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Deontological Retributivism and the Legal Practice of International Jurisprudence: The

Case of the International Criminal Tribunal for Rwanda

Author(s): Jason Benjamin Fink
Source: Journal of African Law, Vol. 49, No. 2 (2005), pp. 101-131
Published by: School of Oriental and African Studies
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Journal of African Law, 49, 2 (2005), 101-131 ? School of Oriental and African Studies.
doi:10.1017/S0021855305000100 Printed in the United Kingdom.


Jason Benjamin Fink*


In attempting to address the epistemic and conceptual difficulties asso

ciated with the crime of genocide, the contemporary practice of international
criminal jurisprudence has fashioned a legal paradigm with a concomitant set
of global protocols designed to situate and stabilize the meaning of genocide.
The articulation of this paradigm has entailed the bracketing or suspending of
alternative discursive strategies and institutions, particularly those inscribed
with a traditional or contextual value. In the intensely unstable space of a
post-genocidal society, the imposition of procedural and institutional struc
tures by international organizations and agencies may constitute a genuine
barrier to the critical appropriation of the fact of genocide into the local,
communal memory by rendering the terms of the process and its mechanisms
foreign and incommensurable to both victims and perpetrators. By denying
the legitimacy and social authority of "local determinations" with their
critical and constructive potential, international criminal jurisprudence
often sacrifices the possibility of reconciliation for the normative framework
entailed by retribution.
In what follows, I present the argument that in the context of post
genocidal Rwandan society, the imposition of a formal legal structure by
the United Nations in the form of a criminal tribunal fails to address the
specific public needs generated by the crimes of genocide. I begin by discuss
ing the historical importance played by an ideology and politics of ethnicity in
creating a framework for genocide in Rwanda. The next section traces the
legal paradigm structuring the interpretation of genocide by international
criminal jurisprudence and examines its set of codified practices and institu
tions designed to appropriate the facts of genocide. In the final section, I
argue that the application of this legal paradigm as a mechanism to address to
genocidal violence in Rwanda fails fundamentally to overcome the profound
diremption inscribing the social geography of Rwanda. As a descriptive
strategy, I suggest the introduction of alternative practices and institutions
rooted in a shared cultural and historical framework resonating across both
Hutu and Tutsi communities.
Over the course of the last fifty years, the field of Genocide Studies has
produced a rich literature exploring the epistemology and sociology of

* J.D. (Fordham University); Ph.D. Candidate Department of History (University of

Michigan); Private legal practice, Paris, France ( I wish to thank Professor
Mary Daly and Professor Jacqueline Nolan-Haley for their comments on the initial draft of the
paper. I would also like to extend my appreciation and gratitude to Professor Joseph Sweeney,
Dean Benjamin Zipursky and Dr Samantha Fink for their support and encouragement.

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102 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.

genocide.1 Various schools of scholarship2 have developed a set of interpretive

models designed to explain the origins and modes of implementation of
modern genocide.3 Recently, social anthropologists4 and cultural historians5
have begun to study the effects of genocide on the remaining populations. In
mapping the typology of these "post-genocidal" societies,6 three distinct
modes or types emerge: the Homogenous mode, the Dualist mode and the
Pluralist mode.7 Each context engenders a distinctive social geography and
has appropriated the fact of genocide into its collective memory through a
particular set of social and cultural mechanisms.
Mapping the Social Boundaries of Post-Genocidal Societies

Under the homogenous mode, the victim group8 has been effectively
"eliminated" or negated9 by the oppressor group from occupying a
1 The scope of the literature is too extensive to reference here, although a few titles should be
mentioned. See Z. Bauman, Modernity and the Holocaust, Ithaca, 1996; E. Staub, The Roots of Evil:
The Origin of Genocide and Other Group Violence, New York, 2000; H. Arendt, Eichmann in Jerusalem: A
Report on the Banality of Evil, New York, 1964; V. Jank?l?vitch, L'imprescriptible: pardonner?: dans
l'honneur et la dignit?, Paris, 1986; P-A. TaguiefF, La force du pr?jug?: essai sur le racism et ses doubles,
Paris, 1988; C. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland,
New York, 1992; Y. Ternon, L'innocence des victimes au si?cle des g?nocides, Paris, 2001; A. Frossard, Le
crime contre l'humanit?, Paris, 1987; M. Mamdani, When Victims Become Killers: Colonialism, Nativism,
and the Genocide in Rwanda, Princeton, 2001.
2 The interpretive models range from a "uniqueness" thesis, represented by such historians as
Stephen Katz, Deborah Lipstadt, and Alain Destekhe, which claims that each genocide is sui
generis, an event or process which is inherently incommensurable with any other event or process,
to what might be called the "immanent" thesis, represented by such figures as Hannah Arendt or
Zygmunt Bauman, which posits that genocide is an inherent possibility contained within a
modernist mentality, emerging in contexts where traditional social structures are undermined
or subject to a condition of extreme crisis. See A. Destekhe, "The third genocide", (1994-1995) 97
Foreign Policy 3, 4-5; D. Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory,
New York, 1993; S. Katz, "The uniqueness of the Holocaust: the historical dimension", in
A. Rosenbaum (ed.), Is the Holocaust Unique? Perspectives on Comparative Genocide, Boulder, 1996.
3 See generally, G. Andreopoulos (ed.), Genocide: Conceptual and Historical Dimensions,
Philadelphia, 1994; L. Chorbajian and G. Shirinian (eds.), Studies in Comparative Genocide,
New York, 1999.
4 See H. Fein, "Genocide: a sociological perspective", (1990) 38(1) Current Sociology; F. Chalk
and K. Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies, New Haven, 1990;
C. McC. Lewin, "The Holocaust: anthropological possibilities and the dilemma of representa
tion", (1992) 94(1) American Anthropologist; K. Bischoping and N. Fingerhut, "Border lines:
indigenous peoples in genocide studies", (1996) 33(4) The Canadian Review of Sociology and
Anthropology; D. Maybury-Lewis, "Genocide against indigenous peoples", in A.L. Hinton (ed.),
Annihilating Difference: The Anthropology of Genocide, Berkeley, 2002.
5 See G. Prunier, The Rwanda Crisis: History of a Genocide, New York, 1997; D. Diner, "On guilt
discourse and other narratives: German questions and universal answers", in Beyond the Conceivable:
Studies on Germany, Nazism, and the Holocaust, Berkeley, 2000, 218-230; Mamdani n. 1 above.
6 M. Drumbl, "Punishment, postgenocide: from guilt to shame to civis in Rwanda", (2000) 75
N.T.U. L. Rev. 1221, 1235-1241; W. Schabas, "Justice, democracy and impunity in post-genocide
Rwanda: searching for solutions to impossible problems", (1996) 7 Crim. L. F. 523; J. Drumtra,
Life after Death: Suspicion and Reintegration in Post-Genocide Rwanda, Washington, D.C., 1998.
7 M. Drumbl, "Sobriety in a post-genocidal society: good neighborliness among victims
and aggressors in Rwanda?", (1999) 1(1) Journal of Genocide Research 25.
8 The phrase "victim group" is intended to refer to those particular national, "racial, ethnic or
political groups" which are subject to intentional extermination. Within a specific context, the
designation, however, may not be stable or capable of being stabilized; the boundary defining the
category may shift and the group who was the victim may become the aggressor and the aggressor
may become the victim.
9 See C.P. Scherrer, "Towards a theory of modern genocide. Comparative genocide research:
definitions, criteria, typologies, cases, key elements, patterns and voids", (1999) 1(1) Journal of
Genocide Research 15 (describing the "complete extermination and destruction-in-whole of a
particular community or group, with the intent to destroy its reproduction (as a group) as well
as its culture and institutions" as "total genocide").

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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 103

recognizable presence in the public sphere.10 Social institutions and ideologies

are reconfigured to accommodate the absence of the subjected group.
Under this approach, the analytics of social authority prescribe a strategy
for collective memory which often operates as a mechanism to legitimate the
program of genocide by naturalizing or historicizing the process itself.
This approach applies to the extermination of the peoples of the First Nations
in North and South America through the administration of European
colonialism.11 Germany and Austria can also be legitimately described as
representing an homogeneous mode of post-genocidal society.12 It must be
noted, however, that the scope of the homogeneous mode is not bound by the
condition of the complete annihilation13 of the victim group. In certain
contexts, partial extermination coupled with complete social displacement
or marginalization of the remaining members may also constitute the homo
geneous mode.14 The aboriginal peoples of Australia15 and Canada,16 for
instance, are bracketed off or suspended from the dominant regimes of
power and discourse structuring the institutions of social authority. They
are compelled to remain marginal or subaltern, locked into their own private
sphere of authority.
In a post-genocidal society structured along a dualist framework, the
oppressor group fails in its attempt to annihilate the victim group who still
is capable of asserting a presence within the public sphere. Unlike the homo
genous types, both groups must share a common public space and, thus,
confront, on a daily basis, the reality of the genocide and the nexus of
individual responsibility and participation. Social and political authority
after the genocide may be in the hands of the oppressor group, a third-party
authority, or, even, the victim group itself.17 Political authority may also be a
function of economic control; the group holding or maintaining a dominant
economic position can articulate and police the scope of political discourse. In
addition, the question of group settlement may need to be addressed in dualist
post-genocidal societies. Depending on the availability of land18 and the

10 Drumbl, n. 7 above, at 26-27.

11 See W. Churchill, A Little Matter of Genocide: Holocaust and Denial in the Americas 1492 to the
Present, San Francisco, 1997, 97-122; D.E. Stannard, American Holocaust: Columbus and the Conquest
of the Mew World, New York, 1992; P. Brantlinger, Dark Vanishings: Discourse on the Extinction of
Primitive Races, 1800-1930, Ithaca, 2003, 45?67 (examines the articulation and codification
of extinction discourse(s)).
12 See M. Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass
Violence, Boston, 1998, 133.
13 Scherrer, n. 9 above, at 15 (describing those contexts in which "the perpetrators aimed at
the destruction-in-part of a particular community or group in order to dominate" as "partial
14 Drumbl, n. 7 above, at 1236-1237.
15 See H. Reynolds, Aboriginal Sovereignty: Reflections on Race, State, and Nation, St. Leonards,
NSW, 1996 (tracing the impact of colonialism on traditional aboriginal social structure);
C. Bourke, E. Bourke and B. Edwards (eds.), Aboriginal Australia: An Introductory Reader in Aboriginal
Studies, Portland, 1994; A.D. Moses, "An antipodean genocide? The origins of the genocidal
moment in the colonialization of Austrialia", (2000) 2(1) Journal of Genocide Research
89, 90.
16 See P.D. Elias, Development of Aboriginal People's Communities, North York, 1991; T.S. Abler,
"Colonizing a people: Mennonite settlement in Waterlook, aboriginal sovereignty and Ontario
aboriginal law, 1790-1860", in D.T. McNab (ed.), Earth, Water, Air and Fire: Studies in Canadian
Ethnohistory, Waterloo, 1998.
17 Drumbl, n. 6 above, at 1237.
18 If land is in adequate supply, a policy of group segregation may function as a political device
for engendering a condition of social stability.

