No full-text available
To read the full-text of this research,
you can request a copy directly from the authors.
Institutions for Restorative Justice: The South African Truth and Reconciliation Commission
... According to Moon (2004: 186), Truth and Reconciliation Commissions (TRCs) are driven by a restorative approach to justice that "claims to prioritize reparations for 'victims,' and, controversially, offer amnesty to 'perpetrators.'" TRCs gained much fame and media attention in the 1990s when the South African Truth and Reconciliation Commission (SATRC) was established by Nelson Mandela's government to investigate human rights abuses during apartheid (Llewellyn and Howse, 1999;Roche, 2006). ...
... Its founders argued, however, that the SATRC was not just a political compromise; it was a project for "national unity and reconciliation." Justice was not absent; rather it was present in a different form (cf Llewellyn and Howse, 1999). The Commission's chairman, Archbishop Desmond Tutu, emphasized that the SATRC had reawakened a distinctive African approach to justice: "there is another kind of justice, restorative justice, which was the characteristic of traditional African jurisprudence. ...
... The tensions between reconciliation and peace on the one hand, and justice and accountability on the other, have underpinned discussions on international justice. As the above discussion demonstrates, while some argue that forgiveness and amnesties are the only way to ensure peace, reconciliation, nation-building and the reintegration of offenders in societies transitioning from conflict (e.g., Llewellyn and Howse, 1999;Snyder and Vinjamuri, 2004;, others assert Restorative Justice in International Relations: A Gandliian Approach 177 that the granting of impunity and amnesties to war criminals undermines justice and accountability and does nothing to ensure deterrence from such crimes in the future (e.g., Call, 2004;Dyzenhaus, 1999;Mendez, 2001;Roche, 2006;Toit, 2005). For instance, pointing to the inadequacies in restorative justice practices in the international context, Roche (2006: 233) comments: ...
... approach to justice. The Truth and Reconciliation Commission in South Africa after the ending of the system of Apartheid, is possibly the most famous example of restorative practice in the international system (Llewellyn & Howse, 1999). ...
... The main reason for these issues with restorative practices revolves around power and inequalities within society and the international system. In relation to the above example of the ECCC and the ending of the system of apartheid in South Africa, there is an inequality in the relationship, in terms of power dynamics between the two groups on either side of the restorative action (Gruspier & Pollanen, 2017;Llewellyn & Howse, 1999). With the perpetrator in these cases either being the domestic government or an invading state as in the case of Iraq. ...
The concepts of human rights and international justice are products of the 20th century and of the so-called enlightened Western civilisation. As the 21st century began, the War on Terror was declared by the US–UK coalition, leading to hundreds of thousands of civilian deaths in the Middle East, as well as long-lasting insecurity in all areas of human life. Yet more than 20 years on, justice and accountability are still pending, when it comes to state violence, while a policy of “kill-not-capture” has dominated responses to violent non-state actors, such as Al-Qaeda and ISIS fighters, hampering any efforts at reconciliation and peace, and adding to regional and global injustice and insecurity.
... To receive amnesty, FARC members had to provide truthful accounts of their crimes and offer reparations to victims. In this way, inasmuch as the Colombian peace accord followed a restorative approach to justice, it is aligned with other peacebuilding efforts (such as in South Africa) that share a commitment to truth and transparency, community involvement, restoration, and accountability (Llewellyn, 2006). ...
This study investigated Colombian adolescents’ evaluations and expectations about different solutions to seeking justice in the aftermath of group-based harms and how their judgments of solutions were associated with self-reported levels of trust. In individual interviews, 74 adolescents (Mage = 16.48 years; 36 girls, 38 boys) in Bogotá, Colombia, were presented with scenarios depicting two forms of group harm (involving damage to infrastructure and loss of life) based on events relevant to the Colombian armed conflict. For each scenario, adolescents rated the desirability and likelihood of five solutions (apologies, compensation by the Fuerzas Armadas Revolucionarias de Colombia (FARC), compensation by the government, punishment, and a combination of compensation and punishment). Participants also completed a questionnaire assessing their general levels of trust. Compensation by the FARC and the government were more strongly endorsed in the context of damage to infrastructure, whereas punishment was endorsed more in response to loss of life. Youth also expected compensation by the FARC to be more likely to occur for damage to infrastructure, while they believed punishment was more likely for loss of life. Higher levels of trust were associated with support for restorative solutions, particularly in response to loss of life. Youths’ open-ended justifications for their evaluations of different solutions to address the harms reflected varied concerns, including their perceptions of how to meet the needs of victims and communities, ensure accountability for the harms committed, and achieve revenge.
