DEONTOLOGICAL RETRIBUTIVISM AND THE LEGAL PRACTICE OF INTERNATIONAL JURISPRUDENCE: THE CASE OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

Abstract

FINK, JASON BENJAMIN, Deontological retributivism and the legal practice of international jurisprudence: the case of the International Criminal Tribunal for Rwanda, Journal of African Law, 49, 2 (2005): 101–131

Contemporary international criminal jurisprudence has fashioned a legal paradigm encoding the crime of genocide as a violation of moral law. Structured by an ethos of deontological retributivism, it has posited a set of institutional and conceptual mechanisms designed to situate and stabilize the meaning of genocide. The articulation of this paradigm has entailed the bracketing or suspending of alternative discursive strategies and institutions, particularly those inscribed with a traditional/contextual value. Configuring the social fact of genocide under a normative framework of retribution often fails to address the realities and needs of the local populations who have suffered through severe social trauma. In the intensely unstable space of post-genocidal societies, such as Rwanda, the mandating of formal legal structures by international judicial authorities may constitute a genuine barrier to the critical appropriation of the fact of genocide into the communal memory by imposing a set of privileged frameworks without recognizing the formal integrity and constructive potential of local strategies.