Sclerosis: Retributive Justice and the Rwandan Genocide

In the 1994 Rwandan genocide 800,000 people were massacred. The victims were overwhelmingly of the minority Tutsi ethnic group and the aggressors of the majority Hutu group. At present, 125,000 Hutu prisoners remain incarcerated while awaiting trial on genocide-related charges. This article argues that these trials, and the extensive incapacitation that necessarily precedes them, may do little to promote justice, regime legitimacy, or national reconciliation in Rwanda. This, in turn, raises broader questions about the role of criminal punishment and sentencing in situations of mass violence. Criminality usually attaches to deviant conduct. Mass political violence -- from Nazi Germany to Serbia to Rwanda -- generally involves significant levels of public participation and complicity. How, then, should we punish conduct that, at the time it was committed, was not deviant? The thesis is advanced that restorative and transformative justice initiatives are effective at deconstructing complicity and can play a valuable part in the legal response to genocide. These initiatives may take the form of public inquiries, extra-judicial mediation, reparations, commemorations, and truth commissions. This thesis runs counter to the international legal community's embrace of the punitive criminal justice model as the preferred and often exclusive way to 'deal with' perpetrators of genocidal violence and crimes against humanity.