... Indeed, it has been argued that the values of Ubuntu are 'in consonance with the values of the Constitution generally and those of the Bill of Rights in particular' (Mokgoro, 1998:22 The literature also pays special attention to the relationship between Ubuntu and the concept of 'restorative justice.' Restorative justice, which emphasizes reconciliation over retribution, has developed as a phenomenon of particular relevance to criminal law (Roche, 2002;Braithwaite, 2006). In the South African context, restorative justice has perhaps found its greatest expression in the form of the Truth and Reconciliation Commission (TRC) (Llewellyn and Howse, 1999). Established in 1995 and chaired by Archbishop Tutu, the TRC was mandated to investigate human rights violations perpetrated during the apartheid era (TRC, 2003;Graybill, 2004). ...
Ubuntu refers to a traditional African concept commonly expressed in the phrase “I am because we are.” It therefore relates to an understanding of shared identity, and potentially galvanizes collaborative actions towards the common good. Given this, could Ubuntu be of value in addressing the collective challenges faced at a global level?
The following study seek to answer this question. Moreover, it explores conceptualizations of Ubuntu, examines its applications within the South Africa context and then considers its (potential) relevance to global citizenship and global governance. This is undertaken through a review of current literature and an analysis of semi-structured interviews involving participants from academia, politics, civil service and the NGO sector.
The research finds Ubuntu to be a cultural value system, analogous to a broad humanism, which informs both collective and individual identity and action. The concept also appears to have influenced South African public life in variety of ways, from decision-making (‘consensus-building’) to policy development to restorative justice initiatives. Furthermore, an emergence of Ubuntu within certain global discourses (such as debates around universal human rights and global governance reform) can, indeed, be observed.
Finally, on the basis of these findings, an attempt is made to fashion a global citizenship/governance framework of analysis. Limitations of the framework are then considered, followed by a brief discussion around the need for further research in this area.
... References that are often raised include the case of southern Africa. The South African government uses a restorative justice approach in resolving cases of violence committed by the Apartheid regime (Llewellyn et al., 1999) Indeed, lessons from southern Africa can be criticized given that defining the perpetrators in crimes committed by the State becomes difficult. If the actor is a State, is it possible, then the State can declare the use of a restorative approach for itself against the community? ...
Restorative justice is a phrase that is very popular among law enforcers understood in various dimensions. Simple questions about restorative justice whether a "principle" or "value" or "mechanism or even" program "is interesting to look at the understanding of policymakers and law enforcers as executors in line with efforts to implement it within the criminal equity framework and preventive endeavors and wrongdoing anticipation based on the current legitimate framework that's broadly pertinent in nations around the world. This paper is a literature study that uses secondary data with a qualitative analysis that is used to describe the development of an understanding of restorative justice.
... In South Africa, the most commonly cited instance of restorative justice is the Truth and Reconciliation Commission (TRC) which was instituted to deal with 'the nature, extent, and magnitude of the apartheid conflict between 1960 and 1994', but there is argument as to whether it can be considered a form of restorative justice. See Maepa, 2005;Roche, 2002;Llewellyn & Howse, 1999 for further elaborations. 391 Zehr & Gohar, 2003. ...
The Advancing Data Justice Research and Practice (ADJRP) project aims to widen the lens of current thinking around data justice and to provide actionable resources that will help policymakers, practitioners, and impacted communities gain a broader understanding of what equitable, freedom-promoting, and rights-sustaining data collection, governance, and use should look like in increasingly dynamic and global data innovation ecosystems. In this integrated literature review we hope to lay the conceptual groundwork needed to support this aspiration. The introduction motivates the broadening of data justice that is undertaken by the literature review which follows. First, we address how certain limitations of the current study of data justice drive the need for a re-location of data justice research and practice. We map out the strengths and shortcomings of the contemporary state of the art and then elaborate on the challenges faced by our own effort to broaden the data justice perspective in the decolonial context. The body of the literature review covers seven thematic areas. For each theme, the ADJRP team has systematically collected and analysed key texts in order to tell the critical empirical story of how existing social structures and power dynamics present challenges to data justice and related justice fields. In each case, this critical empirical story is also supplemented by the transformational story of how activists, policymakers, and academics are challenging longstanding structures of inequity to advance social justice in data innovation ecosystems and adjacent areas of technological practice.
... A newer, smaller body of work argues that restorative justice is relevant for war crimes, political crimes, and various other forms of international violence, too (Braithwaite 2002). Restorative justice typically underlies truth commissions (Avruch and Vejarano 2001;Hayner 2001;Llewellyn and Howse 1999;Minow 1998;Tutu 1999), but has also played a key role in traditional or indigenous practices adapted for use in post-conflict situations (Avruch and Vejarano 2001;Bolocan 2004;Honeyman et al. 2004). Restorative justice may be particularly relevant for communities dealing with widespread violence because it is forward-looking, concerned with rebuilding relationships and empowering affected communities (Gibson 2004;Menkel-Meadow 2007), thus involving a range of people affected by the conflict. ...
