The three Rs: retributive justice, restorative justice, and reconciliation

Abstract

This article explores the relationship between retributive justice, restorative justice, and reconciliation. Using the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) as case studies, it begins by examining whether international war crimes tribunals, as dispensers of retributive justice, can contribute to reconciliation in post‐conflict societies. According to their supporters, international war crimes criminals can foster reconciliation in three principal ways: by seeing that justice is done; by establishing the truth about crimes committed; and by individualizing guilt. It will be argued that each of these claims is flawed. War crimes tribunals are an important part of the peace‐building process in post‐conflict societies but it is argued that the retributive justice they deliver is not the most effective means to promote reconciliation. The article’s core premise is that restorative justice has the greatest potential to initiate and further reconciliation and should, therefore, complement the administration of retributive justice. To demonstrate the value of restorative justice in practice, it provides some examples of restorative processes in Rwanda and in the former Yugoslavia.

Keywords:

• retributive justice
• restorative justice
• reconciliation
• ICTY
• ICTR
• transitional justice

Notes

1. See, for example, Akhavan (2001). For an alternative viewpoint, see Snyder and Vinjamuri (2003).

2. This is exemplified by rape trials, in which victims are asked very intimate questions and grilled about their sexual past, previous relationships, and general lifestyle.

3. The former Bosnian Serb leader Radovan Karadzic was arrested in Belgrade on 21 July 2008 and is currently awaiting trial at the ICTY. Ratko Mladic, the former Commander of the Bosnian Serb army, remains at large.

4. It is not only Serbs who accuse the ICTY of trying to establish their nation’s collective guilt. In Croatia, for example, following the Tribunal’s indicting of Rahim Ademi and Ante Gotovina for crimes against humanity, in July 2001, ‘various right‐wing groups mounted rhetorical attacks that portrayed the ICTY indictments as an attempt to … cast blame on all Croatians’ (Peskin & Boduszynski, 2003, p. 1129).

5. During his trial in the Hague, the late Slobodan Milosevic himself encouraged this belief. For example, in his introductory statement to the Hague Tribunal on February 13, 2002, he argued, ‘Over the past two days all the prosecutors that we have heard have uttered one particular sentence – that they were just trying an individual…. But in all the indictments they accuse the whole nation, beginning with the Serbian intelligentsia and the Serbian Academy of Arts and Sciences’ (Milošević, 2002, p. 136).

6. Semi‐structured interviews with 25 Serbian men and women, of different ages, were conducted in various parts of Serbia between May and July 2006. The interviewees were purposively selected since all of them had been previously interviewed in 2004, as part of the author’s doctoral research. All of the interviews were recorded.

7. The ICTY was created by the UN Security Council on May 25, 1993.

8. It should be noted that critics of the International Military Tribunal in Nuremberg made the same argument. As Woetzel (1962) notes:

[T]he fact that the Allies conducted the trial and that Allied judges served on the tribunal, has led to the political criticism that it was a trial of the vanquished by the victors, and, therefore, an act of political policy rather than a judicial proceeding. (p. xi)

9. About 70% of those indicted by the ICTY have been Serbs.

10. Croatian forces launched ‘Operation Storm’ on August 4, 1995, with the aim of re‐taking the Krajina region in Croatia. Three days later, the Croatian government announced that the Operation had been successfully completed. Some 200,000 Krajina Serbs had been forced to flee their homes in what amounted to the largest single act of ethnic cleansing in the wars in former Yugoslavia. After four years on the run, Ante Gotovina, the overall operational commander of the Croatian forces deployed as part of Operation Storm, was arrested in a restaurant in Tenerife’s Playa de Las Americas resort on December 8, 2005. He had been number three on the Hague Tribunal’s most wanted list, after Mladic and Karadzic. Gotovina’s trial at the ICTY began in March 2008.

11. Similarly, a frequent criticism of the Nuremberg and Tokyo tribunals has been that ‘case‐specific Allied bombings were ignored’, for example Dresden (Rae, 2003, p. 164).

