Category: Restorative justice

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Reparations for victims Restorative justice Right to truth Transversal topics

Victims and Restorative Justice in Transitional Justice Scenarios

Memorial for victims of National Socialism in Stuttgart, Germany, built in 1970

Retributive justice is a justice paradigm responding to rather than preventing crimes, grounded on the relationship between crime and responsibility and proportional punishment (see Moore, 2009). In turn, restorative justice consists in processes whereby parties to crimes collectively resolve crime consequences, including how to repair the harm inflicted on victims and their communities (see Marshall, 1996). Furthermore, retributive justice and restorative justice interact with transitional justice concerning victims in post-atrocity scenarios. This blogpost briefly discusses how victims’ status is shaped by such interaction (see also Perez-Leon-Acevedo, 2014). This is discussed under two trinomials: victims, restorative justice, and transitional justice; and victims, combined retributive justice/restorative justice, and transitional justice.    

Victims, restorative justice, and transitional justice 

Restorative principles and processes are a central goal of transitional justice mechanisms tackling atrocities (Hoyle, 2021). Victims are central to transitional justice (Méndez, 2016). Restorative practices, which are present in truth and reconciliation commissions (TRCs) and reparations programmes, enable victims to play central roles and stand better chances to heal relationships between victims, offenders, and their communities.  

Since international and hybrid criminal tribunals (ICTs) mainly reflect hegemonic Western punitive criminal justice values focusing primarily on retribution and deterrence and only secondarily on restoration (Drumbl, 2005), TRCs may be more suitable to fulfil restorative justice and better voice victims’ needs and viewpoints. TRCs meaningfully contribute to recognising victims and restoring their dignity. TRCs and traditional restorative mechanisms such as local dispute resolution (ibid.) focused on societal reconciliation, victims, storytelling, and reparations are seemingly better options if the goal is healing individuals and post-atrocity societies (Minow, 1998). 

TRCs can focus on victims, facilitating their participation and that of perpetrators and victims’ and perpetrators’ communities. TRCs bring back the conflict to their original actors, enabling officials to grieve with victims (Minow, 1998). By involving all conflict stakeholders, TRCs address victims’ harm. As restorative justice is multidirectional (Aukerman, 2002), TRCs consider that the distinction between victims and perpetrators might sometimes be unclear in atrocity contexts: for example, child soldiers may hold the dual-status of victims and perpetrators. At TRCs, victims provide their testimonies in narrative forms, guaranteeing more inclusive processes for victims and avoiding re-victimization, which contrasts with criminal courts. This promotes national reconciliation and handles impunity collectively (Hayner, 2001). 

TRCs can provide platforms for hearing traditionally excluded victims (Ramírez-Barat, 2011). They can enhance victims’ status. At TRCs (e.g., South Africa), victim definitions can be broad. Victims’ dignity, victims’ rights to information and privacy and to have their views and submissions considered have been recognised. TRCs may be better than trials at addressing victims’ fear, trauma, or anger (Zalaquett, 1992). 

Nevertheless, some studies have questioned TRCs’ role in healing traumatized victims (Backer, 2004; Shaw 2005). Some TRCs failed in advancing victims’ needs (Brody, 1986). Even concerning well-organized TRCs, not necessarily victims regard truth-seeking mechanisms as options to meet their needs for justice and reparations (Fletcher et al., 2009).   

Armenian woman survived from the Genocide tattooed in Arabic captivity. Source: Wikimedia Commons

Reparations programmes can be fundamental regarding victims’ status in transitional justice scenarios. Actually, ‘For some victims reparations are the most tangible manifestation of the efforts of the state to remedy the harms’ (De Greiff, 2006, p.2). Reparations programmes are attractive compared to criminal prosecution because the latter may be perceived as a struggle against perpetrators rather than a victim mechanism. 

Reparations programmes constitute appealing options to enhance victims’ roles in transitional justice also vis-à-vis other restorative practices or restorative-oriented mechanisms. Truth-seeking may be only symbolic if tangible outcomes are absent (ibid.). Contextualised in transitional justice scenarios, reparations may also seek to achieve broader goals, namely, transformative and gender justice (Rubio-Marin, 2009; Hoyle and Ullrich, 2014), which should enhance victims’ situation.  