This dissertation analyzes the development of post-war social stability in northern Uganda. Relying on data from fieldwork and 91 in-depth interviews in three rural villages, I analyze what facilitates and what hinders the transitional process. I develop an analysis of how the war and displacement affected unity by bringing broad social changes and shifts to daily patterns of interactions. I consider how local catalysts of conflict emerge from the transitional period, potentially blocking the transition to stability and devolving communities into renewed cycles of violence and instability. I also analyze the role of formal transitional justice mechanisms in local communities, looking particularly at how social context affects the diffusion of global discourses of transitional justice to the local level. I develop a model of the post-war transition from fragile coexistence to social stability that integrates local informal processes, formal transitional justice mechanisms, and emergent conflicts.
... Moreover, retributive and restorative justice are seen as fundamentally in tension, and in the face of this tension, restorative justice advocates believe that it should be prioritized over retribution. 15 Restorative justice proponents do disagree about whether punishment is compatible with its demands. For those who view punishment as outside the parameters of what restorative justice permits, a choice to refrain from punishment is not necessarily a choice of mercy but rather a choice of justice. ...
Transitional justice refers to the process of dealing with human rights abuses committed during the course of ongoing conflict or repression, where such processes are established as a society aims to move toward a better state, and where a constitutive element of that better state includes democracy. A philosophical theory of transitional justice articulates what the moral criteria or standards are that processes of transitional justice must satisfy to qualify as just responses to past wrongdoing. This essay focuses on the roles of religion in transitional justice. I first consider the multiple and conflicting roles of religion during periods of conflict and repression. I then argue against conceptualizing transitional justice in a theologically grounded manner that emphasizes the importance of forgiveness. Finally, I discuss the prominent role that religious actors often play in processes of transitional justice. I close with the theoretical questions about authority and standing in transitional contexts that warrant further examination, questions that the roles of religious actors highlight. Thinking through the relationship between religion and democracy from the perspective of transitional justice is theoretically fruitful because it sheds more light on additional dimensions to the issue of authority than those scholars of liberal democracy have traditionally taken up.
... Advocates for this kind of justice argue that it is victim-centred and as such brings redress through public acknowledgement of their suffering (Hayner, 2011;Llewellyn and Howse, 1999;Minow, 1998;Rothberg and Thompson, 2000;Shea, 2000;Villa-Vicencio and Verwoerd, 2000). Critics, on the other hand, argue that reconciliation may be prioritized at the expense of justice and the rule of law while victims may feel under pressure to forgive their perpetrators for the wider societal good (Abrams, 2001;Christodoulidis, 2000;Crocker, 2000). ...
From the late 1960s to the early 1980s, Italy suffered a prolonged period of political violence and ideologically inspired terrorist acts, which caused deep social wounds and led to a sharply divided memory, as epitomized by the numerous memoirs written by former terrorists and victims since the end of the violence. This article explores the prevalent modes that have characterized these memoirs as well as instances of reconciliation and dialogue in the Italian context. It argues that some of these memoirs and above all a recent dialogue between former perpetrators and victims can be best viewed through the lenses of agonistic memory and reconciliation. The latter should not be conceived in terms of re-establishing a mythical harmonious and consensual society or constructing a single shared memory of the past. Rather, it requires former enemies to confront each other with their divided memories and perspectives in an open-ended manner.
... est d'ailleurs une critique formulée à l'endroit des CVR -qui ne peuvent, dans ces circonstances, restituer un récit homogène de l'histoire mais plutôt produire des narrations divergentes susceptibles de s'affronter ( Snyder et Vinjamuri 2003). Cette centration sur la victime, jumelée au principe de la réconciliation, a contribué à instituer les CVR comme l'incarnation de la justice réparatrice (Llewellyn et Howse 1999 ;Brahm 2007 ;Leman-Langlois 2008 ;Lefranc 2008 ;Nadeau 2008). L'association des CVR au paradigme de la justice réparatrice est surtout liée à l'usage systématique que le président de la CVR sud-africaine, Desmond Tutu, a fait de ce concept lors des travaux de cette commission (Lefranc 2007). ...
