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  • From Gacaca to Mato Oput. Pragmatism and Principles in Employing Traditional Dispute Resolution Mechanisms

  • from PART II - RETRIBUTIVE JUSTICE
    • By Barbara Oomen, Professor of Law, Utrecht University and Dean Roosevelt University College, Middelburg, the Netherlands.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 167-186

  • Summary

    INTRODUCTION

    In a speech given in February 2010, the Rwandan President Paul Kagame recapitulated the essence of delivering justice in post-genocide Rwanda for his international audience: the traditional gacaca, he held, had played an essential role where the formal judiciary had been destroyed, and had been able to meet the dual needs of dispensing justice and promoting reconciliation in a way that the formal courts could never have done. This ‘traditional Rwandan institution’, in the President's words, ‘was modernized to supplement classical judicial systems for trying genocide suspects and at the same time re-integrate offenders into communities that included genocide survivors’. As such, in his opinion, it formed an example of addressing the root causes of a conflict by combining universal values with home-grown solutions.

    The Rwandan gacaca, in many ways, serve as an example of a somewhat exotic but increasingly essential element of the ‘transitional justice toolbox’ as employed all over the world. Next to tribunals, truth commissions and a host of mechanisms for reparations, traditional dispute resolution mechanisms have been reinvigorated or even reinvented for the purpose of dispensing post-conflict justice in former colonies with a tradition of legal pluralism like East Timor, Sierra Leone, Rwanda and Burundi. For the purpose of this contribution, traditional dispute resolution mechanisms will be defined as local-level dispute resolution mechanisms that partly derive their legitimacy from an association with symbols, rituals and procedures considered to be uniquely local and tested over time.

    I will first show how these mechanisms have become increasingly important, arguably as an alternative to the increasingly globalised field of transitional justice. Their appeal, it seems, lies in two fields: that of pragmatism and that of principles. Pragmatists argue that these mechanisms are necessary to dispense any form of justice at all, and that they have a number of pragmatic advantages over other forms of trials: they are faster, cheaper and more readily accessible. In addition, proponents of a central role for traditional justice mechanisms in transitional justice also invoke a number of more principled arguments: the authentic, ‘home-grown’ character of these institutions enhances their legitimacy; these mechanisms contribute more to reconciliation; and thus they deliver a better type of justice.

Global Urban Justice
  • The Rise of Human Rights Cities
  • Edited by Barbara Oomen, Martha F. Davis, Michele Grigolo
  • Published online:
    05 June 2016
    Print publication:
    23 June 2016
  • Cities increasingly base their local policies on human rights. Human rights cities promise to forge new alliances between urban actors and international organizations, to enable the 'translation' of the abstract language of human rights to the local level, and to develop new practices designed to bring about global urban justice. This book brings together academics and practitioners at the forefront of human rights cities and the 'right to the city' movement to critically discuss their history and also the potential that human rights cities hold for global urban justice.

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