International Justice

CJ354 Endicott College

Where does the state belong in traditional, local justice?

“Traditional”, local justice seeks to add a new layer to the transitional justice framework by drawing upon traditional rituals and processes in order to enact justice.  Most of these rituals focus on restorative justice, with reparations to the victims’ families and reintegration of the perpetrators at their core.  Such efforts are intended to be community-based, for these perpetrations, especially in locations such as Rwanda and Uganda, involved perpetrators attacking members of their own community.  However, despite the goals of being community-based and rooted in tradition, some of these justice mechanisms fall under the control of the state.  Most notably, gacaca has been criticized by such scholars as Susan Thomson and Rosemary Nagy for becoming an instrument of state control (see their article: “Law, Power and Justice: What Legalism Fails to Address in the Functioning of Rwanda’s Gacaca Courts”).  Gacaca was enacted by national law, is often monitored by state security officials, and is tightly regulated and controlled by the government.  In short, through gacaca, “the Rwandan government seeks to ensure that the populace performs its vision of justice and reconciliation without opposition” (Thomson and Nagy, 14).  From such observations, then, it would seem preferable that traditional justice operate independent of state control in order to maintain its integrity.

However, such independence may also be dangerous.  In “Ritual (Ab)use? Problems with Traditional Justice in Northern Uganda,” Tim Allen argues that regulation, most likely by the state, are an important part of preventing the abuse of traditional methods.  As Allen warns, “Without regulation, rituals and customs are as likely to be adapted to interpret and punish witchcraft and sorcery as they are to deal with more ‘conventional’ instrumental killings and mutilations” (Allen, 51).  Furthermore, Allen argues that the absence of state involvement may actually create divisions within the country or at least make transitional justice less likely to promote national integration and unity (52-53).  This is because it would make it appear that the government and other regions in a state do not care about the violence in a particular region and desire to leave the locals to their own devices.

So, where should the state fit in traditional justice?  As is often the case, a middle path seems the most suitable.  The state does need to offer its support and legitimacy to methods of traditional, local justice.  However, the state must also not take full control of such methods to where they become another arm of the state.  When this occurs, it can actually create a great deal of resentment in the local populations and de-legitimize the process, as was often the case with gacaca in Rwanda.  Therefore, the state should not be wholly absent, but it must not use traditional justice as a type of panopticon.  So, in the case of state involvement, moderation is best, but if a decision is to be made, it is better to err on the side of too little than too much.

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6 responses to “Where does the state belong in traditional, local justice?

  1. dfulfs December 3, 2012 at 1:36 pm

    In discussing traditional, local justice, I think that the instance guerrilla groups crossing borders deserves some attention. Your post, gentryj, discusses traditional justice in the cases of Rwanda and Uganda. The latter has been dealing with traditional justice as it relates to the Lord’s Resistance Army, which has left Northern Uganda, and is now creating and maintaining conflict in neighboring countries in the region. The LRA is just one group, but it has perpetrated crimes in multiple countries, so how does traditional justice handle this situation?

    In the documentary we watched about the Matto Opwut, some of the LRA’s top commanders were seeking forgiveness within their communities and the communities in which they performed acts of mass violence. What if these acts of violence occurred in South Sudan? How do the South Sudanese then go about seeking justice against those Ugandan perpetrators? It seemed as though the Matto Opwut brought peace of mind to the families of those who were murdered, because they were able to face the perpetrators. The South Sudanese may not be able to do this, so how do they heal through traditional mechanisms? Should the international community then become involved to allow them access to those perpetrators? Or do those communities need to find another way to heal? I suppose I don’t entirely know where I stand on this issue, so maybe others can offer some opinions or insight into the matter.

  2. smshetty December 3, 2012 at 5:51 pm

    Though I agree the preferred option is a middle ground, I would endorse a different sort of middle ground, one that doesn’t just place power somewhere between the state and the population. Moderation is crucial, but can be achieved in a multitude of ways.