Cet article examine les potentialités réparatrices et réconciliatrices de la Commission de vérité et réconciliation (CVR) qui a été mise en place au Canada de 2008 à 2015 en réponse aux traumatismes vécus par les autochtones dans les pensionnats. L’auteure conclut que ces potentialités sont relativement limitées. Les principales limites tiennent à l’absence d’un espace de dialogue entre les victimes et les responsables, à une centration sur les narratifs traumatiques des victimes mais aussi à une conception dépolitisée du principe de la réconciliation. La CVR du Canada n’a pas inscrit la décolonisation comme vecteur de réconciliation mais a préféré s’engager dans la voie d’une pacification des relations entre les peuples. Or, l’auteure soutient que la réconciliation entre les peuples autochtones et l’État nécessite de dépasser les gestes de guérison et de réparation matérielle ou symbolique. La décolonisation des institutions, la redistribution des territoires et une réforme constitutionnelle en profondeur restent les seules avenues possibles pour parvenir à réconcilier avec ses oppresseurs un peuple victime d’un génocide culturel.
... Along this line, Kiss sustained that restorative justice shares with retributive justice to affirm and restore the dignity of those whose human rights have been violated, the holding of perpetrators accountable and the creation of the proper conditions for respecting human rights (Kiss, 2000: 79 ff.). In the same way, Llewellyn and Howse affirm that restorative justice achieves in a much better way than retributive justice the recuperation of the equality between the victims and their perpetrators in such a manner that they both can live as equal members of society and the victimizers can be socially integrated to the degree that they are actively involved in the process (Llewellyn & Howse, 1999: 374-375). As to Allen, he has defended the work of the commission, claiming that it tried to put an agreement in place that balanced the principles of justice, social unity, and reconciliation. ...
In the context of the process of transitional justice of South Africa, this paper focus on the non-legal character of commissions as the Truth and Reconciliation Commission to demonstrate their political character, and verify that they fit in perfectly in the exceptionality of the historical moment that is experienced by a political community in a transitional situation. This constituent and foundational exceptionality of such a community does not have insignificant consequences for the political and philosophical theory, and expounding them is the ultimate objective of this work. To this end, it first conduct a reflection from the point of view of the interaction between Philosophy and Law (and how it relates to these commissions) leading to another reflection which is more in line with the interaction between Philosophy and Politics.
The aim of this thesis is to initially explore different pathways towards reconciliation, such as investigating the option of trials, inquiring into and revealing the practice of reparations, and assessing the significance of truth commissions in the aftermath of massive atrocities and violence. Its central aim is to examine what we have learned from South Africa’s TRC, its successes and failures, over time.
South Africa’s Truth and Reconciliation Commission (TRC) was formed in 1995 in order to uncover the truth about human rights abuses of the apartheid era. Although the commission’s work has been widely considered as exemplary, the truth and reconciliation lessons are yet to be fully adopted by the wider South African society. This chapter first focuses on the discussion of the TRC as part of the coverage of the antiapartheid struggle in curricula of South African primary and secondary schools. The current reform effort of history education at schools by the History Ministerial Task Team (MTT) is subsequently examined to assess whether this effort can benefit peace education. The findings indicate that the reform effort is essentially about making history a compulsory subject with an Africanist perspective and that it is likely to fail in promoting the TRC’s lessons of forgiveness and peaceful coexistence. The chapter ultimately proposes a social and emotional learning (SEL) methodology, along with compulsory history lessons, that can be implemented by South African authorities to further the TRC’s lessons.
The Canadian state’s relationship with Indigenous Peoples is arrayed around a series of overlapping and ongoing forms of structural violence intended to secure the political, cultural, legal, and economic supremacy of settler populations over Indigenous lands, communities, and bodies. While profoundly shaped by the logics of settler colonialism, Canada’s relationship with Indigenous Peoples is complex and has evolved considerably over the course of multiple stages of history. Indigenous Peoples residing within the borders of what is currently Canada are characterized by a high degree of socio-political, linguistic, cultural, and geographic diversity. The aim of this chapter is to sketch out some of the broad characteristics of the political relationship between the Canadian settler state and Indigenous Peoples and explore how this relationship has evolved over time in relation to shifting dispositions of the state. This exploration of the Canadian settler state’s evolving relationship with Indigenous Peoples is used to contextualize the theoretical framework introduced in the latter half of the chapter to study news media representations within the era of reconciliation.
Post-communist countries’ processes on their way to the European Union (EU) have extensively proceeded simultaneously with their transition from communism to democracy. The regime change led to a process of “coming to terms with the past” in the sense that these countries took transitional justice measures for the crimes and practices of the former authoritarian regimes. In this regard, Albania is a case worth considering as a part of the current EU enlargement agenda. As a country that was not involved in the ethnic wars between the former Yugoslavian countries, Albania experienced a different historical pace of a communist past with its peculiarities. This article mainly aims to analyse Albania’s coming to terms with its communist past and thus the transitional justice measures implemented in its EU process. The main argument of the article is twofold: First, EU impact was limited when Albania started its transitional justice period in the 1990s. This was due to the fact that progress in the EU process of Albania in terms of EU candidacy was enhanced in the 2000s and the impact of the strict EU conditionality became evident in these years as well. Secondly, the current international circumstances, in which the rivalry between Russia as well as China, and the West is at its peak in the so-called Western Balkans region, could allow Albania to be more closely aligned with the EU, which in turn may provide the necessary conditions for deeper reforms to come to terms with its past.
