardHuman RightsJournal / Vol, 15
tions-the only kind possible in transitional justice-fail to meet the basic
requirements of retributive justice.
The third complication is the fact that transitional societies must continue
to deal with ordinary crime even as they confront the extraordinary
evil of the past. In many societies transitional periods have been marked by
soaring crime rates and accompanying efforts to prosecute and punish offenders.123
In light of this reality, a retributivist must ask who, for example,
is more guilty: the young, uneducated, unemployed black carjacker from a
Johannesburg township, or the white police officer who killed the boy's father
during a political rally several years before? Due to the inevitable limitations
on prosecutions in the transitional context, even those prosecutors
who believe that the youth is less culpable will concede that they will be
more likely to prosecute him than his father's murderer.124 It may well be
true, as Paul van Zyl has argued, that "[if the police and prosecuting
authorities were to devote a significant share of their resources to dealing
with human rights violations, many ofwhich occurred a decade or more ago,
the country would almost certainly lose the current battle against ongoing
crime."125 But the need to control crime is no answer to the basic retributivist
objection: the greater the culpability, the more severe the punishment
should be. Retributive theory cannot support a form of prosecutorial selectivity
that excuses more serious past crimes in order to address less serious
current ones.
Furthermore, amnesties for past offenses typically do not apply to ordinary
crime. South Africans, for example, could only seek amnesty if their
offenses were "associated with political objectives and committed in the
course of conflicts of the past." 26 From a retributive point of view, it is not
immediately clear why a murderer who kills for political reasons should be
entitled to amnesty in return for the truth, while one who kills out of passion
or greed should not. Society's willingness to forgo punishment for some
political offenses (whether through an express amnesty or a defacto one resulting
from selective prosecution), but not for common crimes, suggests
never face justice. One of the most distasteful aspects of the trial was seeing the guards' superior
officers ... most ofthem now working as unified German border guards or policemen, arriving
to testify and leaving as free men. They were even paid for missing work in order to be
at court.
Id.at 344.
123. See Villa-Vicencio, supranote 5, at 214 (noting the challenges posed by the escalation ofordinary
crime in countries moving away from repressive rule and the way in which the line between ordinary and
political crime can become blurred).
124. Paul van Zyl argues that "even if the South African transition could have occurred without any
form of amnesty agreement, thus leaving open the possibility of large-scale prosecutions, only a small
fraction of those responsible for gross violations of human rights could have been prosecuted successfully."
Van Zyl, supranote 4, at 651. Van Zyl's assessment ofthe South African situation mirrors a widespread
understanding among scholars of transitional justice that it is impossible or undesirable to prosecute
all those who were involved in atrocities. See Section I. C.
125. Van Zyl, supranote 4, at 652.
126. S. AFR. CONST. of1993 (amended 1994), postamble.
2002 / A Frameworkfor UnderstandingTransitionalJustice
that individual culpability is understood very differently in the contexts of
extraordinary evil and ordinary crime.
To summarize, in the face of horrific crimes, many people, both in the affected
society and the international community, share a powerful sense that
such atrocities should not go unpunished. Prosecution, which provides a
legitimate way to impose severe punishment, is the most effective method of
pursuing retributive goals in transitional societies. But it has limits: one
cannot punish fairly, and one cannot punish enough. As an Indonesian victim
and prosecution proponent explains, "(it] will have to be a very selective
justice and, of course, selective justice is not exactly justice."'12
' An advocate
for retributive prosecution might answer these criticisms by simply arguing
for more prosecution. But unless everyone can be prosecuted, which is impossible,
the objections remain. Although the desire for retribution is a
justifiable response to extraordinary evil, retribution itself is only partially
achievable.
B. Deterrence
1. Theory
The term "deterrence" is often used interchangeably with "prevention." In
fact, deterrence is only one way to prevent crime. Under deterrence theory,
potential offenders may still be capable of committing crimes (since they are
not incapacitated) and may still desire to commit crimes (since they are not
rehabilitated). But despite their capacity and desire, potential offenders are
inhibited by the "intimidation or terror of the law."'128
There are two main
types of deterrence: individual deterrence and general deterrence. Individual
deterrence seeks to prevent future crime by setting sentences that are strict
enough to ensure that a particular offender will not reoffend.12 9
General deterrence,
on the other hand, attempts to prevent crime by "induc~ing) other
citizens who might be tempted to commit crime to desist out of fear of the
penalty."130
Notably, deterrence theory does not allow, much less require, the
punishment ofall who are guilty. Moreover, general deterrence does not even
require punishment of all those who might be dererrable as individuals. If
127. Seth Mydans, IndonesiansDiffer on PenalhiesfarthrPast,N.Y.T. tes, Aug. 27, 2000, at A14.
128. Jeremy Bentham, Punishentand DaerrXce,in PRINCIPLIED SNr.NciNG: READINGS ON THEORY
AND Poucy supra note 23, at 53, 54. Bentham argues that there are three principal ways to prevent
crime: take away the physical power to violate the law, take away the desire to offend, or make the individual
afraid ofoffending. "In the first case," Bentham explains,
the individual can no more commit the offense; in the second, he no longer desires to commit
ir, in the third, he may still wish to commit it, but he no longer dares to do it. In the first case,
there is a physical incapacity;, in the second, a moral reformation; in the third, there is intimi.
dation or terror ofthe law.
id
129. For example, a sentencing scheme which increases penalties based on prior convictions may
reflect the belief that, while the previous, lower sentence was not sufficient to derter cnmiality by this
offender, a higher sentence might be. SeeAshworth, svpra note 75, at 44.
130. eL
HarvardHumanRightsJournal / Vol. 15
exemplary punishments adequately prevent future crime, they are suffi-
cient.1
31
Deterrence occurs, writes Nigel Walker, when people refrain from certain
actions because they fear the possible consequences of those actions.13 2
In
other words, the potential benefit of committing crime is outweighed by the
risk of sanctions. Deterrence thus assumes that, were it not for the possibility
of adverse consequences, people would engage in crime. "A person is not
deterred," writes Walker, "if he refrains because he is not tempted, or is
tempted but restrained by his code ofmanners or morals." 133
Deterrence also
assumes that the potential offender will undertake a two-part calculation,
assessing both the gravity of the consequences and the likelihood of getting
caught. This calculation is based not on the objective severity of sanctions or
the real risk of apprehension, but on the potential offender's subjective assessment
of these factors. Thus, the effectiveness ofany deterrent depends on
the potential offender's perception of possible sanctions, and on her assessment
of her ability to evade law enforcement.134
The actual severity or certainty
of punishment is less important than its perceived severity or cer-
tainty.'
35
While the logic of deterrence is intuitively appealing, the available empirical
evidence regarding the effectiveness of deterrence in domestic criminal
justice systems is inconclusive. 136 There are several possible reasons for
this.137
First, it is difficult to prove that threats of legal sanctions, rather
than other motivations, have prevented people from offending. 38
"Marginal
deterrence," the amount by which deterrence increases or decreases based on
changes in the severity of sanctions, is particularly difficult to demon-
strate.139
The problem is not in showing that deterrence can occur when
punishment is certain, swift, and severe, but in determining when and to
what extent it occurs under real-world conditions, under which punishment
is never certain, rarely swift, and only sometimes severe.140
Second, effec-
131. Thus, pure deterrence theory can be deeply unsatisfying: why should the perpetrators of horrific
but undeterrable crimes go unpunished? As penologist Alan Goldman argues, "surely the fact that a
crime is unplanned, that the criminal does not contemplate the consequences to him of his action"--in
other words, that the crime is undeterrable--"should not entirely exempt it from punishment." Goldman,
supranote 75, at 81.
132. WALKER, supra note 23, at 13.
133. Id. at 14.
134. Some penologists believe that, in practice, the only factor affecting deterrence is the likelihood of
getting caught, judged from the viewpoint of the potential offender, See id. at 17; SANrORD H. KADIsH &
STEPHEN J. SCHUL-OFER, CRIBINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 117 (Richard A.
Epstein et al. eds., 7th ed. Aspen Law & Bus. 2001) (arguing that certainty of punishment is important
only ifit contributes to the perception of certainty).
135. Seeid.
136. See, e.g., Ashworth, supranote 75, at 48; Deryck Beyleveld, DeterrenceRescareb andDeterrencePoliCieS,in
PRINCIPLED SENTENCING: READINGS ON THEORY AND POLICY supranote 23, at 66, 72.
137. This discussion offactors relies heavily on the analysis inAshworth, supranote 75, at 48-50.
138. Seeid.at48.
139. See id.
140. The criminologist Deryck Beyleveld has noted that deterrence is possible if one is willing to
2002 / A Frameworkfor UnderstandingTransitionalJustice
tiveness depends on context.141
The risk of detection and punishment must
not be so low as to be readily discounted, and the penalty must be adequately
publicized. 14 2
Moreover, the offender and the crime must be deterrable;
that is, they must be rational.' 43
Heightened enforcement and increased
sanctions may reduce crimes that reflect rational choices, but they are unlikely
to have an impact on irrational offenders. Deterrence, then, only
works in relation to some crimes and some offenders. 1"4
4
2. Deterrencein TransitionalJustice
Scholars and human rights activists have trumpeted deterrence as perhaps
the most important justification for prosecution in transitional justice. Orentlicher,
for example, writes that "[t]he fulcrum of the case for criminal
punishment is that it is the most effective insurance against future repression."
145 Neil Kritz shares Orentlicher's confidence in the effectiveness of
trials as a deterrent, noting that the failure to prosecute at least key figures
"can be expected not only to encourage new rounds of mass abuses in the
country in question but also to embolden the instigators of crimes against
humanity elsewhere."'146
M. Cherif Bassiouni adds that "[t]he relevance of
prosecution and other accountability measures to the pursuit of peace is that
through their effective application they serve as deterrence, and thus prevent
future victimization.'
' 47
Given the manner in which deterrence functions in the domestic criminal
justice context, how tenable is the widespread deterrence justification for
prosecution in the wake of massive human rights violations, war crimes, or
genocide?148
Deterrence theory is quite useful as a justification for selective
adopt extreme measures: "Ifthe choice is a clear one between compliance and, for example, certain death,
then it is a good bet that a deterrable individual will comply" Beyleveld, nTpa note 136. at 77. Hluotwer,
such swift and certain punishment is not only difficultto achieve in practice, but may alw interfere with
principles of fairness,such as the right of the accused to a trial before an impartial tribunal. While 'Ye
have good reason to believe that immoral, unimplementable policies would *work,- concludes Beyleveld.
"[there are] rarely reason[s] to believe that more sane and realistic policies will achieve anything.' Id
141. SeeAshworth, supranote 75, at 49.
142. Seeid
143. For example, if, as some scholars have argued, "Ih]omacide is a crime usually committed in undrterrable
states ofmind," WALKER, supranote 23, at 16, one cannot expect deterrence measures to afft-t
homicide rates significantly, nor can we use deterrence as a justification for punishing such "crimes of
passion."
144. See Ashworth, supra note 75, at 50.
145. Orentlicher, supranote 1, at 2542 (footnotes omitted). Orentlicher argues that ([b]ylaying bare
the truth about violations ofthe past and condemning them, prosecutions can deter potential lawbreakers
and inoculate the public against future temptation to be complicit in state-sponsored violence.- Sr alb
Landsman, supra note 5, at 84 (identifying deterrence offuture violations as one of prvecution's pnmary
benefits); Goldstone, supra note 35, at 619 (emphasizing the deterrent value of prosecutions).
146. Kritz, supranote 21, at 129.
147. Bassiouni, supranote 19, at 18.
148. As a preliminary matter it is worth pointing out that in the transitional justice context deterrence"
almost always refers to "general deterrence." Prosecutions generally cannot take place before highlevel
leaders responsible forthe atrocities have been removed from office. Nor are prosecutions likely to
be undertaken where deposed leaders have sufficient political capital to gain political power once again.
HarvardHuman RightsJournal/ Vol. 15
prosecution. 149
In particular, because deterrence does not require punishment
of all the guilty, it does a better job than desert theory of explaining
why exemplary punishments of a few offenders may be acceptable. Although
the failure to prosecute heinous abuses is impermissible on retributive
grounds, deterrence theory can accommodate selective prosecution. The explicitly
utilitarian goals of deterrence also provide a justification for abandoning
post-transition prosecutions when "the mischief [they] would produce
would be greater than what [they] prevented." 150
When ousted leaders
retain significant power in a country in transition, harsh punishment could
lead them to seize power again. Thus, criminal punishment may have a positive
or negative overall effect on human rights.151
A deterrence rationale
allows for a cost/benefit analysis in which one assesses whether the advantages
ofpreventing crime through prosecution outweigh the costs to democracy
and human rights that might result if trials lead to political instabil-
ity.152
Deterrence permits a decision not to prosecute where trials would
cause more problems than they would solve.
