Retributive or reparative justice? Explaining post-conflict preferences in Kenya
| Author | Eamon Aloyo,Geoff Dancy,Yvonne Dutton |
| DOI | http://doi.org/10.1177/00223433211065573 |
| Published date | 01 March 2023 |
| Date | 01 March 2023 |
| Subject Matter | Regular Articles |
Retributive or reparative justice? Explaining
post-conflict preferences in Kenya
Eamon Aloyo
Institute of Security and Global Affairs (The Hague), Leiden University
Geoff Dancy
Department of Political Science, Tulane University
Yvonne Dutton
Robert H McKinney School of Law, Indiana University
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 prefer-
ences? 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 prose-
cuted. 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.
Keywords
International Criminal Court (ICC), Kenya, public opinion, reparations, retributive justice, victims
Introduction
What explains justice preferences of individuals emer-
ging from mass atrocities? Do individuals favor retribu-
tion and punishment of their perpetrators through trials,
such as those administered by the International Criminal
Court (ICC), or do they prefer compensation?
The 1990s saw the riseof the retributive model of post-
conflict justice, with supporters arguing that there can be
no lasting peace unless perpetrators are held accountable
(Akhavan, 1998; Clark, 2011; Mendeloff, 2009: 599).
Operating within this framework, the international com-
munity established ad-hoc tribunals for the former Yugo-
slavia and Rwanda, a series of hybrid tribunals, and the
ICC (Bosco, 2014; Leebaw, 2008: 96; Mallinder &
McEvoy, 2011: 108–109). Leading into the 21st century,
retributive justice through prosecutions was the consensus
method for addressing past atrocities (Drumbl, 2007: 5,
35–41).
Commentators have challenged the retributive justice
model, arguing that trials may not meet the complex
needs of post-conflict societies (Gready & Robins,
2014: 342; Minow, 1998). For instance, scholars have
found that Yazidi survivors of ISIL atrocities in Syria
share an ‘understanding of justice principally focused
on local issues, immediate concerns, agency, and
Corresponding author:
e.t.aloyo@fgga.leidenuniv.nl
Journal of Peace Research
2023, Vol. 60(2) 258–273
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DOI: 10.1177/00223433211065573
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prospects of a better future’ rather than a ‘narrow’ focus
on ‘accountabilitythrough criminal trials’ (Akhavan et al.,
2020: 2). In their call for localized alternatives, these
authors echo lessons from work that emphasizes
context-sensitive reparative measures like compensation
or land restitution(Robins, 2011; Rombouts, 2002:217).
Yet a reparative approach to post-conflict justice is also
imperfect. One problem is that pursuing compensation
has monetary, temporal, and other opportunity costs. A
second problem is politicization. Nearly all post-conflict
justice mechanisms become the focus of ever-changing
political coalitions; one group favors prosecutions, while
another advocates for truth commissions, reparations, or
nothing at all. In Sri Lanka, for example, political leaders,
who might have been complicit in atrocities, argue against
criminal accountability, favoring economic development
(Arudpragasam, 2019). Third, while post-conflict justice
interventions are unlikely to be successful unless policy
makers theorize and systematically assess local concerns
in societies emerging from conflict (Millar, 2011: 532),
the existing literature lacks a comprehensive theory for
predicting and interpreting individuals’ justice preferences
in various contexts.
We theorize that attitudes towards post-conflict jus-
tice mechanisms are primarily shaped by two factors:
exposure to violence and group membership.
1
Using
original survey data from 507 ordinary Kenyans in
2015 in five different regions of the country, we demon-
strate that exposure to violence leads to a preference for
retributive justice over reparative justice, irrespective of
economic need. Other the other hand, membership in
Kenya’s most politically powerful ethnic groups –
Kikuyu and Kalenjin – is associated with the opposite
preference: reparative over retributive justice. However,
the effect of exposure to violence is present even among
dominant ethnic groups: members who witnessed vio-
lence or were victimized are less likely than other co-
ethnics to support reparations.
Building on important contributions of post-conflict
justice preferences (Aguilar, Balcells & Cebolla-Boado,
2011; Dyrstad & Binningsbø, 2019; Tellez, 2020), this
study of Kenya is innovative in two ways. First, we
prompted respondents to indicate a preference between
compensation or trials. Although those exposed to vio-
lence might favor prosecutions, some may prioritize
material goods over retributive justice. Others might also
prefer compensation if they do not think that national or
international courts will deliver justice.
A second advantage of our survey is that it was con-
ducted in Kenya whenthe ICC still had open cases, allow-
ing us to investigate amid an external intervention. One
criticismof the ICC is that it is unpopular in the eyes of the
victims. Our data provide evidence for evaluating this
claim. We asked respondents if the ICC was the best way
to provide justiceto victims of the violence followingKen-
ya’s 2007 presidential elections. The ICC’s jurisdiction is
complementary, meaning thatit can only intervene to pro-
secute when the statein question is unwilling or unable to
do so (Rome Statute, Art. 17). However, those responsible
for crimes may view the ICC as a threat. Even those
exposed to violence may reject the ICC as a post-conflict
justice mechanism if they believe it is illegitimate or fear
that it threatens state sovereignty(Meernik & King,2014).
We find that experience with violence is a major
driver of post-conflict justice preferences. Those exposed
to violence are willing to forgo compensatory justice in
favor of trials – even though this means that their own
co-ethnics may be punished. Those exposed to violence
also are most likely to support the ICC as the best option
for prosecuting perpetrators. This is an important find-
ing given the criticisms labeling the ICC as biased and
imperialistic. The insights from these findings are not
necessarily limited to Kenya. The country is a multiparty
democracy that features extensive rights violations, and
given its history of weak institutions and violent ethnic
conflict, it is similar to other countries that receive atten-
tion from the ICC (Kersten, 2016). We expect that
victims in these other countries will also prioritize retri-
butive justice, and the ICC as a venue for justice.
Justice preferences in post-conflict societies
International justice and local needs
International criminal tribunals established in the early
1990s borrowed ideas from the emerging field of transi-
tional justice, a collection of practices focused on coun-
tries trying to overcome years of authoritarian rule and
civil war (Teitel, 2005). Terms like the ‘right to truth,’
‘reparation,’ and ‘reconciliation’ became popular in glo-
bal politics around the same time that the International
Criminal Tribunal for the former Yugoslavia (ICTY)
began issuing indictments for Balkan war criminals.
2
1
As we will explain in greater depth in Section 5, ‘Findings’, we use
‘exposure to violence’ to apply to two categories of individuals:
victims and witnesses of violence.
2
While ‘transitional justice’ is used to describe a field devoted to the
study of mechanisms meant to address past human rights violations,
we use ‘post-conflict’ justic e because Kenya has not undergone a
regime transition.
Aloyo et al. 259
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