The Moral Case for Restorative Justice as a Corollary of the Responsibility to Protect: A Rwandan Case Study of the Insufficiency of Impact of Retributive Justice on the Rights and Well-Being of Genocide Survivors

Abstract

This article analyzes how the current framework of retributive justice pursued by the UN International Criminal Tribunal for Rwanda fails to respect the human rights and to enable the well-being of Rwandan genocide survivors. Rwandan genocide survivors currently suffer from widespread poverty, lack of access to health care and housing, inadequate educational opportunity, and food insecurity and malnutrition. It calls for the application of restorative justice as an extension of the principle of the Responsibility to Protect for genocide survivors to be included in the remit of the Tribunal and UN humanitarian and development programs in Rwanda. It examines current and past restorative justice programs in various countries around the world to provide tangible examples of ways in which restorative justice can be implemented. It critically questions the moral logic of exclusive reliance on retributive justice that ignores the consequences of genocide by punishing the guilty without simultaneously assisting the victims. Finally, it urges that the Declaration of Basic Principles on Remedy and Reparation for Victims of Human Rights Violations and Article 75 of the Rome Statute of the International Criminal Court be applied to the work of the UN International Criminal Tribunal for Rwanda.

Acknowledgments

Noam Schimmel researches in the areas of development, human rights, the welfare of minorities, and political communication. He served as an intern with the Office of the Prosecutor at the UN International Criminal Tribunal for Rwanda. He has published previously in Development, Development in Practice, Progress in Development Studies, Peace Review, International Journal of Children's Rights, International Journal on Minority and Group Rights, International Journal of Human Rights, Vulnerable Children and Youth Studies, Ethics and Education, and the Journal of Peace Education.

Notes

1. There was also a concurrent politicide of tens of thousands of Hutu moderates that took place during the genocide. They too suffered immensely and should receive a similar form of support as survivors of the genocide. I will refer exclusively to genocide and to the Rwandan genocide in particular in this article. But the main arguments of my article can and do apply more broadly to the crime against humanity of extermination and related crimes against humanity, irrespective of where such crimes take place.

2. For more on the role of the United Nations’ actions before, during, and after the genocide, see Linda Melvern's A People Betrayed (2000).

3. See United Nations High Commissioner for Human Rights (2009a, 2009b).

4. On how to address trauma in women survivors of sexual violence and other abuse, see The Nairobi Declaration on Women's and Girls’ Rights to Remedy and Reparation that addresses reparations as they relate to women and—in particular—to female survivors of sexual violence (Coalition for Women's Human Rights in Conflict Situations 2009).1.    Women and girls have a right to a remedy and reparation under international law. They have a right to benefit from reparation programs designed to directly benefit the victims, by providing restitution, compensation, reintegration, and other key measures and initiatives under transitional justice that, if crafted with gender-aware forethought and care, could have reparative effects, namely reinsertion, satisfaction, and the guarantee of nonrecurrence.2.    Governments should not undertake development instead of reparation. All postconflict soci- eties need both reconstruction and development, of which reparation programs are an integral part. Victims, especially women and girls, face particular obstacles in seizing the opportunities provided by development, thus risking their continued exclusion. In reparation, reconstruc- tion, and development programs, affirmative action measures are necessary to respond to the needs and experiences of women and girls victims.

5. For a thoughtful critique of the rhetoric of R2P and R2P's practical and legal limitations, see Aidan Hehir's “The Responsibility to Protect in International Political Discourse: Encouraging Statement of Intent or Illusory Platitudes” (2011).

6. Philpott argues that these institutions also fail to reintegrate human rights violations perpetrators into the community and to promote a broad form of restorative justice that seeks to heal societal divisions, conflicts, and resentments. He calls for the “restoration of the perpetrator,” a goal that can be at odds with the principles of international human rights law that hold individuals accountable for criminal actions and requires their punishment. Researchers noting the burdensome demands of forgiveness and reconciliation on survivors of egregious human rights violations, such as Brandon Hamber and Richard A. Wilson (2002: 35), argue “that nation-building discourses on reconciliation often subordinate individual needs, and that truth commissions and individual processes of healing work on different time lines. Calls for reconciliation may demand too much psychologically from survivors and retribution may be just as effective as reconciliation at creating symbolic closure.”

7. My own fieldwork in Rwanda and abroad that entailed interviewing genocide survivors including questions regarding their attitudes towards restorative and retributive justice yielded similar findings as those collected by the NGOs African Rights and Redress.

8. Note, however, that in some cases already facing the ICC challenging moral, legal, and practical questions regarding certain classes of individuals and groups such as child soldiers, who may be both victims and perpetrators, raise significant questions as to the most legitimate and effective ways to implement restorative justice. Mani's comments are particularly relevant to such cases. For a critical perspective on this issue see the excellent article by Adrian Di Giovanni (2006), “The Prospect of ICC Reparations in the Case Concerning Northern Uganda: On a Collision Course with Incoherence.”

9. See, for example, Gavrielides, Parle, et al. (2008). Also see Restorative Justice Council (2012), PFI Centre for Justice and Reconciliation (2012), and the special issue of Acta Juridica, edited by Jan Glazewski (2007).

10. For more on the very extensive literature on restorative justice in European and North American contexts see J. Dignan's (2004) Understanding Victims and Restorative Justice, T. F. Marshall's (1999) “Restorative Justice: An Overview,” G. Johnstone's (2002) Restorative Justice: Ideas, Values, Debates, H. Strang and Braithwaites's (2001) Restorative Justice and Civil Society, and H. Strang's (2002) Repair or Revenge: Victims and Restorative Justice.

