The 2005–06 Iraqi trial of Saddam Hussein highlighted the increasingly prominent role of “transitional justice”—the various institutional approaches taken by societies emerging from situations of mass atrocity to address abuses perpetrated in the past—and in particular the role of criminal prosecutions. But the reasons for holding such trials are not always obvious. Trials can surely lead to punishment of the perpetrators, but it is also possible to exact retribution without the formality of a trial. (History is replete with instances of revenge killings at the conclusion of violent conflicts.) And while we rely on trials, in normal times, to determine the actual guilt or innocence of accused persons, this may be less important in the mass atrocity context, at least where evidence of crimes and a leader’s responsibility for them is well-established in the public record. What functions, then, do trials in transitional justice settings advance beyond those served by extrajudicial retribution? Although such trials are justified by a range of rationales, we know little about whether the criminal prosecutions in fact promote those goals.

VICTIM-CENTERED JUSTICE

Proponents of criminal trials argue that they enable victims to confront their abusers in an official forum, a psychologically important step in the social reintegration of victim groups. But in the context of mass atrocities, only a handful of victims are likely to have an opportunity to testify. Whether trials can serve a therapeutic effect for victims who do not participate in court proceedings is understudied and unclear.

CONTRIBUTING TO PEACE AND RECONCILIATION

Criminal trials sometimes are said to contribute to peace and reconciliation in societies emerging from conflict. Particularly in conflicts with ethnic or sectarian dimensions, criminal trials focus responsibility for abuses on particular perpetrators. By individualizing guilt, trials allow victims to move beyond collective condemnation of the groups from which their abusers came, thereby enabling once-divided groups to begin to reconcile. But in view of the vast number of persons likely to have participated in crimes in a mass atrocity situation, there is little chance that all guilty individuals will be brought to justice. Whether representative or even symbolic trials can produce individualization of guilt is unclear. And the passions generated during the Saddam trial suggest that such proceedings can in some cases fuel, rather than ameliorate, ethnic group conflicts.

PROMOTING THE RULE OF THE LAW

Subjecting a former dictator to a court of law, rather than a firing squad, can reflect a transitional regime’s commitment to the rule of law. It represents the new government’s acknowledgement that the state may exercise authority over citizens solely on the basis of general rules and transparent procedures applied by neutral decision makers, and not merely based on the whims or caprice of the ruler. Particularly in trials before national courts, however, the demands of victim groups for swift and decisive retribution can create severe pressure on courts to deliver politicized outcomes, “victor’s justice,” rather than affirm the rule of law.

This last justification is less prudential than the others; holding trials is important not because of what the affected society gets, but what it is, or wants to be. But a society that elects to pursue criminal accountability to express its commitment to the value of rule of law may discover that such trials generate few, if any, short-term practical or policy benefits.