JUSTICE

A primary question for many transitional institutions - whether and why it is necessary to punish perpetrators of mass crimes (and the connected question, whether amnesty rather than punishment may ultimately bet­ter facilitate peace, reconciliation, truth or some other goal) - highlights the centrality of justice in this context.

Law is between the past and the future... between retrospective and prospective. Transitions imply paradigm shifts in the conception of justice; thus, law's function is inherently paradoxical. In its ordinary social function, law provides order and stability, but in extraordinary periods of political upheaval, law maintains order, even as it enables transformation.^[85]

Post-conflict legal institutions such as the ICTR are trapped uncomfort­ably between backward- and forward-looking pursuits, punishing perpe­trators of past crimes while claiming - though usually failing to articulate precisely how - that punishment will contribute to reconstruction or reconciliation. In order to more clearly explore justice as it manifests in gacaca and other post-conflict justice institutions, I outline the contours of justice here.

First, models of justice in the transitional setting can be divided into three broad categories: retributive, deterrent and restorative. Retributive justice holds that perpetrators must be punished, to bring them to account and to give them what they supposedly �deserve’. Some authors argue that retributive justice is also necessary for states to adhere to inter­national legal conventions.^[86] The deterrent view of justice meanwhile holds that punishment is necessary, not simply because perpetrators deserve it but because it should help discourage a convicted perpetrator from committing another crime, for fear of receiving punishment, as he or she has in the past, and also to dissuade current or potential criminals from continuing or initiating offences, lest they also receive punishment.

revolves around the idea that crime is, in essence, a violation of a person by another person (rather than a violation of legal rules); that in respond­ing to a crime our primary concerns should be to make offenders aware of the harm they have caused, to get them to understand and meet their liability to repair such harm, and to ensure that further offences are pre­vented; that the form and amount of reparation from the offender to the victim and the measures to be taken to prevent re-offending should be decided collectively by offenders, victims and members of their commu­nities through constructive dialogue in an informal and consensual pro­cess; and that efforts should be made to improve the relationship between the offender and victim and to reintegrate the offender into the law­abiding community.^[87]

In the case of mass crimes such as genocide, restorative justice views the reconciliation of individual perpetrators and survivors and of entire com­munities as the ultimate objective. Restorative justice therefore attempts to further explain the sorts of conceptual relationships suggested in the cliched refrain of many commentators on post-conflict societies, that �no reconciliation is possible... without justice.'^[88]

Second, methods of justice can be divided into two broad categor­ies: formal and negotiated. In the formal interpretation, post-conflict institutions arrive at justice via predetermined (usually legal) statutes and procedures.

At the theoretical level, formal and negotiated methods may lead to some combination of retributive, deterrent or restorative outcomes. For example, retributive or deterrent justice may be achieved via both formal or negotiated means: in the first instance, independent judges operat­ing in the controlled environment of a conventional courtroom, adher­ing strictly to predetermined legal statutes governing the running and the range of judicial outcomes of hearings, may punish perpetrators in a fashion consistent with the requirements of retributive or deterrent just­ice. These requirements could also be fulfilled via a negotiated process that affords the community a central role in debating and judging cases, but that still punishes perpetrators. Similarly, restorative justice could theoretically be achieved by either formal or negotiated means. The for­mal requirements of a judicial process, for example, could dictate that punishment be systematically directed towards rebuilding relationships between parties, or in the case of negotiated processes, if the very nature of the participatory methods employed were viewed as a means towards restorative ends.

On this basis, we should view Johnstone’s account of restorative just­ice above - with its emphasis on restorative punishment as necessarily �decided collectively ... through constructive dialogue in an informal and consensual process’ - as normative, rather than strictly definitional. In a theoretical sense, we can conceive of ways to achieve restorative justice other than through collective deliberation, although Johnstone may be right to argue that, in practice, communal negotiation is the most justifiable and effective means to restoration. No prima-facie reason exists to assume that one particular method of justice will lead automat­ically to one particular justice outcome, nor that transitional institutions should be limited to employing either a formal or a negotiated method, rather than a hybrid of these approaches.