Restorative justice is highly promising as an effective approach to better supporting victims, reducing reoffending, and lowering costs. The challenge it faces is a dual hurdle of limited applicability and lack of public confidence. The issue is how we might better embed restorative justice in the criminal justice system so its promising effectiveness could be shared more widely while increasing public confidence. This chapter explores the new approach of punitive restoration, which gives more tools for restoration including a wider punitive element. Its goal is to win support for greater use of restorative practices and a less punitive criminal justice system overall.
In this book, James Gallen provides an in-depth evaluation of the responses of Western States and churches to their historical abuses from a transitional justice perspective. Using a comparative lens, this book examines the application of transitional justice to address and redress the past in Ireland, Australia, Canada, the United States and United Kingdom. It evaluates the use of public inquiries and truth commissions, litigation, reparations, apologies, and reconciliation in each context to address these abuses. Significantly, this novel analysis considers how power and public emotions influence, and often impede, transitional justice's ability to address historical-structural injustices. In addressing historical abuses, power fails to be redistributed and national and religious myths are not reconsidered, leading Gallen to conclude that the existing transitional justice efforts of states and churches remain an unrepentant form of justice. This title is also available as Open Access on Cambridge Core.
The National Prosecuting Authority is vested with the power, as dominus litus, to institute and discontinue charges whereas high courts are empowered to order a permanent stay of the prosecution prohibiting the continuation of the trial. However, such an order is considered to be a "drastic remedy" and is not empowered in terms of statutes such as the Criminal Procedure Act 51 of 1977 but rather vested in the right of an accused to have their trial begin and conclude without unreasonable delay. A permanent stay of the prosecution is an order made on a case-by-case basis, balancing various factors such as the prejudice faced by the accused, systemic factors as well as the reason for the delay. The ultimate question however remains whether the lapse of time in a particular case is unreasonable. The Supreme Court of Appeal in Rodrigues v The National Director of Public Prosecutions had to evaluate whether the 47-year-delay and eventual prosecution between the death of anti-apartheid activist, Ahmed Timol, was unreasonable. Both the majority and minority of the Supreme Court of Appeal, although for different reasons, concluded that the delay was not unreasonable. For most of the 47 years, prosecuting the accused was not possible due to the surrounding historical and political reasons (including the moratorium of cases arising from the Truth and Reconciliation Commission). The National Prosecuting Authority, as soon as it was possible, initiated the prosecution of the accused. Although applications for a permanent stay are mostly viewed as prejudicial to the accused, the majority and minority both acknowledge the families of the victims in this case. Such a perspective is welcomed as the role of the victim in the criminal justice process is often neglected.
The indigenous peoples of Southern Africa have a tradition of using restorative justice practices. The region has used restorative justice practices primarily until European colonization had enforced a Western criminal justice and legal system. During and after colonization, Southern Africa has continued to use traditional methods for public safety and resolving conflicts in communities. This led to governments having a dual system in which nonserious violations are usually handled in the traditional courts, and the more serious crimes are handled in the formal criminal courts.
Restoring Justice: An Introduction to Restorative Justice, Sixth Edition, offers a clear and convincing explanation of restorative justice, a movement within criminal justice with ongoing worldwide influence. The book explores the broad appeal of this vision and offers a brief history of its roots and development as an alternative to an impersonal justice system focused narrowly on the conviction and punishment of those who break the law. Instead, restorative justice emphasizes repairing the harm caused or revealed by criminal behavior, using cooperative processes that include all the stakeholders. The book presents the theory and principles of restorative justice, and discusses its four cornerpost ideas: Inclusion, Encounter, Repair, and Cohesion. Multiple models for how restorative justice may be incorporated into criminal justice are explored, and the book proposes an approach to assessing the extent to which programs or systems are actually restorative in practice. The authors also suggest six strategic objectives to significantly expand the use and reach of restorative justice and recommended tactics to make progress towards the acceptance and adoption of restorative programs and systems.
Over the past 20 years, John Braithwaite‟s theory of reintegrative shaming has garnered sufficient attention to be included in many college textbooks. Nonetheless, some compilers still consider it novel and untested. Perhaps the most compelling aspect of the theory is that while it can draw on deep traditionalism across a wide range of cultures, Braithwaite and his colleagues came to the theory by investigating the modern pharmaceutical industry. Therefore, reintegrative shaming has attraction both for the community practitioner – from police officer to family counselor – as well as for corporate security managers and government regulators in the global marketplace.
