11 - Commentary on Accountability, Human Rights and the Rule of Law

Summary

This commentary focuses on the main themes that link the five chapters in this section. First, the chapters highlight the dominant conception of criminal justice that underpins much of the contemporary theory and practice of transitional justice. In several distinct ways the chapters critically challenge retributive forms of criminal justice that tend to privilege individual punishment over restorative practices and collective notions of accountability. Related to this, the chapters also draw attention to the increased emphasis on victims’ rights that has brought criminal justice into a closer relationship with human rights in the field of transitional justice. The second general theme uniting the chapters concerns sources of legitimacy of legal norms and the role of law in shaping political outcomes more specifically.

One remarkable feature of the normative development of international law and international relations in recent decades is the emergence of individual accountability as a guiding principle for transitional justice. As Jo-Marie Burt highlights in her chapter, this should be seen against the broader global trend toward the criminal prosecution of those responsible for grave human rights violations. Similarly, Ralph Henham in his contribution to this volume refers to international criminal justice as a form of global governance, with specific underlying principles, values and norms. Indeed, it is clear that the prevailing international criminal justice system aims primarily at the prosecution and punishment of individuals, and retribution and deterrence have been promoted as the primary objectives of punishment. Antoine Buyse notes in his chapter, for example, that a defining feature of recently established hybrid tribunals is the focus on retributive justice.

These developments, however, have taken place at the expense of restorative approaches of justice and of broader notions of human rights accountability. The privileged position of retributive forms of criminal justice may therefore be problematic for a number of reasons. First, despite the prevalence of claims of effectiveness of the international criminal justice regime in terms of deterrence, there is a dearth of empirical evidence documenting such claims. Second, especially after large-scale organised political violence, there are inherent limitations in retributive approaches to criminal justice.