WHO GETS TO COME HOME? Individual Criminal Responsibility and the Stories We Tell After War

Post-conflict societies must decide what to do with people who participated in war. Some are prosecuted; others receive amnesty, pardon, or other forms of reintegration. These choices are often treated as questions of individual criminal responsibility or transitional justice. This article examines a related but less examined consequence: the way decisions about whom to prosecute can shape the historical account of the conflict itself. Through a comparison of the American Civil War, the Allied prosecutions following the Second World War, and Uganda's response to the Lord's Resistance Army insurgency, the article examines how post-conflict systems select between reintegration and individualized criminal accountability. It argues that individual criminal responsibility is both necessary and inherently limited. A criminal proceeding can establish responsibility for particular crimes by particular individuals, but it cannot place an entire conflict, its institutions, causes, actors, and victims before the court. The selection of defendants and charges therefore produces a necessarily partial account of responsibility. Uganda's prosecution of Thomas Kwoyelo illustrates this problem particularly clearly because broad statutory amnesty coexisted with individual prosecution, raising questions about how particular individuals moved from one legal pathway into another. The article does not argue against individual accountability or for collective amnesty. Instead, it argues that post-conflict justice must be understood not only as a means of assigning criminal responsibility, but also as one of the institutions through which societies construct the stories they tell about war.