Introduction

The Preamble of UN Security Council Resolution 995 (1994), which led to the creation of the ICTY, states that, “[T]he prosecution of persons responsible for serious violations of international humanitarian law would … contribute to the process of national reconciliation and to the restoration and maintenance of peace.”

Justice is necessary for a country to move towards reconciliation and peace in the aftermath of large-scale conflict. However, establishing justice internationally is difficult. While justice may be a universal notion, people conceptualize it differently. Some of these differences are reflected in the many facets of justice, including whether it is retributive or restorative. While transitional justice processes are not limited to these two forms, they are often the chief means of achieving justice internationally. This article details some of the characteristics of both types of justice processes and highlights relevant case studies.

Retributive Justice

Retributive justice is a justice process characterized by the imposition of punishment in violation of penal law, typically by an institution of criminal law. The process generally involves the determination of guilt, followed by an imposition of the appropriate sentence, such as a fine or imprisonment. Its objective is to condemn the acts of perpetrators and to deter others from doing the same in the future.

ICTY

Retributive justice processes in international law often take the form of international criminal tribunals. An example of such a process is the International Criminal Tribunal for the Former Yugoslavia (ICTY) (Internal link to Pursuing Accountability: International Tribunals (Part 1)), which operated from 1993-2017. The disintegration of Yugoslavia led to rampant mass atrocities committed between the various ethnic groups, which prompted the UN to establish an international tribunal to hold national leaders accountable. Over the course of the ICTY’s 24-year run, it managed to successfully indict 161 high-level politicians and military personnel for wartime atrocities and reach many milestone decisions regarding genocide, war crimes, and crimes against humanity. 

The overall experience was mixed: this retributive justice process certainly did hold important individuals accountable, yet was unable to bring peace and reconciliation to the region. Supporters of retributive justice maintain that it is not only crucial for the sake of accountability, but it also helps foster reconciliation by establishing justice, revealing the truth of the events, and individualizing guilt.

Controversies

While the necessity of a criminal tribunal in the wake of war crimes is undeniable, it should also be mentioned that justice administered by criminal tribunals is often a controversial matter due to its political nature. This is partially a result of victor’s justice, in which those who remained in power during the transition are exempt from serious investigation and punishment, while perpetrators who were unable to maintain power face consequences. In the case of the ICTY, many Serbs objected to the outcomes, feeling that they were disproportionately singled out for punishment. Such criticism highlights the importance of people’s perception of justice, as the accomplishment of justice for one side may be the opposite for the other. A drastic difference in perception may serve to undermine the work of a justice process. 

Additionally, the retributive justice process is also known to be a difficult one for victims, as their needs are often overlooked and there are times in which they are retraumatized by the process of cross-examination. The harshness of this process can increase victims’ animosity towards perpetrators, which runs counter to the goal of national healing and reconciliation in the bigger picture. Furthermore, in the face of mass crimes which affect entire communities, punishing several individuals through tribunals that are often located outside the country is generally not enough to satisfy people’s need for closure and allow society to move forward.

While the need for retributive justice is obvious for post-conflict societies, it is important to be realistic regarding what international tribunals can accomplish. The shortcomings of this approach make it clear that most cases require a complementary form of reconciliation, of the kind that restorative justice attempts to address.

South African TRC

South Africa’s Truth and Reconciliation Commission (TRC) is a notable example of a process of restorative justice. The TRC was established in recognition of the wrongs committed through South Africa’s apartheid system, which ended in the early 1990s. The TRC was established in 1995, after a year-long decision process that involved the government, civil society and the international community in dialogue on the benefits of a truth commission. Its main purpose was to reveal truth and foster reconciliation on a national level. It investigated human rights abuses, allowed victims to share their stories, granted amnesties, and developed a reparations policy draft.

A key feature of this commission was its emphasis on justice as recognition; recognizing the injustice of the apartheid system. In the truth-seeking process, the TRC defined four notions of truth: factual or forensic, and personal or narrative. While war tribunals are generally concerned with first two, restorative processes also consider the latter two. Additionally, although the TRC’s main purpose was not to prosecute, it did have the option to prosecute cases in which amnesty for an international crime was not sought or was not granted.

A benefit of holding this restorative justice process was that the working group had a relationship with victims, as the TRC consulted victim groups prior to taking action, which gave it the support of civil society. Furthermore, it was viewed as a nation-wide initiative, as members of committees were chosen through a nation-wide nomination process and publicly interviewed by a wide range of representatives from political and civic groups. The commission received over 22,000 statements from victims and granted 1,500 amnesties for atrocities committed under apartheid.

However, this process was also subject to criticism, as the act of granting large groups of perpetrators amnesty for reasons of practicality can contradict the work of retributive justice and can serve to alienate victims from the reconciliation process. Although this was not the case in South Africa, a restorative justice process that does not involve public debate can be viewed as an external imposition and can fail to accomplish its intended goals of reconciliation and truth-seeking.

The aforementioned examples highlight the need for both forms of justice processes. While certain contexts necessitate a stronger need for one over the other, this does not mean that either should be neglected. In fact, retributive justice and restorative justice are often processes that work best in complementarity with each other to both deter future violations and to promote national reconciliation and peace.

Last Updated: April 10, 2019

Author: Sarah Kim