This chapter postulates the concept of Truth, Justice and Reconciliation. It gives a key definition of the key terms as well as the restorative justice concept which is embraced by Truth, Justice and Reconciliation. The key tenets of restorative justice are also expounded under this chapter. Further, foundational concepts of restorative justice and the forms and models of restorative justice are discussed.
The objectives of transitional justice and the judicial mechanisms are laid down followed by their justification. The role of truth commissions is highlighted. Further, the concept of Truth, Justice and Reconciliation is contextualized within retributive justice systems.
Defining Key Terms: Justice and Reconciliation
Justice
At the heart of discussions of transitional justice and post-conflict reconstruction are questions of what reconstructive objectives post-conflict societies should pursue, and how they should pursue them. From these central considerations, two specific questions emerge:
First, is it necessary and feasible to punish the perpetrators of mass crimes?
Second, if it is necessary and feasible to punish them, what is this designed to achieve? Is it fulfill a moral obligation to bring the guilty to account, to deter future perpetrators, or to contribute to wider objectives, such as reconciliation?
These questions underline the centrality of debates regarding justice in rebuilding individual and communal lives after conflict. As with reconciliation, however, the regularity of considerations of justice in post-conflict situations has rarely led to clear or comprehensive concepts or methods of justice. In particular, it is not always clear why certain institutions pursue justice after mass violence. This uncertainty may stem from what Ruti Teitel describes as the paradox of legal responses to mass crimes.
“Law is between the past and the future,” argues Teitel, “…between retrospective and prospective. Transitions imply paradigm shifts in the conception of justice; thus, law’s function is inherently paradoxical. In its ordinary social function, law provides order and stability, but in extraordinary periods of political upheaval, law maintains order, even as it enables transformation.” [1]
Many post-conflict legal institutions are trapped uncomfortably between backward- and forward-looking pursuits, punishing perpetrators of past crimes while claiming, though usually failing to articulate precisely how, punishment will contribute to reconstruction or reconciliation. [2]
First, models of justice can be broadly divided into three categories: retributive, deterrent and restorative. Retributive justice holds that perpetrators must be punished, to bring them to account and to give them what they supposedly deserve. Some authors argue that retributive justice is also necessary for states to adhere to international legal conventions. [3] The deterrent view of justice meanwhile holds that punishment is necessary, not simply because perpetrators deserve it but because it will help discourage a convicted perpetrator, or potential offenders, from committing crimes, for fear of further sanction.
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Finally, a restorative conception of justice differs from the retributive or deterrent models by holding that punishment alone is insufficient; punishment of criminals is necessary but should be facilitated in ways that allow perpetrators and victims to rebuild relationships. In the case of mass crimes such as genocide, restorative justice views the reconciliation of entire communities as the ultimate objective. Restorative justice therefore attempts to further explain the sorts of conceptual relationships suggested in the clichéd refrain of many commentators on post-conflict societies that “no reconciliation is possible…without justice.” [4]
Gerry Johnstone describes restorative justice,
“… as a new approach to criminality that revolves around the idea that crime is, in essence, a violation of a person by another person (rather than a violation of legal rules); that in responding to a crime our primary concerns should be to make offenders aware of the harm they have caused, to get them to understand and meet their liability to repair such harm, and to ensure that further offences are prevented; that the form and amount of reparation from the offender to the victim and the measures to be taken to prevent re-offending should be decided collectively by offenders, victims and members of their communities through constructive dialogue in an informal and consensual process; and that efforts should be made to improve the relationship between the offender and victim and to reintegrate the offender into the law abiding community.” [5]
Second, methods of justice can be divided into two broad categories: formal and negotiated. In the formal interpretation, post-conflict institutions arrive at justice via pre-determined (usually legal) statutes and procedures. Due process during criminal hearings constitutes a key component of most formal models. Through negotiations, institutions achieve justice predominantly through communal discussions of evidence related to crimes. Negotiated justice meanwhile emphasizes the role of the community in discussing and debating different versions of the truth about the past and what responses that truth requires, for example whether perpetrators should be punished and what form of punishment they should receive. These two broad methods of justice, formal and negotiated are not mutually exclusive. An institution could, theoretically, rely on very broad legal statutes that permit a large degree of communal negotiation within those formal boundaries. At the theoretical level, formal and negotiated methods may lead to some combination of retributive, deterrent or restorative outcomes. [6]
For example, retributive or deterrent justice may be achieved via both formal or negotiated means. In the first instance, independent judges operating in the controlled environment of a conventional courtroom, adhering strictly to pre-determined legal statutes governing the running, and the range of judicial outcomes, of hearings, may punish perpetrators in a fashion consistent with the requirements of retributive or deterrent justice. These requirements could also be fulfilled via a negotiated process that affords the community a central role in debating and judging cases, but that still punishes convicted perpetrators.