12. While there is little evidence that the Tribunal has fostered reconciliation between the peoples of the former Yugoslavia, the irony is that it has achieved a level of reconciliation between the prisoners in its detention unit in Scheveningen. Here, ‘Serbs and Croats and Bosnians, who for years fought each other, live happily together’ (Drakulicć, 2004, p. 179). According to Drakulicć, the paradox of Scheveningen is this: ‘[A]t the end of the day, it very much looks like Yugoslavia in miniature. The Yugoslavia of “brotherhood and unity” doesn’t exist any longer except in this very prison’ (p. 181).

13. ‘In First Nation and Native American justice, healing, along with reintegrating individuals into their community, is paramount. Native justice involves bringing together victims, offenders and their supporters to resolve a problem. This parallels the philosophy and practice of the restorative justice movement’ (Mirsky, 2004 Para. 1).

14. This is a view that many of the Serbian interviewees shared. According to a male interviewee in Novi Sad, for example, ‘I think that the Hague Tribunal can help the reconciliation process, but only in a small way. It is the people here that have to do it.’ A male interviewee in Belgrade similarly maintained, ‘Peace and reconciliation can only be achieved among us – among Serbs, among Croats, among Muslims, among Albanians. Peace and reconciliation cannot be achieved by Carla Del Ponte or people in The Hague.’

15. This quote is from an interview conducted by the author in Belgrade, May 26, 2006. The interviewee wished to remain anonymous.

16. This quote is from an interview conducted by the author with Dr Ruzica Rosandic, Program Director of the European Initiative for Democracy and Human Rights, Belgrade, June 14, 2006.

17. The ICTY’s Outreach Program was launched in 1999, with the initial purpose of increasing local awareness of the Tribunal’s activities through conferences, seminars, roundtables, and other media events. More recently, the Outreach Program

has concentrated on transferring knowledge and good practices to local judiciaries, including the training and education of local legal professionals throughout the region, and it has continued to track developments and reforms in domestic criminal justice systems, especially in war crimes cases. (Aucoin & Babbitt, 2006, p. 61)

In February 2005, to help raise public awareness about the Tribunal’s activities, the Outreach Program merged with the ICTY’s Press and Information Services Section.

18. According to Peskin and Boduszynski (2003):

[T]he tribunal literature is largely based in a court‐centred perspective that examines an array of jurisprudential questions involved in the establishment and operations of the ICTY, ICTR, the Special Court for Sierra Leone, and the nascent International Criminal Court (ICC)…. The result … has been an unintentional neglect of the political dynamics and domestic implications of these institutions. (p. 1118)

19. The author has recently undertaken extensive fieldwork in Bosnia‐Hercegovina to explore what impact the ICTY’s work and judgements are having on inter‐ethnic relations in the country. The results of this research will be presented in future work.

20. Gustafson (1998), for example, argues:

In a deeply divided society, arguably the only type of society likely to produce the types of crimes for which ICCs [international criminal courts] are intended, criminal prosecutions do not have a conciliatory effect. Rather, they manifest and exacerbate division. (p. 67)

With specific reference to the ICTY, Herman (2005 Para. 24) maintains, ‘Rather than producing reconciliation, the steady focus on Srebrenica victims and killers has made for more intense hatred and nationalism on the part of those supposedly obtaining justice.’

21. This idea of ‘ancient Balkan hatreds’ was popularized by the US journalist Robert Kaplan (1994), according to whom:

Twentieth‐century history came from the Balkans. Here men have been isolated by poverty and ethnic rivalry, dooming them to hate. Here politics have been reduced to a level of near anarchy that from time to time in history has flowed up the Danube into Central Europe. Nazism, for instance, can claim Balkan origins. (p. xxiii)

22. For example, speaking on March 28, 1993, as U.S. Secretary of State, Warren Christopher explained:

Let me put that situation in Bosnia in just a little broader framework. It’s really a tragic problem. The hatred between all three groups – the Bosnians and the Serbs and the Croats – is almost unbelievable. It’s almost terrifying and it’s centuries old. That really is a problem from hell. (quoted in Cohen, 1998, p. 243)

23. Paradigmatic shifts can open up a space for fundamental change and progress. Meyer (2003 Para. 2), for example, claims that it was a paradigm shift in the political reasoning of the National Party government in South Africa during the early 1990s that

made it possible for the opposing parties in South Africa to establish a common ground for successful negotiations that were to mark the end of the apartheid era, and so formed the basis for the establishment of a new socio‐political order.