I assess a justification for the granting of transitional amnesties conditional, at the minimum, upon full disclosure of wrongdoing by perpetrators. According to this rationale, such amnesties are morally legitimate because they foster restorative justice. I distinguish between two conceptions of restorative justice that I call the punishment-deprioritizing and punishment-prescribing conceptions. I argue that while conditional amnesties granted to perpetrators of minor offences conditional upon full disclosure, verbal apology and reparations could promote restorative justice well enough to justify them in the eyes of adherents of the punishment-deprioritizing conception, conditional amnesties in favour of perpetrators of serious human rights abuses, because they are unlikely ever to be conditional upon perpetrators’ carrying out burdensome reparations, are likely to promote restorative justice on the punishment-deprioritizing conception only to a limited extent and not enough to justify them from the standpoint of adherents to this conception. Conditional amnesties, I contend, cannot ever promote restorative justice on the punishment-prescribing conception because it holds that punishment is indispensable for the achievement of the aims of restorative justice and amnesties exempt perpetrators from criminal punishment.
This is a Book published in Brazil. Myself and two other South African authors tagged wrote Chapter 9 of the book which talks about RESTORATIVE JUSTICE.
Over five decades and with dozens of examples of truth commissions to look back on, an undeniable aspect of their legacy is that the world has become far more focused on dealing with the past and uncovering the truth about past atrocities. While there is typically a focus in the literature on the more widely publicized and famous truth commissions, scores of other processes have taken place, especially since the 1990s. Post-conflict or divided societies have designed institutions in ways that achieve specific objectives but at the same time conform to international standards, creating a reputation of being both democratic and accountable. Using the prism of Nepal, this article examines why the process to establish transitional justice mechanisms, and specifically truth commissions, needs to be legitimate and credible for them to be effective and be impactful. It specifically examines issues relating to appointments to such institutions and why such appointments need to be done independently and not overtly politically. It scrutinizes why appointment mechanisms and processes are so important to enhancing the legitimacy and independence of such bodies. The case of Nepal is used as an example to extrapolate conclusions about the problems that affected its processes, and the various crises that have emerged in those processes. The article argues that commissioners ought to be chosen on the basis of their impartiality, moral integrity, and known commitment to human rights and disclosure of the truth. This is essential to ensure that the process is seen to be independent and credible.
La justicia restaurativa constituye un paradigma orientador de todo el Sistema Integral de Verdad, Justicia, Reparación y No Repetición. En la Jurisdicción Especial para la Paz, el principio no sólo irradia las sanciones propias y la condicionalidad, sino que cada etapa del procedimiento debe guardar estricta coherencia con tal paradigma y con sus fines: la reparación de las víctimas, la reconciliación y la reconstrucción del tejido social. Sin embargo, y a pesar de su importancia, aún existen importantes vacíos sobre el alcance del principio y sobre su relación con los demás componentes del modelo de justicia transicional. En este sentido, en el presente artículo de reflexión, se efectúa una revisión del concepto de justicia restaurativa y de su relación con otros componentes, especialmente el de reparación, desde una perspectiva analítica y propositiva. Asimismo, se plantean los retos de Colombia respecto de la materialización del principio, especialmente para la JEP. Las propuestas de las autoras, lejos de constituir fórmulas mágicas, plantean discusiones y debates que deben ser abordados, para lograr que este paradigma orientador contribuya a la construcción de paz en Colombia.
This paper examines three key restorative justice mechanisms – participation, narrative, and reparation – used by the post-apartheid South African Truth and Reconciliation Commission (TRC), in order to determine how restorative tools can affect national unity and interracial reconciliation following a period of violent conflict. Insights from thirteen interviewees involved in the TRC process reveal that the restorative justice mechanisms of participation and narrative were generally successful in promoting national unity, while flawed attempts at financial reparations significantly harmed interracial relations. This research demonstrates that restorative justice tools can successfully engender national unity, but can also prevent reconciliation if executed incorrectly. This work provides three key takeaways for future practitioners: (1) Restorative tools can adversely impact reconciliation among some groups while fomenting national unity among others; (2) Developing unrealistic expectations about restorative process outcomes is harmful for reconciliation; (3) Restorative justice mechanisms do not operate in isolation but are interrelated.