Similarly, restorative justice could theoretically be achieved by either formal or negotiated means. For example, the formal requirements of a judicial process could dictate that punishment be systematically directed toward rebuilding relationships between parties, or in the case of negotiated processes if the very nature of the participatory methods employed were viewed as a means toward restorative ends.
On this basis, we should view Johnstone’s account of restorative justice above, with its emphasis on restorative punishment as necessarily “decided collectively…through constructive dialogue in an informal and consensual process”, normative, rather than strictly definitional. In a theoretical sense, we can conceive of ways to achieve restorative justice other than through collective deliberation, although Johnstone may be right to argue that, in practice, communal negotiation is the most justifiable and effective means to restoration. No prima facie reason exists to assume that one particular justice method will lead automatically to one particular justice outcome, nor that post-conflict institutions should be limited to employing either a formal or negotiated method, rather than a hybrid of these approaches.
Reconciliation
Reconciliation, simply stated, can be seen as a fundamental process combining perceptions of truth and justice in a way that allows group and individual identities shaped by war to make a transition to peace. The process of reconciliation strives for a balance between forgiveness and revenge to allow a compromise with which the majority, including security forces as well as groups in direct conflict, can live. Or as Alex Boraine, Deputy Chair of the South African Truth and Reconciliation Commission (TRC), expressed during a 1999 visit to Northern Ireland: “In Northern Ireland and in South Africa we simply have to learn to live together, otherwise we will continue to kill one another. That is the stark choice. We don’t have to like each other but we have to coexist with mutual respect.” [7]
Where truth and justice have traditionally been the more common objectives of post-conflict institutions, reconciliation has recently become a focal theme, largely with influence from the global resonance of the South African Truth and Reconciliation Commission.
More regular considerations of reconciliation in transitional justice discourse, however, have rarely cultivated a clear understanding of what reconciliation is and how it may be achieved. It is important therefore to define what “reconciliation” means.
In the broadest sense possible, reconciliation involves the rebuilding of fractured individual and communal relationships after conflict, with a view toward encouraging meaningful interaction and cooperation between former antagonists. Reconciliation entails much more than peaceful coexistence, which requires only that parties no longer act violently toward one another. Non-violence may mean that the parties concerned simply avoid each other, seeking separation rather than mended relationships. Reconciliation, however, requires the reshaping of the parties’ relationships, to lay the foundation for future interactions between them. John Paul Lederach contends that a “relationship-centric” [8] interpretation of reconciliation holds that responses to conflict must penetrate to the level of individual relationships. “To enter reconciliation processes,” Lederach argues, “is to enter the domain of the internal world, the inner understandings, fears and hopes, perceptions and interpretations of the relationship itself.” This internal dimension greatly affects reconciliation at the communal or national level because these structures necessarily comprise individuals who have experienced violence. In this sense, reconciliation, when defined in terms of rebuilding individual relations, lays the foundation for rebuilding wider social relations after conflict.
Reconciliation is both a process and an endpoint, requiring individuals and groups to interact and cooperate in often difficult circumstances to discover solutions to their problems and thus to build stronger future relationships. Reconciliation is both backward and forward-looking, seeking to address the causes of past conflict to produce a more positive dynamic in the future. It must honestly and directly address the root causes of conflict, the overwhelming feelings of grievance and anger that have compounded over generations and led to violence, if the parties concerned are to overcome serious divisions in the future.