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104 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.

operational/theoretical constraints,19 the public sphere could be divided,

thereby segregating and positioning both groups on their own designated
region of the national territory.20 In other contexts, however, the social
geography of a nation forbids the creation of independent sub-states defined
according to a particular criterion of ethnicity.21 In these circumstances, the
social lives of the oppressor group and of the victim group are too inter
connected and dependent on one another to permit complete separation.
Reconfiguring the social and territorial geography of such a nation along
lines of ethnicity would create a radical condition of social displacement
and instability. On both a practical and a political level, therefore, a
policy of segregation would be demographically prohibited and socially
For dualist post-genocidal societies, the degree or level of participation,
collaboration and victimization in the process of genocide occupies a central
role in the reformation and reconfiguration of social life. In attempting to
define the scope of the genocide, the extent of participation and collaboration
among members of the oppressor group (and victim group) can represent a
significant factor in developing a set of mechanisms necessary to (re) integrate
the two groups into a common social matrix. The degree to which the victim
group was subject to the process of genocide may also play a crucial role in the
creation of a social framework for addressing questions of accountability and
collective understanding of the experience.
Under the pluralist mode, a singular victim group or multiple victim
groups who have survived the genocide must coexist in the public sphere
with a singular oppressor group or multiple oppressor groups.22 In pluralist
contexts, the empirical boundary23 demarcating the domain of oppressor from
that of victim is often confused and shifting: one group may subject another
group to acts of genocide, only to have their respective positions changed at
another moment, so that the previous oppressor becomes itself subject to acts
of genocide by a third group or the former victim group itself engages in acts of
genocide against a third group. Researchers have offered several examples of
post-genocidal societies which accommodate a pluralist framework. Given the
chronic problem of ethnic and religious violence between its Kurdish groups
and its Shiite and Sunni Muslim communities, researchers have suggested
that Iraq actually constitutes an example of a pluralist post-genocidal
society.24 The situation in the former Yugoslavia may also represent an
instance of the pluralist mode.25 The ethnic and religious conflict among the

19 In some cases, there may exist a series of social issues which are not capable of being
negotiated. If the victim group, for instance, occupies a dominant position in a particular area
of economic life, segregation and social exclusion may be impractical or pragmatically impossible
to implement.
20 See C. Kaufmann, "Possible and impossible solutions to ethnic civil wars", in M.E. Brown
(ed.), Nationalism and Ethnic Conflict, Cambridge, MA, 1997, 265.
21 Ibid, at 277.
22 Drumbl, n. 6 above, at 1239-1240.
23 In pluralist post-genocidal societies, institutional, economic and social arrangements which
operate to mark off or distinguish one group from another may be subject to a process of radical
reconfiguration whereby the loci of authority will be shifted to a different group.
24 See generally Human Rights Watch, Iraq's Crime of Genocide: The Anfal Campaign Against the
Kurds, New Haven, 1995; D. McDowall, A Modern History of the Kurds, London, 1996.
25 See M. Caianiello and G. Illumin?t, "From the International Criminal Tribunal for the
Former Yugoslavia to the International Criminal Court", (2001) 26 N.C. J. Int'l L. & Com.
Reg. 407.

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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 105

Serb, Croat and Muslim communities generated a condition of genocide in

which each group alternated in assuming the role of oppressor or victim: Serb
violence perpetrated against Muslim, Croat violence perpetrated against
Serb and Muslim, Muslim violence perpetrated against Serb. Acts of ethnic
cleansing directed against the Roma in the Balkans also confirm the pluralist
description given to the region.26

Rwanda as Exhibiting a Dualist Mode of Post-Genocidal Society

The social geography of pre-colonial Rwanda

Contemporary historiography on pre-colonial Rwanda is divided between

two competing narrative tropes. The historical debate centers on the question
of whether ethnic27 differences between the Hutu and Tutsi of Rwanda were
present before the colonial era.28 The debate carries great social and political
import since the issue of ethnicity occupies a central position in the emerging
discourse of national identity articulated in post-genocidal Rwanda.29
According to what might be called the "ethnic school", historians, typically
those embracing the Hutu position, argue that ethnicity constitutes a legit
imate framework for describing the social geography existing in Rwanda
before European colonialism. Before the period of European hegemony, this
approach suggests, traditional social distinctions grounded in ethnicity were
codified under the Tutsi ruler Mwami ("King") Rwabugiri30 during the late
nineteenth century. After this period, the Tutsi-dominated state institutions
found a mechanism to legitimize their civil authority through a social ideology
predicated upon the recognition and naturalization of ethnic differences.
Although it acknowledges that "ethnic" violence was never a defining marker
between Hutu and Tutsi, this school argues that the question of ethnicity as
an historical reality should not be bracketed or suspended when discussing the
post-genocidal reconstruction of Rwandan society.31

26 See A.M. Warnke, "Vagabonds, tinkers, and travelers: statelessness among the East
European Roma", (1999) 7 Ind. J. Global Legal Stud. 335.
27 The notion of "ethnicity" has been subject to decades of scholarly debate without achieving
even an agreed-upon speculative ostensive definition. Some cultural anthropologists and histor
ians, such as Benedict Anderson, have argued that boundaries marking ethnicity are constantly
shifting and adapting. The image of a fixed, permanent ethnie or ethnic community is replaced by
the idea of an "imagined community". For the purposes of this essay, the following definition of
the term ethnie will be assumed: "a named human population with myths of common ancestry,
shared historical memories, one or more elements of common culture, a link with a homeland and
a sense of solidarity among at least some of its members". See R.A. Schermerhorn, Comparative
Ethnic Relations: A Framework for Theory and Research, Chicago, 1978, 12; E. Tonkin, M. McDonald,
and M. Chapman, History and Ethnicity, New York, 1989, 11-17 (tracing the history of the term
and defining the scope of usage); M. Nash, The Cauldron of Ethnicity in the Modern World, Chicago,
1989, 10-15 (positing a set of "index features" to identify ethnic boundaries); D. Wippman,
"Ethnic Claims and International Law", in D. Wippman (ed.), International Law and Ethnic Conflict,
Ithaca, 1998, 3-4.
28 See C. Newbury, The Cohesion of Oppression: Clientship and Ethnicity in Rwanda, New York, 1988
(tracing the system of feudal clientship existing through portions of Rwanda in the pre-colonial
era. The author emphasizes that the categories of "Hutu" and "Tutsi" were shifting social
designations which could be altered through economic mechanisms).
29 See Prunier, n. 5 above, at 23?40.
30 See W.R. Louis, Ruanda-Urundi, 1884-1919, Oxford, 1963, Chapters 2 and 4; J. Vansina,
Le Rwanda ancien: le royaume nyiginya, Paris, 2001; Prunier, n. 5 above, at 13, 15.
31 See L. Kuper, Genocide: Its Political Use in the Twentieth Century, New Haven, 1981,
at 61-62.

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106 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.

The other dominant school of historiography on pre-colonial Rwanda

argues that the social geography of Rwanda before European expansion in
the late nineteenth and early twentieth centuries was organized according to
"clan" (ubwoko) or caste structures, rather than ethnic structures.32 Cultural
historians and ethnographers have even challenged the proposition that
Hutu and Tutsi constitute a distinctive ethnic group capable of being clearly
demarcated from one another.33 Historically, both Hutu and Tutsi
exhibited none of the markers commonly used to distinguish ethnic groups.
Both groups identified themselves as Banyarwanda or "people of Rwandan
extraction";34 they spoke the same language, Kinyarwanda, "without differ
ences in dialect or vocabulary";35 they were members of the same religious
institutions;36 they shared a common public sphere and participated in the
same cultural and social rituals.37 Both groups were imbricated, therefore, in
a complex social nexus in which ethnic difference played no authentic or
recognizable role.
Under a clan or caste model, the social boundaries distinguishing
Hutu from Tutsi were the subject of chronic transgression. Clans
constituted the real framework of social classification and distinction. As
researchers have demonstrated, the social structure of the clan did not
recognize an "ethnic" distinction, so that the membership of a particular
ubwoko often included both Hutu and Tutsi.38 Given the high degree of social
fluidity and proximity between the Hutu and Tutsi, relations between both
groups cannot be characterized as particularly confrontational (a point both
schools concede). The "clan" school contends that the historical record
demonstrates that social hostilities emerged more often among competing
clan dynasties than between ethnically self-distinguished Hutu and Tutsi

32 See Prunier, n. 5 above, at 15; D. Newbury, "The clans of Rwanda: a historical hypothesis",
in Centre de Civilisation Burundaise (ed.), La civilisation ancienne des peuples des Grands Lacs, Paris,
1981, 186-197 (arguing that clans operated simply as a mechanism of social control, rather than
as an authentic social structure).
33 Ibid.; P. Gourevitch, We Wish to Inform Tou That Tomorrow We Will Be Killed with Our
Families: Stories from Rwanda, New York, 1998, 48; Prosecutor v. Akayesu, Case No. ICTR-96-4-T,
Par. 81 (1998) ( (questioning whether Hutu represent a distinct ethnic group
under the definition posited by the ICTR Statute).
34 See Prunier, n. 5 above, at 366.
35 Ibid, at 368.
36 Ibid, at 15; A. Des Forges, "Leave None to Tell the Story": Genocide in Rwanda, New York, 1999,
31; Gourevitch, n. 33 above, at 47.
37 Drumbl, n. 6 above, at 1243; Des Forges, n. 36 above, at 4, 31 (noting that Tutsi and Hutu
"attended the same schools and churches, worked in the same offices, and drank in the same
bars . . . [They] celebrated the same heroes: even during the genocide, the killers and their
intended victims sang of some of the same leaders from the Rwandan past").
38 Hutu and Tutsi, as Gourevitch writes, "intermarried, and lived intermingled, without
territorial distinctions, on the same hills, sharing the same social and political culture". See
Gourevitch, n. 33 above, at 47.
39 As Prunier notes, the boundaries marking Hutu from Tutsi were socially and economic
ally defined. He describes the process of social mobility in Rwandan society as a function
of cattle ownership. An individual Hutu who acquired cattle would become icyihuture,
"de-hutuised" and, therefore, "tutsified". "Similarly," Prunier writes, "a very poor Tutsi who
lost all his cattle and had to cultivate the land would in due course become umuwore (fallen),
i.e., hutuised." The institution of marriage constituted another mechanism "to reinforce either
trend, the children of the successful Hutu marrying into a Tutsi lineage and the children of the
impoverished Tutsi marrying into a Hutu family". See Prunier, n. 5 above, at 13 14,
fn. 31.

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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 107

The re-encoding of the social geography of Rwanda

through a European discourse of scientific racialism

Concomitant with European colonial expansion throughout the latter half

of the nineteenth century was the development and codification of a scientific
discourse on race. In fact, the experience of colonialism operated as a
mechanism to sustain or confirm much of the contemporary theorizing
about race.40 Many European theorists used science or, more accurately, an
ideology of scientism41 as a justification for the colonial project. Arguing that
race is an inherent "property" or "quality" of an individual or a group,
entailing a set of determinant characteristics, racial theorists interpreted
culture (and, thus, cultural difference) as a function of race. In other words,
European colonialism actively appropriated cultural difference through an
epistemic framework of racial difference.42 Ethnic and racial alterity were
determined according to a system of racial normativity in which the figure of
the European constituted the irreducible posit or foundational position
against which the Non-West was to be judged.43
Germany, for instance, appropriated Rwanda into its late-emerging colo
nial empire at the turn of the last century. Throughout its presence in
Rwanda (1895?1916), Germany applied a racial discourse to their reordering
of indigenous Rwandan society.44 Establishing a pattern which would con
tinue throughout the colonial period in Rwanda, German race theorists and
anthropologists supported the social authority of the Tutsi regime by positing
a racialist theory designed to explain and naturalize the cultural and social
hegemony exhibited by the ruling Tutsi elites.45 After Germany was forced to
relinquish its colonies during World War I (1916), Belgium assumed control
over the region comprising Rwanda and Burundi, thereby expanding its
African "empire" which already included the Congo. Establishing a conven
tional system of indirect rule, a small number of Europeans were able to
satisfy their imperial needs and exert political and administrative hegemony
over their territories by incorporating and sustaining local Tutsi elite.

40 This interpretation is confirmed by examining the work of contemporary race theorists, such
as Hippolyte Taine, Joseph-Arthur de Gobineau, Ernest Renan and Gustave Le Bon.
41 See T. Todorov, On Human Diversity: Nationalism, Racism and Exoticism in French Thought,
Cambridge, MA, 1993, 114 (defining scientism as "essentially based ... on two postulates:
integral determinism and the subordination of ethics to science").
42 See ibid, at 1?32; A.L. Stoler, Race and the Education of Desire: Foucault's History of Sexuality and
the Colonial Order of Things, Durham, 1995, 8; P. van den Berghe, "Does race matter", in
J. Hutchinson and A.D. Smith (eds.), Ethnicity, Oxford, 1996, 264 (arguing that cultural mod
alities determine the choice of privileged physical characteristics defining a "social race").
43 In her The Origins of Totalitarianism, Hannah Arendt suggested that the European encounter
with Africa (particularly, South Africa), from the late sixteenth century, generated an epistemic
framework which led to the establishment of a precedent for treating people as "superfluous" in
Europe during the interwar period, and a mindset that could encourage their elimination.
Carrying the connection a step further, Franz Fanon, the Algerian philosopher and psychologist,
argued that Fascism and the Holocaust represented colonialism "brought back home". See
H. Arendt, The Origins of Totalitarianism, New York, 1966; F. Fanon, The Wretched of the Earth,
New York, 1968.
44 See Newbury, n. 32 above, at 118-128; A. Zimmerman, Anthropology and Antihumanism in
Imperial Germany, Chicago, 2001; M. Bunzl, "Franz Boas and the Humboldtian tradition: from
volksgeist and nationalcharakter to an anthropological concept of culture", in G.W. Stocking, Jr.
(ed.), Volksgeist as Method and Ethic: Essays on Boasian Ethnography and the German Anthropological
Tradition, Madison, 1996.
45 Drumbl, n. 7 above, at 28. See also M. Bunzl and H.G. Penny (eds.), Worldly Provincialism:
German Anthropology in the Age of Empire, Ann Arbor, 2003.