However, reparations also present weaknesses in transitional justice contexts since they may be disproportionate to damages, trivializing victims’ suffering (Minow, 1998). Reparations alone are insufficient because victims have diverse interests requiring comprehensive approaches (Fulton, 2014).

Victims, combined retributive justice/restorative justice, and transitional justice    

In transitional justice scenarios or mechanisms handling atrocities consequences, retributive justice and restorative justice should not be conflicting but, instead, complementary and mutually reinforcing. Retributive justice and restorative justice are necessary for democracy, the rule of law, and human rights in societies in transition (Villa-Vicencio, 2006). Integrating these justice paradigms should be applied to the relationship between ICTs or national criminal courts and other transitional justice mechanisms as well as within ICTs or national criminal courts. It is reasonable to talk about a ‘restorative side’ of (international) criminal justice (Villa-Vicencio, 2003). Combining retributive justice and restorative justice as the best option for victims in transitional justice contexts is argued below.    

First, ICTs may be transitional justice mechanisms in atrocities scenarios. Since transitional justice is a holistic approach including diverse mutually complementary measures (Kritz, 1995), ICTs that strengthen victims’ status arguably implement the transitional justice approach. Reparations at ICTs exemplify transitional reparatory practices that display backward-looking and forward-looking purposes regarding victims and their societies (Teitel, 2000). Inter-American Court of Human Rights’ jurisprudence on victims (e.g., Velásquez-Rodríguez), partially laid transitional justice foundations (ICTJ, 2009), emphasising victim participation in criminal justice and reparations. ICTs have considered and should further consider this. The transitional justice approach seeks to integrate retributive justice and restorative justice. Some transitional justice advocates resist ‘restorative justice’ labels, solely using them when mentioning communities’ resort to customary law and traditional practices (Méndez, 2001). Nevertheless, they assert that transitional justice is victim-centred as victims are central to transitional justice (Aldana, 2006; Zunino, 2019). Researchers and practitioners have become aware of the International Criminal Court (ICC)’s function as one among diverse transitional justice mechanisms (UN Secretary-General, 2004; Okafor and U. Ngwaba, 2015). Hence, victim participation and reparations are intrinsically related to the ICC as a transitional justice mechanism (Méndez, 2016; Aldana, 2006). Although international criminal justice is not restorative justice, it can employ restorative practices through (primarily) reparations (Hoyle, 2012).                         

Second, there have been important international law developments towards combining retributive justice and restorative justice as the best alternative for victims in transitional justice. The UN Reparations Principles, which primarily deal with restorative justice, include satisfaction as a form of reparation (Principle 22(f)), and within satisfaction: judicial sanctions, which chiefly have to do with retributive justice. Under human rights law (e.g., Victims’ Declaration; UN Reparations Principles 11-15) and scholarship (Bassiouni, 2006; Ochoa, 2013), victims’ rights in criminal justice include: protection from re-traumatization; access to justice; be heard through active participation, including victims’ procedural rights to express their own views and concerns; and claim reparations.

Memorial for victims of National Socialism in Stuttgart, Germany, built in 1970. The wreaths commemorate victims of Kemalism. Author: Ikar.us. Source: Wikimedia Commons.

The ICC exemplifies the said synergy since its predominant retributive and deterrent goals incorporate restorative practices, contrasting with previous ICTs. The ICC Statute mentions both retributive and deterrent goals, and victims (ICC Statute, Preamble), underlying adapted restorative justice elements in the ICC Statute. Most ICTs created after the ICC have incorporated victims as important actors, being consistent with restorative practices. In principle, retributive justice and restorative justice are not mutually exclusive (Walgrave, 2008). Restorative practices may be adapted and incorporated into ICTs’ laws or practices: victim participation and reparations may be included in international criminal justice. This justifies that ICTs can adapt and incorporate restorative justice elements into their mandates. As adjusted and adapted to ICTs (Garbett, 2017), restorative justice has been a major force to strengthen victims’ roles at ICTs through victim participation and reparations (Moffett, 2014; McGonigle, 2011). This illustrates the influence of restorative justice elements at the ICC. 

