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Transforming Restorative Justice for Transitional Settings
About the Author Kerry Clamp is an Assistant Professor in the School of Sociology
and Social Policy at the University of Nottingham. She has degrees from the
Universities of South Africa, Sheffield and Leeds. Kerry has written widely on the
conceptualization and application of restorative justice within transitional settings as
well as police use of restorative justice and practice. She is the Chair of the Editorial
Board and Editor of the Newsletter for the European Forum for Restorative Justice.
Introduction
In criminal justice, it is common for restorative justice activists to say ‘Because crime hurts,
justice should heal’. In the context of transitional justice, this restorative vision becomes
‘Because war hurts, justice should heal’. Transitional justice broadly seeks to respond to the
harms endured because of conflict, human rights abuses, persecution and violence on a
systematic scale. There are two conventional approaches: retributive approaches, broadly
defined as anything that is court-based and restorative approaches, broadly defined as all
‘efforts to locate an appropriate normative role for victims and reparation in the labyrinth of
transitional justice theory’ (Clamp and Doak 2012: 339). In democratic settings, where
restorative justice theory and practice first emerged, it has been conceptualised as a micro-
level theory concerned with the relationships between individuals. In transitional settings,
however, the remit of restorative justice has expanded from repairing the harm of single
incidents between individuals to responding to the needs of a harmed society.
While many embrace this development as an important step in attempts to transform
protracted conflict and the limitations of the retributive approach, there are a number of
conceptual challenges in transporting restorative justice from democratic settings to those
affected by mass victimisation and/or civil war (Clamp and Doak 2012). Currently no
consensus exists within the extensive literature about the conceptual meaning of restorative
justice, the suitability of its application in response to human rights abuses, or what the
objectives of restorative justice should be (Clamp 2014). These contentious issues reduce
the ability of both proponents and critics to engage in meaningful conversation with each
other (Daly 2012) and to produce meaningful restorative outcomes of the caliber that
restorative justice scholars would expect.
A central tenet is that our conventional conceptions and approaches to restorative ‘justice’
need developing further within transitional contexts. In particular, these settings require us to
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engage with the often ‘blurred boundaries’ between individuals and groups who may at once
be considered both ‘victims’ and ‘perpetrators’. This reality has consequences for our justice
approaches that often seek to locate blame and accountability with one party (individuals or
groups) and innocence and reparation with another. These settings also require the
necessary inclusion of the state as an actor in the justice complex given its central role in the
‘conflict’. Furthermore, there is a question of scale. The sheer numbers of people involved in
atrocities means that a number of compromises are needed; resources (time, human,
financial) mean that often justice is a selective process. In short, the strategies employed in
responding to ‘normal’ crime guided by a restorative framework in advanced democracies
need revising within emerging democracies. This chapter offers an overview of how we
might strive for a more inclusive and just approach.
A Brief Overview
Restorative justice first gained currency in transitional contexts with the establishment of the
South African Truth and Reconciliation Commission in 1997. Since then, restorative justice
has been associated with a number of transitional justice institutions. These have included
the Gacaca courts/hearings in Rwanda; the International Criminal Court in the Hague; the
Community Reconciliation Program in Timor-Leste; community-based alternatives to
paramilitary punishment violence in Northern Ireland; efforts to confront atrocities committed
by paramilitary groups in Colombia; and community-based approaches to deal with the
violent conflict in Sierra Leone.
Beyond institutions, restorative justice has been conceptualised as a form of truth telling,
accountability, apology and reparation, and reconciliation. It has also been conceptualised
as a mechanism through which to: devolve power down to communities, increase the
participation of victims, transform long-standing colonial abuses, produce meaningful
outcomes for victims and communities, and achieve collective responsibility (see, for
example, chapters in Clamp 2016).
Clamp (2014) has categorized restorative justice at three different levels in the post-
transition milieu. At a conceptual level, restorative justice has become associated with highly
visible state-funded macro-level transitional justice mechanisms (such as truth commissions)
aimed at nation building (e.g. the South African Truth and Reconciliation Commission).
These institutions have a normative value in that they communicate new values for an
inclusive and democratic society. At a strategic level, restorative justice has been integrated
as a catalyst for institutional reform (e.g. in the Czech Republic, Northern Ireland and South
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Africa). By promoting a legal culture based on participative deliberative democracy, it signals
a radical departure from the oppressive criminal justice agencies of the previous
undemocratic regime. At a practical level, restorative justice has been used to plug a justice
gap within communities where criminal justice institutions have no reach or legitimacy (e.g.
Northern Ireland Alternatives and Community Restorative Justice Ireland). One particular
limitation of these trends is the dearth of interaction that occurs between these different
levels of implementation.