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108 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.

The European presence also permitted the Tutsi aristocracy to solidify its
control over non-appropriated Hutu sub-chiefdoms, particularly those of the
northwest who had traditionally resisted Tutsi attempts at incorporating
them into a centralized state system controlled by Tutsi elites.46
First developed by British race theorists, European colonial powers actively
appropriated the so-called "Hamide hypothesis"47 as an epistemic framework
for organizing the social geography of Rwanda. According to this anthro
historical approach, the Tutsi, who appeared to the Europeans to be generally
taller and thinner than the Hutus, derive their ethnic origin from a superior
"Caucasoid" race which inhabited the Nile Valley at one time and later
migrated south to the south-central portion of Africa. The theory also posits
a distinct Christian heritage to these migrating groups. Under the analytic of
racial evolutionism dominant in contemporary race discourse, the Tutsi were
constructed as an inferior mode of white European, not ontologically identi
cal, of course, but exhibiting certain traits with which the European coloni
alist could feel comfortable. According to this interpretive framework, the
Tutsi possessed greater intelligence, were more reliable, approached work
with an appreciation of its social (and, more importantly, ethical) value and
seemed to resemble the white European more than the "Bantu" Hutu
Structured by European aesthetic and cultural preferences, the Germans
and, later, the Belgians set up a political system designed to facilitate a
"tribalism without tribes"49 and, in effect, to naturalize the pre-existing
system of social authority through a racial hermeneutic which explained
and legitimized the social geography privileging the Tutsi in relation to the
Hutu. By reading the social structure of Rwandan society according to a
racial framework, European colonialism was responsible for the stabilization
and internalization of the social distinctions informing the historical relations
between the Tutsi and the Hutus. Under colonialism, the economic and
political hegemony of the Tutsi elite was expanded, while the Hutu majority
was progressively excluded from the centers of economic and political author
ity. The European colonial authorities instituted an administrative system
designed to ascribe legal status for its racial discourse. In a series of adminis
trative measures, known as "les reformes Voisin" (after the contemporary
colonial governor, Charles Voisin), promulgated between 1926 and 1932,
for instance, the Belgian colonial authority mandated the use of identity
cards by all citizens of Rwanda. Emblazoned on each card was the

46 See Prunier, n. 5 above, at 23-30.

47 Prunier, n. 5 above, at 8. For a discussion of the so-called "Hamitic hypothesis", see
A. Twagilimana, The Debris of Ham: Ethnicity, Regionalism, and the 1994 Rwandan Genocide,
Lanham, 2003; C.C. Taylor, Sacrifice as Terror: The Rwandan Genocide of 1994, Oxford, 1999,
Chapter 2; L. Malkki, Purity and Exile: Violence, Memory, and National Cosmology among Hutu Refugees
in Tanzania, Chicago, 1995; E.R. Sanders, "The Hamitic hypothesis: its origin and functions
in time perspective", (1969) 10(4) Journal of African History; W.F.S. Miles, "Hamites and
Hebrews: problems in 'judaizing' the Rwandan genocide", (2000) 2(1) Journal of Genocide
Research 108.
48 The colonial authorities located the Hutu and the Tutsi within a racial epistemic grid which
positioned the Tutsi, as more similar to the European, and superior to other Africans in the
region. This operation facilitated the naturalization of racial difference entailed under European
colonial hegemony. See Prunier, n. 5 above, at 6.
49 A. Destexhe, Rwanda and Genocide in the Twentieth Century, New York, 1995, 36 (quoting
J.-P. Chr?tien, Burundi, L'histoire retrouv?e, Paris, 1993).

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individual's "racial" or ethnic group association.50 Having legal effect for over
sixty years, the system of ethnic differentiation and categorization established
by the mandated use of identity cards was appropriated during the genocide
to distinguish (for the process of extermination) Tutsi from Hutu. Unlike
the fluidity encoding the social geography of pre-colonial Rwanda, the
stabilization of the social and epistemological boundaries marking the Hutu
from the Tutsi during the period of European colonialism represented an
attempt to fashion an African society according to a framework structured by
a European discourse on race. Inculcated by theories of social and natural
evolution, European colonialism required a closed and stable system of racial
(and ethnic) identity as a mechanism to justify and naturalize their "imperial
gestures".51 The deeper tragedy, however, is the appropriation by Rwandan
society of this racial framework. Through the experience of European coloni
alism, both the Hutu and the Tutsi adopted this "artificial" colonial discourse
of race and applied it to their own social structure.52 In the process of
articulating and constructing a post-colonial society framed by a "foreign"
notion of racial normativity, both groups have gradually negated or forgotten
the condition of consanguinity informing the social geography of pre-colonial
Rwandan society. The appropriation of the European discourse of race
coupled with the abrogation of the open social framework permeating pre
colonial Rwanda operate as fundamental components structuring the
genocide of 1994.53
In reorganizing or re-mapping the social geography of Rwanda along a
racial or ethnic divide, both the European colonial authorities and the
Catholic Church54 operated according to an "ethnogenesisic"55 orientation
in which racial or ethnic identity is stabilized and naturalized in order to
promote a particular political or social program, such as colonialism. The
legitimacy of the "ethnic divide" was not questioned. When the period of
European hegemony came to an end in the region, the principles of

50 Prunier, n. 5 above, at 26.

51 R. Young, White Mythologies: Writing History and the West, New York, 1990, 23.
52 Prunier, n. 5 above, at 26 28, 36-38; Staub, n. 1 above, at 60.
53 The assertion of this argument from appropriation should not be read as denying a claim
of agency on the part of the Hutu and Tutsi communities. The process of internalization or
inculcation was informed by a set of historical and political forces which carried both communities
along their wake. The European colonial authorities in Rwanda were able to foster and exploit a
particular social configuration. The scope of my argument is bounded, therefore, by the very
specific social geography of Rwanda and should not be applied too liberally across other contexts.
For an insightful discussion of the legacy of colonialism with regard to the question of agency
within the African context, see M. Mamdani, Citizen and Subject: Contemporary Africa and the Legacy
of Late Colonialism, Princeton, 1996.
54 Operating as a form of social organization, the Catholic Church in Rwanda provided the
colonial authorities an intellectual and political framework from which to exercise their local and
national hegemony. By the end of the 1930s, the Church represented the largest social institution,
capable of exerting tremendous authority in both the public and the private spheres. The Catholic
authorities in Rwanda endorsed the mode of race discourse associated with the Hamitic theory
and, since it functioned as the only state educational institution sanctioned by the Belgian colonial
authority, the Church was able to disseminate the Hamitic theory and its discourse of race to
several generations of Hutu and Tutsi youth. This process of dissemination also effectively
undermined or de-legitimized a set of normative beliefs which had traditionally functioned as a
discursive mechanism forging a coherent bond across both communities. See generally
J. Kalibwami, Le catholicisme et la soci?t? rwandaise, 1900-1962, Paris, 1991; Prunier, n. 5 above,
at 30 31.
55 M. A. Drumbl, "Rule of law amid lawlessness: counseling the accused in Rwanda's domestic
genocide trials", (1998) 29 Colum. Hum. Rts. L. Rev. 545, 556.

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ethnogenesis were endorsed and sustained by the group of native elites who
began the process of fashioning a post-colonial civil society in Rwanda.
Rather than buttress an ideology of colonialism and racialism, ethnogenesis
was employed by the native elites as a mechanism to "authenticate" and
naturalize their own demands for social authority.56 The segmentation of
Rwandan society into distinct racial or ethnic categories, each bearing a
normative structure and uniting a racial discourse with ethnic codes of
behavior?what the French philosopher Alfred Fouill?e described under the
concept of id?e-forces?reproduced the ideology and effect of colonialism; in
place of the European colonial authorities, native elites now assumed a model
of racial or ethnic difference to sustain their own social authority. The
appropriation of the notion of ethnicity through a framework of ethnogenesis
helped to establish among native elites the identification of power with racial
or ethnic differentiation. This association of power with ethnicity helped to
prefigure the possibility of genocide.

The translation of ethnicity in the context of post-colonial Rwanda

The "Rwandan Revolution" which lasted from 1959 through 1962, when
independence was officially declared, replaced a Tutsi-dominated, colonial
sanctioned monarchy with an independent republic led by a small group of
Hutu counter-elites. Belgium and the Catholic Church enthusiastically
embraced the new regime whose brand of pro-Western African nationalism
was quickly recognized as a possible rampart against the Tutsi-dominated
Rwandan National Union whom the Belgian authorities suspected of ties with
Patrice Lumumba's radical Congolese National Movement and Communist
China.57 Unable to sub?ate an ideology of ethnogenesis, the ruling Hutu elite
began a process of reconfiguring the social geography of Rwanda as to
marginalize and discriminate against the Tutsi minority. By employing a
discourse of race, the new power regime could win the favor of the European
authorities as well as the influential Catholic Church. Race or ethnicity also
represented a common political and social language which was understood by
most Rwandans and could be used itself as a source of social authority.58
Before independence, the "ethnic divide" marking Hutu from Tutsi had
never produced actual ethnic violence. The period from 1962 through 1973,
however, witnessed the beginnings of genuine ethnic violence.59 With the
ascent to power of the Rwandan Democratic Movement under the leadership
of Gr?goire Kayibanda, a graduate of a Catholic seminary, the Tutsi minority
become subject, chronically, to periods of intense ethnic violence.60 As a result
of the violence, many Tutsi fled to neighboring countries in the Great Lakes
Region, generating a severe strain on the social structure of both the Tutsi
communities and the neighbor countries as well. Throughout this period,
the refugee Tutsi initiated a series of commando-like incursions into Rwanda.
These raids, in turn, produced reprisals by the Kayibanda government against

56 Ibid, at 557; Prunier, n. 5 above, at 347 ("Tutsi and Hutu conformed to the images which
had forcefully been projected upon them"); Staub, n. 1 above, at 61.
57 See Prunier, n. 5 above, at 58-59.
58 Ibid, at 60-61.
59 Ibid, at 48-50.
60 Ibid, at 53-61.

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the Tutsi communities still remaining in Rwanda.61 The escalation in violence

encouraged a series of massacres which resulted in the death of several thou
sand Tutsi. Along with the physical destruction of the Tutsi, the Hutu response
was informed by a distinctive racial discourse which labeled the Tutsi as
"inyenzi"62 or cockroaches and described them as foreign enemies or invaders.
In exercising control over Rwanda, the Kayibanda government employed
a notion of Hutu ethnicity as a mechanism to create an artificial impression of
national and ethnic unity. Despite the rhetoric of Hutu solidarity, tremendous
differences existed among the Hutu communities of Rwanda. Beyond the
predominate class distinctions separating the ruling Hutu elite from the vast
majority of peasant Hutu, enormous regional differences divided the Hutu
population.63 The utilization of the notion of a unified Hutu ethnicity by the
ruling elites mirrors a similar movement performed by the ruling White elites
in the Post-Confederate South in the United States. In his seminal study on
the social ideology framing the racial and class typology of Southern recon
struction, W.E.B. Dubois argued that White Southern elites in the period
following the American Civil War used the notion of race as an instrument to
unite the poor White communities. Through the fiction of race solidarity, he
points out, the White elite could redirect the discord of the rural poor White
against the recently freed slave communities.64 A similar social dynamic, one
could argue, occurred in post-colonial Rwanda where the Hutu elites used the
notion of a unified Hutu ethnicity to redirect the claims of social discontent
experienced by the poor Hutu communities against the Tutsi. In both con
texts, however, the discourse of race or ethnicity constituted a social fiction,
designed to further a particular program of ethnogenesis.
In 1973, following a series of particularly brutal attacks by Tutsi against the
Hutu communities residing in neighboring Burundi and the equally vicious
counter-assaults by Hutu students against their Tutsi classmates, General
Juvenal Habyarimana, a senior military officer under Kayibanda, staged a
military coup, overthrowing Kayibanda and promising an end to the ethnic
conflict. He ruled Rwanda for the next 21 years, until he was killed in an
airplane crash in April, 1994, an event which marked the beginning of the
period of genocide in Rwanda. Throughout the period of his presidency,
Habyarimana promoted a policy of reconciliation with the Tutsi minority,
securing a social peace which become a model for several African states and
greatly augmented the status of Rwanda on the international landscape,
eventually being described as "the Switzerland of Africa".65 He was able to
achieve this social harmony through a program of social exclusion. If the
Tutsi promised never to challenge the political and economic hegemony of the
Hutu regime, then they would be free to live their lives without harassment.
The immediate result of this informal agreement was that the massacres of
Tutsi stopped. The Tutsi communities were not given legal or social equity?
the system of identity cards, of ethnic quotas, and of social and economic
segregation of Tutsi communities was maintained?but they were treated to a

61 Ibid, at 61-64.
62 Ibid. at 57; Staub, n. 1 above, at 61.
63 Ibid, at 61.
64 See W.E.B. Dubois, Black Reconstruction in America: An Essay Toward a History of the Part Which
Black Folk Played in the Attempt to Reconstruct Democracy in America, New York, 1985.
65 Prunier, n. 5 above, at 76-79.