Since restorative justice regards victims as subjects rather than objects (Pena and Carayon, 2013), victims hold enhanced procedural roles and procedural rights at the ICC and other ICTs (McGonigle, 2011). This is consistent with that transitional justice processes must acknowledge victims’ needs (Robins, 2012), counteracting critiques of earlier ICTs that precluded victims from properly expressing themselves (Pena and Carayon, 2013). In societies transitioning from mass atrocities, victims’ active roles in (international), criminal justice may illustrate restorative justice practices, guided by goals concerning victims (UNODC, 2020). Yet, studies on victims’ perceptions reveal a mixed picture of how victims’ roles are implemented at the ICC (Cody, 2017; Cody et al., 2015). Partial mishandling of these roles has also conflicted with defence rights and ICCs’ efficiency (see Safferling and Petrossian, 2021).  

ICTs are still predominantly retributive. Even ICTs such as the ICC where victims’ status is more robust are not restorative justice mechanisms, but they incorporate and adapt some restorative practices/elements and can be partially considered victim-oriented justice mechanisms. ICTs may integrate into their goals, victim-friendly/victim-oriented measures but without replacing their core mandate. These measures would provide victims with participatory rights, impacting criminal justice but without changing its rationale. This is different from pure restorative justice, which might question that rationale (Cavadino and Dignan, 1996). The victim rights movement inspired victim empowerment at the ICC (Moffett, 2014). Accordingly, victims participate in victim-oriented or restorative justice-oriented mechanisms at the ICC and other ICTs to influence criminal proceedings for victims’ interests by being participants or civil parties and claiming reparations. Nevertheless, unlike proper restorative justice mechanisms, ICTs involve judicial adjudication.

Third, balanced interactions between restorative justice-oriented mechanisms, especially TRCs, and retributive and deterrent justice mechanisms, e.g., ICTs, have been feasible. Although TRCs can be alternatives to prosecutions, TRCs and ICTs can work simultaneously through some coordination (Totten, 2009). The co-existing Sierra Leone TRC and Special Court for Sierra Leone overall had synergetic effects (Schabas, 2004; Cockayne, 2005). The latter recognized TRCs’ importance for victims and the mutually complementary mandates of ICTs and TRCs (Norman).

The necessary convergence of TRCs and criminal courts in transitional justice scenarios involves that whereas TRCs offer the advantage of listening to victims not as witnesses in a piecemeal fashion, the judicial ‘truth’ holds ‘a “tested” quality that makes it all the more persuasive’ (Méndez, 1997). The complementary relationship between TRCs and ICTs or national criminal courts ‘may have a synergistic effect on the search for post-conflict justice as part of the struggle against impunity’ (Schabas, 2004). The mutually complementary functions of restorative-oriented mechanisms and retributive or deterrent mechanisms stand more chances to enhance victims’ status in transitional justice contexts. This can be seen through ‘lenses of recognition’ as these mechanisms working together can ‘institutionalize the recognition of individuals with equal rights’ (De Greiff, 2006b). Victims’ perceptions about the ICC confirm the need for combining mechanisms, as victims consider that prosecution is important but not the sole accountability mechanism, and that the ICC is both a justice and peace-making mechanism (Cody et al., 2015). Yet, ICC’s justice goals are still unclear (Ullrich, 2016).   

Fourth, the victims’ right to truth reveals some similarities or convergences between different mechanisms, e.g., TRCs and criminal courts. Although ICC instruments do not include victims’ right to truth, ICC’s jurisprudence has regarded it as a victim participants’ central interest at the ICC (Lubanga). This is coherent with human rights bodies’ case-law recognizing the right to truth as the victims’ right to access to justice and a remedy (Cyprus v. Turkey; Nech v. Guatemala). UN Reparations Principles 22(b) and 24 reflect this. Individual and collective dimensions of the right to truth are recognised (UN-OHCHR, 2006).  

The victims’ right to truth can expand ICTs’ approaches to victims’ status. Criminal proceedings have upheld the victims’ right to truth (UN-OHCHR, 2007), which connects with victims’ roles in criminal justice (UN-Commission on Human Rights, 2005). This right can be implemented through several transitional justice mechanisms including ICTs, national criminal courts, and TRCs (ibid.). If trials are used for what they are intended for (Méndez, 1997), they can contribute to the truth (Fletcher and Weinstein, 2002). Accordingly, trials should not become places for ‘historic’ judgments or settlement of long-term socio-political conflicts, as this produces an unsatisfactory ‘truth’ (Méndez, 1997). Actually, historical truth has been sometimes ‘presented as a by-product of the international criminal proceedings rather than as an objective’ (Schabas, 2012, p.100).  