In the absence of effective judicial remediation mechanisms after business-related human rights violations, companies themselves are expected to establish remediation procedures for affected victims and communities. This is a challenge for both companies and victims since comprehensive company-based grievance mechanisms (CGM) are currently missing. In this paper, we explore how companies can provide effective remediation after human rights violations. Accordingly, we critically assess two different approaches to conflict resolution, alternative dispute resolution (ADR) and restorative justice (RJ), for their potential to provide dialogue-based, non-judicial remediation. We argue that remedy through agreement-driven ADR mechanisms risks marginalizing the interests and concerns of victims and affected community members, particularly in weak institutional contexts. Hence, we develop a dialogue-driven framework for corporate remediation of human rights violations grounded on RJ principles. This restorative framework provides a comprehensive CGM that focuses on the harms and needs of victims and aims at restoring justice through restorative dialogue. Based on a prompt discovery and a thorough investigation of the grievance, companies should design and prepare the remediation process together with victims, offenders and affected community members. Through restorative dialogue with the affected parties about the circumstances and impacts of the wrongdoing, companies can repair the harm, regain legitimacy amongst stakeholders as well as transform their business practices to avoid future human rights violations.
There is a pragmatic value to developing Transitional Justice (TJ) processes quietly. At first glance, such ‘quietness’ may seem to contradict the principles often associated with TJ, such as ‘publicness’, openness and the leaving behind of secrecy and silence. However, I argue that behind-the-scenes efforts and processes are an often-overlooked part of more public-facing TJ mechanisms, and that their quiet nature raises questions that should be more fully understood, particularly around the notions of trust and legitimacy. This article introduces the notion of ‘quiet’ TJ, drawing on the example of the establishment of the Independent Commission for the Location of Victims’ Remains – established to locate the remains of Northern Ireland’s ‘disappeared’. I argue that quiet diplomatic efforts in the development of legislation, and the ‘quiet’ passage of that legislation, facilitated the development of a workable mechanism which has, to a large extent, been effective, has facilitated (limited) truth recovery and the development of trust and can be argued to have legitimacy.
This volume considers the ethics of policing and imprisonment, focusing particularly on mass incarceration and police shootings in the United States. The contributors consider the ways in which non-ideal features of the criminal justice system—features such as the prevalence of guns in America, political pressures, considerations of race and gender, and the lived experiences of people in jails and prisons—impinge upon conclusions drawn from more idealized models of punishment and law enforcement. There are a number of common themes running throughout the chapters. One is the contrast between idealism and realism about justice. Another is the attention to harmful consequences, not only of prisons themselves, but to the events that often precede incarceration, including encounters with police and pre-trial detention. A third theme is the legacy of racism in the United States and the role that the criminal justice system plays in perpetuating racial oppression.
Restorative justice approaches offer a promising alternative to formal sentencing. Victims are more satisfied, reoffending is less and at reduced costs. However, these findings are limited in scale and application that confine these approaches to relatively few cases that restrict their potential. I argue for a fundamental revision called punitive restoration that permits otherwise forbidden options like hard treatment. Punitive restoration can justify their use where they can best enable the restoration of rights for offenders in light of their circumstances as a means of fulfilling the aim of restoration instead of penal abolition.
This chapter reflects on the challenges facing the implementation of land restitution mechanisms in Colombia in a post-agreement scenario with the Fuerzas Armadas Revolucionarias de Colombia—Ejercito del Pueblo (FARC—EP). It discusses the issue of the dispossession and concentration of rural assets, and how this is connected to violence and the failure/absence of state institutions. The chapter undertakes a critical reading of a specific transitional justice mechanism that has been implemented in Colombia (the Victims and Land Restitution Law) and the limitations it faces. It presents some lessons from the Victims and Land Restitution Law that might be useful to consider in the implementation of transitional justice agreements between the FARC—EP and the Colombian Government. In the case of Colombia, this inequality in the provision of rights and land is a consequence of the design of the system that regulates property rights in the country.
This article applies the idea of political reconciliation to current debates on the role and legitimacy of global governance. My underlying thesis is that the idea of reconciliation fits better with the non-ideal circumstances of global injustice. To this end, I will first of all develop a three-tiered model of political reconciliation and introduce the related concept of restorative justice. I will then look at some of the most obvious forms of international and global injustice – historical injustice, economic exploitation, and political domination – and argue that a normative theory of political reconciliation provides better proposals for feasible global governance reforms than do theories of corrective, retributive, or distributive justice. Finally, I will make a few comments on the role of political philosophy as a medium of ‘narrative reconciliation’.
