August 1, 2002

In her reflections on justice and reconciliation after the Rwandan genocide ("The Legacies of Collective Violence," April/May 2002) Helena Cobban asks how best to restore health to a society smashed by devastating violence. Her prescription — substituting therapy for justice — ventures into dangerous moral territory.

Cobban argues that criminal prosecutions are a "strait-jacket" solution imposed from outside Rwanda. But the Rwandan government itself initially requested the International Criminal Tribunal for Rwanda (though it later opposed it) and decided on national trials for the more than 100,000 jailed in Rwanda on charges of genocide. Its preference for prosecution is understandable: both before and during the colonial period, Rwandan authorities judged major crimes in formal proceedings and imposed punishment on those found guilty.

Cobban favors a more "restorative" solution like the gacaca system, a traditional Rwandan procedure for solving local problems. As Cobban's own example (a dispute over $10) shows, gacaca traditionally deals with minor issues not involving criminal responsibility, one reason why the Rwandan minister of justice originally rejected its use in genocide cases.

The Rwandan government has now decided to use a form of gacaca for the cases of all but the accused ringleaders of the genocide. But as Rwandan Ambassador Sezibera told Cobban, these are "gacaca courts, not just plain gacaca." Cobban claims that "human rights organizations" oppose gacaca-true neither of Human Rights Watch nor of Rwandan organizations. We do, however, protest that "gacaca courts" - no longer community-based conflict-resolution mechanisms, but parts of a centrally-organized state initiative - put the investigative power of the state at the service of the prosecution while prohibiting legal assistance for the accused.

In addition, gacaca will examine only the genocide, not the contemporaneous killings committed by soldiers of the Rwandan Patriotic Front that now controls the government. This same failing, to date, leads to the charge of "victors' justice" that Cobban cites against the International Criminal Tribunal for Rwanda.

Cobban's analysis is most troubling when she resorts to medical metaphor. She acknowledges the planning and organization of the genocide by state authorities, detailing how killers coolly and regularly slaughtered Tutsis as daily "work." Yet in her view, these were not horrible crimes but a "social psychosis," not acts of volition but a "collective frenzy"; the architects of the genocide are not more culpable than ordinary killers but "sicker."

Cobban's analysis resembles that of the perpetrators themselves. They argued that the slaughter was "spontaneous," committed by people driven mad out of fear and anger. Rwandan killers have indeed been traumatized but their ailment resulted from their conduct rather than causing it.

Mob psychology cannot explain choices made during the genocide: why some individuals killed for reward or pleasure, or from fear of punishment, while others did not. To judge the killers as merely "sick" devalues the courage and decency of the millions who resisted this inhumanity, sometimes at the cost of their lives.

Cobban's medical metaphor allows no place for individual responsibility. A person plagued by cancer is a victim of unfortunate circumstance, but is not at fault. Murderers, let alone orchestrators of genocide, are different. When they corral victims into churches and stadiums and systematically slaughter them with guns and machetes, the killers are not the latest hapless victims of the genocidal flu. They are deliberate, immoral actors. Treating them as no more culpable than children who refuse to wear coats and catch cold is both wrong and dangerous. Wrong because it does a deep disservice to the victims, as if their deaths were a natural accident, not a deliberate choice. Dangerous because it signals to other would-be mass murderers that they risk not punishment but, at most, communal therapy sessions.

Cobban proposes healing rituals, such as those used after the Mozambican war, as a way to restore individuals and societies to health. Such rituals have no equivalent in Rwanda; but, of course, other non-judicial initiatives can and should be used to promote reconciliation. Contrary to Cobban's claim, prosecutions do not exclude other alternatives. Burundi, for example, plans both a truth and reconciliation commission and investigations that may lead to national and international prosecution.

Cobban speaks highly of Mozambique's grant of a blanket amnesty to all human rights abusers, asserting that it has led to some years of peace. But countless other cases show that it is more usual for such impunity to breed violence. In Sierra Leone, for example, the amnesty granted in the 1999 Lomé peace accord reinforced the Revolutionary United Front in its methods of amputation, rape, and murder, and condemned the country to many further atrocities.

Aware of the troubling implications of her prescriptions, Cobban insists she is not "attempting to undermine the norms of individual responsibility" but only trying to distinguish between "policy responses" in normal times and those after times of atrocity. In the latter case, she believes, "punishment should be only a small (or even non-existent) part of the response" directed at the highest levels and meant for "incapacitation"-to avoid the leadership regrouping. For this, "a limited number of more or less summary executions," apparently without the fault-finding or truth-telling of a genuine trial, would suffice.

But it is precisely at a time of atrocities - or when a tyrant contemplates committing atrocities - that a policy of trial and punishment is essential. Justice reinforces social norms and deters some would-be perpetrators. True, until recently, tyrants could reliably avoid justice by using violence and intimidation to shut down their national courts. The threat of international prosecution, as an alternative, did not exist. But just as international justice is becoming an occasional reality, just as tyrants must think twice before committing horrendous crimes, Cobban offers her therapeutic dodge, her sick-man's excuse to responsibility.

As the International Criminal Court is born, giving hope of more effective international prosecution of the most heinous human rights crimes, one can only imagine the long line of perpetrators who would choose therapy instead of prison cells. Before we agree to counseling instead of punishment, we owe it to the victims of the Rwandan genocide - and to all future victims of genocide - to contemplate Cobban's theory from their perspective.