Conclusion

Restorative justice should further be adapted and incorporated into transitional justice mechanisms, to enhance victims’ roles. Victims’ roles in transitional justice depend on each transitional justice mechanism’s mandate: more retributive- or restorative-oriented. However, the interplay among adapted restorative justice, retributive justice/restorative justice combinations, and transitional justice should mean more meaningful victims’ roles and rights. 

Juan-Pablo Perez-Leon-Acevedo

Researcher and lecturer Jyvaskyla University (Finland); Affiliated researcher, PluriCourts, Oslo University

   

References

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Categories
Duty to punish Restorative justice

Restorative justice mechanisms and the duty to punish

A Gacaca court in session at Ruhango (Rwanda)

In the first post of this blog, Fabián Raimondo questions whether ‘restorative sanctions’ granted by States in transitional justice (TJ) situations are compatible with the international obligation to punish perpetrators of gross human rights violations. The concept of restorative sanction is the product of combining two different criminal justice paradigms: conventional/traditional criminal justice (CCJ) and restorative justice (RJ). While the former can be summarized as trial and punishment for the offender, the latter is about the offender taking responsibility before victims and the community via the reparation of the harm provoked by the crime. Colombia’s 2016 Peace Agreement is a recent example of this kind of ‘hybrid’ system mixing CCJ and RJ. Following a CCJ process in which victims’ voices are enhanced, high-level perpetrators that acknowledge responsibility and contribute to truth can acquit their responsibility through restorative sanctions’ meaning non-carceral and reduced sentences with a reparative component. 

These mechanisms have an increasing role in TJ situations in view of their greater potential to contribute to TJ aims, including truth, reparation, peace and reconciliation, while at the same time advancing criminal justice. Some international bodies showed receptiveness to hybrid mechanisms (AU Transitional Justice Policy; ACHPR Study on TJ and Human and People Rights; ICC OTP, see Here). However, the still majoritarian position in IHRL seems to reject them. In his recent report on accountability, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence (UNSR) included the Colombian system under the heading of de jure impunity (Report, 42-44). He posited that RJ mechanisms do not fulfil the duty to punish when they do not impose terms of imprisonment proportionate to the gravity of the criminal offence (Report, 24-25). This proportionality principle is a keystone of CCJ. 

Here, I claim that when it comes to assessing hybrid mechanisms, the scope of the duty to punish should be determined not only with CCJ principles but also with RJ theory. However, I will show that this is not a straightforward exercise. Given their structural differences, RJ and CCJ cannot be easily combined.  

RJ and CCJ: two paradigms of justice 

CCJ and RJ are two ways of dealing with crime. CCJ is grounded on the idea that crime is the violation of a fundamental norm that legitimate the exercise of the State’s right to punish. A State-driven process is then triggered to verify the commission of the crime and determine the consequent punishment. Different theories were elaborated to justify punishment (e.g. retribution; prevention), but in all cases, justice is about inflicting pain on the offender. Criminal responsibility in CCJ is only passive, meaning it is retrospective and focused on determining who committed the offence (Braithwaite 2006; Braithwaite and Roche 2001).

Trial of the Military Junta – Argentina, 1985. Source: https://www.telam.com.ar/notas/201304/14903-hace-28-anos-se-iniciaba-el-historico-juicio-a-las-juntas.html

RJ proposes a very different idea of criminal justice. This is not casual. RJ fed on a diversity of critical movements that sharply identified the problems of the conventional system in the 1970s. Seminal writings proposed RJ to replace the conventional response to crime. Although the concept remains open to different and sometimes diverging interpretations, the common ground is that crime is defined as an interpersonal conflict harming individuals and relationships. Offenders must make themselves accountable before the individuals affected. Justice, on this understanding, is essentially a horizontal and voluntary process in which victims, perpetrators and the affected community decide how to deal with the conflict. Reparation of the harm is the main aim of the process. 

