Needed: war-crimes courts that foster reconciliation

How should policymakers respond to war crimes, genocide, and similarly egregious political violence around the world?

This question dogged President Clinton for eight years, and it will dog his successor. The answer he gives will help define the nature of the still-evolving "international community." The best answer is clearly prevention. Heinous political violence is nearly always foreseeable. We have learned a lot about the broad mobilization, preparation of the means of killing, and hate speech that foreshadow a pogrom or a genocide.

We can recognize a predatory army that supports itself by committing war crimes against civilians. If we have an international community worthy of that name, should it not stand ready to intervene and halt such grave acts of violence in their tracks?

In Bosnia in the early 1990s, and in Rwanda in 1994, the Clinton administration notably prevented this from happening. In spring 1994, the administration supported a reduction of the United Nations presence in Rwanda as the genocide gathered pace there. It scrambled even to avoid using the word "genocide," while a well-organized political machine swung into action for 100 days, killing more than 800,000 Tutsis and suspected supporters throughout Rwanda - a killing rate more than five times higher than that of the Nazi Holocaust.

What Washington did eagerly deploy after the fact, for both Bosnians and Rwandans, were criminal prosecutors, backed up by the hastily assembled panoply of brand-new war-crimes courts. At American urging, the UN established an International Criminal Tribunal for former Yugoslavia, in 1993, and a parallel tribunal for Rwanda, in 1994. In Rwanda, the US also supported the establishment of a national-level Genocide Tribunal, to try accused perpetrators not thought to be from the top rank of the genocide "machine."

Now we can assess how much that focus on Western-style criminal courts has really helped Rwanda. What other responses might we consider, there or elsewhere?

Today, more than six years after the genocide, 110,000 suspected perpetrators still languish in Rwandan prisons, awaiting trials by a (Western-style) court system whose operations were themselves crippled by the genocide. The rate of trial completion in the first five years averaged 600 cases per year. The country is wracked by political and social crises.

Many detainees will never see a trial. Instead, they fester in prisons that Human Rights Watch describes as "in some cases inhumane and life-threatening." Outside the prisons, traumatized survivors of the genocide await the working of the only form of "justice" (short of revenge killings, and there have been some of those) available to them. Hatred grows.

There is an alternative to this highly polarizing, unsatisfactory, and costly form of justice. That is the model pioneered by South Africa as it sought to move beyond the suffering of the apartheid era. The South Africans drew on traditional African concepts of penology and established a special post-apartheid mechanism that dispensed what its head, Archbishop Desmond Tutu, describes as "restorative justice."

Given the existence of this alternative, why is the only remedy the UN proposes for a country like Rwanda that of Western-style, "retributive justice?" We need to consider whether a restorative-justice remedy might provide more of what post-trauma societies really need. (Even inside the United States, many communities have seen the limited effectiveness of traditional courts, and are now experimenting with other restorative-justice methods.)

Like traditional criminal courts, restorative-justice mechanisms seek a course somewhere between vengeance and impunity. They seek the accountability and reform of perpetrators, and protection and reparation for survivors. They seek to help build lasting reconciliation, based on a recognition of equal rights and common humanity.

The UN should recognize the wisdom in restorative- justice methods, and explore how mechanisms that employ them could help heal traumatized societies.

Prevention of heinous political violence is always better. But until the international community can do prevention, at least the post-atrocity cures we prescribe should be ones that speed, rather than impede, recovery.

Helena Cobban writes on foreign affairs.

(c) Copyright 2000. The Christian Science Publishing Society

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