Volume 75, Number 5

November 2000

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

Mark A. Drumbl

Assistant Professor, Widliam H. Bowen School of Law, University of Arkansas at Little Rock; Adjunct Assistant Professor of Law, Columbia University; B.A., 1989, McGill University, M.A., 1992, Institut d’Etudes Politiques de Paris/McGill University; LL.B., 1994, University of Toronto; LL.M., 1993, Columbia University.

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