Abstract
Many people have the intuition that the failure to impose punishment on perpetrators of such serious human rights violations as murder, torture and rape that occurred in the course of violent conflict preceding a society’s transition from authoritarianism to democracy amounts to an injustice. This intuition is to an appreciable extent accounted for by the retributivist outlook of a high proportion of those who share it. Colleen Murphy, however, though she accepts that retributivism may justify punishment of offenders in stable democracies, claims in her recent book on transitional justice that retributivism is inapplicable in the circumstances of transitional justice. I argue that the four arguments she provides in support of this claim are unsuccessful and that retributivism, assuming it to be a tenable rationale for punishment, justifies the subjection of perpetrators of at least some serious human rights abuses to sanctions in at least some transitional societies.
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Notes
Following South Africa’s transition from apartheid to democracy, for example, most South Africans were in favour of perpetrators of human rights violations receiving punishment. Political scientists James L. Gibson and Amanda Gouws conclude on the basis of a survey of the views of South Africans, conducted in 1996 and 1997, that “[o]nly a minority [of ordinary South Africans] accepts the view that those clearly engaged in the violent struggle over apartheid should be awarded amnesty. Most consider these actions as criminal and deserving of punishment” (1999: 513, emphasis added). As well, a number of commentators on transitional justice mechanisms have expressed support for the criminal punishment of perpetrators. For example, in the course of his study of post-communist Eastern European countries, John Borneman contends that “a successful reckoning with the criminal past obligates the state to seek retributive justice” (Borneman 1997: 6). See also Bassiouni (1996: 26).
Mark Drumbl observes: “Retribution is the dominant stated objective for punishment of atrocity perpetrators at the national and international levels” (2009: 150).
It is because of the perceived inconsistency between retributivism and the granting of amnesty that some defenders of the granting of amnesty in certain transitional contexts have sought to show that it need not compromise retributive justice (see e.g. Allais 2011).
In the course of his debate with Hart, Lon Fuller thinks it would be “intolerable” (Fuller 1958: 649) for such wrongdoers to go unpunished. Like Hart, he is acutely aware of the evil of retroactive legislation, but he too is of the view that the optimal solution to the problem of imposing punishment in response to wrongdoing that was legally permitted at the time it occurred is for the state to enact a retroactive statute criminalizing this misconduct (Fuller 1958: 661).
Murphy writes: “In the circumstance of pervasive structural inequality, differential institutional restrictions exist on the process and/or genuine opportunity dimensions of freedom. Individuals are differentially able to shape their relationships with others and differentially limited in the range of opportunities they can feasibly achieve” (Murphy 2017: 46). She thinks that all political societies are structurally unequal to some degree, but that what distinguishes the circumstances of transitional justice is the degree to which it exists (Murphy 2017: 49).
Murphy quotes Ruti Teitel: “Repressive regimes are often defined by criminal behaviour, such as torture, arbitrary detention, disappearances, extra-judicial executions, all substantially state-sponsored … even when past evil is perpetrated by private actors, the state is often, nevertheless, still implicated” (Teitel, quoted in Murphy 2017: 52).
I discuss the considerations raised in this paragraph in greater detail in Lenta (2018).
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Lenta, P. Transitional Justice and Retributive Justice. Ethic Theory Moral Prac 22, 385–398 (2019). https://doi.org/10.1007/s10677-019-09991-9
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DOI: https://doi.org/10.1007/s10677-019-09991-9