The Ethics of Human Rights (15): Justice After Genocide

A new political regime that is installed in a society that has recently suffered human rights violations on a cataclysmic scale, such as genocide or ethnic cleansing (Rwanda and Cambodia are examples), always faces the problem of justice. What to do with the crimes of the past? This is a problem because the crimes in question usually haven’t been committed by a few individuals can that be identified and tried, but by a large majority of the citizens. You can’t put the majority in jail.

The new regime runs the risk of falling into the trap of collective guilt. One particular ethnic group or one class of society is singled out as the perpetrator (e.g. Hutus in Rwanda, forgetting that many victims were Hutu), and those members of this “criminal group” who aren’t put on trial suffer from social stigma. Collective guilt is unjust, and – worse even – mirrors the practice of the genocidaires.

But there’s another trap as well. Mark Drumbl, for example, has coined the phrase “the myth of collective innocence”. By punishing a few perpetrators only, even if they are guilty and perhaps even the “brains” behind the genocide, the impression is given that the large masses didn’t participate, whereas the genocide was only possible because of mass participation. It’s also a well-known fact that selectivity in the application of justice erodes justice. It gives the impression of unfairness, prejudice, nepotism, double standards etc. Why me and not the other guy? Society as a whole may come to see the justice system as seriously flawed. Justice, after all, should be equal.

On the other hand, selectivity is a fact in all justice systems, and in all types of crimes (in the U.K., for example, only 3 % of all crimes are prosecuted). And in the case of genocide, selectivity is perhaps even necessary. The new regime cannot afford to alienate a large part of society. There has to be some kind of national reconciliation. The demands of the victims and their claims of justice for the past, have to be balanced against the future needs of a stable, reconciled society.

Genocide offers a justification for this selectivity. During the “implementation” of genocide, individual culpability is sometimes eroded. In a genocidal situation, social pressures to participate in mass violence can be enormous. Contrary to violence in ordinary crimes, violence in a genocide becomes the norm, the moral thing to do, precisely because it is so widespread. Refusing to participate is morally abhorrent, deviant, and can expose an individual to extreme risk. And we see that individuals quickly internalize this new “morality” and start to act accordingly. (On a smaller scale, this is apparent in the phenomenon of littering. Once it starts to be seen as “normal” to litter somewhere, the littering will become normal behavior). The notion of voluntary participation in genocide becomes problematic.

This doesn’t absolve people from guilt, but it can be attenuating, and it can justify the prosecution of only a handful of planners and organizers. And this in turn can be helpful for national reconciliation. The others may be subject to a more restorative kind of justice, compared to the retributive kind imposed on the important few. Truth commissions can play an important part in this process.

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