If deterrence is the justification for prosecution, one must determine if
prosecutions actually prevent human rights abuses. It is even more difficult
to show the effectiveness of prosecution as a method of deterring mass
atrocity than it is to demonstrate its effectiveness in the context of ordinary
crime. In fact, it is virtually impossible to assess whether or not the threat of
prosecution has ever prevented genocide and war crimes. As Minow notes,
"[nlo one really knows how to deter those individuals who become potential
dictators or leaders of mass destruction ....One hopes that current-day
prosecutions would make a future Hitler, or Pol Pot, or [Bosnian Serb
leader] Radovan Karadi6 change course, but we have no evidence of
this." 53
Given the unyielding stream of atrocities the world has witnessed
since Nuremberg, it is difficult to argue that these trials had any discernable
effect." 4
Similarly, many of the worst atrocities in the former Yugoslavia
took place after the ICTY was established.15
' It could be that in the absence
Prosecutions are not intended to teach individual leaders like Pinochet a lesson in the hopes that they
will behave better next time. Rather, the goal is to encourage other political leaders to follow international
human rights standards.
149. See Orentlicher, supra note 1,at 2601 (defending selective prosecution on the grounds that full
prosecution is unnecessary for effective deterrence).
150. Bentham, supra note 128, at 57.
151. See id
152. As Jon Elster notes, "if the threat of harsh punishment is in fact credible, it may cut both ways.
Although it will make it less likely (but not impossible) that coups will occur in the future, it will also
make coup-makers more reluctant to step down." Elster,supranote 38, at 37.
153. MINOW, supranote 8,at 146.
154. See, eg., id. at 27.
155. Aryeh Neier, The QuestforJustie,N.Y. REv.BOOKS, Mar. 8, 2001, at 31, 32. Noting that the
genocide in Rwanda also occurred after the establishment of the ICTY,Neier argues that the tribunal's
creation "[clertainly... did not make the authors of grave crimes in other parts of the world worry about
being called to account." Id.See alsoPenrose, supranote 6, at 326 (expressing concern that "ifthe Interna.
tional Criminal Tribunals at Nuremberg, Tokyo and the recent additions at the Hague and Arusha are
used as a gauge for deterring future violence, the international community must admit failure") (footnote
2002 / A Frameworkfor UnderstandingTransitionalJustice
of these prosecutions, many more such atrocities would have taken place.
But those who point to the deterrent effect of prosecutions bear a heavy burden
ofproof indeed.
Any deterrent effect that prosecutions might have will depend on context,
including the risk of "getting caught," the severity of penalties, the extent of
public knowledge about such sanctions, and the degree to which the crime
and the offender are deterrable. In domestic criminal justice, the risk of
"getting caught" typically concerns the risk of detection, since in a functioning
criminal justice system, offenders whose guilt can be proven will
generally be punished if they can be apprehended." 6
In the transitional justice
context, on the other hand, "getting caught" usually has little to do
with the risk of detection; indeed, many atrocities are committed in plain
view.157
Rather, "getting caught" primarily concerns the chance of being
punished. Thus, the fact that in the wake of mass atrocities only a small
number of those implicated will ever be prosecuted undermines the logic of
the deterrence argument. 158
Those who "merely" kill, rape, and plunder, but
do not mastermind the carnage, have little to fear from prosecution. Even for
those who orchestrate human rights abuses, the risk of "getting caught" is
low. "[I]t is not irrational," writes Minow, "to ignore the improbable prospect
of punishment given the track record of international law thus far."' 59
Ofcourse, in the rare cases where perpetrators do "get caught," the sanctions
may be considerable. However, it seems doubtfiil that severe penalties for
massive human rights violations will have much deterrent value when they
are so heavily discounted by the negligible likelihood of prosecution."tO Nor
is it clear that the foot soldiers of atrocity will even be aware of the heavy
sanctions imposed on a few high-level perpetrators in some far-off land.161
omitted).
156. Potential offenders may further discount the risk of detection based on the passibility that the
case will not actually result in a conviction due, fbr example, to procedural safeguards. protrcutonal
sloppiness, or lack ofevidence.
157. Prosecutions are frequently undertaken when there is compelling, publicly ackowledged evidence
of an individual's guilt. Although prosecutions may bring out additional details and although
prosecutors may have difficulty finding sufficient legally admissible evidence, prosecutions in the context
of transitional justice are generally not used to determine who is responsible. Some forms of transitional
justice do increase the risk ofdetection. Revelations to truth commissions or lustration laws which expose
an individual's prior contacts with the secret police can be used to identify previously unknown pcqxpusrots.
However, such individuals are rarely prosecuted.
158. See, eg., Van Zyl, supranote 4, at 658 (questioning the validity of the deterrence rationale in the
context ofSouth Africa's limited ability to prosecute).
159- Mrow, supranote 8, at 50.
160. In the wake ofthe near-extradition ofPinochet toSpain, the risk ofprosecution was high enough
that it had some effect on international travel by high-profile statesmen and politicians whose current or
past activities could conceivably land them behind bars. See Jayson Blair, Ptrwtdj RCmS=S OlntvrNcvd',
You'd Better Watch Out, N.Y.T1mzEs, Mar. 26, 2000, Section 4, at 5. However, at seems implausible thut
limitations on foreign travel can serve as an effective deterrent against human rights abuse.
161. It is more reasonable to assume that "lower-level" perpetrators would be aware of previous domestic
prosecutions in their owncountry.
HarvardHuman RightsJournal/ Vol. 15
In response, one might argue that the international community should
substantially increase the likelihood that human rights abusers will face
criminal prosecution. But it is not clear how much of a deterrent effect increased
prosecutions would have on genocidaires. Potential war criminals may
underestimate the actual risks. Robert Jackson, the lead prosecutor at Nuremberg,
questioned the degree to which that tribunal could serve as a deterrent,
given that wars are almost always started in anticipation that they will
be won. "Personal punishment, to be suffered only in the event the war is
lost," he argued, "is probably not [enough] to be a sufficient deterrent to
prevent a war where the war-makers feel the chances of defeat to be negligible.
' 162
Moreover, as Jon Elster notes, "even if violations are harshly punished
now, how can future would-be violators know that they, if overthrown,
will be treated in the same way? Incentive effects presuppose stable institutions,
which almost by assumption do not exist. '163
Scholars have also debated whether or not massive human rights violations
involve crimes or criminals that are deterrable. Are such crimes subject
to a rational assessment of costs and benefits? One former prosecutor of the
ICTY has claimed that "deterrence has a better chance ofworking with these
kinds of crimes [war crimes, genocide, crimes against humanity] than it
does with ordinary domestic crimes because the people who commit these
acts are not hardened criminals; they're politicians or leaders of the community
that have up until now been law abiding people. ' 164
Such analysis
seems fundamentally misguided. When "ordinary" people commit horrible
crimes, it suggests that the normal restraints of law and deterrence are not
working, or that these people are no longer functioning rationally. 165
At the
same time, some individuals do make rational choices when committing
horrific crimes, and would therefore potentially be deterrable. As Douglass
Cassel notes, certain dictators like former Yugoslav President Slobodan
Milogevi6 are manipulators, not fanatics, and might be restrained by credible
threats. 166
Other perpetrators, such as Hitler, however, are probably undeterrable.
Moreover, some atrocities are carefully planned and staged, while
others are "crimes ofpassion" or crimes of hate. Just as in the domestic context,
deterrence, if it works at all, will only work against some offenders and
some crimes.' 67
162. MiNow, supranote 8, at 50 (quoting FACING HISTORY AND OURSELVES NAT'L FOUND,, TfIg
NEW ENGLAND HoLocAusT MEMORIAL STUDY GUIDE 12 (1996)).
163. Elster, supra note 38, at 37.
164. Michael P. Scharf, The Casefor a PermanentInternationalTruth Commission, 7 DUKIB J. COMP. &
INT'L L. 375, 398 n.12
4
(1997) (quoting interview by Michael P Scharf with Grant Niemainn, Prosecutor,
International Criminal Tribunal for the Former Yugoslavia, the Hague, Neth, (July 25, 1996)).
165. MINOW, supranote 8, at 50 ("Individuals who commit atrocities on the scale of genocide ateunlikely
to behave as 'rational actors,' deterred by the risk of punishment."). See dso Villa-Vicenclo, stpra
note 5,at 210 ("More is required than the heavy hand of the law ... to deter those driven by the ideological
factors that have either destroyed ... nations or threatened to bring them to their knees.").
166. Cassel, supra note 11, at 534.
167. Timothy Garton Ash suggests that prosecution is most likely to occur where deterrence is least
2002 / A Frameworkfor UnderstandingTransitionalJustice
It is worth remembering that deterrence does not work when perpetrators,
while recognizing and fearing the possibility of punishment, nevertheless
decide to engage in crime because the potential rewards outweigh the
risks. Dictators who knowingly accept the risk of prosecution, but nevertheless
commit atrocities in order to retain political and economic control,
may rationally believe that crime does pay. In the domestic context, a deterrence
theorist's response to this problem would be to continually increase
both the penalties and the likelihood of apprehension. In the transitional
context, however, penalties could not be much more severe,1
" and the
chances of punishment, while they could be increased, will likely never be
extremely high.
Given that prosecution is not a particularly effective deterrent against
gross human rights violations, are alternative mechanisms any better? In
comparing prosecutions and other sanctions-such as civil liability, lustration,
or public shaming-we must examine their relative effectiveness in
terms of marginal deterrence, which as we have seen is difficult to assess. If
deterrence depends on "intimidation or terror of the law," it is likely that a
potential human rights violator will fear incarceration more than a money
judgment, the loss of his job, or the shame of a public confession. Moreover,
even dictators who never expect to stand trial may fear the consequences of
an indictment. Once an international warrant of arrest has been issued
against a suspected war criminal, that person is liable to arrest in virtually
every country in the world, making it difficult for her to hold high public
office in her own country and virtually impossible for her to participate in
international negotiations. 169
But even though trials threaten more severe
punishment than alternative mechanisms, it is not clear what effect this increased
potential sanction has on deterrence. Deterrence depends not only on
the severity of the sanction but also the certainty of punishment. While the
likelihood that human rights violators will face any sort of sanction remains
small, some accountability mechanisms are better equipped than others to
handle large numbers of offenders. Prosecutions may yield severe punishments,
but they are rare. Will a highly uncertain but severe punishment
have a greater deterrent effect than a lesser but more likely sanction? Perhaps
the deterrent effect differs depending on the person being deterred;
would-be dictators might be dissuaded by the fear of prosecution, while
necessary: "[Where [such] deterrence might still be important (as inRussia) there hase 14en no suh
trials, and where there have been trials (as in Germany) the deterrence is hardly needed." Timothy Garton
Ash, The Trutb About Ditatorship,N.Y.REv. BooKs, Feb. 19, 1998, at 35.
168. Although some states, like Rwanda, have imposed the death penalty on perpetrators, the oppaittion
of the international community to the death penalty suggests that this sanction is unlikely to be
imposed by international tribunals.
169. Goldstone, supra note 35, at 620. Sez also Neier. supra note 155, at 32 (noting that the Indiaments
of Radovan Karad=1i and Ratko Mladi6 'sidelined both men politically' and resulted in their
exclusion from the Dayton peace negotiations).
HarvardHumanRightsJournal / Vol. 15
low-level functionaries, well-aware that they are unlikely ever to be tried,
might regard lustration or truth commissions as a more credible threat.
Prosecutions may deter some future human rights abusers, and prosecutions
may even have a greater deterrent value than alternative post-transition
mechanisms. However, it is unlikely that post-atrocity prosecution is the
most effective way to prevent future atrocities. As penologists have noted in
the context of ordinary crime, the severity and likelihood of a legally imposed
penalty are not "the only or necessarily the most powerful influence[s]
on a person's behavior."'170 An individual's actions are often affected to a
greater degree by moral norms than by fear of punishment. The reason most
people do not murder is not because they are afraid of getting caught, but
because they believe that murder is wrong. Similarly, the constraints a society
imposes on itselfmay have more to do with its political culture and form
of government than with concern about the possible consequences of misbe-
havior.171
Even where a person does refrain from taking a desired action out
of fear of the possible consequences, legal sanctions may play only a minimal
role. Frequently, non-legal deterrents, a pervasive fact of human life72
, are
much more powerful than legal ones. An individual's decision not to assault
someone after an insult in a bar may have more to do with a fear of being
beaten up than with any worry about what the police might do. Similarly,
while the threat of prosecution may deter some leaders contemplating
atrocities, such persons are probably more likely to hold back out of fear of
vigorous public criticism, political pressure, diplomatic isolation, economic
sanctions, or even military intervention.
