Retributive or reparative justice? Explaining post-conflict preferences in Kenya

Abstract

In states emerging from mass violence and human rights abuses, do individuals prefer retributive punishment of perpetrators through trials, or do they wish to be compensated with land or monetary reparations for their injuries? How does the concrete option of prosecutions by the International Criminal Court (ICC) moderate these preferences? Using unique survey data from 507 Kenyans collected in 2015, we build on and add nuance to the empirical literature that interrogates the link between exposure to mass violence and post-conflict justice preferences. We find that while some individuals prefer reparative justice, victims and witnesses generally want perpetrators to be prosecuted. Even for those who are co-ethnics of government leaders – who allegedly instigated widespread killing, sexual assaults and displacements – direct exposure to those acts leads to greater desire for prosecutions. We further find that one’s personal experience with violence also leads one to reject domestic justice in favor of international justice: victims and witnesses who favored retributive justice are highly likely to believe that the ICC is the best option for prosecuting perpetrators.

The Paradox of Justice: From Transitional to Everyday Justice

“…While the field of transitional justice remains animated by debates over its boundaries and goals, it has come to something of a consensus that, in the wake of war, transitional justice processes should recognize social, economic, and cultural rights alongside the field’s traditional concern for civil and political rights (Miller 2008; Millar 2011; Selim and Murithi 2011; Gready and Robins 2014; Bundschuh 2015; Dixon 2016; Cole and Firchow 2019). Beyond this, however, there is little consensus about how to strike this balance in practice (Aloyo, Dancy, and Dutton 2022). This is a relevant challenge for diverse fields, including development and aid (World Bank 2011), but it is essential to the law, whose legitimacy is dependent upon maintaining boundaries with its neighboring, non-legal fields (McEvoy 2007; Dixon and Tenove 2013).…”