Charting a Way Forward: ‘Lengthening the Restorative Justice Lens’
In this section, adopting Howard Zehr’s metaphor of a ‘lens’, a framework is provided to
move beyond the confines of current restorative justice praxis in transitional settings (see
further Clamp 2016). Despite restorative justice embracing both backward- and forward-
facing concerns, the former has often received the most attention in the field. While it is
important to respond to what individuals have done and experienced in transitional settings,
it is imperative that we create tangible opportunities to break down barriers between former
adversaries and to reintegrate ex-combatants. Without this latter focus, long-lasting peace is
unlikely. As such, the elements that make up the proposed framework involve a deliberate
attempt for inclusivity, cultural relevance and a future orientation.
Restorative justice should be inclusive
Despite a broad desire for stakeholders to be actively involved in the response to the
atrocities of the past and the reconstruction of a peaceful society, current ‘restorative’
transitional justice mechanisms have been criticized for disempowering rather than
empowering citizens. Part of the reason for this is that (often legal) ‘elites’ determine who is
involved, how they are involved, what the format will be and when and where processes
occur. This form of passive (or directed) participation is detrimental to the project of
peacebuilding precisely because it lacks stakeholder engagement.
In the pursuit of sustainable peace, it is important that all factions play an active role in
dealing with the past and shaping the future. The transitional context, therefore, encourages
us to stop thinking of restorative justice as a ‘one-incident encounter’, and to consider it
rather as an framework to discuss, debate and uncover the ‘chain of causation that has
nurtured and intensified conflict’ (Froestad and Shearing 2007: 535). The restorative
potential of this interaction, underpinned by the values of ‘respectful dialogue’ and ‘non-
domination’ (Braithwaite 2002), should be based primarily on how local stakeholders
experience and conceive the conflict. For this reason, Froestad and Shearing (2007) argue,
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processes that are reliant on ‘experts’ will always be less ‘restorative’ than those led by local
people. Where all parties to the conflict are able to claim ownership over the process, we
can say that they have been empowered – an important quality for long-lasting peace.
Restorative justice should be culturally relevant
Local justice institutions are often overlooked as legitimate sites for conflict management and
resolution because of the dominance of legalism in transitional justice. However, research
has demonstrated that those for whom conventional transitional justice mechanisms (such
as trials and truth commissions or hybrid initiatives) are meaningful is limited. Critics have
argued that not only might Western approaches to dealing with conflict be ‘foreign’ to some
local actors, but also others may actually hold quite a negative perception of it based on
personal experience (both criminal justice and restorative justice processes often benefit
ethnic minorities the least).
As such, justice approaches should be rooted in local understandings of justice that often
combine restorative and retributive practices in their response to crime, rather than the
Western tendency to uncouple each approach. According to Findlay (2000: 187), ‘restorative
justice has, in some instances, failed to respect the limitations of the model that it promotes,
as well as the tensions with the systems it replaces’. In order to avoid what he refers to as ‘a
new wave of colonialism in the current domain of social control’, restorative scholars need to
move away from clearly prescribed processes and outcomes of restorative justice to values
that allow more culturally relevant processes and priorities to emerge. The goal of any
intervention or assistance should be to help to facilitate the transformation of conflict into
peace.
Restorative justice needs to be forward-looking
There are two arguments for adopting more forward-looking orientation for restorative justice
within transitional settings. First, there is a gap within current praxis in transitional settings in
addressing the underlying causes of the conflict and therefore creating the conditions for
sustainable peace. Second, there is a lack of attention on the ongoing social, cultural, and
political consequences of the previous regime, which may perpetuate victimisation in the
new democratic order. A number of empirical studies confirm that more importance is
attached to creating a sustainable future than to focusing on what has happened in the past,
and that neither retributive justice, nor truth telling on their own are perceived as ‘justice’
(e.g. Millar 2011; Pells 2009; Robins 2010; Vinck and Pham 2008).
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Millar (2011: 530) argues that, if we can accept that groups are also capable of being
victimised and perpetrators, it is important that we ‘expand the definition of infringement to
include collective infringements on rights to social and collective needs, and, by extension, to
see society itself as an actor, both a victim and a perpetrator’. Addressing this means that
our starting point should not be seeking accountability, but rather addressing needs within
transitional justice settings.