Criminal justice policy faces the twin challenges of improving our crime reduction efforts while increasing public confidence. These challenges are exacerbated by the fact that at least some measures popular with the public are counterproductive to greater crime reduction. How to achieve greater crime reduction without sacrificing public confidence? While restorative justice approaches offer a promising alternative to traditional sentencing with the potential to achieve these goals, they suffer from several serious obstacles, not least their relatively limited applicability, flexibility, and public support. Punitive restoration is a new and distinctive idea about restorative justice modeled on an important principle of stakeholding, which states that those who have a stake in penal outcomes should have a say about them. Punitive restoration is restorative insofar as it aims to achieve the restoration of rights infringed or threatened by criminal offences. Punitive restoration is punitive insofar as the available options for this agreement are more punitive than found in most restorative justice approaches, such as the option of some form of hard treatment. Punitive restoration sheds new light on how we may meet the twin challenges of improving our efforts to reduce reoffending without sacrificing public confidence, demonstrating how restorative practices can be embedded deeper within the criminal justice system.
Retributive criminal justice, as expressed in criminal prosecutions, is not the only way to achieve accountability for criminal wrongdoing. An alternative is provided by the concept of restorative justice. Restorative justice focuses on repairing the harm caused by crime by responding to the needs of all stakeholders, including the perpetrator. It therefore constitutes a particularly well-suited approach to crimes committed by children. However, because restorative justice has been developed for “ordinary” crimes within domestic settings, it needs to be adapted to the situation of “extraordinary crimes”, i.e. crimes under international law, in transitional settings. The fourth chapter develops a new approach to achieve accountability for crimes under international law, which is called restorative transitional justice. The chapter begins with an analysis of restorative justice as a theoretical and practical concept, including its relationship to juvenile justice. It then explores the applicability of restorative justice in transitional settings and its suitability to address crimes under international law. Thereafter it turns towards developing the concept of restorative transitional justice and discussing its practical application. After establishing why restorative transitional justice constitutes an ideal approach to the situation of child soldiers, a variety of restorative transitional justice processes for child soldiers are analyzed on a theoretical and practical basis.
In the context of the process of transitional justice of South Africa, this paper focus on the non-legal character of commissions as the Truth and Reconciliation Commission to demonstrate their political character, and verify that they fit in perfectly in the exceptionality of the historical moment that is experienced by a political community in a transitional situation. This constituent and foundational exceptionality of such a community does not have insignificant consequences for the political and philosophical theory, and expounding them is the ultimate objective of this work. To this end, it first conduct a reflection from the point of view of the interaction between Philosophy and Law (and how it relates to these commissions) leading to another reflection which is more in line with the interaction between Philosophy and Politics.
An amnesty is “an extraordinary legal measure whose primary function is to remove the prospect and consequences of criminal liability for designated individuals or classes of persons in respect of designated types of offenses irrespective of whether the persons concerned have been tried for such offenses in a court of law” (Freeman 2011).
A truth commission is a temporary institution established by a government and charged with investigating and producing a report on patterns of human rights abuses committed over a specified time period (see International Bill of Rights). Reports from truth commissions often include recommendations on how to prevent such abuses in the future. Commissions differ in the specific abuses and time period covered, the extent to which hearings and final reports are made public, and the investigative powers enjoyed. Since the 1970s, more than two dozen commissions have been established globally. Truth commissions represent one way that a community may deal with its legacy of human rights abuses. Unlike criminal trials, however, truth commissions do not convict or punish perpetrators of human rights abuses (see Punishment). In addition, truth commissions may have the power to grant amnesty to perpetrators of human rights abuses or be established in a context where an amnesty already exists (see Amnesty). For these reasons, some people contend, they ignore and/or leave unfulfilled the demands of justice (see Justice).
This chapter explores how Australian redress for ‘care leavers’ enacts restorative justice.1 Its focus is on how Australia responds to its injurious failures to provide children with adequate care.2 We will see how those failures contributed to difficulties confronting many care leavers at present. Those injuries are not adequately addressed by administrative redress, nor easily accommodated within corrective justice’s language of liability. The problems experienced by care leavers require the broader, more holistic, approach of restorative justice.
How may a society, in a morally defensible way, confront a past of injustice and suffering, and seek to break the spell of violence and disregard for human life? I begin by demonstrating the relevance of this question to the South African Truth and Reconciliation Commission, and I draw attention to Andre du Toit's long-standing interest in ways in which truth commissions may function to consolidate political change. In the second section of the article, I argue that truth commissions should be regarded as a defensible moral compromise between the values of justice and social unity, and I criticize claims that truth commissions promote transitional justice, when that is understood as a distinctive conception of justice that emerges in circumstance of regime transition. In the third section, I criticize the claim that truth commissions are not a moral compromise at all but embody a superior, restorative conception of justice. I conclude by showing why retribution is required by criminal justice, and why truth commissions must be seen, not as an end in themselves, but as institutions whose function is to emphasizes the importance of the rule of law, normal criminal justice, and legal recognition.
ResearchGate has not been able to resolve any references for this publication.