To summarize, if deterrence is our goal, our underlying concern will be
the prevention of future crimes. It is by no means clear that prosecution is
the most effective mechanism for preventing atrocities. If the international
community sits by and watches while atrocities occur, demanding prosecution
only after the violence has stopped, arguments about the deterrent effect
of such trials will ring hollow.173
Alvarez is right to warn that the international
community will lose its credibility unless "tijnternational efforts to
prevent the continuation ofgenocidal acts and other acts ofviolence ...pre-
170. Ashworth, supranote 75, at 50.
171. Note also that, as with domestic crime, punishment and censure can shape public values and
help enshrine moral standards. In transitional justice literature, the language ofdeterrence is often used
to refer to such moral education. See, ag., Kritz, supranote 21, at 129 (suggesting that international
tribunals are better positioned than local courts to convey the message that the international community
will not stand for atrocities); Cassel, supra note 11 (arguing that the International Criminal Court will
reinforce moral norms). While punishment may indeed serve an important communicative function and
help to reinforce values that will reduce future commission of atrocities, it is not clear that prevention
occurs through fear ofpunishment. The communicative function ofpunishment is addressed in a separate
Section below.
172. Beyleveld, supranote 136, at 78 ("We tend to associate deterrence with a legal context, but we
need not do so, and doing so does not alter the phenomenon, only the context."),
173. The establishment of the ICTY has "been widely understood as (a] symbolic international effort
... undertaken after no nation indicated a willingness to risk the loss of its own soldiers to stop the
massacres." MINOW, supra note 8, at 37.
2002 / A Frameworkfor UnderstandingTransitionalJustice
cede attempts at criminal accountability." 74
This is not to say that prosecutions,
or other transitional justice mechanisms, have no deterrent value. But
if the goal is to deter future human rights abuses by making potential abusers
afraid to act, the international community has bigger sticks to shake
than the threat of trial.
C. Rehabilitation
1. Theory
Rehabilitation seeks to prevent the future commission of crime by curing
previous offenders of their criminal tendencies. 1
7 Thus, the success of rehabilitation
is measured by recidivism rates, rather than by changes in the aggregate
incidence of crime.176
There are two possible reasons for wanting to
"cure" the offender. First, one might argue that society will be safer once the
offender is rehabilitated and is no longer committing crimes.' 7
Second, one
could believe that offenders should be given the opportunity to have productive
lives for their own sake. 78
Rehabilitation de-emphasizes the link between
the gravity of the crime and the severity of the sentence. Appropriate
rehabilitative sentences reflect the measures necessary to reintegrate a particular
offender into the community. Once an offender has been rehabilitated,
further punishment is unnecessary. Strict proportionality is not required;
among offenders who commit the same crime, some will take longer
than others to rehabilitate.1
7 9
The primary objection raised by critics of rehabilitation is that it simply
does not work.18 0
Even researchers who favor rehabilitation believe that
treatment programs are effective only with certain types of offenders.' 8
'
Other critics argue that rehabilitation denigrates human dignity.1s2
Still
174. Alvare;, supranote 59, at 458.
175. For an overview of rehabilitation theory, see generally Andrew yon Hirsch, R xtIza'at:, M
PRINCIPLED SENTENcING: READINGS ON THEORY & POLICY supra note 23, at 1. Rehabilitation tradidonally
involves counseling, training, psychological assistance, and other support ervices. Ser r. However,
rehabilitation need not be pleasant;, it can take place in prisons, boot camps, or mental hospicals.
and may involve aversive therapies, like shock treatment of sex offenders.
176. See i.
177. See M'fichael Moore, Law and Psychiatry. Rethinking the Relationship 234-35 (1934). rn&trJm
SANFORD H. KADISH & STEPHENJ. SCHULHOFER, .srnanote 134, at 123.
178. Sec id.
179. SeeVon Hirsch, supranote 175, at 2.
180. See Francis A. Allen, The Dcdine of tke RchahitatitrIdeal, in PRINCIPLED Sr'M,crNco: READINGS
ON THEORY & PouLCYspranote 23, at 14, 14-15 (discussing reasons for growing public skcpucism
about penal rehabilitation); Stephen Brody,How EffraireAre PemalTrexart.s?,in PruNciFL.D SEN'TENcING:
READINGS ON THEORY & POLICY supra note 23, at 9, 9 (describing a 'widespread conviction
that rehabilitation is not effective in preventing recidivism).
181. See Brody,supranote 180, at 10.
182. Comparing rehabilitation and retribution, C.S.Lewis wrote:
To be "cured" against one's will and cured ofstares which we may not regard as di.-i'is is to be
put on a level with those who have not yet reached the age of reason .... But to be punished.
however severely, because we have deserved it, because we "ought to have known better.- is to
be treated as a human person made in God's image.
HarvardHumanRightsJournal/ Vol. 15
others attack the allegedly benevolent purpose of rehabilitation, since rehabilitative
regimes may in fact inflict a greater deprivation of liberty on their
subjects than avowedly punitive programs. 183
2. Rehabilitationin TransitionalJustice
Advocates for prosecutions as the optimal form of transitional justice frequently
use the language of rehabilitation, but their focus is on societal, not
individual, rehabilitation.'14
Few indeed would think of prosecution and
punishment as a way to redeem despots like Pol Pot'8 5
and Pinochet. By
contrast, support for societal rehabilitation-the idea that prosecutions can
change a society's moral values by "foster[ing] respect for democratic institutions
and thereby deepen[ing] a society's democratic culture" 186
-is wide-
spread.
Prosecutions are believed to have at least three curative powers. First,
prosecutions help to establish the truth. Most scholars of transitional justice
agree that exposure and acknowledgement of the past is a prerequisite for
future social stability. 8 7
Prosecutions educate the public about the nature
and extent of prior wrongdoing 188
and contribute to a shared historical understanding.
Through this educational process, writes Stephan Landsman,
prosecutions "may serve both to inoculate the populace against lapses into
oppressive behavior and as a means of establishing an accurate account of
what actually transpired before the democratic regime came to power."18 9
Second, prosecutions help to establish the rule of law. "Holding violators
accountable for their misdeeds," explains Landsman, demonstrates to "all
members of society that the law's authority is superior to that of individu-
als."'190
By contrast, failure to enforce the law undermines its authority.19
'
C. S. Lewis, The HumanitarianTheory OfPunishment, 6 RES JUDICATAE: J.L. STUDENTS' SOC'Y VICTr. 2
(1953), quotedin WALKER, supra note 23, at 61.
183. Allen, supra note 180, at 16.
184. For a rare example of efforts to rehabilitate individuals previously involved in human rights
abuses, see Ian Fisher, AfandheeraJournal:Somali Militiar Now Undergoing 'Rebumanization,' N.Y. Tinms,
Dec. 4, 1999, at A4 (describing efforts to retrain former Somali militia members as policemen by
"mak[ing] them into humans again"). To the extent that the transitional justice community has sought
to respond to the needs of offenders, it has been in the context ofnon-prosecution alternatives, such as
truth commissions. Although such efforts have a rehabilitative aspect, they are arguably more closely
related to restorative justice, which will be discussed below.
185. Pol Pot led the Khmer Rouge regime, which held power in Cambodia from 1975 to 1979. Pol
Pot's policies of imprisonment, torture, starvation, overwork, and execution resulted in the death of an
estimated two million Cambodians. See generally CNN, CNN Newsmaker-Profiles:Pol Pot, at http:ilwww.
cnn.com/resources/newsmakers/world/asia/pol.html (last visited Oct. 4, 2001).
186. Orentlicher, supranote 1, at 2543.
187. See Section I. C.
188. See Landsmansupra note 5, at 83.
189. Id.
190. Seeid.
191. See Orentlicher, supra note 1, at 2542 (when "atrocious crimes fare] committed by a prior regime
on a sweeping scale ... (this] failure of enforcement vitiates the authority of the law itself') (footnotes
omitted).
2002 / A Frameworkfor UnderstandingTransitionalJustice
Third, prosecutions reinforce moral norms and contribute to a shared understanding
that certain behavior is wrong. In order to prevent future atrocities,
one must establish not only the truth about past abuses, but also a national
and international consensus that such acts are unacceptable."' 2
One important
way to communicate such a moral consensus is through the criminal
law. 193
Punishment thus not only reflects but also shapes moral values.
The fact that prosecutions can promote societal rehabilitation does not
necessarily mean, however, that trials are more effective than nonprosecution
alternatives at curing societies of their evil tendencies. The superiority
of prosecution as a means of accomplishing the first goal--establishing
the truth, educating the public, and forming a shared historical understanding-is
dubious. Some scholars have suggested that trials provide a
"higher quality" truth than alternative mechanisms because they are more
narrative and dramatic.194
While trials may have moments of high drama,
their formalism and rigidity can also make them excruciatingly boring.'"
This is particularly true ifdue process standards are respected, since "[w]hat
makes for a good 'morality play' tends not to make for a fair trial."", Other
forms of dramatic truth-telling, such as the televised confrontations between
victims and perpetrators before the South African Truth and Reconciliation
Commission, may be as good or better at capturing the public imagination.
Some scholars have suggested that, because of the higher evidenciary
standards imposed on trials, the truth produced through prosecution is more
accurate than that established through alternative mechanisms.19' In fact,
192. See, eg., Van Zyl, supra note 4,at 658 ("Knowing the truth about violations of human rights and
building a national consensus that such acts are illegitimate are essential in preventing their recur-
rence.").
193. The Pinochec case demonstrates the pedagogical benefits of prosecution: 'a generation of youth
has been taught that his alleged crimes.., are so unconscionable that he is pursued forthem een today.Cassel,
supranote 11, at 533-34.
194. See Osis, supra note 34, at 15-16 (arguing that trials are preferable to truth commissions in
shaping public memory because they are more dramatic); NiN . svpra note 16, at 146 (suggesting that
truth "is much more precise and much more dramatic when done through trial'.
195. Telford Taylor, in his memoir about the Nuremberg trials, describes a scene of incredible tedium.
But fine weather, even forthose able to enjoy its amenities, could not dtspel the terrible boredom.
The Tribunal, like the Apocalypse, was supposed to dnve out evil and enthrone good,
but the goal was not atrained on four horses. For nearly a year the inmates and workers of the
courthouse had been fairly drowned in documents, arguments, speeches, witnesses, translators,
reporters, and other judicial whatnor. In the nature of things, thee ingredients of the proceedings
became more and more repetitive as time went on. In August the trial of the organizations
had been especially wearisome, enlivened only occasionally by surprises sud as the
ghastly Sievers explosion orJudge Biddle's unintentional public lecture on brothels.
TELFORD TAYLOR, THE ANATOMY OFTHE NURaMBERG TRiALs: A PERsoNu. .MLsoin 546 (19'92).
196. OsLEL, supra note 34, at 59. Osiel is restating a common critique here. He heiesS in the F05sbility
and desirability of orchestrating trials of human rights abusers in a dramatic. pedagogcal l1aalon,
so long as the lesson taught is a liberal one. ld at 65. Yet the examples he gives to show that lair trials
can be conducted to maximize their dramatic effect (such as de decision to conduct the Argentinian
trials in a single oral proceeding rather than in sequential proceedings with primarily 'ntten submissions)
do not undermine the basic point that fair trials can, at times, be very dull indeed. Sc: i. at 77
197. See, eg., Mendez, supra note 7, at 16 (arguing that society has more faith in truth produced at
trial since courts are stricter than truth commissions in examining evidence)-
HarvardHumanRightsJournal/ Vol. 15
prosecution is at best an imperfect means to develop a complete record of
the past.198 First, rules of evidence typically reflect not only a desire to ascertain
the truth, but also competing public policy or constitutional concerns.
For example, in the United States relevant and probative evidence is routinely
excluded from criminal prosecutions when it is considered excessively
prejudicial, denies the defendant her right of confrontation, or forces a defendant
to incriminate herself. Yet in the wake of gross human rights violations,
gruesome photographs, flagrant hearsay and perpetrator confessions
are essential to developing an accurate picture of the past.199Moreover, while
the threat of prosecution can be an important tool in forcing perpetrators to
participate in other truth-seeking mechanisms,200 prosecutions themselves
are ill-suited to eliciting testimony from perpetrators, the very people who
know the most about the atrocities. "The primary sources of information
concerning those infamies, the perpetrators themselves," notes the late South
African Constitutional Court Justice John Didcott, "would hardly be willing
to divulge it voluntarily, honestly, and candidly without the protection of
exemptions from liability."201
The most serious deficiency of prosecutions when it comes to truthseeking
is that trials focus on select individuals and thus do not account, in
Minow's words, for "the complex connections among people that make massacres
and genocides possible."20 2 The history produced by judges is "the byproduct
of particular moments of examining and cross-examining witnesses
and reviewing evidence about the responsibility of particular individuals. 203
Moreover, international tribunals are often located far from the affected society
in transition, making the process less accessible to victims, witnesses,
and the public. In sum, "if the goal to be served is establishing consensus
and memorializing controversial, complex events, trials are not ideal." 2 1
Alternative mechanisms may be better suited than prosecution to developing
full records of the past. Some have argued that due to the lower standard
of proof and evidentiary and discovery advantages of civil proceedings,
198. See MiNOW, supranote 8, at 60.
199. Ofcourse, more lax evidentiary standards can be adopted, at least where perpetrators are not being
prosecuted through domestic justice systems. However, those standards must still comply with basic
due process, and due process does not permit the introduction of all relevant evidence,
200. See Villa-Vicencio, supranote 5, at 209 (noting the ways in which prosecutorial justice and truth
commissions reinforced one another in South Africa: "[flew would have applied for amnesty if not faced
with the threat ofprosecution").