There is no reason why addressing immediate needs cannot become the first step in our
justice response. By harnessing community-based mechanisms, government relief and local
strategies to build networks and services could be devised. Once immediate needs have
been responded to, it would then be possible for the past to be addressed at the local level
and for the key themes and findings that emerge to be fed up into macro-level processes. In
an acknowledgement that the needs of individuals living in societies emerging from conflict
evolve over time, restorative justice mechanisms at the local level could continue to exist
and respond to the changing needs of the community by drawing attention to new priorities
and providing a forum through which resources can be harnessed to address those
priorities.
Conclusion
Given the complex nature of the underlying causes of conflict in transitional settings, it is
essential that we embrace broader conceptions of restorative justice and think more
creatively about the manner in which we design and deliver justice. The first suggestion is
that we have to devolve power down to communities by harnessing local institutions to allow
stakeholders – victims, offenders, communities and the state – to feed into macro-level
processes. The second is that we must pay attention to notions of restorative accountability
that prioritise the restoration of the victim and reintegration of offenders. This involves a shift
away from an emphasis on establishing individual responsibility and, instead, an increased
focus on collective responsibility.
Finally, we need to increase the time and space for all involved to share their experiences
through living memorials. In other words, transitional justice harnessing a restorative
framework should be something that evolves over time rather than being time bound. The
restricted nature of much transitional justice means that it excludes those who are not yet
ready to deal with the past in the initial transitional justice period. There is growing currency
in the perception that both restorative justice and transitional justice are too limited to deal
with the complex and historical causes of protracted periods of violence (Arthur 2009; Mani
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2014; Millar 2011). For the most part, this is based on allegations that these approaches are
too focused on the past on the one hand, and that they are too transient on the other.
If restorative justice is conceived in a much more expansive way than it currently is, it can
have a much more significant impact in the lives of those affected by conflict. If restorative
justice is about increasing contact between individuals and providing a safe space through
which to increase dialogue, then there is no reason why restorative justice cannot be
harnessed as a framework through which to create institutions and to set the agendas of
those institutions so that they are responsive to the needs of all stakeholders. Conflict occurs
because of inequality (perceived or otherwise) and it is this injustice that needs to be
addressed if further conflict is to be avoided. Restorative justice can play an important role in
allowing perceived and actual injustices to come to the fore and for strategies to respond to
those injustices to be challenged.
References
Braithwaite, J. (2002) ‘Setting Standards for Restorative Justice’, British Journal of
Criminology, 42: 563–577.
Clamp, K. (2014). Restorative Justice in Transition. Oxon/New York: Routledge.
Clamp, K. (2016). Restorative Justice in Transitional Settings. Oxon/New York: Routledge.
Clamp, K., and Doak, J. (2012) ‘More than Words: Restorative Justice Concepts in
Transitional Justice Settings’, International Criminal Law Review, 12(3): 339–360.
Daly, K. (2012) Victimisation and Justice: Concepts, contexts, and assessment of justice
mechanisms, paper presented at the 14th International Symposium of the World
Society of Victimology, The Hague, May.
Findlay, M. (2000) ‘Decolonising restoration and justice in transitional cultures’, in H. Strang
and J. Bathwater (eds) Restorative Justice: Philosophy to Practice. Aldershot:
Dartmouth Publishing Company Limited.
Froestad J., and Shearing, C. (2007) ‘Conflict Resolution in South Africa: A Case Study’,
in G. Johnstone and D. Van Ness (eds) Handbook of Restorative Justice.
Cullompton, Devon: Willan Publishing.
Millar, G. (2011) ‘Local Evaluations of Justice through Truth Telling in Sierra Leone: Postwar
needs and transitional justice’, Human Rights Review, 12(4): 515–535.
Pells, K. (2009) ‘We’ve got Used to the Genocide; it’s Daily Life that’s the Problem’, Peace
Review: A Journal of Social Justice, 21(3): 339–346.
Robins, S. (2011) ‘Towards Victim-centred Transitional Justice: Understanding the needs of
families of the disappeared in post conflict Nepal’, International Journal of
Transitional Justice, 5(1): 75–98.
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Vinck, P. and Pham, P. (2008) ‘Ownership and Participation in Transitional Justice
Mechanisms: A sustainable human development perspective from Eastern DRC’,
International Journal of Transitional Justice, 2(3): 398–411.
Websites
International Centre for Transitional Justice:
https://www.ictj.org/search-results?search=re
John Braithwaite: War, Crime and Regulation:
http://johnbraithwaite.com/?s=restorative+justice
Chapter Questions
1. What are the different ways that we can talk about restorative justice in
transitional settings?
2. Is restorative justice appropriate as a response to the harms endured under
previously undemocratic regimes?
3. What are the difficulties associated with talking about and implementing
restorative justice in transitional settings?
4. What strategies could be employed to overcome some of the current limitations of
‘restorative justice’ within transitional settings?