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degree of security and stability. For nearly 17 years, there were no recorded
massacres of Tutsi throughout Habyarimana's territory. He proved to be an
extraordinarily popular leader, even among the Tutsi.66
Beginning on 1 October, 1990, an organized force known as the Rwandese
Patriotic Front (RPF) staged a series of trans-border invasions into Rwanda
from camp installations located in Uganda.67 The invasion allowed the
Habyarimana government to rearticulate or reintroduce an analytic of ethni
city or race as a mechanism to promote social unity among the Hutus and to
strengthen its social authority. This strategy of ethnic ideology?what came to
be referred to as "Hutu Power"?assumed a level of popular credibility
among the Hutu population.68 By portraying the Tutsi as an "alien" race or
"vermin" (inyenzi), the government was able to play off the deep-seated fears
among the Hutu of the possibility of a widespread Tutsi conspiracy to reclaim
the government and initiate a program of systematic slaughter of the Hutu.
The reassertion of a discourse of race into Rwandan society helped to estab
lish the "nexus of coercive [social] constraints", as Habermas might have
described it, which would generate the necessary ideological framework for
genocide.69 Indeed, by the time of Habyarimana's death, the epistemol?gica!
and social conditions for a program of genocide were already in place.
In the days immediately following the death of Habyarimana, the Rwandan
Armed Forces joined with local civilian militias (the interahamwe) to initiate
a program for the systematic elimination of the Tutsi population from
Rwanda.70 Setting up roadblocks throughout the country and conducting
house-to-house searches in cities and villages (a process greatly facilitated by
the bureaucratic system of identity cards designating ethnic origin), Hutu
forces identified and slaughtered both Tutsi and sympathetic or "moderate"
Hutu. The state-sanctioned killing continued until the RPF and local Tutsi
resistance were able to seize control of the government and the countryside in
mid-July. The genocide lasted nearly one hundred days and produced approxi
mately 500,000 to 800,000 deaths. The fact that the dominant method used in
the killing of such a large number of people in such a short period of time
involved individuals attacking other individuals with a machete?an "extra
ordinarily inefficient device"?represents an indication that the actual process
of the genocide had to have incorporated most of the population, rather than a
mere handful of carefully selected elites.71 It has been suggested that as many as
a million Hutu may have been directly involved in the actual slaughter.72

66 Ibid, at 75.
67 Ibid. at 90-100.
68 See M. Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in
Rwanda, Princeton, 2001.
69 J. Habermas, Legitimation Crisis, Boston, 1976, 4.
70 Prunier, n. 5 above, at 229-237.
71 Ibid, at 239-248.
72 In his analysis of medieval violence directed toward Jews and Muslims in the regions of
France and the Crown of Aragon (Aragon, Valencia, and Catalonia), David Nirenberg has
argued that the "functional aspects" of social violence serve to define and legitimate group
identity. Systematic and episodic persecution, particularly in the form of ritual violence, operates
as a mechanism "to reinforce the social order" by perpetually reaffirming the boundary conditions
distinguishing the majority/hegemonic community from the minority/subaltern community; it
may constitute, thereby, a performative strategy designed to fashion an epistemically stable
collective identity. "Violence," he contends, draws "its meaning from coexistence, not in opposi
tion to it." See D. Nirenberg, Communities of Violence: Persecution of Minorities in the Middle Ages,
Princeton, 1998, 245.

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As a result of the particular social geography of Rwanda, which had

produced traditionally a cohesive public sphere structured by a high degree
of social and cultural intimacy between both groups, the many Tutsi com
munities throughout Rwanda could not avoid experiencing some degree of
victimization at the hands of their Hutu neighbors, whom Mahmood
Mamdani has described as the "foot soldiers of the genocide".73 Given the
broad extent of this public complicity and the high degree of victimization in
the genocide, the question of how to repair and restructure a public sphere,
which has experienced such a traumatic and devastating series of events,
becomes the fulcrum of a debate concerning the incommensurability of the
international judicial paradigm of retributive justice when positioned against
a contextualist mode of restorative justice. Within the particularly narrow
context of a dualist, post-genocidal Rwanda, I will argue, the approach of
restorative justice operates as a more appropriate model for healing the social
damage generated from the genocide than the retributive approach suggested
by the international community, in general, and represented by the Interna
tional Criminal Tribunal for Rwanda, administered by the United Nations,
in particular.

The Paradigm of International Criminal Jurisprudence

Overview of general principles

Although subject to intense debate, the definition of what constitutes an

international crime may be interpreted broadly to include offenses which
"conventional or customary law either authorizes or requires states to crim
inalize, prosecute, and/or punish".74 Whereas international law posits a set of
norms and duties framing the relations between nation states, international
criminal law establishes a global system of obligations and rights to which
each individual is theoretically bound and the violation of which entails a
condition of individual liability for criminal prosecution.75 In addition to this
universal jurisdiction, international criminal jurisprudence may exercise
priority over domestic legal structures, thereby compelling a nation state to
commit itself to the process of mandatory criminal prosecution although
under its domestic judicial system, criminal prosecution may be subject to
the court's discretion.76
Traditionally, at least since the eighteenth century, violations of the "con
ventional and customary law" informing international criminal jurisprudence

For a collection of victim accounts of the Genocide, see M. Niwese, Le peuple rwandais un pied dans
la tombe. R?cit d'un r?fugi? ?tudiant, Paris, 2001; C. VanderwerfF, Kill Thy Neighbor: One Man's
Incredible Story of Loss and Deliverance in Rwanda, Boise, 1996; P. Gourevitch, n. 33 above. The
French journalist Jean Hatzfeld has recently published a series of interviews and testimonies
conducted with several perpetrators of the Genocide. See J. Hatzfeld, Une saison de machettes, r?cits,
Paris, 2003.
73 Mamdani, n. 1 above, at 233.
74 See D.F. Orentlicher, "Settling accounts: the duty to prosecute human rights violations of a
prior regime", (1991) 100 Yale L. J. 2537, 2552.
75 Ibid, at 2551.
76 See R.O. Nwodo, "The application of regional and international treaties by national
courts", in E.A. Ankumah and E.K. Kwakwa (eds.), The Legal Profession and the Protection of
Human Rights in Africa, Maastricht, 1999, 48-49 ("For a State to accept international obligations
in relation to the treatment of its own citizens always involves the State accepting a certain
limitation of its national sovereignty in its internal affairs").

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by individual citizens of a particular nation state fell into one of two

categories.77 Certain offenses, such as piracy, which were deemed to violate
the integrity of all "civilized" nations, could be subject to prosecution by all
nations, regardless of whether an actual connection obtained between the
prosecuting nation and the crime itself. The other category of criminal offense
involved, for instance, violation of individual right of safe passage or harass
ment of national diplomatic representatives. Both categories imposed an
obligation or right of criminal prosecution on a nation state. International
criminal jurisprudence also mandated that national courts should have
jurisdiction and should apply the codes of the law of nations in the prosecution
of the individual.78
Since the end of World War II, the scope of international law has under
gone a radical shift or reorientation. While still relying on national courts to
prosecute criminal offenses which violate international conventions and cus
toms, international criminal jurisprudence has increasingly demonstrated a
preference for the legal structure associated with the criminal tribunal. Repre
senting a mechanism designed to secure the integrity of international law, an
international tribunal operates, in principle, on a higher level; being oriented
toward a global framework, it is theoretically independent of national or
regional interests or histories and is, therefore, guided by a non-contextual theory
of justice.19 The critical tension between achieving a local judicial acceptability
and satisfying the universal or ideal judicial acceptability resonates through
out the epistemological space framing the notion of Human Rights.80

International criminal jurisprudence and the principles

of human rights

The Nuremberg paradigm

The field of International Criminal Law has played a dominant role in the
development of Human Rights jurisprudence. Though the roots can be traced
back to the late nineteenth and early twentieth centuries,81 modern human
rights law emerged from the context of the Allied victory in World War II
over National Socialism and the Japanese Empire.82 The Allied Powers
asserted jurisdiction over Nazi and Japanese war criminals based on "a
principle of universality", hostis humani generis (literally "enemy of all man
kind"), which posited that certain acts constituted a universal violation of the
integrity of all "civilized" nations and were subject to prosecution by any
nation, regardless of immediate connection to the act itself83 Traditionally,

77 Orentlicher, n. 74 above, at 2553.

78 Ibid, at 2555; F.L. Kirgis, International Organizations in Their Legal Setting, St. Paul, 1993,
79 A theory of "universal" justice which I will call deontological, below nn. 95-126 and
accompanying text. See also R. Teitel, Transitional Justice, New York, 2000, 21 ("Moreover, in
its circumscription of the most heinous abuses, international law offers a source of normative
80 See T. Maluwa, International Law in Post-Colonial Africa, The Hague, 1999, 130; Kirgis, n. 78
above, at 893.
81 See D. Robinson, "Developments in international criminal law: defining 'crimes against
humanity' at the Rome Conference", (1999) 93 A.J.I.L. 43, 44.
82 See Maluwa, n. 80 above, at 124.
83 See E.W. Schabacker, "Reconciliation or justice and ashes: Amnesty Commissions and the
duty to punish human rights offenses", (1999) 12 N.T. Int'l. L. Rev. 1, 3.

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the scope of international law did not include jurisdiction over crimes com
mitted by a nation state against its own citizens. By extending jurisdiction
over crimes committed by the German Reich against its own nationals, the
Nuremberg tribunals initiated a radical shift in the orientation of interna
tional criminal law, what Rudi Teitel called "a legal anomaly".84 The Allied
prosecution justified this shift by arguing that an international court could
obtain jurisdiction in cases involving "crimes against humanity" because the
particular conduct, by its very nature, offended "humanity" itself and, as the
US Military Tribunal argued in the famous Einsatzgruppen Case, international
judicial enforcement of "the law of humanity" through the mechanism of an
international tribunal operated "to preserve the human race itself".85 In
other words, the atrocities committed by individuals under National Social
ism and the Japanese Empire were conceptualized as violations of the integ
rity of civilization itself, similar to the traditional framing of piracy as an
offense to the welfare of "society".
An attempt to map the boundaries of the notion of "crimes against human
ity" was first promulgated by the drafters of the Nuremberg Charter in 1945.
Engaged in a critical dialogue with the traditional tenets of international
criminal jurisprudence, the drafters articulated a definition designed to
accommodate the shifting human rights framework emerging from the events
of the Second World War. According to article 6(c) of the Nuremberg
Charter, "crimes against humanity" constitute "murder, extermination,
enslavement, deportation, and other inhumane acts committed against any
civilian population ... or prosecutions on political, racial or religious
grounds".86 This definition articulates a set of acts whose very nature violates
the fundamental integrity of humanity or civilization as well as transgressing
what Kant would describe as "reverence for the law";87 the inherent and
"existential" criminality associated with these acts denies a contextualist
interpretation of them.88 The nature of the acts, in other words, gives them
a degree of autonomy, an axiological independence situating them outside the
scope of an historical or cultural hermeneutic. Concomitant with this autonomy
principle, the Charter also articulated the principle that every human being is
entitled to a set of fundamental rights independent of those granted under
domestic law. As structured by the Charter, the autonomy principle operates
as a liminal position framing the principle of human rights; a violation of
human rights, therefore, constitutes a de-contextualized act, a species or mode
of deontological practice {praxis) .89 As will be argued below, this removed
condition allows the crime of genocide to assume a metaphysic, in the

84 See Orentlicher, n. 74 above, at 2594; Teitel, n. 79 above, at 31-32, 34.

85 United States v. Ohlendorf (Case No. 9), IV Trials of War Criminals before the Nuremberg
Military Tribunals under Control Council Law No. 10, at 498 (quoted in Orentlicher, n. 74
above, at 2593).
86 Charter of the International Military Tribunal, art. 6(c), 59 Stat. 1546, 1547 (1945), E.A.S.
No. 472, 82 U.N.T.S. 284 (hereafter IMT).
87 I. Kant, Groundwork of the Metaphysics of Morals, New York, 1964, 68.
88 See "Opening speech of Justice Robert H. Jackson, Chief Prosecutor for the United
States, Nov. 21, 1945", Trial of the Major War Criminals before the International Military Tribunal,
Washington, D.C., 1947, 155 (quoted in Orentlicher, n. 74 above, at 2557) (pointing out to the
IMT, "The real complaining party at your bar is Civilization") ; E. Fackenheim, "What is Holocaust
uniqueness? Can other genocides be unique?", (1999) 1(3) Journal of Genocide Research 465.
P. Marquardt, "Law without borders: the constitutionality of an international criminal
court", (1995) Colum. J. Trans'l L., 33, 82.