201. QuotedinNIER, supranote 9, at 105.
202. MNOW, supranote 8, at 47. For example, Babacar Sine, a Senegalese intellectual, has said of the
prosecution of Hiss~ne Habr6, the former president ofChad,
This case is much more complex than the role of Habt. There is the role ofFrance that supported
him. There is the role of the United States that supported him. If we are to judge
Hiss~ne Habr6, we have to also judge those who supported him.
Quoted in Norimitsu Onishi, An African DictatorFacesTrial in His Place of Refuge, N.Y. Th~is, Mar.1,
2000, atA3.
203. MINoW, supranote 8, at 60.
204. Id. at 47.
2002 / A Frameworkfor UnderstandingTransitionalJustice
civil liability is better than criminal prosecution at establishing "a
definitive, historically accurate account of the atrocities."2- 5 This may be
true, but civil trials, just like criminal trials, focus on individual responsibility
and shift public focus away from systemic, shared culpability. By contrast,
truth commissions are not limited to the facts of individual cases, but
highlight the vast scope of and widespread complicity in the human rights
violations. In addition, the history produced through truth commissions
focuses not just on perpetrators but also "on victims, including forgotten
victims in forgotten places."206
The merits of prosecution in achieving the second goal of rehabilitation,
establishing the rule of law, are also unclear. Trials conducted before impartial
courts that scrupulously observe due process requirements may showcase
the benefits of the rule of law and contrast favorably with the lawless behavior
ofthe defendanrs.2° Yet when those same due process protections free
those who are perceived to be guilty, fair trials may well inspire contempt
for the rule of law.208
On the other hand, trials which are conducted unfairly
or which offend legal principles will undermine the "spirit of legality"&)
that such trials are supposed to inculcate. For example, human rights activists
initially cheered the prosecution in Senegal of former Chadian dictator
Hiss~ne Habr6' 0 as demonstrating that even such an "ultimate untouchable"211
may not violate the law. However, after a change of government in
Senegal, the case against Habr6 was dismissed,212 reinforcing the notion that
the powerful are untouchable.213 A similar problem arises when the "small
fry" are prosecuted instead of high level officials, fostering a perception that
prosecutions are a form of scapegoating, not a means ofachieving justice.
Perhaps the most distinctive contribution prosecution can make to societal
rehabilitation is in establishing the wrongfulness of past atrocities. The
prosecution and punishment of atrocities is a forceful way to disavow such
conduct. A process of censure not only expresses disapproval of those who
violate international human rights norms, but also serves to define and
strengthen the norms themselves. While prosecutions help to establish
205. Murphy, supranote 17, at 47-48.
206. MiNow, supranote 8, at 60.
207. See, eg., NINo, supranote 16, at 146.
208. See Wren, supranote 54. Following the ICTR's decision, Rwanda suspended cooperattion with the
tribunal. Joseph Mutaboba, Rwandan representative to the UN, described the ICTR as negligent in its
duties, and said that the hardship suffered in jail by Jean-Bosco Barayagwiza 'is negligible compared to
the suffering his victims endured." Id
209. Nuno, supranote 16, at 148.
210. Hisslne Habr6 ruled Chad from 1982 to 1990. His regime has been accused of mass murder and
systematic torture. SeegenerallyHuman Rights Watch, The CastAganat Huir.e Habr, athttp-I11%%'w.hr%%
orgljusticelhabrefintro_web2.htm (last visited Oct. 4., 2001); se alo Reed Brody Tk Prmciatrn61
HisuseHabri--An"African Piccuhet," 35 NEw ENG. L REV. 321 (2001).
211. Onishi,supranote 202, atA3.
212. SeegenerallyHuman Rights Watch, The CaseAgainst Hisub. Ha-Irl, qa note 210
213. Human rights activists are continuing their efforts to bring Habre to trial. It is still poible that
this will occur, which would obviously change the lesson to be drawn from his care.
HarvardHuman RightsJournal / Vol, 15
moral norms, one cannot assume that in every case "once accusations are leveled
and indictments and judgments are issued, all will come to acknowledge
the barbarous evils committed by genocidaires. 214
Rather, one must
identify those situations in which prosecutions will help to forge common
moral values.21 5
While prosecutions can produce moral consensus, they can
also create scapegoats and feelings of bitterness, particularly where the selection
of defendants appears to be politically motivated or where there is a
perception that the trial represents victor's justice. One must be wary of a
vicious circle: where prosecution is not grounded in moral consensus it will
be seen as victor's justice. And if it is seen as victor's justice, it will lose its
effectiveness as a tool for creating moral consensus. A society cannot be
cured ofa condition it does not regard as a disease.
Finally, is prosecution the most effective way to foster societal rehabilitation?
Certainly prosecutions shape norms by condemning undesirable conduct.
But trials also express the belief that "specific individuals-not entire
ethnic or religious or political groups-committed atrocities."216
While individual
crime is a component ofmass atrocity, "radical evil," as Carlos Nino
notes, also
requires an evil political and legal framework in which to flourish,
Without that framework, it is unlikely that massive, statesponsored
human rights violations will ensue regardless of whether
punishment for previous violations takes place. With that framework
in place and given certain antecedent circumstances, however,
violations are highly likely even with previous convictions
and punishment for human rights violations.217
Perhaps funds spent on prosecutions would have a stronger rehabilitative
effect if spent on reforming a society's political and legal framework. Prosecutions
may well be less successful in rehabilitating a society than a concerted
effort to reduce inequalities in wealth, provide basic public education,
create functioning courts, establish civilian control over the military, ensure
the independence of the press, or hold free and fair elections.
214. Alvarez, supranote 59, at 468,
215. Since rehabilitation justifies "punishment" only to the extent that it contributes to moral reeducation,
proportionality is not required. Thus, if there are other ways to rehabilitate societies which are as
or more effective than prosecuting and punishing human rights abusers, then those methods may be
preferable.
216. Krirz,supranote 21, at 128.
217. NINo, supranote 16, at 145.
2002 / A Framework/orUnderstandingTransitionalJustice
D. Restorativejustice
1. Theory
Two major paradigms fall within the rubric of restorative justice.21 , The
first focuses on compensating victims219
and views crime as a harm that
criminal justice should seek to undo.220
Under this view, the purpose of
punishment is to repair injuries to victims,22
and thus the goal of criminal
justice is for the offender to provide restitution to the victim. The second
paradigm envisions crime as conflict and criminal justice as a form of
conflict resolution.2 22
The basic assumptions of this approach are:
(1) Crime is primarily a conflict among individuals resulting in
injuries to victims, communities and the offenders themselves;
only secondarily is it lawbreaking.
(2) The overarching aim of the criminal justice process should be
to reconcile parties while repairing the injuries caused by crime.
(3) The criminal justice process should facilitate active participation
by victims, offenders and their communities. It should nor be
dominated by the government to the exclusion ofothers.Y" Under
this view, the goal of criminal justice is the reconciliation of the offender,
victim, and community.224
These two paradigms, compensation and conflict resolution, are often
linked. An apology without restitution may mean little; if a friend apologizes
for raking a pen but does not return it, her statement is worthless.225
"Apologies set the record straight; restitution sets out to make a new rec-
218. This discussion of these two paradigms draws heavily on Andrew Ashworth, RtawsijnrJwir::, ms
PRINCIPLED SENTENCING: READINGS ON THEORY & Poicyz sspranote 23, at 300,
219. Se id
220. Dean E. Peachey, Rertitution,Rceacliatien,Retrituticn:Idarim tk-- Fcr,-i cfJXszae Perc,!r Dalr,
in RESTORATrIVE JUSTICE ON TRIAL-PITFALLS AND POTENTIALS OF VICTIM.OFFr-NDER NfrDoATIONINTERNATIONAL
RESEARCH PERSPECTIVES 551, 552 (Heinz Messmer & Hans-Uwe Otto eds., 1991).
221. For example, Daniel W.Van Ness explains that punishment
does not help repair the injuries caused by crime (but] simply creates new injuries; now both
the victim and the offender are injured. Recompense, on the other hand,issomething given or
done to make upfor an injury. This underscores hat the offender who caused the injury should
be the active party, and that the purpose ofpunishment should be to repairas much as possible
the injury caused by the crime.
Daniel W.Van Ness, RestoratitvJusticeandIntrnationalHtt-w.rnRShts, in REs'roRAr JustIcE INRLIINAIONAL
PERSPECTIVES 17, 27 (Burr Galaway &Joe Hudson eds., 1996).
222. SeeAshworth, spra note 218, at 301.
223. Van Ness, supra note 221, at 23.
224. Strictly speaking, restorative justice, under either paradigm, is nor a theory ofpunishmnt. The
purpose of requiring an offender to pay her victim's hospital bills or to perform community service is to
provide compensation fbror to encourage reconciliation with the victim; punishment is a side-effecr, S:
Ashworth, supra note 218, at 301. Retribution, deterrence and rehabilitation may all be sidrcffects of
restorative justice. While some argue that restorative justice is better able to adieve the goals than
more traditional forms ofcriminal justice, others believe that restorativism is its own end, and s jusfied
even ifit has no preventive benefits. Sa id at 304.
225. SeeSHRIVER, spranote 102, at 224 (providing this example).
HarvardHumanRightsJournal / Vol. 15
ord," explains theologian Donald Shriver.226 Yet conflict resolution cannot
rest on compensation alone, particularly since it is often impossible to restore
to the victim what she has lost or repair the harm that she has suffered.
While a stolen pen can be replaced, a murdered child cannot.
Restorative justice differs from retribution, deterrence and rehabilitation
in its focus on the victim. 227
Restorative justice raises questions about the
identities of the parties to the conflict. In other words, it asks whose interests
are relevant to the case.228
In the West, crimes are defined as offenses
against the state; in this way, as Nils Christie argues, the state has stolen
conflicts from victims, 229
communities and offenders. "Virtually every facet
of the criminal justice system works to reduce victims, offenders and communities
to passive participants," notes Daniel Van Ness.230 Restorative justice
aims to return conflicts to the parties to the conflict. Yet the idea that
crimes are offenses against society at large should not be ignored, for offenders
harm not only specific victims but also entire societies. Thus, restorative
justice must consider the interests of both the individual victim and the
wider community.
Theoretically, the compensatory paradigm of restorative justice is somewhat
disconnected from culpability, since the degree of harm caused may
not reflect the blameworthiness of the offender.231 Proportionality in this
context is based on the amount of harm inflicted on the victim, not the maliciousness
of the offender's intent.23 2 The conflict resolution paradigm, on
the other hand, is more likely adequately to address culpability; a victim
will be angrier at someone who hits her intentionally than at someone who
does so accidentally, and will require more ofthe offender in order to resolve
the conflict.233
2. RestorativeJusticein TransitionalJustice
In the context of transitional justice, reparations can be seen as a form of
compensation, while approaches seeking to heal society's wounds can be un-
226. Id.
227. Ashworth notes, however, that not all restorative theories are necessarily victm-centered, and
not all victim-centered approaches are necessarily restorative. Ashworth, supra note 218, at 300. Nevertheless,
under both a compensatory and a conflict resolution model of restorative justice, punishment,
deterrence and rehabilitation of offenders are insufficient. The victim must also be considered.
228. See id. at 300-02.
229. See Christie, supra note 30, at 312.
230. Van Ness, supra note 221, at 24.
231. See Ashworth, supra note 218, at 305.
232. See Lucia Zedner, ReparationandRetribution:Are They Rcconcilable?, in PRINCIPLED SENTENCINO:
READINGS ON THEORY & POLtcYsupra note 23, at 336, 344.
233. Some scholars have argued that restorative justice and retribution are not as antithetical as is
sometimes assumed. Lucia Zedner, for example, has noted that both reparation and retribution, unlike
rehabilitation, are predicated on notions of individual autonomy. Both theories "presume that offenders
are rational individuals able to make free moral choices for which they may be held liable." hi at 344.
Offenders can legitimately be called to account, whether by making good or suffering proportionate
punishment. See id.
2002 / A Frameworkfor UnderstandingTransitionalJustice
derstood within a conflict resolution paradigm. In both cases, as in the domestic
context, victims claim a central role.23
4This Section will first look at
reparations as a form of transitional justice, and then assess the capacity of
prosecutions to reconcile victims, offenders, and society as a whole.