    Specifically, most proposals for such moderate, hybrid TJ systems envision a system where the TJ process isn’t wholly appropriated by the government, but still sustains some semblance of state control and organization. Though this is a commendable approach, I would endorse a more state-driven solution, with the “moderation” in question being applied in terms of how, not to what extent, the state intervenes in such processes. In cases such as Gacaca, which have been used to denounce the flaws of state-run TJ systems, it seems like the problem very often is not state involvement in and of itself, but rather the way in which the state has chosen to control the process. In our readings, Huyse and Ingelaere both denounce the monopoly of Rwandan government in implementing Gacaca; they correctly point out the failings of the courts to reconcile local communities, as well as the almost singular focus on individual accountability.

    Nowhere in their arguments, however, is an explicit connection made between government intervention and organization and the Rwandan government’s particular case, which obviously has its shortcomings. In fact, according to the same readings, the Rwandan government was advised to both make the Gacaca courts more focused on reconciliation and to avoid confining the trials to genocide-related crimes. The fact that they ignored these recommendations is indicative of flaws in their leadership more than flaws in governmental organization of local justice.

    It’s clear from the Rwanda case that government intervention, when coupled with a stubborn agenda and refusal to learn from precedent, can result in misguided transitional justice reform. The Rwanda case also proves, however, that government organization and state control is key to redefining and reinventing tradition to better serve a community, especially one that has been ravaged by genocide and/or conflict. State control, therefore, is a requisite component of transitional justice, and a component I think should be emphasized and not treated as merely half of the necessary process. The middle ground should be in absolutely ensuring the integrity of government vision and purpose, and then giving the state plenty of power to properly implement whatever system is decided upon. Fambul Tok is an example of how such an approach would work.

  3. patrickwu December 3, 2012 at 6:17 pm

    The middle path is definitely the best path to take in the ideal world. However, the reality is that governments are not neutral entities in society–they are entities with self-interests. Gacaca is the perfect example of this concept. The RPF control the government only after a hard-fought battle, and they are unwilling to give up control.

    The Gacaca courts were created in order to disguise the exercise of power by the government over the Rwandans. More specifically, the Gacaca courts created a system of internal monitoring among the general populace. The trials had compulsory attendance because the state wanted each person to witness what happens to those who fought against the government. The trials also did not allow any prosecutions to be made against crimes committed by Tutsis or RPF. The Gacaca courts collectivized Hutu guilt and politicized Tutsi victimhood, which is a norm that the government established. There are two reasons to this. First, it justified the use of extreme government force to stop an alleged second genocide against the Tutsis. Secondly, it created an internal monitoring system among the Rwandans because it raised the fears among the Tutsis that the Hutus might seek revenge for their treatment in the trials. At the same time, the government offered rewards and lighter sentences for indicted criminals who accused other co-perpetrators. There is also a fear among the Hutus that they might be accused of possessing a “genocide ideology.” The combination of these fears leads to constant observation among the Rwandans. Thus, the Rwandan government was not only involved in the trials in order to lead a reconciliation effort that reflected their values; they led the trials in order to establish an internal monitoring system among the population that ensured the government would stay strongly in power.

    Given that the government has the ability to generate so much power and control through local traditional TJ, it is no surprise that governments would always want to be involved completely in the TJ process if they choose to get involved at all. The flip side is what we observe in Uganda, where there is little to no government support in the Mato Oput processes that are taking place. This leads to a whole new set of problems, such as the lack of international and national recognition that reconciliation has taken place.

    Therefore, it seems very improbable that government involvement will be in the middle-of-the-road. Especially for governments that have just taken power in a post-conflict society, their hold over power is extremely delicate. One possible solution is the use of international NGOs to facilitate the local traditional TJ processes, as seen in Fambul Tok, where it is supported by an organization called Fambul Tok International that works in collaboration with the US-based NGO, Catalyst for Peace (Iliff p. 263).

