In her reflections on justice and reconciliation after the Rwandan genocide ("The Legacies of Collective Violence," April/May 2002) Helena Cobban asks how best to restore health to a society smashed by devastating violence. Her prescription—substituting therapy for justice—ventures into dangerous moral territory.
Cobban argues that criminal prosecutions are a "strait-jacket" solution imposed from outside Rwanda. But the Rwandan government itself initially requested the International Criminal Tribunal for Rwanda (though it later opposed it) and decided on national trials for the more than 100,000 jailed in Rwanda on charges of genocide. Its preference for prosecution is understandable: both before and during the colonial period, Rwandan authorities judged major crimes in formal proceedings and imposed punishment on those found guilty.
Cobban favors a more "restorative" solution like the gacaca system, a traditional Rwandan procedure for solving local problems. As Cobban's own example (a dispute over $10) shows, gacaca traditionally deals with minor issues not involving criminal responsibility, one reason why the Rwandan minister of justice originally rejected its use in genocide cases.
The Rwandan government has now decided to use a form of gacaca for the cases of all but the accused ringleaders of the genocide. But as Rwandan Ambassador Sezibera told Cobban, these are "gacaca courts, not just plain gacaca." Cobban claims that "human rights organizations" oppose gacaca—true neither of Human Rights Watch nor of Rwandan organizations. We do, however, protest that "gacaca courts"—no longer community-based conflict-resolution mechanisms, but parts of a centrally-organized state initiative—put the investigative power of the state at the service of the prosecution while prohibiting legal assistance for the accused.
In addition, gacaca will examine only the genocide, not the contemporaneous killings committed by soldiers of the Rwandan Patriotic Front that now controls the government. This same failing, to date, leads to the charge of "victors' justice" that Cobban cites against the International Criminal Tribunal for Rwanda.
Cobban's analysis is most troubling when she resorts to medical metaphor. She acknowledges the planning and organization of the genocide by state authorities, detailing how killers coolly and regularly slaughtered Tutsis as daily "work." Yet in her view, these were not horrible crimes but a "social psychosis," not acts of volition but a "collective frenzy"; the architects of the genocide are not more culpable than ordinary killers but "sicker."
Cobban's analysis resembles that of the perpetrators themselves. They argued that the slaughter was "spontaneous," committed by people driven mad out of fear and anger. Rwandan killers have indeed been traumatized but their ailment resulted from their conduct rather than causing it.
Mob psychology cannot explain choices made during the genocide: why some individuals killed for reward or pleasure, or from fear of punishment, while others did not. To judge the killers as merely "sick" devalues the courage and decency of the millions who resisted this inhumanity, sometimes at the cost of their lives.
Cobban's medical metaphor allows no place for individual responsibility. A person plagued by cancer is a victim of unfortunate circumstance, but is not at fault. Murderers, let alone orchestrators of genocide, are different. When they corral victims into churches and stadiums and systematically slaughter them with guns and machetes, the killers are not the latest hapless victims of the genocidal flu. They are deliberate, immoral actors. Treating them as no more culpable than children who refuse to wear coats and catch cold is both wrong and dangerous. Wrong because it does a deep disservice to the victims, as if their deaths were a natural accident, not a deliberate choice. Dangerous because it signals to other would-be mass murderers that they risk not punishment but, at most, communal therapy sessions.
Cobban proposes healing rituals, such as those used after the Mozambican war, as a way to restore individuals and societies to health. Such rituals have no equivalent in Rwanda; but, of course, other non-judicial initiatives can and should be used to promote reconciliation. Contrary to Cobban's claim, prosecutions do not exclude other alternatives. Burundi, for example, plans both a truth and reconciliation commission and investigations that may lead to national and international prosecution.
Cobban speaks highly of Mozambique's grant of a blanket amnesty to all human rights abusers, asserting that it has led to some years of peace. But countless other cases show that it is more usual for such impunity to breed violence. In Sierra Leone, for example, the amnesty granted in the 1999 Lomé peace accord reinforced the Revolutionary United Front in its methods of amputation, rape, and murder, and condemned the country to many further atrocities.
Aware of the troubling implications of her prescriptions, Cobban insists she is not "attempting to undermine the norms of individual responsibility" but only trying to distinguish between "policy responses" in normal times and those after times of atrocity. In the latter case, she believes, "punishment should be only a small (or even non-existent) part of the response" directed at the highest levels and meant for "incapacitation"—to avoid the leadership regrouping. For this, "a limited number of more or less summary executions," apparently without the fault-finding or truth-telling of a genuine trial, would suffice.
But it is precisely at a time of atrocities—or when a tyrant contemplates committing atrocities—that a policy of trial and punishment is essential. Justice reinforces social norms and deters some would-be perpetrators. True, until recently, tyrants could reliably avoid justice by using violence and intimidation to shut down their national courts. The threat of international prosecution, as an alternative, did not exist. But just as international justice is becoming an occasional reality, just as tyrants must think twice before committing horrendous crimes, Cobban offers her therapeutic dodge, her sick-man's excuse to responsibility.