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116 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.

prosecution process, which alienates or negates the material or lived experience

of genocide for its victims.
The Nuremberg Charter has been incorporated into several international
instruments and the notion of crimes against humanity has assumed the status
of positive international law through a series of post-war conventions recog
nizing the judicial legitimacy for claims of human rights violations. In the
period immediately following the initial creation of the Nuremberg Paradigm,
international criminal jurisprudence was dominated by debates involving the
scope of jurisdiction in the prosecution of crimes against humanity. Recent
developments in human rights law have shifted the emphasis toward the
question of domestic enforcement of international obligations. To secure
adherence to the norms of international jurisprudence considered essential
for the stability and maintenance of the community of nations, international
law, since the late seventeenth century, has relied upon a system of criminal
sanctions. Although international law looks to the courts of the states in which
the violation occurred for enforcement, national courts may be suspended
from exercising jurisdiction in cases involving human rights offense, if they
cannot guarantee that the offender or offenders will be subject to the "appro
priate" punishment. Universal or international jurisdiction, therefore, func
tions as a default mechanism for those contexts in which the system of
domestic enforcement fails to satisfy the international standards of judicial

The trial imperative

The Nuremberg Charter and its subsequent conventions established a new

international judicial paradigm designed to extend a conception of the rule of
law beyond the provenance of nation states to embrace individuals. Accord
ing to the Western legal tradition and codified in the Nuremberg Paradigm,
the institutional structure afforded by the trial constituted the most effective
and rational mechanism to secure the authority of the rule of law. As Martha
Minow has demonstrated, the structure of the trial "works in the key of formal
justice, sounding closure through a full and final hearing, a verdict, a
sentence".91 A trial represents an adversarial process designed to "set stan
dards, codify legal principles, and create precedent".92 Given the universal
jurisdiction associated with crimes against humanity, the Nuremberg Para
digm mandates a duty to prosecute on the part of the courts of the states in
which the violation occurred.93 This trial imperative is rooted in the deonto
logical condition ascribed to crimes which violate the fundamental integrity
or rights of the human being.94 In the context of crimes against humanity, the
trial is encoded as a universally valid and warranted process for responding to
the metaphysic inscribing or framing the atrocity. The process of the trial, in
other words, represents a methodological enterprise for analyzing and map
ping the atrocity, to situate it within an epistemic grid so as to negate or
dilute its strangeness and alterity.

90 See Orentlicher, n. 74 above, at 2593.

91 Minow, n. 12, at 26.
92 Ibid, at 50.
93 See A. Dinstein, "International criminal law", (1985) 20 Isr. L. Rev. 206, 225.
94 S. R. Ratner, "New democracies, old atrocities: an inquiry in international law", (1999) 87
Geo. L.J. 707, 717.

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Deontological retributivism

Informing the autonomy principle, the principle of human rights and

the trial imperative is, what one might call, an ethos of deontological
retributivism. According to liberal theorists, the principles of justice entail
an ethical framework which gives priority to a discourse of rights and does not
presuppose any particular conception of "the good". For Kant, this concep
tion of justice demonstrated the supremacy of the moral law and indicated for
Rawls that "justice is the first virtue of social institutions."95 Under this
approach, justice, as such, generates the framework that regulates and legit
imizes the play of competing values and ends which structure and inscribe
conduct. To be effective, justice must have a sanction mechanism independent
of those values and ends.96 Theories of justice and ethics have traditionally
structured their claims on a particular conception of human purposes and
ends.97 The ethical system developed by Kant denied the possibility of these
ideological approaches.98 Since individuals experience different desires and
ends, Kant argued, any ethical precept derived from them can only be
properly considered contingent. Moral law, he contended, requires a catego
rical foundation and not a contingent or contextual one.99 Even such an
apparently universal desire as Happiness?so important for Natural Law
theorists?cannot operate as a genuine ethical foundation. As Aristotle
noticed, there exists a wide variation in what individuals mark as an indica
tion of happiness and to promote any particular conception as normative or
regulative would entail the imposition on one group of individuals the con
ceptions of another, and, thereby, threaten the freedom to select one's own
conception. To order our ethical lives according to a set of desires and
inclinations which are themselves a function of our particular context and
nature, Kant notes, denies to the individual the opportunity for self
governance and genuine autonomy; such a condition constitutes a negation
of freedom, an ontological capitulation to a nexus of determinations imposed
upon us.100
To operate as an authentic ethical foundation, a theory of justice, according
to Kant, must be "derived entirely from the concept of freedom in the external
relationships of human beings, and [have] nothing to do with the end which

95 Kant, n. 87 above, at 63-64; J. Rawls, A Theory of Justice, Cambridge, MA, 1971, 3; RJ.
Araujo, "Justice as right relationship: a philosophical and theological reflection on affirmative
action", (2000) 27 Pepp. L. Rev. 377, 399-401.
96 I. Kant, Metaphysical Elements of Justice, New York, 1965, 99-101.
97 Thus, Aristotle said the measure o? a. polis is the good at which it aims. See Aristotle, Politics,
(Ernest Barker, ed.), New York, 1966, 39.
98 Kant, n. 87 above, at 62 ("A good will is not good because of what it effects or accom
plishes?because of its fitness for attaining some proposed end....").
99 Ibid, at 69-71; G.P. Fletcher, "Law and morality: a Kantian perspective", (1987) 87
Colum. L. Rev. 533, 538 ("An imperative is categorical, rather than hypothetical, if it does not
posit any ends in the phenomenal world. Only a categorical imperative?also called the moral
law?can lead one to moral action, for any constraint based on ends would invariably inject
sensual impulses into our conduct. However sound the content of the moral law, merely conform
ing to its demands could not guarantee that the resulting action would be moral. The criterion of
morality is not conforming to a prescription, but rather thinking oneself into a form of action that
springs from the noumenal world of reason"). Ruti Teitel labels this conception of universal justice
as derived from an "idealist perspective" espoused by such natural law figures as Lon Fuller in his
debates with H.L.A. Hart concerning the "rule of law problem" emerging from the Nuremberg
Trials. See Teitel, n. 79 above, at 12-15.
100 Kant, n. 87 above, at 98.

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all men have by nature [e.g., the aim of achieving happiness] or with the
recognized means of attaining this end."101 It must originate in a moment
prior to all empirical ends; an individual's autonomy is made manifest only
under a condition of freedom in which no particular end is presupposed. The
foundation for moral law, as Kant articulated, rests with the subject, con
ceived of as an autonomous will.102 Rather than represent this subject as
empirically situated, Kant configures it as "a subject of ends, namely a
rational being himself, [who] must be made the ground for all maxims of
action."103 This transcendental subject or homo noumenon, as a pure formal
structure of subjectivity in general, occupies a space "above" or "beyond" the
vagaries of circumstance and context and must be presupposed in order to
secure a condition of freedom. If one were simply an empirical being or homo
phaenomenon, Kant would argue, every exercise of the will would be condi
tioned by the desire for some object or "constitutive" end; under such a
condition, the individual would be locked into a mode of dependent existence,
what Hegel referred to as the "bare level of life" (das Sein des Lebens),104 in
which individual autonomy would be lost in a chronic cycle of desire.105 An
expression of an individual's will would never constitute a first cause, only the
manifestation of some prior cause, the expression of a particular impulse or
inclination.106 "When we think of ourselves as free," writes Kant, "we transfer
ourselves into the intelligible world as members and recognize the autonomy
of the will."107 Freedom and moral action, therefore, are a function of a
noumenal, rather than of a "heteronomic" or empirical analytic. According
to the Kantian ethical framework, therefore, the notion of a transcendental
subject, what Judith Butler described as "a presocial ontology of person",
situated prior to and independent of experience constitutes a necessary pre
supposition for the possibility of freedom.108
Kant's theory of justice in which the right is given priority over the good is
founded on the figure of the transcendental subject, a liminal and formal
subject position removed from historical and psychological context. As the
foundation for a deontological ethic, this transcendental subject operates as
the source of individual autonomy and choice. This subject position entails a
set of universal rights which are presupposed and constituted by justice and,
therefore, "are not subject to the calculus of social interests".109 According to

101 I. Kant, "On the common saying: 'This may be true in theory, but it does not apply in
practice'", in Kant's Political Writings, Cambridge, 1970, 73; Araujo, n. 95 above, at 397-98.
102 Kant, n. 87 above, at 98.
103 Ibid, at 92.
104 G.W.F. Hegel, Ph?nomenologie des Geistes, Hamburg, 1952, 143.
105 Fletcher, n. 99 above, at 537 ("Internal freedom is but one of a number of equivalent
expressions for the emanations of practical reason, or pure reason as expressed in human action.
The notions of autonomy, of will, of the noumenal?all of these expressions represent the same
side of the basic dichotomy in Kant's thinking. The other side of the dichotomy is captured by the
notion of heteronomy, subservience to inclination and the phenomenal. This second set of terms
invokes the world as we perceive it with our senses; the first, a world beyond the senses").
106 Kant, n. 87 above, at 120 ("...for to be independent of determination by causes in the
sensible world (and this is what reason must always attribute to itself) is to be free").
107 Ibid, at 92.
108 See M. Sandel, Liberalism and the Limits of Justice, New York, 1988, 6; J. Butler, Gender
Trouble: Feminism and the Subversion of Identity, New York, 1990, 3 ("The prevailing assumption of
the ontological integrity of the subject before the law might be understood as the contemporary
trace of the state of nature hypothesis, that foundationalist fable constitutive of the juridical
structures of classical liberalism. The performative invocation of a nonhistorical 'before' becomes
the foundational premise that guarantees a presocial ontology of persons who freely consent to be
governed and, thereby, constitutes the legitimacy of the social contract").
109 Rawls, n. 95 above, at 4.

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such a deontological ethic, these rights must be independent and absolute

because they "establish our basic position as freely choosing entities".110 The
transcendental subject, therefore, constitutes "the presupposition and sub
strate of the very concept of choice. And that is why the norms surrounding
respect for person may not be compromised, why these norms are absolute in
respect to the various ends we choose to pursue."111 The figure of the trans
cendental subject, in other words, operates as mechanism to secure individual
human rights and to ground their universality.112
A deontological ethic also entails a theory of punishment translated as a
principle of retribution.113 As Martha Minow has pointed out, the principle of
retribution "motivates punishment out of fairness to those who have been
wronged and reflects a belief that wrongdoers deserve blame and punishment
in direct proportion to the harm inflicted".114 Under this approach, the act
of punishment itself has a constitutive value; rather than operating as a mode
of deterrence against future action, the process of punishment functions to
address a past wrong.115 As several theorists have noted, retributive punish
ment has an internal mechanism designed to regulate and limit its exercise.116
Unlike an act of vengeance which is motivated by a concern with one's own
self-regard or self-respect, the structure informing the process of retribution
situates both the wrongdoer and the victim within a deontological ethic
encoded by a principle of universal justice and grows out of what Kant called
"a reverence for the law". According to this model, "it is no more right when
the victim tries to degrade or falsely diminish the wrongdoer than when the
wrongdoer originally degraded or falsely diminished the victim."117 Under a
theory of deontological retributivism, an act which violates the human rights
of an individual represents an assault on the figure of the transcendent subject.
In this context, the source of the offense shifts the criminal conduct into the
deontological sphere and the domain of justice. At this moment, the trial
imperative is initiated, thereby, compelling the implementation of the duty to
prosecute. In this condition, the wrongdoers must be prosecuted, under the
principle of universal jurisdiction, in order to address the injury sustained by
the transcendental subject, not the individual victim}12.