  4. dpu26 December 4, 2012 at 8:47 pm

    I disagree with the position that moderate state involvement is best and that it is better to err on the side of a little too much. The very concept of local, traditional justice lies in its distinction from formal, retributive justice. Although “traditional” has been shown by numerous authors to be a misleading word (albeit one is hard pressed to find a better replacement), for my purposes I will use it to distinguish from the formal, Western court of law. One notable emphasis of local, traditional justice is its emphasis on community restoration and reconciliation. In comparison, formal and judicial means of justice tends to focus on accountability and are thereby retributive.

    The problem with state intervention in local, traditional justice, is that state power inevitably shift the focus away from reconciliation to accountability. This occur partially because in transitory justice, the ruling party have often committed their own share of crimes while coming to power and or in power, so the ruling party is predisposed toward influencing local, traditional justice to emphasis some other criminal party.

    In the case of Rwanda, the Rwanda Patriotic Front completely swept their own war crimes under the rug, instead focusing the Gacaca courts’ attention on Hutu perpetrators in the Rwanda genocide. This lead to a biased and incomplete truth directed by the state. Stemming from this example, I argue state intervention is likely to lead to a perversion of local, traditional justice as a result of the ruling party’s interest being mixed in, and often, superseding, the interest of local communities.

  5. seohchoi December 5, 2012 at 6:20 pm

    http://www.radioaustralia.net.au/international/radio/program/pacific-beat/the-role-of-traditional-justice-in-the-pacific/932122

    This article shows how countries in the Pacific, especially Australia, are trying to incorporate traditional, or rather indigenous traditions with formal, state-level justice to have them complement each other. For example, traditional justice is puts a lot of emphasis on relationships among members of a community, sometimes influenced by religious values, other times by customary values of the community.

    The interviewee, Dr. Morgan Brigg recognizes that the optimal situation is to have these very different means of establishing justice complement one another so that one can benefit from the different benefits these processes can offer. However, there are a lot of problems with having state-level judicial process function side-by-side with traditional justice because the processes and the values fundamentally differ.

    Dr. Brigg explains that communication is key to solving this issue. Through state-level judicial authority’s efforts to comprehend and learn from traditional justice process, an understanding between the two sides can be reached. After the understanding, should come effective, and sincere communication for future cooperation of both sides to establish justice together.

  6. indraswb December 5, 2012 at 8:27 pm

    The case of Uganda lends credibility to the need for regulation. But Allen did not fully convince me that a supervisory role should go to the state. A check and balance on traditional, local justice can be ensured by civil society, which has human rights in its primary interests and can take on a culturally sensitive approach. Zimbabwe’s Tree of Life is one demonstration of the needlessness of state involvement. Its eschewing partisanship means it is immune to spurring political instability.

    Provided there is an effective and independent retributive justice mechanism present, I prescribe minimal state involvement in traditional and/or local justice. The basis for traditional, local justice is its personal, and thus more suitable, capacity for addressing social restoration and reconciliation. When we attempt to hybridise retributive and restorative objectives, we destabilise justice as reflected by the role of the government in Gacaca.

    Poster dpu26 above, states that the problem with state intervention in local, traditional justice is that state power inevitably shifts the focus away from reconciliation to accountability. Such a shift implies that reconciliation and accountability are mutually incompatible, but it is not necessarily so. Manifestations of accountability are classically instituted by a centralised prosecutorial body endorsed by government. These bodies tend to pursue a select group of big fish perpetrators whom, by definition, often have exerted a low degree of psychological proximity to their crimes. Their prosecution though fitting is impersonal and thereby perhaps insufficient to victims who suffered directly under small fish perpetrators. The social-geographical span of Gacaca had the potential to rectify the psychological proximity issue by individualising criminal responsibility to the fullest extent possible. However, the opportunity for the majority of the populace to come to social terms and reconcile with itself in a communal measure of accountability was squandered by state power. Though originally proposed to be adapted as a truth commission by the UN, Gacaca was appropriated by the state in pragmatic terms. The prohibitively long backlog of pending trials that Rwandese government faced meant that Gacaca first and foremost provided a judicial function. Furthermore, the Tutsi-dominated state controlled the parameters of accountability by relieving Tutsis and RPF members of punitive consequences. This ethnic disparity in retribution disincentivises Hutus to reconcile.

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