Reparations in the wake of massive human rights violations are designed
to provide at least partial restitution to victims. While compensation typically
involves monetary payments to individuals, other types of restitution,
like building memorials or naming streets for victims, are less tangible and
less directly focused on individuals. The truth itself can also be understood
as a form of reparation. When the silence is broken, and families learn where
the bodies are buried or victims discover the identities of their torturers, the
injury caused by past abuse may begin to be repaired.
Reparations should not only acknowledge the survivor's loss, but also repair
the harm caused. While this is a valuable goal, it is often difficult to
achieve in practice. Where former regimes have harmed both individuals
and entire communities, should scarce resources be used to pay compensation
to individual victims, or to rebuild a society victimized by poverty, appalling
health care and lack of education? Moreover, monetary measures
cannot remedy non-monetary harms, like the loss of a child or the agony of
remembered torture.235
"[NIo market measures exist," writes Minow, "for
the value of living an ordinary life, without nightmares or survivor guilt."2 36
Reparations are likely to be grossly disproportionate to the damage caused,
and many thus trivialize suffering.237
In fact, victims frequently express only
modest demands for reparations, such as a tombstone or death certificate for
their loved ones or the removal of bullets from their own bodies338
Often,
their most significant demand is for the truth. Thus while restitution can
never fully compensate victims, it can serve an important symbolic function.
Proponents of prosecution sometimes argue that trials are useful as a basis
for reparations.2 39
This justification seems dubious, at least insofar as it is
used to support the primacy of prosecutions. Since prosecution focuses on
establishing the guilt of a few individual perpetrators, it is not an ideal tool
for identifying victims who deserve compensation. Moreover, because prosecutions
are adversarial, defendants may never reveal those facts about the
past which victims most want to know. Arguably, alternative mechanisms
are better able to identify victims, as well as to provide them with a more
234. Se4 ag., M Now, supranote 8, at 60 (arguing that the most distinctive element oftruth commissions,
in comparison with prosecution, is the focus on victims).
235. Seeid at 93.
236. Id at 104.
237. Seeid at 93.
238. Id at 105-06 (describing the modest requests of South African victims before the Truth and
Reconciliation Commission and worrying whether this modesty represents "dignifird assertions made bindividuals
who have no illusions about the possibility of external repair for their Iossts," or the 'lowered
expectations of the persistently oppressed").
239. See, eg., Cassel,supranote 11 (citing reparation ofvictims as one of the goals of the lntemaranal
Criminal Court).
HarvardHuman RightsJournal / Vol. 15
comprehensive, and more personal, account of the past.240
Truth commissions
and civil suits offer at least the possibility that victims will be com-
pensated.241
Reparations may even take the form ofgovernmental or international
aid programs providing medical treatment, scholarships for victims'
children, or preferential access to government services such as public housing
or transportation. Any of these approaches is more likely to provide real
restitution to victims than prosecutions. Thus the reparative paradigm of
restorative justice offers little justification for prosecution.
How do prosecutions hold up under the conflict resolution paradigm of
restorative justice? First, we must ask if reconciliation or forgiveness are
even possible after massive human rights violations. In the domestic context,
restorative justice programs are usually restricted to minor offenses, Yet
conflict resolution in the context of transitional justice requires interaction
between those who carried out and those who suffered from horrific atrocities.
"Healing," worries Minow, may be "an absurd or even obscene notion
for those who have died," as well as for the survivors, who often feel as if
they "have died or live among the dead."2 42
Susan Dwyer expresses a similar
concern that "[rleconciliation is being urged upon people who have been
bitter and murderous enemies, upon victims and perpetrators of terrible
human rights abuses, upon groups of individuals whose very self-conceptions
have been structured in terms of historical and often state-sanctioned
relations of dominance and submission."243
Absent a clear explanation of
reconciliation and what it requires, she continues, "proposing reconciliation
will seem like a political sop aimed at masking moral defeat."2 t
So, what is reconciliation? Scholars of transitional justice distinguish between
the repair of relationships that will suffice for a society to move forward
and unrealistic expectations of transformative interactions between
victims and perpetrators. Dwyer, for example, believes apologies and forgiveness
are not absolutely required for future interaction. She contrasts personal
reconciliation between victims and perpetrators, which may be too
much to ask, with national reconciliation, which she argues is more possi-
ble.245
What is necessary if perpetrators and victims are to live together in
240. See, e.g., Hayner, supranote 20, at 655 (noting that truth commissions can go hand in hand with
reparations); John Dugard, RetrospeciveJusticeInternationalLaw and the South Afrian Mod, in TRANSITIONAL
JUSTICE AND THE RULE OF LAW IN NEW DEMOciAcIEs supra note 7, at 269, 277 (noting that
reparation was one of the goals of the South African Truth and Reconciliation Commission); Van Zyl,
supra note 4, at 661 (reparations granted by the South African Truth and Reconciliation Commission
were a "fairer, more nuanced and holistic means of redress than that which could be obtained through the
courts"); Landsman, supra note 5, at 88 (arguing that truth commissions areat least as good as trials at
establishing the predicate for victim compensation).
241. Murphy, supranote 17, at 48.
242. MiNow, supra note 8, at 62.
243. Dwyer, supranote 9, at 82.
244. Id. at 89.
245. Id.at 95. Dwyer cites a remark by anti-apartheid activist Marius Schoon about the Truth and
Reconciliation Commission, which heard an amnesty petition from the bomber who killed Schoon's
family: "I think [the Commission] is going to bring about national reconciliation. In my case, it's not
2002 / A Frameworkfor UnderstandingTransitionalJustice
the future, she claims, is the development of a common national historical
narrative, based on agreed-upon facts and a shared interpretation of them.21 '
Shriver, in contrast, prefers the concept of "forgiveness."247 Believing victims
must have more courage than Dwyer requires, Shriver asks victims "to face
still-rankling past evils with first regard for the truth of what actually happened;
with resistance to the lures of revenge; with empathy-and no excusing-for
all the agents and sufferers of the evil; and with real intent on
the part of the sufferers to resume life alongside the evildoers or their political
successors.
' 24 8
Whatever words we use to describe it, the concept of restorative justice is
certainly relevant to transitional justice. The horrors of the past can be seen
as a form of conflict, and the goal of transitional justice as conflict resolution.
Transitional justice can be organized so as to give victims a central role
and repair relationships between them, perpetrators, and society at large. In
this way, transitional justice can strive for at least enough forgiveness, reconciliation,
or healing to make coexistence possible.
A reconciliation-based argument for prosecution is premised on the notion
that retribution is a precondition for societal healing. There has been
considerable debate about the tension between "justice," the requirement
that those who violate human rights be punished, and "peace," the desire for
both social cohesion and an end to human rights violations.249 Historically,
the concern has been that pushing for justice would jeopardize peace. Increasingly,
however, diplomats involved in settling violent disputes and
politicians seeking to move their countries forward recognize that a focus on
past atrocities is not an obstacle to stability and conflict resolution, but is, in
Kritz's words, "an integral and unavoidable element of the peace process." 250
Proponents of prosecution have equated this new framework, in which
justice is a precondition for peace, to an argument that retributive punishment
must precede social healing.25 1 Accordingly, before there can be reconciliation
in places like Bosnia and Rwanda, there must be retribution, at
least as far as the most serious offenders are concerned. 2"2To achieve closure,
"individuals emerging from massive abuse and trauma [must] develop apgoing
to bring about personal reconciliation." Dwyer concludes that Schoon was "able to se how the
narrative ofhis country can be revised in ways that his own personal soty cannot bm Id.
246. Idat 89-90.
247. SHRlVER, supranote 102, at 67.
248. Id.
249. Sometimes the tension is framed in terms of truth versus justice, similar to the peace versus justice
framework. Truth is arguably a component of peace, for long-term cohesion cannot In-achieved
without an understanding and acknowledgment ofthe past.
250. Kritz, supra note 21, at 128.
251. Of course, as a matter of theory, reconciliation is nor the justification for retribution. Ac'most it
can be a beneficial side effect. Offenders must receive their -justdeserts. whether or not this promates
reconciliation.
252. See David Little, A Different KirdqfJustice: Dealing uith Hor-.n Reis Ut'Atat:rnTraneut:=!
Sodeties, 13 Em'ics AND INT'L AFF. 65, 66 (1999).
HarvardHumanRightsJournal / Vol. 15
propriate mechanisms to confront and process that past experience," 253 But
the need to face one's past does not adequately explain why such a confrontation
must be retributive. Forgiving, after all, is not actually the same as for-
getting.
254
Perhaps, as is frequently asserted, one cannot forgive what one cannot
punish. 255 While this argument has strong intuitive appeal, it is problematic.
First, it is a conclusion, not a verifiable fact. It seems equally plausible
that those most likely to demand punishment are those least likely to forgive.
Second, the extent to which forgiveness is contingent on punishment
likely depends on context. Some offenses are easier to forgive in the absence
of punishment than others, and some cultures and religions promote forgiveness
more than others. Third, if one cannot punish all, how can one possibly
forgive all? If only the ringleaders are punished, can one really expect
victims to forgive when they must pass their tormentors in the street on a
daily basis? If punishment is a prerequisite, reconciliation between the perpetrators
and their victims is impossible. Fourth, and most importantly, the
argument that one cannot forgive what one cannot punish suggests that
where one cannot adequately punish extraordinary evil, one cannot forgive.
If reconciliation depends on forgiveness, and forgiveness depends on punishment,
does the impossibility of proportionate retribution in the context
of extraordinary evil render reconciliation impossible?
Truth commissions might be better suited to a restorative model of transitional
justice than prosecutions. Truth commissions can focus on the victims,
craft a shared narrative about the past as the basis for a shared future,
and facilitate the active involvement of victims, perpetrators, and the larger
community. In essence, truth commissions return the conflict to those who
participated in it. The more open, discursive nature of truth commissions
better addresses the problem of widespread complicity in massive human
rights violations. Moreover, the informality of the process brings other
benefits such as the ability of officials to grieve publicly with victims.
"[Truth and Reconciliation Commission Chairperson Archbishop Desmond)
Tutu cries," Justice Albie Sachs of the South African Constitutional Court
has said. "A judge does not cry."256 Furthermore, restorative justice is multi-
253. Kritz, supranote 21, at 127.
254. Donald Shriver eloquently makes this point:
Forgiveness begins with memory suffused with moral judgment. Popular use of the wordifrgiveness
sometimes implies that to forgive is to forger, to abandon primary concern for the
crimes of an enemy. Quite the reverse: "Remember and forgive" would be a more accurate slogan.
Forgiveness begins with a remembering and a moral judgment of wrong, injustice, and
injury. For this very reason, alleged wrongdoers are wary ofbeing told that someone "forgives"
them. Immediately they sense that they are being subjected to some moral assessment, and
they may not consent to it. Absent a preliminary agreement between two or more parties that
there is something from the past to beforgiven, forgiveness stalls at that starting gate.
SHRIVER, supra note 102, at 7.
255. See,e.g., Landsman, supranote 5, at 84 (arguing that prosecution may be essential to healing a
society's wounds after massive human rights abuses because one cannot forgive what one cannot punish).
256. Quotedin MINOW, supranote 8, at 73.
2002 / A Frameworkfor UnderstandingTramitionalJustice
directional. Prosecutions may be appropriate where individuals can be
clearly classified as either victims or perpetrators. Truth commissions, on the
other hand, recognize that this distinction is not always clear. During periods
of mass atrocity or repression, individuals usually assume different roles
over the course of the conflict. As a result, apologies must be both given and
received.
Ofcourse, truth commissions will not always work as a form of restorative
justice. Repairing relationships through discussion and confrontation requires
not only that all parties be engaged in the process, but also that perpetrators
recognize their blameworthiness and accept responsibility for past
actions. Amnesty can be understood as an annulment of the appropriate retributive
penalty in return for truthtelling.2
"7
But offenders may be unwilling
to tell the truth or to express contrition.258
Moreover, to be meaningful,
apologies must be linked to restitution. Reconciliation in the wake ofatrocity
requires "the credibility that can be established only by implementation
of social and economic programs that concretely address the substantive injustices"
of the past.259
Even those who acknowledge their own culpability
or complicity through a national truth-telling process may recoil at the loss
ofprivileges and power that true accountability demands. How much reconciliation
can be achieved if in post-apartheid South Africa, for example,
whites admit that their economic, social, and political status was based on a
morally bankrupt system, but then refuse to accept sharply redistributive
taxation?
The fundamental difficulty with restorative justice is that it cannot adequately
address demands for retribution.260This is not really a problem with
restorative justice itself, but rather with the difficulty of reconciling two
competing goals of transitional justice. This issue nevertheless deserves
comment here, as it lies at the heart ofmany critiques of truth commissions.