RJ adds a new dimension to the idea of criminal responsibility. Passive responsibility is still relevant. It is a precondition of RJ, upon which a perpetrator’s willingness to acknowledge the wrong is predicated. However, passive responsibility is not acquitted through punishment but by taking active responsibility. Active responsibility is forward-looking and refers to the reaction expected from the offender to put right the harm. Offenders are expected to undertake necessary actions to repair and restore according to the decision taken in the restorative process. In this way, RJ seeks to achieve reintegration (Braithwaite 2006; Braithwaite and Roche 2001). 

Practically, restorative justice takes different forms, such as peace circles, conferencing and mediation (See Here; for examples in TJ contexts, see Here and Here). 

A gacaca court in session in Ruhango, Rwanda. Credit: Samuel Gasana

RJ and CCJ: two sets of standards 

The fundamental differences between CCJ and RJ mean that different standards govern their functioning. 

CCJ standards such as fair trial and due process, as well as the prohibition of cruel, inhuman, and degrading punishment, are universally recognized in IHRL (UDHR, Arts. 3, 5 and 9; ICCPR, arts. 9, 14, 15 and 7; ACHR, arts. 8, 25 and 5; AChHPR, art. 6, 7 and 5; ECHR, arts. 5, 6, 7 and 3). The proportionality principle is the rule to fix the maximum amount of punishment allowed. Following the UNSR interpretation, the rule also establishes a minimum that could not be lowered (Report, 24). Proportionality calibrates punishment to the seriousness of the crime, which is defined differently depending on the theory of punishment endorsed. Following the IHRL case law, which seems in line with retributive views, the seriousness of the crime refers to the ‘gravity’ or ‘nature’ and the degree of participation and culpability of the accused (Report, 24). The gravity is based on the harm provoked, defined in the abstract. Under this logic, offences of the same type must receive the same punishment. The perpetrators’ reaction after the crime is not a central factor in fixing the penalty because it does not change the deserved punishment.

Specific rules on RJ cannot be found in IHRL treaties, most of which were adopted before the global success of RJ during the 1990s and 2000s. The development of soft law documents promoting common principles reflected this expansion (UN Basic Principles on the use of restorative justice programmes in criminal matters (UNBPRJ); the Council of Europe Recommendation CM/Rec(2018)8).

The concern in RJ is not the State’s punitive power but the potential power imbalance among the parties of the conflict (mainly victim and perpetrator). RJ safeguards seek to counteract such imbalance to ensure the voluntariness and inclusivity of the process and agreement (See UNBPRJ); CM/Rec(2018)8). While punishment is a coercive State measure, restorative outcomes must be voluntarily agreed upon and in line with restorative values. Punitive, humiliating or stigmatizing decisions do not contribute to reparation, cannot be considered restorative and therefore should be banned. 

Restorative agreements can only contain ‘reasonable and proportionate obligations’ (UNBPRJ, 7) or ‘fair, achievable, and proportionate actions’ (CM/Rec(2018)8, 50). However, the reference to proportionality should not be confused with the CCJ proportionality. RJ proportionality must align with the ideas of active responsibility, reparation of the harm and stakeholder ownership of the process. RJ proportionality would refer to ‘the maximum restorative effort’ that can be expected from the offender (Walgrave 2003). This upper limit does not pretend to reflect a maximum deserved punishment. It seeks to avoid outcomes that are not in line with restorative values.

The maximum effort should not be determined in the abstract and ex-ante for a category of crimes but in concreto. In contrast to CCJ proportionality, perpetrators’ reaction after the crime and the concrete experience of victims appears pivotal elements in defining offenders’ obligations. RJ proportionality neither imposes a minimum quantum of reparative action. The parties are free to agree that dialogue sufficiently satisfies their needs and interests, and ‘tangible outcomes’ are not necessarily needed (CM/Rec(2018)8, 52). 

The idea of equal justice, meaning equal reaction for a similar crime, is not a RJ value. RJ does not seek a general crime solution but involves unequal responses to different conflicts and unequal perpetrators’ reactions (Braithwaite 2002). Given that each conflict is different, it is beneficial for the response to be tailored to the case.

Final reflections: is a hybrid standard on duty to punish possible?