As the International Criminal Court is born, giving hope of more effective international prosecution of the most heinous human rights crimes, one can only imagine the long line of perpetrators who would choose therapy instead of prison cells. Before we agree to counseling instead of punishment, we owe it to the victims of the Rwandan genocide—and to all future victims of genocide—to contemplate Cobban's theory from their perspective.
Kenneth Roth and Alison DesForges
Helena Cobban replies:
The question of how human societies and the individuals who constitute them, can most effectively recover from atrocious political violence is a challenging one. Ken Roth and Alison DesForges fail to treat the subject with due seriousness when they substitute simplistic tropes for solid arguments, and when they fail to offer concrete suggestions about how Rwanda or other societies reeling from mass atrocities can rebuild the social foundations of a decent regime of civil and political rights.
One such trope is the use of the term "justice" to denote the employment of a Western-style criminal justice system—as though such a system were, on its own, sufficient to bring full justice to any society. Another is their use of the term "therapy" as a pejorative catch-phrase for the concepts and goals embodied in justice systems founded on ideals of social restoration. By dismissing restorative-justice approaches as mere "therapy," Roth and DesForges obscure the demanding requirements that many such systems—including Rwanda's gacaca courts—place on suspected perpetrators of violent acts: that they make a full confession of their deeds, express apologies directly to victims and their kin, and undertake some concrete form of reparation. Taken together, such requirements can constitute a demanding form of personal accountability, far deeper, perhaps, than that required by conventional criminal proceedings.
Roth and DesForges challenge my suggestion that the use of criminal prosecutions was externally imposed on Rwanda's post-genocide government. They note correctly that the Rwandan government originally requested an International Criminal Tribunal for Rwanda (ICTR). But they fail to acknowledge that in November 1994, Rwanda's representative was the only Security Council member who voted against the version of ICTR then under consideration, and that his colleagues all voted for it and rammed that resolution through. That strikes me as a clear case of external imposition.
Of course Rwanda, with its economy and society shattered by the genocide, had no alternative but to comply to some extent with the rigidly-expressed preferences of the rich and secure governments who dominate the Security Council and are the source of most international aid. But since 1994, criticisms of ICTR from members of the Rwandan regime, and of the country's well-organized associations of genocide survivors, have only intensified. By early this summer, the refusal of the genocide survivors' groups to cooperate with ICTR had just about paralyzed the court's proceedings. One well-placed Rwandan judicial official recently offered me this critique of ICTR: "It has made no contribution. It is just a way for the international community to act out its shame over what it did in 1994. How else can you explain it—that they pour such huge resources into it without being concerned at all about its performance? It has nothing to do with Rwanda. They exclude Rwandans."
Roth and DesForges's claims seem particularly weak when they criticize my argument that a well-planned use of amnesty in Mozambique contributed to termination of conflict and prevention of its recurrence. They cannot and do not challenge my conclusions there. Instead they huff that "countless other cases show that it is more usual for impunity to breed violence." But they fail to mention another example that I referred to in my discussion of amnesties: South Africa. I readily agree with Roth and DesForges that the amnesty-based agreement reached for Sierra Leone in 1999 failed to reach its twin objectives of ending the violence and preventing recurrence. Still, the record on amnesty-based deals is far more complex than they maintain. Before we exclude amnesty from the tools available to peacemakers, we need to conduct more research into the conditions of its successes and failures.
Roth and DesForges urge that, "we owe it to the victims of the Rwandan genocide…to contemplate Cobban's theory from their perspective." As it happens, I recently spent ten days in Rwanda doing just that. The testimony of a million victims speaks only problematically from the mounds of skulls and other ossiary at the various genocide memorials around the country. The views I heard expressed by survivors of the genocide—who are shockingly few in number, at around only 200,000—represented a spectrum of opinions. But I was deeply moved to find that these opinions skewed substantially toward the view that forgiving the vast majority of those millions of neighbors and compatriots who had participated in the genocide—in return for full truth-telling by these perpetrators—was the best way for Rwandans to move forward. A surprising number of the survivors with whom I spoke—including many who were little inclined to give unthinking support to an official line advanced by the government—said that they are now ready for the broad release into society of genocide suspects that will happen as the gacaca courts get underway. In the offices of the Ibuka survivors' union, one soft-spoken young man told me he hoped that gacaca could generate more information about who was responsible for killing three of his siblings and numerous other family members during the genocide. "Once someone tells me he did it, and asks for forgiveness, then I can forgive," he said. "It's not knowing who did it that makes me insecure."
The saddest aspect of Roth and DesForges's critique is its ungenerous and rigidly ideological tone. For seven years, I lived in Lebanon, which was then reeling under an atrocity-laden internal conflict. People in such societies face enormous challenges as they seek to find a way out of ever-turning cycles of violence, and to resist objectification by the "international community" by rediscovering their own capacities for constructive human agency. Highly-paid lawyers from rich, secure countries are perhaps the last people on earth from whom to expect an understanding of such dilemmas. And people in the human-rights community should avoid pandering to legalistic prejudices.