Retribution requires the isolation of perpetrators and the definition of
their behavior as outside the realm ofhuman interaction. Restorative justice,
in contrast, requires that we recognize the offenders' humanity and the pos-
257. SeeLittle, supranote 252, at 73.
258. See id at 74 (arguing that contrition on the part ofSouth African offenders appeanng bfore the
Truth and Reconciliation Commission seemed in short supply).
259. Dwyer,supranote 9, at 95.
260. Note that the problems here are not the same as in a domestic criminal justice system. First, in
domestic systems the fact that some victims are vengeful and others forgiving can result in disparues in
the treatment oftwo equally culpable offenders. Since a restorative vision of transitional justice dots not
typically involve negotiation between individual victims and offenders, but rather a whole society in
discussion with itself, such inequalities present less ofa problem. Instead, the difficulty lies in the f1,
that those in the society who favor a more retributive model will be shortchanged. Second, d scopc of
restorative justice in the domestic context differs from that in the transitional justice context. In domestic
systems, efforts at conflict resolution between victims and offenders are usually an -ddmdum to a
much larger and relatively comprehensive system of sanctions. In transitional justice, preacutions can
reach only a fraction of offenders. Thus truth commissions or other non-prosecution alternatives. even
when used in conjunction with prosecution, can be a mechanism for ensuring some accountability from
the vast majority ofoffenders.
HarvardHumanRightsJournal / Vol. 15
sibility of a continuing relationship with them. Forgiveness, argues Shriver,
is about repairing fractured human relationships, and therefore "insists on
the humanity of enemies even in their commission of dehumanizing deeds,
and ...values the justice that restores political community above the justice
that destroys it.''261
In the context of domestic crime, criminality is sometimes
understood as in part the product of social and economic circumstances.
In the context of massive atrocities, however, it is far easier to be
appalled and to demand vengeance than it is to ask ourselves if, in similar
circumstances, we might have done the same thing. Among the most important
lessons to be learned from confronting radical evil is just how banal
and widespread it really is. "Affirming common humanity," as Minow notes,
"does not mean turning the other cheek or forgetting what happened. 262
But it does require that accountability mechanisms not dehumanize perpetrators.
In essence, restorative justice seeks to affirm the humanity of those
who have behaved inhumanely. It offers accountability, not vengeance. 263
Both retributive and restorative justice envision reconciliation as a product
of full accountability for wrongdoing. 264
But while retributive accountability
involves proportionate punishment, restorative accountability demands
an acknowledgment by offenders of their culpability and a willingness
to make good. While retributive justice allows society to punish an
offender as a means of achieving reconciliation, restorative justice requires
society to include the offender in the process of reconciliation. Neither approach
is perfect; society cannot create adequate punishments for all offenders,
nor can it force all offenders to be contrite. Whether either strategy will
actually bring about reconciliation will depend on the extent to which punishment,
apology, and reparation can form the basis for a common future.
"Simple justice is elusive," concludes Shriver. In fact, "forgiveness thrives
upon the tension between justice-as-punishment and justice-as-restora-
tion."265
Retribution can play a restorative role, while "forgiveness can make
...room for punishment while making wider room yet for the repair of
damages and the renewal of relations among enemies." 266
261. SHRIVER,$ulpra note 102, at 9.
262. MINOW, supranote 8, at 146.
263. Perhaps there are forms of retributive justice that also recognize the offender's humanity. This
question, however, leads back to the debate about whether retribution is different from vengeance, What
is clear is that in practice retributive justice often functions as an outlet for vengeance, and there is usually
a demand for vengeance after mass atrocities. Kevin Minor andJ,T.Morrison argue that the central
problem with restorative justice, and by extension with truth commissions, is that they are "not a
vengeful response to crime, and vengeful responses are perhaps the most blatant means of displaying
emotional outrage." Kevin . Minor and J. T. Morrison, A Theoretical Study and Critique of Restorative
Justice, in REsToRATIvE JUSTICE ON TRIAL: PITFALLS AND POTENTIALS OF VICTIM-OFFENDER MEDIATION-INTERNATIONAL
RESEARCH PERSPECTIVES supra note 220, at 117, 119.
264. See Little, supra note 252, at 79.
265. SHRIVER, supranote 102, at 32.
266. Id.
2002 / A Frameworkfor UniderstandingTransitionalJustice
E. Comnmnication/CondemnzationlSocialSolidari0
1. Theory
For tmile Durkheim, punishment is a form of moral communication used
to express condemnation and strengthen social solidarity."
6'
Durkheim argues
that the "true function [of punishment) is to maintain social cohesion
intact."268
Crimes, according to Durkheim, are acts that violate a society's
fundamental moral code of sacred norms, thereby weakening those norms.
Punishment plays a critical role in preventing the collapse of the moral order
by limiting the "demoralizing" effects of crime.'
9
Punishment also functions
as a collective response that demonstrates and reaffirms the real force of
the common moral order.270
By punishing, a society expresses its shared
moral outrage, strengthening and reinforcing the norms of social life. 7
Punitive
rituals, by articulating shared sentiments, help to reflect and sustain a
society's moral values, thereby strengthening the bonds of community.272
For Durkheim, sanctioning offenders is a way to communicate the continuing
validity of the law, a "language" which "expresses the feeling inspired by
the disapproved behaviour. ' 275
Thus the two central premises of the "Durkheimian
school" of thought are that punishment communicates social condemnation,
and that it therefore plays a role in reaffirming, or even creating,
social identity and/or social solidarity.274
267. This discussion of Durkheim draws heavily on DAVID GARLAND, PuVsitItNT AND MDLLN
SOCIETY: A STUDY IN SOCIAL THEORY (1990).
268. Durkheim further argues that punishment -does not serve, or else only stnes quite srondany;
in correcting the culpable or in intimidating possible followers. From this point of view its eikelhS is
justly doubtful and, in any case, mediocre." &.MrLE DuRKHrir s,Til DivisioN OmLon w.SojLT 103
(1933).
269. See GARLAND, supra note 267, at 42.
270. Seea at 28-35.
271. See id.
272. See id at 33-34. Of course, punishment is not the sole force creating socal solidantF Durkhrim
believed that punishment plays a more important solidarity-producing function in .ome societies. such a5
"simple societies," than in others, such as -modem societies," where te division of labor becomes the
predominant source of solidarity.
273. ?ur.E DURKHEI , MoRAL EDUCATION 176 (1973).
274. What here is called the "Durkheimian school" actually encompasses a range of quite varied approaches.
David Garland, for example, criticizes Durkheim's understanding of what mMage the law
communicates but agrees that punishment is a form of communication which at least in part is a product
of deeply felt popular beliefs. See GARLAND, supra note 267, at 53. Similarly, Antony Duff has suggested
that punishment is "a mode of rational, transparent communication and persuasion," which is aimed at
convincing the offender of his wrongfulness, but also has the effect of assuring the vttnm anJ the public
at large that "the law means what it says." Antony Duff, Daiertacd Perit:ze,tn PitNCIrLsi SLNT .%cI.%GREADINGS
ON THEORY & POLICY supra note 23, at 161, 161. According toJoel Feinberg. it is precisely
this "expressive function" which distinguishes punishments from what he terms "pnaltites "Joel Feinberg,
The Exprssive Functionof Punishrent,in A READER ON PuNtIsisma%"r at ', 71 (Antony Dull &
David Garland eds., 1994). Punishments convey the community's sentiments of condemnation. rprobation,
and resentment, while penalties, such as flunking a class, losing a job, or paying a parking ticket. do
not. Through punishing, the scare goes on the record about its values. For example. Feinberg sa)-. it
paramour killings go unpunished, the law expresses the judgment that the vindication of the cuckoldtd
spouse is more important than the very life of the murdered lover. Sr iat. at 75-78. lake Feinbcrg. Herbert
Morris sees the communicative component of punishment as a defining characteristic, An amton
HarvardHumanRightsJournal / Vol. 15
In examining the Durkheimian school, three points are worth noting.
First, to argue that punishment is a form of communication sheds no light
on the message being conveyed. Different forms of punishment communicate
different messages and produce different forms of social solidarity.
Moreover, because other approaches to criminal justice rely on the communication
of particular messages, like those of deterrence or moral reformation,
the communicative paradigm is intertwined with, though conceptually
distinct from, the theories discussed above.
Second, in describing the impact of punishment on the construction of
social identity, Durkheimian theorists focus on why a society punishes, not
why a society says it punishes. After all, in adopting purpose provisions for
penal codes, legislatures do not express a desire to shore up the social order,
but rather use the language of retribution, deterrence, rehabilitation, or restorative
justice. Moreover, descriptions of the consequences of punishment
for social control or identity do not explain why one should punish. David
Garland may well be right that punishment is sometimes used to express
and construct the dominant moral order.275
But the idea that ruling elites
employ punishment as a way to establish the legitimacy of their social vision
is not an affirmative reason to punish.
Third, if punishment is imposed in order to express societal reprobation,
then condemnation, not punitive treatment, is the central goal. Under this
view, while a prisoner-of-war camp may be harsher than a prison, such incarceration
does not constitute "punishment," since it is not an expression of
social condemnation.27 6
If one punishes in order to communicate moral valtaken
inrevenge or retaliation may have no purpose but to harm the other. By contrast, punishment isan
educational process whereby offenders are taught that their conduct was wrong inthe hope that they will
choose to act differently in the future. See Herbert Morris, A PaternalisticTheory of Punisbment, in A
READER ON PUNISHMENT at 95, 97, 100 (Antony Duff & David Garland eds., 1994). Thus the law
"plays an indispensable role in our knowing what for society is good and evil. Failure to punish serious
wrongdoing, punishment for wrongdoing in circumstances where fault is absent, would serve only to
baffle our moral understanding and threaten what is so often already precarious." Id.at 104.
275. Garland, for example, sees punishment as a "cultural agent" which shapes public values and social
identity. See GARLAND, supra note 267, at 249-76. Punishment does not reflect Durkheim's "conscience
collective," but rather a "dominant moral order." "Establishing society is not just a problem of
socializing deviant individuals," Garland writes. "liltis also, and crucially, a matter of subduing competing
social movements and social groups." Id. at 52. Unlike Durkheim, Garland thus understands the
penal law not as an expression ofa pre-existing moral consensus, but rather as a tool used in the political
struggle to transform and shape public sentiment in accordance with a particular vision ofsociety. Se id.
at 54. In other words, "punishment does not just restrain or discipline 'society'-punishment helps create
it." Id. at 276.
276. Feinberg, supra note 274, at 75, citing Henry Hart, The Aims of the Criminal Law, 23 LAV/ &
CONTEMP. PROBs.401 (1958). As Feinberg suggests, in an expressive theory ofpunishment,
[w]hat justice demands is that the condemnatory aspect of the punishment suit the crime, that
the crime be of a kind that is truly worthy of reprobation. Further, the degree of disapproval
expressed by the punishment should 'fit' the crime only in the unproblematic sense that the
more serious crimes should receive stronger disapproval than the less serious ones.... That is
quite another thing than requiring that the 'hard treatment' component, considered apart from
its symbolic function, should 'fit' the moral quality ofa specific criminal act ....
Id. at 89. Feinberg notes that it is a convention ofmodern society that "condemnation is expressed by
hard treatment, and the degree of harshness of the latter expresses the degree of reprobation of the for-
2002 / A Frameworkfor UnderstandingTransitionalJustice
ues, it matters less that offenders pay for their misdeeds, than it does that
society finds a way of adequately expressing its disapproval. Prosecuting and
sanctioning offenders is an important way of communicating reprobation,
but it is not the only one. If one justifies punishment as a means of communication,
one must explain why punitive sanctions are the most appropriate
form of censure.2 77
2. Communication/Condemnation/SocialSolidarityin TransitionalJustice
In transitional justice, prosecutions are frequently portrayed as a way to
communicate, to condemn, and to rebuild social solidarity in the wake of
fratricide. Diane Orentlicher, in arguing for a duty to prosecute, insists that
"[iif the international community cannot prevent, at least it must not condone.
Its words of censure or approval eventually filter through."278
Human
rights observers cheer each new prosecution as potent evidence that everyone,
including heads of state, is bound by international human rights law.279
Indeed, trials have even been described, in Bruce Ackerman's famous phrase,
as "constitutional moments" when a society is reborn.231 Implicit in such
statements are two strands of the Durkheimian argument: that punishment
communicates social condemnation, and that it reaffirms social solidarity or
shapes social identity.
First, as regards the communicative force of punishment, the prosecution
ofthose who commit genocide, war crimes, and other atrocities indisputably
conveys a powerful message of condemnation. Punishment of those who
violate human rights conveys the message that violating human rights is
profoundly wrong, and that wrongdoers must accept the consequences of
their actions. The failure to respond to mass atrocities would send a very
different message. As the moral philosopher Antony Duff has argued, "we
are not sincere in our condemnation of an act if we are silent in the face of its
met." IaStill, this is a convention, not a logical requirement.
