Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda

Source: (2000) New York Law Review. 75:1221

Following the 1994 Rwandan genocide, national and international trials set out to encourage national reconciliation, promote peace, punish perpetrators, foster a culture of human rights, and effective justice. In this artilce, Professor Mark Drumbl questions the ability of tthese trials to achieve these goals and suggests they may in fact aggravate ethnic identity politics, thereby threatening Rwanda’s long-term stability. He argues that the highly interdependent yet dualist nature of Rwandan society, together with the widespread level of participation in the victimization by the genocide, create a situation where accountability for the violence and the deterrence of future violence can be pursued more effectively through the restorative cultivation of shame rather than through the retributive imposition of guilt. Although criminal sanction usually attaches to deviant conduct, participation in genocide in Rwandawas not particularly deviant, nor was it an individualized, pathological transgression. Professor Drumbl asks whether there might be times and places where collective wrongdoing needs to be exposed and not hidden by the law’s preference for individual fault. Despite the concerns that ought to be emerging from the Rwandan experience, international lawyers continue to push- with significant degrees of success- for selective criminal prosecution as a preferred, and potentally exclusive response to mass atrocity. In contrast, he suggests that creating presumption in favor of criminal trials may preempt the supervening inquiry about the suitability of those trials to the afflicted society. Professor Drumbl concludes that policy responses to mass atrocity should be founded upon contextual inquiries, not driven by globalitarian or legalistic agendas, and hsould recognize the uniqueness of each incident of mass atrocity and the uniqueness of the reconstruction process that should follow, instead of flattening that uniqueness.