The Preventive Role of Criminal Law in Preventing Communal Violence in Post-Conflict Societies

Abstract

The communal violence issue continues to be one of the most disruptive in terms of societal stability and sustainable peace in the post-conflict societies. Although formal armed conflict may have ceased, deeply rooted ethnic, religious, sectarian, or political scores are often left unresolved, therefore, forming a growing zone of collective violence re-emergence. Within such circumstances, criminal law ceases to be, as it has long been, restricted to a punitive role; it is now beginning to have a preventive role, to deter mass violence and enhance individual criminal responsibility.

This paper will discuss the roles in which criminal law can play in the prevention of communal violence in post-conflict societies as well as its structural and institutional limitations to its efficacy as a preventive measure. This study follows a doctrinal and analytical approach, as evidenced by comparative legal views, international legal tools, and information of the interdisciplinary study. It examines the criminalization of communal violence and incitement, the preventive effect of punishment and prosecution and judicial credibility in determining preventive legality.

The paper is based on the idea that criminal law may have a significant preventive force in the form of setting clear normative boundaries, discouraging collective violence, and eliminating collective punishment with individualized criminal responsibility. Nevertheless, it has a preventive ability which is still conditional on the basis of institutional autonomy and legal predictability, procedural fairness and citizen confidence in the justice system. The deterrence and compliance is greatly compromised by the weak institutions, selective enforcement, absence of legitimacy and tensions with the transitional justice mechanisms.

The study concludes that criminal law is a necessary but small tool in the prevention of intercommunal violence in the post-conflict society. Its useful course of action lies in the fact that it must be incorporated in larger peace-building plans that synthesize accountability and reconciliation and thus enhances rule of law and minimizes the possibility of another communal war.