110 C. Fried, Right and Wrong, Cambridge, MA, 1978, 8-9.

111 Ibid, at 29.
112 See Sandel, n. 108 above, at 10. As Sandel notes, the transcendental subject represents a
type of ontological presupposition which structures the limits of our experience. This observation
is similar to Reanut's interpretation of transcendental subjectivity as a mode of what Heidegger
called "ontological precomprehension". See generally A. Renaut, The Era of the Individual: A
Contribution to a History of Subjectivity, Princeton, 1997, 171.
113 J. Rawls, "Two concepts of rules", (1955) 64 Phil. Rev. 3, 4 ("What we may call the
retributive view is that punishment is justified on the grounds that wrongdoing merits
114 Minow, n. 12 above, at 12.
115 See Kant, n. 87 above, at 101. See also Morgan v. Illinois, 112 S. Ct. 2222, 2242 n. 6 (1992)
(Scalia, J., dissenting).
116 G.P. Fletcher, "The right and the reasonable", (1985) 98 Harv. L. Rev. 949, 961 (arguing
that the "need to consider wrongfulness before responsibility follows from the structure of
retributive thinking").
117 J. Hampton, "The retributive idea", in J. Murphy and J. Hampton (eds.), Forgiveness
and Mercy, Cambridge, 1988, 95.
118 On the noumenal level, argues Kant, each individual is identical, or, more properly, each
"expresses" the same value within a complete and "pure" totality. (Intellectually and linguis
tically, however, the domain of the noumenal cannot, by definition, be conceptualized or
expressed.) Under Rawl's theory of justice as fairness, each individual occupies the same
"original position" behind "the veil of ignorance". See Rawls, n. 95 above, at 11-12,
136 142.

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Analysis of the genocide convention as structured by a mode of deontological


The principles of deontological retributivism inform the theory and prac

tice structuring the Convention on the Prevention and Punishment of the
Crime of Genocide119 (hereafter "Genocide Convention") through both the
positing of a conception of genocide which recognizes the primacy of a
transcendental subject and the imposition of a trial imperative designed to
accommodate the requirements of universal justice. Rapha?l Lemkin,
the Polish-born adviser to the United States War Ministry during and after
the Second World War, argued that ordinary language failed to capture the
epistemic significance of the Nazis atrocities.120 Describing the program of the
National Socialism as "mass murder", for instance, constituted an obstacle for
generating an understanding of the unprecedented character of the phenom
ena. "New conceptions", Lemkin argued, "require new terminology".121 He
was responsible for coining the word "genocide" {genos = race or tribe; cide =
to kill) as a linguistic device designed to distinguish the phenomena of the
intentional extermination of a group of people solely on the basis of "racial,
national or religious" considerations and without a nexus to a war context
from those situations involving war-based, non-specific killing.122
Lemkin recognized that the process of genocide violated something funda
mental in the constitution of humanity. It represented an offense against what
Montesquieu's described as the principle of "universal civil law" in which "all
peoples are [equal] citizens of the universe". Lemkin is suggesting that the
crime of genocide signifies a different order of criminality, rather than signify
ing simply a difference in degree.123 Although experienced on the level of
the individual life, the act of genocide constitutes a crime against the figure of
the transcendental subject, interpreted through a discourse of universal
humanity.124 The elements, in other words, which distinguish the crime of
genocide from other modes of killing involve the object toward which the
action is directed, namely, transcendental subjectivity and the presence of an
intent to negate or destroy an entire group of people.
Lemkin exerted tremendous influence in the process of drafting the Geno
cide Convention. The final instrument articulates a strong ethic of deonto
logical retributivism by framing the crime of genocide as a violation of
"humanity" (i.e., transcendental subjectivity) and as subject to the impera
tive of judicial prosecution.125 Constructed as a violation of the fundamental
human right to exist, the crime of genocide entails a trial imperative in which
the offense itself must be made accountable under a framework of universal

119 Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9
December, 1948, G.A. Res. 260 A (III), 78 U.N.T.S. 227.
120 R. Lemkin, Axis Rule in Occupied Europe, Washington, D.C., 1944; see also R. Lemkin,
"Genocide as a crime under international law", (1947) 41 Am. J. Infl. L. 146.
121 Ibid, at 82.
122 Ibid, at 8. See Destexhe, n. 49 above, at 3.
123 See A. Finkielkraut, La m?moire vaine: du crime contre l'humanit?, Paris, 1989, 32 (arguing that
the distinction between the construction of the victim as "enemy" and the representation of the
victim as "vermin" to be systematically negated or exterminated entails a radically incommensur
able set of epistemological and ontological conditions).
124 See Jank?l?vitch, n. 1 above, at 72 (claiming that the crime of genocide represents a crime
against the very essence of humanity, an attempt to negate existence- or being-as-man).
125 Genocide Convention, n. 119 above, at Art. IV, Art. V and Art. VI.

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justice. The Genocide Convention establishes genocide as a crime subject to

a condition of universal jurisdiction. In fact, the Convention supports the
argument that customary international criminal law mandates states to pro
secute acts of genocide committed in their territory. This view was buttressed
by the International Court of Justice which stated, in an advisory opinion in
1951, that the principles structuring the Genocide Convention "are recog
nized by civilized nations as binding on States, even without any conventional

The international criminal tribunal for Rwanda as an expression

of deontological retributivism

In the period immediately following the massacres in Rwanda, an inde

pendent and ad hoc Commission of Experts administered by the Secretary
General of the United Nations and the Security Council along with the
Special Rapporteur of the Commission on Human Rights made the recom
mendation for the establishment of an international criminal tribunal for
Rwanda. Structured in a manner similar to previous tribunals, the Interna
tional Criminal Tribunal for Rwanda (ICTR)127 was established "to prose
cute serious violations of international humanitarian law, to sustain law and
order, and thereby to contribute to the restoration and maintenance of peace
and national reconciliation in Rwanda".128 Derived from its Chapter VII
powers, the United Nations Security Council created the ICTR as an "inter
national tribunal", specifically bracketing or suspending the jurisdiction over
the criminal prosecutions exercised by the national courts of Rwanda.129 The
resolution adopted by the Security Council conferred to the ICTR "substan
tive jurisdiction" over crimes of genocide and crimes against humanity.130 In
cases involving issues of humanitarian law, the ICTR enjoys "concurrent
jurisdiction" with the national courts of Rwanda, even though the Tribunal
maintains jurisdictional primacy over the national courts and can request that
the national courts defer jurisdictional authority in any case.131
The Rwandan government expressed concerns over the scope of the
ICTR's temporal jurisdiction, the administrative and judicial location of the
tribunal, and the nature of the prescribed penalties. During the discussions
concerning the creation of the ICTR, the Rwandan government fortuitously
held one of the non-permanent positions on the Security Council. In the
debates, the Rwandan delegation argued that limiting the temporal jurisdic
tion of the Tribunal to the period beginning 1 January, 1994 to 31 December,
1994 undermined the ability of the process to designate adequately the

126 "Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide", (1951) I.C.J. 15, at 23.
127 S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994). A
thorough record of ICTR documents and supporting materials, including protocol, final judge
ments and recent press releases, is contained on the official website of the Tribunal at http://
128 Ibid. art. 1; CM. Carroll, "An assessment of the role and effectiveness of the International
Criminal Tribunal for Rwanda and the Rwandan national justice system in dealing with the mass
atrocities of 1994", (2000) 18 B.U. Int'l. L.J. 163, 171-172; C. Cisse, "An assessment of the
International Criminal Tribunal for Rwanda", in E.A. Ankumah and E.K. Kwakwa (eds.),
The Legal Profession and the Protection of Human Rights in Africa, Maastricht, 1999, 98.
129 Cisse, n. 128 above, at 101; Carroll, n. 128 above, at 172-173.
130 ICTR Statute, n. 127 above, arts. 2, 3, 4.
131 Ibid. art. 8.

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perpetrators of the genocide. The delegation contended that "the ICTR

would not be capable of holding individuals responsible for planning the
1994 genocide and for carrying out trial projects of extermination in the
early 1990s".132 The government of Rwanda also expressed reservations
about the rationale for locating the seat of the Tribunal in Arusha, Tanzania.
Manzi Bakuramutsa, a representative of Rwanda, argued in a statement
before the Security Council that the issue of judicial accountability for the
acts of genocide and the possibility for establishing a framework for national
reconciliation demanded that the Tribunal be located within the territory of
Rwanda. In addition to questions relating to the Tribunal's temporal juris
diction and administrative location, the delegation from Rwanda rejected
the penal constraints posited by the ICTR's Statute. Unlike the criminal laws
covering genocide in Rwanda, the ICTR Statute did not allow for the
imposition of the death penalty, only imprisonment.133
To overcome what has been described as a "culture of impunity", many
scholars and researchers have embraced the idea that judicial intervention in
the form of trials represents the most effective mechanism for addressing
crimes against humanity and genocide. Through the establishment of legal
standards, the codification of judicial principles and the generation of pre
cedent, the operation of a trial may entail "significant declaratory value"134
for society by demonstrating that no individual occupies a privileged position
under the rule of law.135 It operates, therefore, as a mode of what the ancient
Greeks referred to as "isonomy", the equal treatment of each citizen before the
law, an approach conceived as a response to the arbitrary and partial enfor
cement of the law associated with a system of tyranny. In the context of crimes
against humanity or genocide, the process of the trial functions as an episte
mological device or strategy for encoding acts of atrocity as violations of a
deontological ethic. In other words, through the exercise of judicial prosecu
tion, the acts of genocide can be sublated and transformed into crimes against
transcendental subjectivity, thereby giving the acts and their commitment a
deontological interpretation or hermeneutic.136
Interpreted from a deontological framework, an offense against the position
of the transcendental subject (read as "humanity") entails the trial imperative
which is designed to remedy the violation through a mandatory economy of
punishment. Under this model, justice is achieved when the violation is
addressed and a mode of punishment is executed. The figure of the victim is
constituted by the transcendental subject; the "lived" victim, as such,
is negated or "erased" through the process of this sublation. The establish
ment of the ICTR Statute (along with the Genocide Convention) was
designed to redress crimes committed against transcendental subjectivity.
Once an atrocity is committed against a particular Rwandan (or Jew or
Chinese or Bosnian, etc.), the act itself is sublated and assumes an absoluteness
or universality; the individual victim and his or her experiences of genocide

132 Carroll, n. 128 above, at 175.

133 Ibid, at 177; ICTR Statute, n. 127 above, at 195, art. 23.
134 W. Schabas, "Sentencing by international tribunals: a human rights approach", (1997)
7 Duke J. Comp. & Infl L. 461, 498.
135 Drumbl, n. 6 above, at 1278; Teitel, n. 79 above, at 27.
136 See, e.g., P. Akhavan, "The International Criminal Tribunal for Rwanda: the politics and
pragmatics of punishment", (1996) 90 Am J. Infl. L. 501.