In defining reconciliation, it is also necessary to differentiate it from two terms with which is it often confused: peace and healing.
First, reconciliation differs from peace or any of its related processes such as peacekeeping or peace building. The Report of the Panel on United Nations Peace Operations, commonly referred to as the “Brahimi Report,” after its chief author Lakhdar Brahimi, defines peace building as “activities undertaken on the far side of conflict to reassemble the foundations of peace and provide the tools for building on those foundations something that is more than just the absence of war,” including, “promoting conflict resolution and reconciliation techniques.” [9]
Peace, therefore, is a prerequisite of reconciliation. If violence continues, it is nearly impossible for individuals and groups to consider rebuilding their relationships. The broader, systemic, society-wide peace building aims of ending violence and safeguarding against future conflict therefore pave the way for reconciliation’s deeper, inter-personal, relationship-focused processes.
Second, reconciliation differs from healing, which refers to the ability of individuals and groups to deal with trauma experienced during or after conflict. Authors such as Johan Galtung often conflate reconciliation and healing. For Galtung, reconciliation entails “the process of healing the traumas of both victims and perpetrators after violence, providing a closure of the bad relation.” [10]
Reconciliation, however, with its focus on rebuilding broken relationships, constitutes much more than overcoming trauma, although, like peace building it is often an important prerequisite of reconciliation. Many individuals and groups may not feel that they have suffered extreme trauma after conflict. Nonetheless, their relationships may be severely damaged, for a host of reasons other than trauma, and they may therefore seek some form of reconciliation. In other cases, traumatized individuals may need to overcome feelings of anguish, loss or hatred toward others before they can feel ready to reconcile with them.
Restorative Justice Concept
The field of restorative justice is an effort to transform the way we think of punishment for wrongful acts. When a crime or serious bad act (which may include more classes of activity than those legally labeled criminal) occurs, it effects the victims, offenders, interested bystanders (such as family members, employees, or citizens), and the larger community in which it is embedded. These bad acts or ruptures in human interaction create needs and responsibilities for the direct participants in the act [11] , as well as for the larger society in which their act(s) occur. Restorative justice is the name given to a variety of different practices, including apologies, restitution, and acknowledgments of harm and injury, as well as to other efforts to provide healing and reintegration of offenders into their communities, with or without additional punishment. [12]
Restorative justice usually involves direct communication, often with a facilitator, of victims and offenders, often with some or full representation of the relevant affected community, to provide a setting for acknowledgment of fault by the offender, restitution of some sort to the victim, including both affective apologies and material exchanges or payments, and often new mutual understandings, forgiveness, and agreed-to new undertakings for improved behaviors. In its most idealized form, there are four Rs of restorative justice: repair, restore, reconcile, and reintegrate the offenders and victims to each other and to their shared community. [13]
Restorative justice raises deep philosophical, sociological, and empirical issues. The philosophical literature focuses on the purposes and nature of wrongdoing and punishment [14] .
At both the philosophical and sociological level, restorative justice raises important questions about who should have power, control, and possession over crime, acts of wrongdoing, punishment [15] , restitution, reconciliation, and community interests [16] .
When an act of wrongdoing is committed, who has an interest in its rectification: the victim, the community, the offender, those affected by the act, or the larger society? [17]
Who decides what justice is: the victim (who might want vengeance or restitution), the state (who will want to deter future crimes and acts of wrongdoing, set precedents for others, and establish social control), or the community in which the wrongdoing is embedded (where motivations may vary from revenge to the desire to reclaim every community member)? [18]
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Who has the power to forgive and accept restitution or reconciliation: the victim, the victim’s family, the community in which the wrong occurred, or the state? What if acts of wrongdoing affect both individuals and a larger community, such as hate crimes or genocides? If crime or other acts of wrongdoing are a collective hurt or tear in the social fabric, can individuals forgive on behalf of anyone besides themselves? [19]
Are crime victims adequate proxies for the rest of a society that may define justice differently (more harshly, less harshly)? How are we to know what the proper unit of analysis is for measuring appropriate forms of punishment or restitution? [20]
What is the proper balance between victim-offender reconciliation, community peace, and social order or justice? (Similar issues have been raised in the civil sphere of dispute processing [21] .