As shown, CCJ and RJ do not assess the fairness of their respective outcomes -imprisonment and restorative agreement- with the same tools. If one takes an exclusive CCJ perspective, like the UNSR Report, RJ mechanisms may look like impunity for not imposing a minimum required amount of carceral punishment. RJ may also be accused of not respecting the principle of equality among offenders. This is not to speak about the potential violation of other IHRL, which are not the focus of this post (e.g. requirement of an independent and impartial tribunal). However, from a RJ perspective, a harsh penalty may be seen as an obstacle to justice. It would be ineffective and inappropriate to fight against impunity (understood as the absence of justice) because it does not require perpetrators to acknowledge responsibility before victims and to take reparative actions corresponding to victims’ needs. 

Thus, IHRL should admit RJ mechanisms as legitimate ways to fight against impunity because they are based on a fully-fledged theory of justice. As a matter of principle, they should not be exclusively based on Western hegemonic understandings of justice but be flexible to include alternatives. From a practical perspective, IHRL would become obsolete if it does reflect practice. The potential of RJ to complement or be an alternative to CCJ is today globally recognized, at least for common criminality. Indeed, nothing in positive law excludes these options. IHRL courts and bodies considered that the duty to investigate, prosecute and punish was implicitly included in certain rights, such as effective remedy. However, treaties do not generally require a certain type and amount of punishment. From this perspective, it would be better to think about a duty to ensure individual criminal responsibility instead of the very specific duty to investigate, prosecute and punish.

However, hybrid mechanisms further complicate the question as they try to combine the CCJ and RJ. Given their structural differences, the combination of CCJ and RJ is not an easy task. Although RJ and CJ are no longer portrayed in binary and exclusive terms, how their relationship should go is among the main contested issues in the RJ field. Some RJ scholars reject their combination for distorting the paradigm. The idea of restorative sanction would be an aberration, as it touches on a defining feature of RJ. However, hybrid mechanisms could be helpful in situations such as TJ where fully RJ options may not be possible because of the nature of violence and contextual factors (e.g. amount of victims and perpetrators; intervention of a diversity of other actors in different roles; duration of violence; limited time and resources to set the mechanisms). Certain limitations of RJ theory are also clearer in these contexts. For instance, gross human rights violations are not just interpersonal conflicts but are embedded in structures of violence.

Closing ceremony of the Week of Indigenous Peoples, at the Special Jurisdiction for Peace, Colombia. Source: https://www.jep.gov.co/Sala-de-Prensa/galerias/2019/Paginas/2019.aspx#img_53. Credit: Isabel Valdés, Special Jurisdiction for Peace

Then, to put these two ideas together, compromises are necessary. For instance, in the Colombian case, the Constitutional Court argued the restorative sanctions keep the CCJ ‘retributive’ dimension because they imply a restriction of rights and liberties under strict conditions of supervision during the sanction period (See Here, section 4.1.9). However, this is far from the CCJ minimum penalty that would have corresponded according to CCJ proportionality. RJ gained in the reparative component of the sanction. Still, even if there is a dialogic principle enhancing the voices of the stakeholders, the process is far from being owned by them. A professional tribunal takes the decisions in line with CCJ guarantees. 

While CCJ proportionality is inappropriate to assess these processes, applying RJ standards could also be problematic, given that hybrid mechanisms are not fully restorative. Many questions remain open for further discussion. What criteria should we use to assess these mechanisms? What weight should be given to CCJ and RJ parameters? Does it depend on the degree of restorativeness of the mechanism? Is it possible to come up with hybrid standards?

Agustina Becerra Vázquez. Teaching Assistant, Geneva Academy; PhD Candidate, IHEID

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Bibliography

Braithwaite J, ‘Accountability and Responsibility Through Restorative Justice’ in Michael Dowdle (ed), Rethinking Public Accountability (Cambridge University Press 2006)

Braithwaite J and Roche D, ‘Responsibility and Restorative Justice’, Restorative Community Justice: Repairing Harm and Transforming Communities (Anderson Publishing Co 2001)

Walgrave L, ‘Imposing Restoration Instead of Inflicting Pain: Reflections on the Judicial Reaction to Crime’ in Andrew Von Hirsch and others (eds), Restorative justice and criminal justice: competing or reconcilable paradigms? (Hart 2003)