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are suspended, replaced by the figure of transcendental subjectivity. In the

very specific context of crimes against humanity and genocide, the focus of
international criminal jurisprudence is determined by a deontological ethic
which privileges the figure and integrity of the transcendental subject over the
individual victim and his or her social and cultural geography.
A deontological ethic with its trial imperative may not represent the most
appropriate analytic model for addressing the problems associated with tran
sitional societies, specifically those identified as dualist post-genocidal socie
ties. Several scholars contend, on the one hand, that the process of the
adversarial trial operates as a necessary mechanism for the creation of "civil
dissensus" by establishing a dialogic and public framework in which indivi
duals are compelled to confront difficult issues and concerns in a public
forum.137 Others have argued, on the other hand, that the mode of adjudica
tion entailed by a deontological ethic does not facilitate the emergence of a
genuine dialogic framework; in fact, the telos informing such an ethic renders
the notion of a dialogic exchange irrelevant or, at least, a matter of pure
"form". From a deontological perspective, the question of justice can only be
the concern of transcendental subjectivity, never individual modes of exis
tence. In the very specific context of dualist post-genocidal societies, where the
social geography has fragmented and the possibility of communal rehabilita
tion is extremely tenuous, the imposition of a deontological ethic may cause
further diremption within the social body. By selecting a narrow group of
individuals to be subjected to a "foreign-style" criminal prosecution taking
place in another country, the ICTR is attempting to impose an international
criminal jurisprudence on Rwandan society. This "imperial gesture" is not
designed to establish a framework of deliberation or reconciliation through
which Rwandan society itself might be able to come to an understanding?
within their own epistemic and moral framework?of the atrocities and,
thereby, gradually forge a collective memory of the events. Its retributive
orientation is directed toward rectifying the injury sustained by an abstract,
a-historical and liminal subjectivity and is not able to address the needs for
social r?int?gration marking Rwandan's dualist post-genocidal society.

A Theory of Judicial Contextualism as a Mechanism

for Reconciliation and Collective Memory

Scholars have argued that, in certain very specific contexts, the device
of the adversarial trial may not constitute the most effective mechanism
for establishing a framework of social justice and "civil dissensus".138 In the
case of transitional dualist post-genocidal societies, such as Rwanda, the
trial imperative and its concomitant deontological ethic of retributivism
fails to generate an epistemological project capable of facilitating genuine
social accountability and reconciliation. The focus of the ICTR is to
"discover" what Albie Sachs described as "microscopic" or "logical" truth,
an epistemic condition emerging through carefully delineated and controlled

137 See M. Osiel, Mass Atrocity, Collective Memory, and the Law, New Brunswick, 1997, 36-47;
J.E. Alvarez, "Crimes of states/crimes of hate: lessons from Rwanda", (1999) 24 Yale J. Int'l. L.
365, 469.
138 C.S. Nino, Radical Evil on Trial, New Haven, 1996, 128 (contending that litigation can
destabilize transitional political structures).

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124 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.

circumstances (such as the space of a trial where a singular or intimately

connected set of defendants are confronted by a plaintiff or plaintiffs through
a set of formalist rules articulated as a highly coded legal discourse) in which
an analytic of proof (such as reasonable doubt) is applied to a set of sequential
facts.139 Framed by a deontological ethic, this category of truth entails a
normative and invariant value structure dissociated from the variance and
epistemic contingencies associated with social phenomena. Precisely by deny
ing social phenomena, this category of truth fails to address the social needs of
Rwandan society.
As a society which has just experienced the trauma of a social genocide and
as a society whose social geography dictates that the surviving victim group
must coexist with the aggressor group, Rwanda has special social require
ments which need to be addressed in order to generate a framework for social
r?int?gration. In place of a theory of social justice informed by a deontological
ethic of retributivism in which "certain acts are morally obligatory regardless
of their practical outcomes"140 because they address an offense committed
against an abstract, a-contextual transcendental subjectivity or epistemic
liminal point, an approach to social justice which acknowledges the radical
contingencies inherent in social phenomena represents a more appropriate
model for establishing a framework of social reconciliation in dualist post
genocidal societies. Such a contextualist approach attempts to overcome the
condition of socio-cultural diremption through an epistemic framework
inscribed by a mode of "experimental" or "dialogic" truth, in which logical
coherence is replaced by explanatory coherence.141 Under this pluralistic
approach, all true descriptions of the world must be relative to some frame
of reference without any presumption whatsoever that there exists a single
"basic" or "universal" frame of reference to which all the others are
reducible.142 As the philosopher Nelson Goodman has argued, the worlds of
social phenomena are created through systems of description, and different
worlds are created by different systems of description.143 In this interpreta
tion, truth, therefore, is a function of a particular system of description and
emerges through an "immanent"144 process in which system participants
engage in a mutual and critical dialogue according to a contextual set of
discursive rules.
In the very specific circumstances of dualist post-genocidal Rwandan
society, a contextualist approach to social justice represents a more appro
priate alternative than the model of deontological retributivism applied by
international criminal jurisprudence. In applying such an absolutist model of
social justice, one could argue that the international community has

139 A. Sachs, "Truth and reconciliation", (1999) 52 SMU L. Rev. 1563, 1571-1572.
140 Drumbl, n. 6 above, at 1228.
141 See Sachs, n. 139 above.
142 N. Goodman, "The way the world is", in Problems and Projects, Indianapolis, 1972, 30
("There are very many different equally true descriptions of the world, and their truth is the
only standard of their faithfulness. And when we say of them that they all involve conventiona
lizations, we are saying that no one of these different descriptions is exclusively true, since the others
are also true. None of them tells us the way the world is, but each of them tells us a way the
world is").
143 N. Goodman, Ways of Worldmaking, Indianapolis, 1988.
144 I am using the term "immanent" in the Hegelian sense of "immanent critique", i.e., a
critique which is initiated from within, as opposed to from without, and operates according to the
scope and limitation afforded it by the system itself.

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committed itself to a mode of legal imperialism. After subjecting the peoples of

Rwanda for over a century and a half to a metaphysic of ethnicity and
alterity, the international community under Western hegemony has imposed
upon them a deontological and "universal" framework through which to
interpret the crimes of genocide. The process of this genocide, ironically,
was the direct result of the initial ideology of ethnicity. The experiences and
social phenomena of the Rwandan people were chronically negated or erased
by Western colonialism and international jurisprudence. To overcome its
fragmentation and marginalization and, thereby, initiate a movement toward
reconciliation and mutual coexistence, Rwandan society must reconfigure
itself by establishing a judicial framework legitimized or authenticated from
within its own system of reference. In place of a deontological ethic and its
concomitant theory of retributive justice, a model of restorative justice145
designed to repair the social injuries experienced by Rwandan society repre
sents a more appropriate framework through which to create a peaceful and
stable post-genocidal society.
In recent scholarship, the model of restorative justice, what Stephen
Garvey has described as "atonement without punishment",146 has become
an attractive theoretical alternative to the hegemony exercised by deontolo
gical retributivism. Theorists have outlined a series of basic features or "core
values"147 of a restorative model of social justice: (1) repairing the social
relationships between victims and aggressors;148 (2) establishing a dialogic
framework for communication through which all members of the community
can feel free to express themselves, safely and without consequences;149
(3) restoring to victims "their property loss, personal injury, sense of security,
dignity, sense of empowerment, deliberative democracy, harmony, and social
support" as well as restoring to aggressors "the loss of dignity ... suffer[ed]
from the shame associated with arrest" and recognizing "that criminal
offenders are often victims of racism whose sense of security and empower
ment" has been lost;150 (4) reintegrating the community of victims with the
community of aggressors into a stable and peaceful civis.151 Under a theory
of restorative justice, therefore, the question of punishment is bracketed
and the orientation shifts toward issues of "dialogue" and "conflict

Truth Commissions

As Martha Minow has suggested in her book Between Vengeance and

Forgiveness, the trial model is structurally inadequate for addressing the deeper
social needs of societies which have experienced extreme trauma. In a trial
procedure, she points out, the victim is subject to the severe emotional strain
of testifying and being open to the "ordeal" of cross-examination, without

145 See generally D. Markel, "The justice of amnesty? Towards a theory of retributivism in
recovering states", (1999) 49 Univ. of Toronto L.J. 389, 412.
146 S.P. Garvey, "Punishment as atonement", (1999) 46 UCLA L. Rev. 1801, 1840.
147 J. Braithwaite, "Restorative justice and social justice", (2000) 63 Sask. L. Rev. 185.
148 See H. Zehr, Changing Lenses: A New Focus for Crime and Justice, Scottsdale, 1990, 125.
149 See A.P. Melton, "Indigenous justice systems and tribal society", (1995) 79 Judicature 126.
150 Garvey, n. 146, above at 1841-1842.
151 J. Braithwaite, "A future where punishment is marginalized: realistic or Utopian?", (1999)
46 UCLAL. Rev. 1727, 1743.

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126 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.

being afforded the structural mechanism to tell their story in a public

context.152 The trial model also denies the opportunity for the nation as a
whole to commit to a process and ritual of social healing in which both victims
and aggressors engage in a dialogue designed to shape a collective memory of
the recent past. To accommodate both the individual and national needs of a
society which has experienced extreme trauma, Minow and several other
scholars argue that the mode of operation associated with truth commissions
represents a more effective mechanism. The epistemic focus of a truth com
mission is radically different from the orientation of the trial model. Rather
than redress an offense committed against an abstract subjectivity occupying
a deontological space far removed from lived experience, a truth commission
substitutes a value theory of punishment for a conception of dialogic truth; it
attempts to create a social framework in which both victim and aggressor can
freely express themselves in order to fashion or to generate a collective
narrative of the events. Informed by a notion of restorative justice, truth
commissions operate according to a contextualist principle which posits that
the sources necessary to heal and reintegrate a community which has under
gone a severe social trauma and diremption rest within the community itself,
within its own shared ethical life and cannot be imposed from without. In
other words, it is only through the testimony, the acknowledgement, and the
understanding of both victims and aggressors that individuals and nations
can heal.
As Minow and others have emphasized, truth commissions have a strong
therapeutic dimension structuring their approach. Individual responses to
trauma may involve expressions of denial or repression of the events and
even dissociation from one's sense of self and one's community. Individuals
can also be plagued by an overwhelming mood of powerlessness and inca
pacity. To recapture oneself and one's community, truth commissions func
tion as a mechanism for "empowerment" and "reconnection".153 Social
psychologists have recognized the therapeutic value of truth-telling as a
device for overcoming moments of individual trauma.154 Moving one's per
sonal suffering out of the confines of the private sphere and into the domain
of the public sphere allows for a mode of consciousness-raising which oper
ates as a critical methodology for validating personal and social experi
ence.155 Unlike the adversarial climate produced under the trial model,
truth commissions generate an open, epistemic space in which all members
of the community can participate in forging a collective memory. As a mode
of legal practice, such commissions are oriented not toward some abstract,
deontological condition, but are structured by a principle of contextualism
which focuses on the welfare and stability of the individual community and
not the integrity of a transcendental subjectivity. In place of the absolute
moral obligation to prosecute entailed by a deontological ethic of retributi
vism, the program of restorative justice associated with truth commissions

152 Minow, n. 12 above, at 58.

153 Ibid, at 65.
154 E. Staub, "Breaking the cycle of violence: helping victims of genocidal violence heal",
(1996) 1 Journal of Personal and Interpersonal Loss 191.
155 Minow, n. 12 above, at 67 ("Coming to know that one's suffering is not solely a private
experience, best forgotten, but instead an indictment of a social cataclysm, can permit individuals
to move beyond trauma, hopelessness, numbness, and preoccupation with loss and injury").

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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 127

attempts to create a social framework of cooperation and mutual respect in

which both victims and aggressors can coexist. Within the open and dialogic
space generated by truth commissions, alternative mechanisms for resolution
are acknowledged and explored. In the context of Rwanda, there exist
several social mechanisms, recognized by both Tutsi and Hutu, which are
capable of promoting the principle of restorative justice while creating a
framework for social r?int?gration and coexistence. The tradition of gacaca
represents one such mechanism and will be analyzed as a mode of restorative

The traditional mechanism o? gacaca as a mode

of restorative justice

Theorists of international criminal jurisprudence consider genocide to be an

instance of what Carlos Santiago Nino described as "radical evil".156 A
deontological ethic of retributivism with its concomitant principles of auton
omy, human rights and its trial imperative is posited as the only effective and
legitimate mechanism for the recognition of such radical evil, "even evil that
may not be deterred by the threat of such punishment [as retribution], and
that punishment is to be meted out regardless of the effects on offenders,
victims, communities, or society".157 As pointed out above, the focus of
retributive criminal justice is oriented toward a transcendental subjectivity
occupying a deontic space far removed from lived experience. The individual
victim, aggressor, and his/her community are, in effect, negated or bracketed
from the process; their voices are lost or ignored in an abstract set of rules and
procedures. The paradigm of restorative justice, on the other hand, is
informed by an epistemic and methodological commitment to the individual
victims and aggressors who must continue to coexist within the same public
sphere. Questioning the absolute validity of a deontic approach with its trial
imperative and its obligation to punish, restorative justice presumes a princi
ple of (judicial) contextualism. Instead of imposing a universal and deonto
logical framework upon the actions of individual communities, behavior is
read through a hermeneutic derived from each specific cultural context. In
other words, justice is read as a function of culture; to entail a condition of
authenticity, therefore, it must be derived from within the epistemic space of
the culture itself.
As several theorists have noted, an analytic of guilt informs deontological
retributivism.158 Under a deontic model, guilt assumes a transcendental con
dition. An individual who is found to have committed a crime against
humanity, for instance, is marked or designated as guilty by a formal system
of rules and procedures which have codified a set of ("universally valid")
criteria against which to "judge" guilt or innocence. The individual, as such,
is removed, once again, from the process; his/her actions are judged or defined
as a violation of a deontic condition of subjectivity and a prescribed mode of

156 Nino n. 138 above, at vii.

157 Drumbl, n. 6 above, at 1255.
158 SeeJ. Braithwaite, Crime, Shame and Reintegration, New York, 1989; J.Q_. Whitman, "What is
wrong with inflicting shame sanctions?", 107 Yale L.J. 1055 (1998).