How should we integrate both the public and private aspects of crime and wrongdoing? Should right-making of wrongdoing be backward facing (punishment and legal justice) or future facing (reconciliation, restoration, and social justice)? [22]
Restorative justice as a social practice and movement began, in its modern incarnation, in the 1970s as a response to what was considered to be an overly harsh criminal justice system that neither effectively deterred crime nor successfully rehabilitated offenders. Championed by social workers, progressive criminal treatment professionals including police officers and prison reformers, some lawyers and judges, psychologists, and community and peace activists, restorative justice were practiced first [23] , and theorized later.
Restorative justice proponents suggested that by providing structured environments in which offenders and victims met and explained their injuries and hurts to each other, offenders could acknowledge and explain their bad acts, apologize, and make restitution to victims who could forgive and feel safe again. With family members or community representatives present, there would be public accountability, an inquiry into root causes of criminal or wrongful acts, and, at its best, suggestions for creative, tailored solutions. Restitutionary possibilities would emerge from facilitated dialogue.
Through structured shaming [24] , responsibility taking, and acknowledgment of injury done, offenders might be effectively reintegrated into their communities, and victims would no longer be frightened or traumatized by what had happened to them.
From the beginning, restorative justice practices were intended to heal at both the individual and group or social level. Attention in both practice and theory was placed on healing those directly affected by a crime or bad act and on institutional and social reform. At its most aspirational or utopian, restorative justice has been seen as a potentially transformative social practice that could, under the right conditions, obviate the need for harsh criminal punishment and incarceration.
In this conception, restorative justice was linked as a social movement to community organizing, criminal justice and prison reform, the civil Alternative Dispute Resolution (ADR) movement [25] , and the peace movement in that it sought alternative processes for different and more humane and tailored outcomes. In its more grounded and practical institutionalized forms, restorative justice was often supplemental, not substitutive, to conventional criminal proceedings.
In an early core definition of restorative justice, it is a “process that brings together all the parties affected by an incident of wrongdoing to collectively decide how to deal with the aftermath of the incident and its implications for the future” [26]
Although some think restorative justice is most appropriate in the context of small, interpersonal wrongful acts, such as petty thefts, simple assaults, drug or alcohol related crimes, and family abuse, restorative justice has been adapted for cases involving murder, rape, genocide, and other serious transgressions against large groups or even a whole society. [27] It has also been used effectively as a model for pre- or non-legal disputes in schools, organizational and corporate conflict management, neighborhoods, communities, and families. [28]
What began as a domestic social reform movement (simultaneously developed in Australia, New Zealand, Canada, the United States, the Netherlands, Austria, and others), restorative justice and its basic principles became a process of international interest when Desmond Tutu (1999) led a truth and reconciliation process to transform and heal South African society’s transition from apartheid to a just, multiracial society.
Variations on indigenous [such as Rwandan gacaca [29] and Ugandan mato oput [30] ] and newly minted restorative processes [31] have now been used in more than 25 national efforts to move more peacefully through political, racial, ethnic, and civil wars and transitions to more peaceful, democratic, and just states. Restorative justice principles thus helped form a new field of international law and political structure: transitional justice. [32]
Foundational Concepts of Restorative Justice
Restorative justice has several foundational concepts that have now been elaborated and extended to many arenas of social and political interaction: Personalized and direct participation in a process of speaking and listening of both a wrongdoer or offender and a victim of an act of wrongdoing; Narration of what an act of wrongdoing consisted of and the harm or injury it caused to those affected including both direct victims and often others, including bystanders and the larger community; Explanation by the offender of what was done and why; Acknowledgment and acceptance of fault for the wrong committed by the offender with recognition of the harm caused with apology, if not coerced; Opportunity for appreciation or understanding of why the wrong occurred i.e. root causes and, in some cases, forgiveness of the individual, without forgetfulness of the act; Consideration of appropriate outcomes or restitution to those wronged by all participants, including victim, offender, family members, and/or larger community, often with expert facilitation; Reintegration of the wrongdoer into the larger community, through apology, restitution, and/or support and social services provided (alone or in conjunction with formal punishment as well); Reconciliation of wronged and wrongdoer, within a renewed commitment to shared social norms often reconstituted within the restorative process; An orientation to the wrongdoer that treats the act separate from the person so that the person may be redeemed as the victim/community is repaired; An orientation to the future, to the extent possible, to make right what was wrong and to rebuild new relationships and new communities.