11. See Baker (2007).

12. Much of the literature on transitional justice assumes the value of reconciliation without critically assessing it and its impact on survivors. Arguments for restorative justice are often made in relation to the capacity of restorative justice to enhance and enable reconciliation efforts. See for example Janine Natalya Clark's (2008) “The Three Rs: Retributive Justice, Restorative Justice, and Reconciliation” and (2009) “Learning from the Past: Three Lessons from the Rwandan Genocide.”

13. For more on this argument, see the essay by Rebecca Goldstein (1998) in Simon Wiesenthal's The Sunflower.

14. It should be noted, however, that when victim-centered restorative justice is pursued vigorously it can contribute substantially to goals of increasing social cohesion, peaceful coexistence, and reconciliation. Psychiatric research shows that trauma militates against such outcomes and successfully addressing trauma and ensuring the physical and psychological security and welfare of genocide survivors can increase overall efforts to increase social cohesion. See “Trauma and PTSD Symptoms in Rwanda Implications for Attitudes Toward Justice and Reconciliation” by Phuong N. Pham, Harvey M. Weinstein, and Timothy Longman (2004). For more on the impact of retributive justice on the psychological welfare of victims of mass atrocity, see David Mendeloff's (2009) “Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Post-Conflict Justice.”

15. See, for example, Reparations to Africa by Rhoda Howard-Hassmann (2009).

16. For more on reparations see the following: Koen De Feyter, Stephen Parmentier, Marc Bossuyt, and Paul Lemmens’ (2005) Out of the Ashes: Reparations for Victims of Gross and Systematic Human Rights Violations; Pablo De Greiff's (2006) The Handbook of Reparations; Jon Elster's (2006) Retribution and Reparation in the Transition to Democracy. See also: “Historical Injustice and International Law: An Exploratory Discussion of Reparation for Slavery” by Max Du Plessis (2003).

17. Indeed, until the creation of the International Criminal Tribunal for Rwanda, International Criminal Tribunal for Yugoslavia, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court, there was little actual enforcement of international human rights law. The overwhelming majority of war crimes, crimes against humanity, genocide, and other egregious human rights violations globally have gone unpunished and remain so today.

18. See Ruth Rubio-Marin, Claudia Paz y Paz Bailey, and Julie Guillerot (2009).

19. See Rubio-Marin, Paz y Paz Bailey, and Guillerot (2009) and Carranza (2009b).

20. See Rubio-Marin, Paz y Paz Bailey, and Guillerot (2009) and Carranza (2009b).

21. This situation of poverty and social disadvantage is common amongst victims of egregious human rights violations who even before suffering from mass violence often belong to economically and socially marginalized groups. Peru's Truth and Reconciliation Commission for human rights violations committed in the 1980s and 1990s when the Shining Path Maoist Communist Party attacked the Peruvian people and government concluded that “In the Peruvian case, the need to compensate economically is more pressing due to the fact that the victims were largely from impoverished and excluded sectors of society, and that the effects of violence have severely limited their own and families’ capacity to support themselves” (Garcia-Godos 2008: 76).

22. Based on a rough estimate provided by Rwanda's SURF office to the author while undertaking research and volunteer work in Rwanda in October, 2009 and on the author's calculation in relation to overall development and aid expenditures in Rwanda.

23. To its credit, UN Women is currently a funding a project organized by AVEGA to help female genocide survivors secure their land and property rights. These are the exact types of projects that are needed on a far larger scale across the UN system, the World Bank, and bilateral aid agencies of the United States, European Union, and other countries providing Rwanda with development aid.

24. See Lorna McGregor's (2001) “Individual Accountability in South Africa: Cultural Optimum or Political Façade.” McGregor states, “The adversarial process may actually add to the suffering of the victim” (2001: 36).

25. The report of Redress calls on the UN International Criminal Tribunal for Rwanda to address these shortcomings. “Provide for adequate witness and victims’ protection before, during and after the trial. Ensure that survivors testifying before the Tribunal are treated respectfully by all parties and provide for their psychological support where necessary” (139).

26. Although I am critical of this assertion, it's important to acknowledge that for many survivors of genocide and other forms of mass atrocity it is at least partially reflective of their experiences and one dimension of a more complex and potentially problematic interaction with the court. Research on the perceptions of witnesses testifying at the Special Court for Sierra Leone, for example, supports Jallow's claim. See Rebecca Horn, Simon Charters, and Saleem Vahidy's “Testifying in an International War Crimes Tribunal: The Experience of Witnesses in the Special Court for Sierra Leone” (2009). Genocide and civil war, however, while sharing certain conditions of extreme violence and destructiveness, are distinct experiences and are not necessarily comparable. The challenges—psychological, social, and practical—while sharing overlapping qualities related to basic deprivation and human needs, are unique.

27. See OHCHR (2007).

28. See The Trust Fund for Victims (2012a).

29. He does note, however, some highly atypical exceptions that deserve mention and recognition. See Ruben Carranza (2009b). The European Commission has given some support toward implementing reparations in Morocco and Peru. The UN Peacebuilding Commission has given $3 million to Sierra Leone so it can implement its reparations program. By comparison, the disarmament, demobilization, and reintegration (DDR) program in Sierra Leone had a multidonor fund managed by the World Bank, which gave $ 36.5 million. In Timor, the bank financed the Falintil Reinsertion Assistance Program (FRAP) that provided benefits to veterans of the Timorese resistance army. In Liberia, survivors of the infamous Lutheran Church massacre have expressed concern that the lack of international attention to the TRC's recommendations for victims reflects a disinterest in reparations. For more on reparations please see Rosenfield (2010).