277. See Duff,supranote 274, at 164:
A central task fbr a communicative theory of punishment is to explain why punishment should
take the fbrm of hard treatment. Penal hard treatment can communicate censure: but since censure
can also be communicated by the offender's conviction itself, or by purely symbolic measures
which are burdensome or unwelcome sold) by virtue ofthe censure which they communicare,
we must ask what could justify the state in using hard treatment as the method of com-
munication.
278. Orentlicher,supra note 1, at 2615.
279. See Warren Hoge, PinochetIs Ruled Unfitfr TrialardAa),Be Fred,N.Y.TissEs, Jan. 12, 2000, at
Al (citing Kenneth Roth ofHuman Rights Watch, who argued that, despite the release of Pinochet. the
case set a precedent that "Eh]eads ofstate no longer enjoy impunity for crimes against humanity-); Onishi,
supra note 202, at A3 (citing human rights officials who claim that the case against Habni is
significant for Africa because it shows that even the "ultimate unmuchable[s]" may not violate the law).
280. BRUCE AcKER.AN,WE THE PEOPLE (1991). Nino argues that rals, because they are -great occasions
fbr social deliberation and far collective e.amination of the moral values underlying public institutions,"
are often more likely to be "constitutional moments" than the enactment of a new constitution.
NiNo, supranote 16, at 131.
HarvardHuman RightsJournal / Vol. 15
commission: to ignore manifest breaches ofwhat we have declared to be important
norms is in effect to deny what we claim to have declared." 281
Our choices, however, are not limited to prosecution and inaction. Truth
commissions, reports by investigatory bodies, lustration, and even works of
art, literature, and history can also send a powerful message. Are trials more
effective than these other methods of communication? Douglas Cassel claims
that "[tlhere is no more powerful social condemnation of evil than to label it
as a serious crime, for which serious punishment may be imposed. '
" 82
Criminalizing mass atrocity and prosecuting perpetrators are indeed among
the strongest ways to express our horror. However, even if we accept that
prosecution is the most potent vehicle for expressing the wrongfulness of
human rights abuses, it does not necessarily follow that trials are always the
best method for communicating moral lessons. While we will always want
to condemn, just what and whom we want to condemn will vary.
Fundamentally, prosecutions communicate a lesson of individual responsibility;
they rebuke particular criminals in the strongest possible terms.
Prosecution, especially trials of the most senior officials, may also be used to
air a country's past more generally. Eichmann, notes one Israeli scholar,
"rather swiftly became peripheral to his own trial. 28 3
Nevertheless, if we
respect due process, prosecutions cannot be allowed to slip into the realm of
show trials or scapegoating.284 "It is one thing," writes Mark Osiel, "to acknowledge
that prosecutors have a legitimate range of dramaturgical discretion;
it is quite another for them to attempt a staging of Hamlet without
the prince."125
Even when the "prince" can be found and brought to trial, however, the
binary oppositions in criminal law-guilty and innocent, blamers and
blamed-may distort the lessons prosecutions teach.286
Evidence relevant to
the message may not be relevant to the trial. Prosecutors, whose goal is to
convict particular individuals, are limited in their ability to expose or condemn
wider patterns of conduct underlying mass atrocities, such as economic
inequality or the opportunistic exploitation of ethnic rivalries. The
criminal law often exculpates most of the morally culpable parties because,
in Osiel's words, "they are 'culpable' in ways that liberal jurisprudence does
not recognize. '28 7
281. Duff,supranote 274, at 162.
282. Cassel, supra note 11, at 533.
283. Moshe Halbertal, The Seventh Million. The Israelis andthe Holocaust, NEw REPUBLIC, Oct. 18,
1993, at 40, 43 (book review).
284. For a comprehensive discussion of the benefits and drawbacks of using trials to shape public
memory in the wake of mass atrocity, see OSIEL, supra note 34. See alsoIan Buruma, Tf-in WAGrS Or
GUILT: MEMORIES OF WAR IN GiuANY & JAPAN 142 (1995) ("[W]hen the court of law is used for
history lessons, then the risk ofshow trials cannot be faroff.").
285. OSIEL, supranote 34, at 139.
286. Id.at 159.
287. Id.at 163.
2002 / A Frameworkfor UnderstandingTransitionalJustice
The message of prosecution is shaped not only by its focus on individual
culpability, but also by its inevitable selectivity. Defactoamnesty for the vast
majority of perpetrators, coupled with an emphasis on the personal guilt of
the prosecuted few, communicates that it is Hamlet, not the supporting
cast, who is to blame. Often an expression of condemnation that effectively
ignores the guilt of the vast majority of actors is inadequate and misleading.
Ifone wants to express outrage at a few wicked individuals, prosecutions are
an excellent tool. But if one wants to condemn the offenses of the many, as
well as voice disapproval of the social, economic, and political conditions
underlying a conflict, non-prosecution alternatives like truth commissions
may do a better job.
The second strand of Durkheimian analysis-the idea that punishment
contributes to social solidarity by reaffirming shared moral norms-also has
implications for the choice between prosecution and non-prosecution alternatives.
Clearly, prosecution can have a powerful effect on a nation's collective
conscience. Chilean psychologists report that the arrest of Pinochet produced
"a great catharsis that has begun to break the silence," with hundreds
if not thousands of torture victims seeking therapy for the first time.2
Commentators claim that trials of Nazi officials effected a "symbolic severing
of ties to the past," allowing Germans to forge a new identity for the
future.28 9
It is important to recognize, however, that while trials of human
rights abusers, as expressions of collective outrage, can certainly reinforce
moral norms and provide opportunities for the creation of a new social identity,
they will not do so in every instance. A few years after the Argentinian
prosecutions, writes Osiel, "state-sponsored torture and murder-now by
police, of common criminals-was applauded by many Argentines, including
those in prominent public office."2 90
While prosecutions can have tremendous communicative force, several
factors limit their usefulness as tools for social transformation. First, because
prosecutions are selective and focus on individual responsibility, the truth
they produce is not always suited to fostering social consensus. As a matter
ofpersonal moral responsibility and criminal law, the fact that A's ancestors
killed B's ancestors cannot justify A's killing of B. After all, the penal law,
unlike the law of torts, almost entirely excludes "comparative fault. '-'
In
transitional justice, however, acknowledging the broader context is often
critical if the goal is to establish a shared condemnation of past atrocities as
the basis for a new common identity. Truth commissions confront similar
problems rooted in the inevitably limited scope of their inquiry.' -
Nevertheless,
such mechanisms generally articulate many sides of the same story,
288. Clifford Krauss, PinodetCaseRetiring oea cftk:Tcrturd,N.Y. T.srs.Jan. 3. 20U1t. atA I
289. OSIEL, sypra note 34, at 193.
290. Id at 196.
291. Id at 123.
292. See id at 136 n.177 (noting that truth commissions, likecourts, must decide which airc'aics
will be covered by their reports).
HarvardHumanRightsJournal / Vol. 15
and therefore may be somewhat better at fostering social solidarity in societies
where guilt runs in multiple directions.
Second, the Durkheimian account of how punishment produces solidarity
is predicated on the existence of a community organized around a shared
moral code enshrined in the criminal law.293
However, as Osiel explains,
"whether any such shared moral code exists and whether it is accurately
reflected in the community's criminal law prove to be highly problematic
propositions in the historical circumstances where large-scale administrative
massacre occurs." 294
Post-transition societies are frequently characterized by
what Nino terms an "extreme conceptual divergence," 295
whereby those who
committed abuses are sincerely convinced that they acted in society's best
interests. Moreover, while Durkheim "saw solidarity arising out of the
shared indignation of the innocent many toward the guilty few,"296
transitional
justice requires that such solidarity arise out of the shared indignation
of the guilty many towards themselves.
Of course, punishment and condemnation can be used to shape collective
memory and social identity even in the absence of a broad moral consensus.
As Garland has suggested, punishment sometimes reflects the "dominant
moral order" rather than the "conscience collective."297
The winners in a particular
conflict may craft prosecutions or non-prosecution alternatives to suit
their political needs, reinforce their values, and enshrine their version of his-
tory.298
The fact that such efforts are undertaken to establish the legitimacy
of a particular social vision is not, however, a morally valid reason to condemn
or punish. Moreover, whatever social solidarity is produced through
such partisan mechanisms will likely be untenable; proceedings that are perceived
as victors' justice will not convince the losers to adopt the moral values
of the winners.
Whether prosecutions are the most effective way to communicate condemnation
or create social cohesion probably depends on the atrocity and
society in question. It may be, as Nino argues, that "[tlhe formation of a
social consciousness against human rights abuses depends more on the exposure
of the atrocities and on the clear condemnation of them than on the
number of people actually punished."299
If so, extensive coverage of past
atrocities through a truth commission might be the most effective way to
develop a new moral consensus. Truth commissions, like prosecutions, distinguish
right from wrong, remind us that we live in a moral universe, and
293. See id.at 299.
294. Id.
295. NINO, supranote 16, atix.
296. OSIEL, supra note 34, at208.
297. GARLAND, supranote 267, at 52.
298. For example, critics claim that the outcomes of the prosecutions in Cambodia of Khmer Rouge
leaders, if they are actually undertaken, "will be crafted to suit the political needs of Mr. Hun Sen (the
Cambodian Prime Minister] rather than to examine the deaths of more than amillion people," Mydans,
supranote 21.
299. Nino, supra note 22, at 2630.
2002 / A Frameworkfor UnderstandingTransitionalJustice
communicate public disgust for the perpetrators' actions. As an alternative,
some scholars have argued for civil liability as an important tool for establishing
the full factual context in which the perpetrators committed their
crimes ...thereby ... enhancing the prospects that the victims will have
their suffering brought to the attention of the wider community and that a
definitive, historically accurate account of the atrocities will be provided."43
Perhaps in ideologically divided societies, non-prosecution alternatives,
which allow for public debate about moral standards, would be more effective
in developing a public commitment to human rights values than prosecutions,
which simply impose norms on society.3 1
On the other hand, perhaps
prosecutions, by foreclosing debate about the content of norms and
identifying certain atrocities as unequivocally wrong, would be more effective
in reshaping public attitudes.
In the end, the choice between prosecutions and non-prosecution alternatives
is not simply about how best to express condemnation for mass atrocities.
It also concerns the nature ofa society. The mechanism a society uses to
communicate reprobation, and the nature of the message it sends, will shape
moral norms and social cohesion. As Garland has said, "the ways in which
we punish, and the ways in which we represent that action to ourselves,
makes [sic] a difference to the way we are."30 2
III. A NEw FRAMEWORK FOR TRANSITIONAL JUSTICE
A. PickingGoals
Whether prosecutions are the optimal form of transitional justice depends
on the goals we choose for this "justice system." A retribucivist will want to
maximize the extent to which offenders are given their "just deserts." Prosecutions,
which can produce stiff sentences, are the best method for meting
out retribution. Although prosecutions cannot achieve true retributive justice
in the wake of mass atrocity, only prosecutions approach the goal of
punishing human rights abusers as much as they deserve. If our goal is deterrence,
on the other hand, the yardstick for success is the prevention of
future atrocities. It is plausible that prosecution has a marginal deterrence
advantage over alternative post hoc mechanisms, such as truth commissions.
But prosecutions are ineffective deterrents compared to other political and
diplomatic tools, such as economic sanctions, diplomatic isolation, or militaty
intervention. Under rehabilitative or communicative theories, the ob-
300. Murphy, supra note 17, at 48.
301. Some scholars suggest that trials themselves are a form of debate about norms. Ostel, forexampie,
has suggested that although trials in bitterly divided societies cannot produce social solidanty in the
Durkheimian sense of common moral values, they can foster public dialogue among da*ergent groups,
which itself is a form of liberal social solidarity. Osius, suprw note 34. at 208, 283. While it may be true
that trials have a discursive element, the point ofcriminalizing conduct is to establish that such behavior
is primafade impermissible.
302. GARtS, supra note 267, at 276.
HarvardHumanRightsJournal / Vol. 15
ject is to reshape moral norms. Prosecutions have no clear advantages over
other mechanisms in this regard; what is most effective depends on cultural,
economic, and political factors. Finally, if we aim for restorative justice, we
will want to repair harm to victims and resolve societal conflicts. Alternative
mechanisms like reparation schemes are preferable to prosecutions as a tool
for compensating victims. In addition, non-prosecutorial mechanisms like
truth commissions are generally better at fostering conflict resolution.
Because prosecution is not always the most effective way to accomplish
our desired goal, we should not blindly pursue prosecutions whenever they
are possible. Nor should we assume that non-prosecution alternatives are
necessarily morally inferior. We must first determine the goals of transitional
justice, and then decide on the priority to be given to prosecution. Of
course, we must also consider what options are realistic in the context of a
particular transition. What is feasible will depend on economic and political
conditions, social, cultural, and religious traditions, and the interests and
involvement of other states.30 3
But the question of what is possible must
follow the question of what is desirable.