These foundational concepts come from a belief that conventional legal processes, criminal, international tribunals, and even civil processes are often ineffective in their bureaucratic separation of offender from the actual consequences of acts, in the timing of any remedial actions for example delayed incarcerations or other punishments, and in the inattention to the personal nature of the wrong both for rehabilitation of the offender and restitution of the particular harm suffered by the victim, not to mention in their failure to deter or reduce crime. Restorative justice hopes to harness the commission of wrongful acts to the making of new opportunities for personal, communal, and societal growth and transformation through empowerment of both victims and offenders in direct and authentic dialogue and recognition. It also hopes practically to reduce recidivism and reintegrate wrongdoers into more positive roles and relationships.
At the theoretical level, most proponents of restorative justice claim that such processes reclaim the property of the crimes or conflicts from their ownership and mismanagement by the state [33] and return them to the victims and offenders whose lives are most affected. As with the civil ADR movement, restorative justice proponents claim that outcomes can be creatively tailored to meet the requirements and needs of the situations and the parties. Thus, there will be higher rates of compliance and greater satisfaction with the process itself, encouraging belief in its legitimacy and its ability to rectify wrongs and repair broken or harmed social relationships.
Restorative justice is designed to remove negative stigmatization of the individual and replace it with recognition of the wrongfulness of an act, with shaming of the act, and with reintegration of the person. [34] As an ideology and as a practice, restorative justice often appeals across the political spectrum, with liberals seeking criminal justice reform through personalized treatment, compassion, and understanding for socially disadvantaged offenders, and conservatives approving of offender accountability, responsibility, and restitutionary payments to victims. [35] When it works most effectively, restorative justice enhances participatory and deliberative democracy and can promote community building, political legitimacy, and the development of new social and legal norms. Progressive theorists and practitioners see in restorative justice another form of participatory deliberative democracy; conservative theorists see devolved and localized governance for crime control.
Forms and models of restorative justice
Although in one sense restorative or restitutionary justice is as old at least as the earliest forms of classical justice in Greek, Arab, and Roman legal culture [36] , modern restorative justice traces its origins to objections to both retributivist and failed rehabilitative models of criminal law and punishment.
Victim control of the prosecution of wrongful acts was a common practice before the modernization of the criminal justice system in the late Middle Ages in Europe [37] relocated the management of crime from private citizens to the state.
State control of crime developed to provide revenue for the state (in fines and punishments) and more order and control (and equity) in the treatment of offenders. State control of criminal acts was also a product of the fear of vigilante or vengeance motives on the part of victims, which actually perpetuated violence, as needs for less bloodthirsty and more orderly outcomes were required, not only as religious, social, and humanitarian values evolved, but also to provide some predictability for the growing commercial society and increasingly centralized political order [38] . Although fines and jail terms began to substitute for blood feuds in post-medieval Europe, elements of violent different from legalistic and adversarial confrontations.
The purpose of such conferences is often not to assess fault or guilt (with fact-finding), although there is narration of what happened and why, because usually fault or guilt is admitted. The purpose of the circle or conference is to consider the best ways to make the victim whole or compensated and to consider various forms of treatment or reintegration of the wrongdoer with the emphasis on remedial approaches for both victims and offenders, considered from a collectivity. Power is not located in a single judge, and the norms that are referenced may be negotiated and interpreted for particular cases, with less emphasis on formal rules and standards.
These processes have many variations, including referral back to courts if wrongdoers do not admit fault or victims are not satisfied with apologies or restitutionary offers when laws have been violated.
At the national or institutional level of restorative justice, the goals may be quite different than in more individualized acts of wrongdoing. The commissions are designed
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