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128 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.

punishment is mandated.159 At no point in the process is the individual's

understanding or recognition of his/her "guilt" necessary; in fact, the indivi
dual aggressor's psychological and emotional condition is never addressed. In
other words, the system of punishment mandated under a deontological ethic
of retributivism is designed to address a condition of guilt identified as a
"universal determination".160 Whether the individual him-/herself and his/
her community actually recognizes or understands the meaning of "guilt" is
irrelevant from the perspective of a deontic theory of justice.161
An alternative to the theory of guilt structuring deontological retributivism
is represented by the notion of shame sanctions. According to this restorative
and contextual approach, shame operates as an "internal acknowledgement
of responsibility ... and is accompanied with feelings of regret, blameworthi
ness, and sometimes even disgrace."162 As John Braithwaite has argued, the
process of traditional "shaming" involves "all social processes of expressing
disapproval which have the intention or effect of invoking remorse in the
persons being shamed and/or condemnation by others who become aware of
the shaming.... Shaming... sets out to moralize with the offender, to com
municate reasons for the evil of her actions."163 Shaming operates on both a
personal and a social level. The individual who has committed a crime comes
to understand the "lower esteem the offense has produced in the eyes of
external referents like parents and neighbors".164 Unlike a deontic retributive
approach, the individual aggressor him-/herself is an active participant in the
process of shaming.165 Implemented through a network of social codes which
are understandable to both the victim and the aggressor, a system of shame
sanction may possess greater cultural value/authority than a judicial system
imposed from without.
In the very specific context of Rwanda, a model of restorative justice which
employs a traditional system of shame sanctions would constitute a more
viable and legitimate approach for addressing the social injuries sustained
by the events of 1994. To reiterate, the point being made here is extremely
narrow, both theoretically and practically. Given its very specific social
geography, Rwanda as a dualist post-genocidal society desperate to reestab
lish a stable civil community will profit by rejecting the paradigm of deonto
logical retributivism associated with the ICTR and by adopting a model of
restorative justice. By shifting the focus from a deontological orientation to a
contextualist perspective, Rwandan society can initiate a process of healing
and r?int?gration. This process must begin on the local or neighborhood level.
Given the broad degree of complicity among the Hutu population in the

159 There exists a parallel here with the thought of the French philosopher Emmanuel Levinas
who argued that the origin of the moral command has always been external; it derives from an
"Other" with whom the listener has a nonreciprocal relationship of obedience. The one who
receives the ethical imperative can never assume the role of the one who speaks, which makes a
purely humanist ethics, he contends, an impossibility.
160 The notion of "universal determination" represents a counterdistinction to Lyotard's
notion of "local determinant". See J.-F. Lyotard, The Postmodern Condition: A Report on Knowledge,
Minneapolis, 1986, 66.
161 Drumbl, n. 6 above, at 1256.
162 Ibid, at 1257.
163 Braithwaite, n. 147 above, at 100.
164 Ibid, at 57.
165 See T. Massaro, "Show (some) emotions", in S.A. Bandes (ed.), The Passions of Law,
New York, 1999, 80, 87.

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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 129

genocide and the need for coexistence structuring post-genocide Rwanda, the
family of a victim may be compelled to live next door to the person responsible
for killing the family member. In order to begin the process of r?int?gration, a
social and judicial framework must be established whose epistemic codes are
understandable and which generates a sense of legitimacy and trustworthiness
among both the families of the victims and the aggressors themselves. In
traditional Rwandan society, a shaming technique known as gacaca was
routinely implemented for centuries to resolve social disputes among clan
members.166 An individual who had committed a violation of the social
rules governing the clan would be brought before a council of sages and
clan elders. Depending on the nature of the offense, the council would
assemble either the offended party or the entire clan and would attempt to
mediate some sort of mutual resolution. Both parties would be given the
opportunity to voice their position; the community would also be given the
chance to express itself. The process o? gacaca establishes a dialogic framework
through which the victim (or the victim's family), the aggressor, and the
community would be afforded a discursive space in which to articulate,
investigate and engage their positions.167 Remedies, such as public apologies
and community shaming, are designed to strengthen communal loyalties and
overcome social diremption by reasserting a common and locally sanctioned
system of punishment. Rather than imposed from without by a fundamentally
alien judicial framework, justice emerges as a function of communal
dialogue.168 As a mode of communal justice, gacaca operates on three crucial
levels: (1) as a traditional mode of dispute resolution, its operation entails a
high degree of social authority and legitimacy; (2) its dialogic function gen
erates an open discursive space through which the community itself can create
a collective memory of the genocide; (3) on a psychological and emotional
level, the process allows the victims, the aggressors and the community to
reach a level of mutual understanding and recognition which may facilitate
the process of social r?int?gration and coexistence.


In this study, I have attempted to critique the legal paradigm fram

ing much of the discourse of contemporary (i.e., post-1945) international
jurisprudence by arguing that it is incommensurable with the cultural and

166 See Carroll, n. 128 above, at 190-192; J. Prendergast and D. Smock, "Postgenocidal
reconstruction: building peace in Rwanda and Burundi", in Special Report 53 of the United States
Institute of Peace (1999), at
167 Habermas' theory of communicative competence, which he calls a "universal pragmatics",
recognizes that all linguistic communication presupposes a background consensus. This "under
lying consensus" can be analyzed as involving "the reciprocal recognition" of at least four
different nonreducible validity claims "which speakers announce to each other". These claims
include the comprehensibility of the utterance; the truth of its propositional content; the legiti
macy or Tightness of its performative content ("performatory component"); and the veracity or
"authenticity" of the speaker. In normal contexts of communicative action, Habermas argues,
these four claims are not questioned or threatened; but when a language game (in the
Wittgensteinian sense) is disturbed or the background consensus breaks down ?as in the context
of genocide?then the appropriate form and level of discourse is required to reestablish the
normative foundation. The process of gacaca represents a social mechanism designed to repair
the epistemic displacement suffered by the local communities of Rwanda. See J. Habermas, Theory
and Practice, Boston, 1974.
168 Drumbl, n. 6 above, at 1264-1265.

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130 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.

intellectual structures informing many local and traditional societies.

International organizations, such as the United Nations, operate within a
categorical framework which denies the legitimacy and space of competing
regimes of social ideology. By examining the events of the Rwandan Genocide
in 1994 and exploring the legal analytic structuring the response by the
international community in setting up the International Criminal Tribunal
for Rwanda (ICTR), I demonstrated that the mode of legal practice exercised
by international organizations, particularly the United Nations, to address
specific regional and national problems is designed to buttress or to sustain
its own normative ideology and, thereby, fails to generate a contextually
dependent framework or system sensitive to the needs of the subject
Specifically, it was my contention that the deontological approach assumed
by the ICTR, privileging the application of criminal litigation for selected
individuals believed to be the leaders of the ethnic genocide in Rwanda,
operates as a mechanism to strengthen the position of the international
community as such; it fails, however, to address the needs of the victims and
of the overall society which has experienced the severe trauma of a genocide.
In other words, by denying an alternative theory of contextualism and its
concomitant discourse of reconciliation-restoration-closure, the deontological
approach has denied Rwanda, as a community of victims and aggressors who
must coexist within a common public sphere, the possibility of establishing
an integrated civis and, thereby, mapping its own collective memory of the
Given the broad community participation and the public nature of the
atrocities, the brutality of the genocide assumed a level of normalcy or
"banality" within Rwandan society. Questions of criminality and guilt within
this structure of normality are difficult to articulate since such "gross" beha
vior is no longer encoded as "deviant", but is socially sanctioned. The legal
process of arriving at issues of individual guilt, as such, may be inappropriate
under certain types of dualist post-genocidal societies. In the context of
Rwanda where victims of the genocide must continue to share the same social
space with their aggressors, policy must be designed to overcome the public
diremption or fragmentation which has occurred in the civic body. If the
ethnic division between the Hutus and the Tutsis is not reconciled, the
potential for future violence will always remain. The crucial question, there
fore, involves what constitutes the most appropriate mechanism for initiating
the process of closure and reconciliation?
The Rwandan violence has initiated debate on how to "deal with" a
genocide retrospectively. An important component to the debate concerns
the appropriate level of judicial intervention by the international community
following a mass atrocity. In convening the ad hoc International Criminal
Tribunal for Rwanda (ICTR), the United Nations has sustained the tradi
tional Kantian deontological approach to international criminal law which
posits a trial imperative as the only reasonable mechanism for achieving
justice. Such a deontological ethic of retributivism has entailed a judicial
imperative for the implementation of criminal trials to address the mass
atrocities of the Rwandan genocide. Throughout this study, I have argued
that this imperative (through various mechanisms, such as ethnicity, guilt,
responsibility, etc.) has engendered a condition of disconnect between the

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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 131

purpose of the trials and the consequences of these trials for local communities,
national reconciliation, and international peace.
The paradigm of deontological retributivism posits a set of rigorously
consistent obligations rather than establishing a network of constructive
practices. The deontological standpoint of retributivism locates the criteria
for meaning and truth in a source external to the shared perspectives of social
agents, in a tertium quid of transcendental subjectivity. The paradigm of
restorative justice, I suggested, represents a more appropriate alternative to
achieving closure within Rwandan society. Under this approach, crime is
understood primarily as a conflict between individuals that generates injuries
to victims, communities, and the offenders themselves. Unlike the retributive
model, it is only secondarily framed as a violation against the state or the
international community. The telos of the criminal justice process, as con
ceived by the restorative model, should be to engender peace in communities
by reconciling the parties and repairing the injuries caused by the dispute.
Criminal justice should facilitate a process of dialogic exchange in which
victims, offenders, and their communities find solutions together to their
Societies which have suffered through mass political violence are not parti
cularly responsive to theories of rational choice and are often inspired by
non-rational impulses. In these contexts, traditional mechanisms of public
punishment, such as shaming, can produce a social framework in which the
offender is reintegrated into society. Unlike the finding of guilt under the trial
model, the public's involvement in such traditional approaches is continuous
throughout the process. A trial in which a detainee faces an unknown prose
cutor, at times behind closed doors, may produce little genuine effect. In the
case of a prosecution held in Tanzania at the ICTR, where the language of
the trial may not be understandable to all Rwandans, where the proceedings
may not be diffused in the media, where the court chambers are distant and
hard to reach, and where the trials may be encumbered by foreign (and
seemingly technical) procedures, the trial may only have negligible shaming
effects. In the context of Rwanda, returning the aggressor to the local com
munity to face shaming is likely to mean that the aggressor must face the
approbation of a neighbor's family or even his or her own family. The process
may entail confronting people whom the aggressor injured, maimed, raped, or
robbed. Reintegrative shaming, for instance, can promote the necessary con
ditions for psychological closure and the development of a stable civis. The
process of creating a political ideology which can generate a stable and safe
social framework also requires that Rwandan society reinterpret the legacy of
ethnicity. Hutu and Tutsi must "re-discover" the "original position" which
Rwandan society maintained before colonial contact in which "Hutu and
Tutsi lived together, shared values, and built institutions independent of
ethnic identity".169 By reclaiming a self-referential identity which is authentic
and legitimate, Hutu and Tutsi can initiate a social dialectic designed to move
Rwandan society beyond the artificial structure engendered by ethnicity.

169 Ibid, at 1296.

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