A full discussion of how to decide what goals to pursue and how best to
pursue them is beyond the scope of this Article. Nevertheless, it may be
useful to lay out a few factors to be considered in making this choice. First,
economic, political, social, and cultural factors affect not only what form of
transitional justice is possible in a particular society, but also what form of
transitional justice is desirable. For example, a country's lack of financial
resources may limit the number of prosecutions it can undertake or the form
of reparations a truth commission can provide. The underlying economic
structure may also affect what that society hopes transitional justice can
achieve; a rehabilitative focus on ameliorating poverty may be especially
appropriate where a conflict was the result of gross inequalities in wealth.
Clearly, what works in one country may not work in another. As Richard
Goldstone has noted, "ft]he correct approach to the past will depend upon a
myriad of political, economic, and cultural factors which all operate and interact
with each other.''3°4
The philosophical underpinnings of a culture will
be particularly significant in influencing its choices about appropriate goals
and mechanisms. For example, in some societies, morality and the law are
conceptualized primarily in terms of Western liberal notions of individual
rights and individual responsibilities. Because such a vision encourages an
understanding of mass atrocity in terms of individual culpability, it also fosters
a retributive approach to transitional justice and a focus on prosecution.
By contrast, communitarian societies, because they place the needs ofsociety
303. For example, Landsman expresses the common belief that the viability of prosecutions depends
on political context: "Nuremberg was ...an unusual case. The Nazis had been utterly defeated. They
had unconditionally surrendered. Their society was in ruins and in need of reconstruction from the
ground up." Landsman, supra note 5, at 87.
304. Goldstone, supranote 35, at 615-16.
2002 / A Frameworkfor UnderstandingTramsitionalJustice
above those of the individual, may find restorative justice more attractive.-
11
While both individualists and communitarians will agree that atrocities
should be prevented and condemned, societies that emphasize individual
responsibility will want to structure transitional justice differently from
those that more strongly value the community.
Religion will also affect the choices a particular society makes about transitional
justice.306
In many religions, forgiveness and reconciliation-as well
as retribution and condemnation-have deep significance. But interpretations
of these concepts will vary among different religions and between religious
and non-religious societies.307
Some religions, as Stephan Landsman
has noted, have concluded that "'an eye for an eye' is a sterile sort of justice
that is far less satisfactory than breaking the cycle of violence or vengeance
once and for all."308s
Other religions envision a retributive God meting out
retributive justice. The religious underpinnings of a society, like its individual
or communitarian orientation, will shape both what a society will hope
to achieve and what it can actually accomplish.30 9
Second, different patterns of human rights violations may require different
approaches to transitional justice, just as goals for ordinary criminal justice
vary depending on the particular crime and criminal. °10
While such
distinctions are commonly recognized in the context of ordinary crime, in
arguing about the best approach to transitional justice, scholars often lump
together such diverse actions as genocide, war crimes, disappearances, torture,
ethnic cleansing and communist repression. Awkward phrases like
305. The author is indebted to Catherine Mahnaz Amirfar for raising this point. Sir Catherine lahnaz
Amirfar, Fighting the Liberal Myth of Prosecutions: Transitional Justice Redefined (unpublished manuscript,
on file with author).
306. SeeDwyer, supra note 9, at 82-83 (arguing that reconciliation is grounded in religious nations.
and that the concept that no one is without sin can provide inspiration for such efforts); SIuMvtn. ,LTa
note 102, at 7 (arguing that while the term fbrgiveness 'has a religious ring in the ears of most modern
westerners," forgiveness should "escape its religious captivity and enter the ranks of ordinary political
virtues").
307. A question worth further study is whether or not reconciliation is religiously contingent; is it an
achievable goal fbr societies that do not share a religious commitment to forgiveness?
308. Landsman, supranote 5, at 87.
309. Religion and individualismlcommunitarianism might cut in conflicting directions. For example.
while western liberalism's focus on individual culpability suggests a retributtve framework, an important
concept in the Judeo-Christian tradition is forgiveness, which suggests a rstorauve justice pardhgm.
One way of reconciling these conflicting approaches is by focusing on individual accountability and
penance: restorative justice may be used when offenders are contrite, but retribution must be exacted
when offenders are unwilling to acknowledge their culpability. The South African Truth and Reconalation
Commission might be understood as embodying this mixed approach (though of course it was also
heavily influenced by more communitarian African traditions). If offenders were willing publicly to
acknowledge their crimes, they were eligible fbr amnesty If not, they could be, and often were, prmrcured.
See Dugard, supra note 240, at 283.
310. While domestic penal goals may seem uniform as articulated through public polic; arguabl)
criminal justice systems serve different purposes depending on the offenders and crimes Howemer. many
domestic criminal justice systems have increasingly adopted a one-size-fits-all approach that tails ,Jrquately
to distinguish among different types of crimes and criminals. In the United States, for example,
the increasingly exclusive emphasis on retribution has been persuasively criticized as inappropriate for
such groups as young offenders and such crimes as drug use.
HarvardHumanRightsJournal / Vol. 15
"mass atrocities" and "widespread human right violations" encompass a wide
range of different abuses. Much of the transitional justice literature, in focusing
on when and how to "bring the perpetrators to justice," fails to ask if
different patterns of abuse require different forms of "justice." Clearly, differences
among crimes are significant in determining both what goals one
should have for transitional justice, and what means one should use to
achieve them. For example, in some cases of massive human rights violations,
the line between perpetrators and victims is much clearer than in others.
Administrative massacres are qualitatively different from fratricide. Retribution
and prosecution may be more appropriate where there is unilinear
responsibility, while restorative justice and truth commissions may be more
helpful where there is long-standing social conflict and a measure ofguilt on
all sides. Scholars must give more thought to how the nature of the atrocities
themselves affects what a society will want to achieve through transitional
justice.
Finally, it is possible to pursue more than one goal simultaneously, and to
use multiple mechanisms in pursuit of those goals. At the same time, we
should honestly and openly confront whether and to what extent different
goals and different mechanisms are contradictory or complementary. In some
societies, retribution may be a precondition for social healing, while in others
retributive justice will contribute to a cycle of vengeance and undermine
efforts at reconciliation. Where goals are complementary, we need to structure
the mechanisms of transitional justice to enhance the chances of
achieving multiple aims. Where goals are contradictory, we must prioritize
them and recognize that we may not be able to accomplish them all. In a
world of limited resources, whatever choices we make will have opportunity
costs.
3 1
1
B. PickingParadigms
Given the difficulty of transposing the theoretical framework of domestic
criminal justice to the transitional justice context, is ordinary crime really
the best analogy for extraordinary evil? Hannah Arendt has written that it is
impossible to punish radical evil adequately because "men are unable to forgive
what they cannot punish... and are unable to punish what has turned
out to be unforgivable .... Such offenses ... transcend the realm of human
affairs and the potentialities of human power."312 Carlos Nino notes that,
whether or not one accepts such powerlessness in the face of radical evil,
Arendt's insight "points to the difficulty of responding to radical evil with
the ordinary measures that are usually applied to common criminals." 1 ,3
Massive human rights violations, he argues, are "offenses against human
311. See Penrose, supra note 6, at 340 (arguing that "the millions" invested in the ICTY might have
been better spent on refugee assistance).
312. HANNAH ARENDT, THE HubiAN CONDITION 241 (1958).
313. NINO, supranote16, atviii.
2002 / A Frameworkfor UnderstandingTransitionaIJustice
dignity so widespread, persistent, and organized that normal moral assessment
seems inappropriate. 314
Yet at the root of the preference for prosecution
in transitional justice is the belief that normal moral assessment, expressed
through the prosecution and punishment of individuals under the
criminal law, is possible.
The choice ofgoals will affect whether a paradigm focusing on individuals
makes sense. If one desires retribution, collective guilt will be inappropriate,
for it is individuals who murder, rape, and torture.31
As Karl Jaspers said at
the end of World War II, "[i]t is nonsensical to charge a whole people with a
crime. The criminal is always the individual."316
If, however, one adopts a
non-retributive approach, a focus on individual wrongdoing will be less
useful. In the context of transitional justice, deterrence, rehabilitation, restorative
justice, and communication/condemnation/socia solidarity are
primarily about societies, not individuals. Deterrence, while sometimes
aimed at a few cynical leaders, is more often accomplished by creating credible
threats that will keep a society from descending into mass violence. Rehabilitation
is an attempt to develop democratic institutions that will reduce
the risk of future violence, or change a society's moral values. Restorative
justice seeks to create sufficient national reconciliation for the society to
move forward; forgiveness or mutual understanding among specific victims
and perpetrators is a helpful but not indispensable step towards this goal."
And condemnation focuses on the reinforcement of a society's moral norms
and the creation ofsocial solidarity.
The criminal law paradigm fits neatly with the goal of retribution.318
But
the analogy between extraordinary evil and ordinary crime is less compelling
where one seeks to achieve one of the other goals, which appear not just in
criminal justice, but in other contexts as well. Societies seek to prevent
traffic fatalities by encouraging seatbelt use, and to contain infectious disease
through vaccines. The ill are treated and rehabilitated; injuries are repaired
through civil liability and insurance. Neighbors and loved ones reconcile by
apologizing or by hashing things out. And societies reinforce moral norms
and social solidarity through school curricula, national anthems, and the
bully pulpit.
The paradigms a society chooses in confronting particular social problems
both reflect its goals and shape its understanding of how to solve these
problems. For example, in domestic debates about gun violence, a focus on
314. atvii.
315. There can, nevertheless, be collective responsibility. Jaspers writes that "puhnical guilt" involves
liability fir "the consequences ofthe deeds ofthe state whose power govems me and under wvile Urdt I
live. Everybody is co-responsible fbr the wvay he is governed." JAsPERs, iqra note 110. at 159. Howevcr.
political guilt does not mean "the criminal and the moral guilt of every single citizen for crimes committed
in the name ofthe state." Id at 160.
316. Id at 163.
317. Note that the reparative prong of restorative jusuce is focused primarily on 1nJ1 ,duals
318. As the events of September 11, 2001 demonstrate, a '%-ar par-dAgm" tan also ucommixiate retributive
impulses.
HarvardHuman RightsJournal / Vol. 15
punishing individuals who use guns to commit murders, rapes, and robberies,
will foster the understanding that gun violence is primarily a crime
problem that should be addressed by prosecuting firearms offenders. If the
goal is prevention, however, gun violence might be seen primarily as a
regulatory problem, which should be handled by imposing controls on the
manufacture and sale of firearms. Similarly, if the approach to mass atrocity
is retribution, one will look to the criminal law and prosecutions. But if the
approach is prevention, one might be more concerned about arms sales and
oil embargoes, economic development and education programs.
Adopting a framework that is non-retributive does not necessarily preclude
individual accountability through the criminal law. Regulatory gun
control is not incompatible with the punishment of those who use guns.
Similarly, even when traffic fatalities are framed as a public safety issue, governments
do not simply regulate car manufacturers and conduct public education
campaigns on seatbelts. Governments also hold drunken, reckless,
and speeding drivers individually responsible.
In thinking about extraordinary evil, then, we should consider analogies
other than ordinary crime. Such alternate paradigms might be particularly
useful where the desired goal is non-retributive and the focus is on societies
rather than individuals. For example, natural or humanitarian disasters,
which like mass atrocities are wide-reaching catastrophes, could provide a
model for how to inoculate societies against such horrors and to ameliorate
the harm they cause. Because such alternative analogies shift the focus from
specific perpetrators to society as a whole, they are arguably better suited to
an understanding of the larger context within which widespread human
rights abuses occur. Such analogies direct our attention to rebuilding societies
by developing shared histories, establishing democratic institutions, or
ensuring greater economic and political equality. And more importantly,
such analogies encourage us to focus on preventing atrocities before they
occur. Instead of simply concentrating on prosecuting past violations, we
must, as Nino has noted, fulfill our "duty to safeguard human rights and to
prevent future violations.' 319
A conceptual framework other than ordinary
crime might help to highlight these priorities.
In the end, there may be no better analogy to extraordinary evil than ordinary
crime. Extraordinary evil, after all, is composed of ordinary crimesassaults
and thefts, rapes and murders. If we adopt the ordinary crime analogy,
however, we should recognize that this framework will inevitably shift
our attention to retribution, and thus to prosecution. We must accept that
even when the goals of domestic criminal and transitional justice are the
same, the best method of achieving those goals may be different. Some of
what prosecution can achieve in domestic criminal justice may be better
accomplished in transitional justice through alternative mechanisms. After
319. NINO, supranote 16, at 188.
2002 / A Frameworkfor UndostandingTransitionalJustice 97
all, "ordinary crime" is only an analogy to "extraordinary evil." And analogies
do not always hold, because analogies, by definition, compare different
things.