Restorative Justice in Transition 1138922366, 9781138922365

Table of contents :
Cover
Restorative Justice in Transition
Title Page
Copyright Page
Dedication
Table of Contents
Foreword
Acknowledgements
List of abbreviations
1 Introduction
Evolving discourses in transitional justice
Restorative justice in transitional contexts
Outline of the book
2 Restorative justice as a contested response to conflict and the challenge of the transitional context
Principles, values and goals of restorative justice: a brief overview
The complexities of restorative justice
Challenges for restorative justice as a response to mass victimisation
A way forward
3 The value of restorative justice for transitional settings
Striving for ‘transformation’ in transitional settings
From concepts to practice
4 Restorative justice in transition: a multi-layered approach
Directions of change
Universalism versus local tradition
The role of restorative justice in transitional justice
5 Restorative justice as a mechanism for nation-building
Restorative justice and ‘top-down’ transitional justice mechanisms
Conceptual confusion and the contested claims of restorative justice in the transitional context
Untapping the potential of ‘top-down’ restorative justice mechanisms
From backward-looking to forward-looking agendas
6 Restorative justice as a vehicle for reform
Reforming justice: trends and obstacles
From formal to informal responses to conflict
7 Restorative justice as a mechanism for peace-building
Community as a stakeholder in restorative justice
The challenge of ‘community’ in transitional settings
The potential of the restorative ‘community’ in transitional societies
Some final thoughts
Conclusion: towards a transformative vision of restorative justice
Macro and micro-utilisations of restorative justice
The impact of restorative justice
Notes
References
Index

Citation preview

A comprehensive scholarly engagement with the key issues of restorative justice in transitional settings. Students of transitional justice will find this an analytically incisive introduction to the restorative justice vision and challenges for peace building. John Braithwaite, Australian National University, Australia For anybody who is interested in the fields of peace-making, transitional justice and restorative justice, Kerry Clamp’s book Restorative Justice in Transition is an absolute must. It should be on the desk of every serious scholar with an interest in these areas. Elmar G.M. Weitekamp, PhD, Institute of Criminology, University of Tuebingen, Germany

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Restorative Justice in Transition

This book explores how restorative justice is used and what its potential benefits are in situations where the state has been either explicitly or implicitly involved in human rights abuses. Restorative justice is increasingly becoming a popular mechanism for responding to crime in democratic settings, and while there is a burgeoning literature on these contexts there is less information that focuses explicitly on its use in nations that have experienced protracted periods of conflict and oppression. This book interrogates both macro- and micro-utilisations of restorative justice including truth commissions, criminal justice reform and the development of initiatives by communities and other non-state actors. The central premise is that the primary potential of restorative justice in responding to international crime should be viewed in terms of the lessons that it provides for problemsolving, rather than its traditional role as a mechanism or process for responding to conflict. Four values are put forward that should frame any restorative approach – engagement, empowerment, reintegration and transformation. It is thought that these values provide enough space for local actors to devise their own culturally relevant processes to achieve longstanding peace. This book will be of interest to those conducting research in the fields of restorative justice, transitional justice and criminology in general. Kerry Clamp is a Lecturer in Criminology in the Department of Social Sciences and Psychology at the University of Western Sydney. She received her PhD from the University of Leeds in 2010 and also holds degrees from the University of Sheffield and the University of South Africa. Dr Clamp’s research agenda focuses on restorative justice and transitional justice. Her research appears in a number of journals including the British Journal of Community Justice (2011), Nottingham Law Journal (2012), International Criminal Law Review (2012), Northern Ireland Legal Quarterly (2012), and Criminology and Criminal Justice (2012). Dr Clamp is also the Chair of the Editorial Board for the European Forum for Restorative Justice, a role that she has held since January 2011.

Routledge frontiers of criminal justice

1 Sex Offenders, Punish, Help, Change or Control? Theory, policy and practice explored Edited by Jo Brayford, Francis Cowe and John Deering 2 Building Justice in Post-Transition Europe Processes of criminalisation within Central and Eastern European societies Edited by Kay Goodall, Margaret Malloch and Bill Munro 3 Technocrime, Policing and Surveillance Edited by Stéphane Leman-Langlois 4 Youth Justice in Context Community, compliance and young people Mairead Seymour 5 Women, Punishment and Social Justice Human rights and penal practices Margaret Malloch and Gill McIvor 6 Handbook of Policing, Ethics and Professional Standards Edited by Allyson MacVean, Peter Spindler and Charlotte Solf 7 Contrasts in Punishment An explanation of Anglophone excess and Nordic exceptionalism John Pratt and Anna Eriksson 8 Victims of Environmental Harm Rights, recognition and redress under national and international Matthew Hall 9 Doing Probation Work Identity in a criminal justice occupation Rob C. Mawby and Anne Worrall

10 Justice Reinvestment Can the criminal justice system deliver more for less? Chris Fox, Kevin Albertson and Kevin Wong 11 Epidemiological Criminology Theory to practice Edited by Eve Waltermaurer and Timothy A. Akers 12 Policing cities Urban securitization and regulation in a 21st century world Edited by Randy K. Lippert and Kevin Walby 13 Restorative Justice in Transition Kerry Clamp

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Restorative Justice in Transition

Kerry Clamp

First published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2014 Kerry Clamp The right of Kerry Clamp to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Clamp, Kerry. Restorative justice in transition / Kerry Clamp. pages cm. – (Routledge frontiers of criminal justice) 1. Restorative justice. 2. Victims of crimes. 3. Human rights. 4. International crime. I. Title. HV8688.C53 2014 364.6'8–dc23 2013012487 ISBN: 978-0-415-52371-4 (hbk) ISBN: 978-0-203-71519-2 (ebk) Typeset in Times New Roman by Wearset Ltd, Boldon, Tyne and Wear

For Danny, who put up with me and provided a sounding board for many of the ideas contained in this book.

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Contents

Foreword Acknowledgements List of abbreviations 1

Introduction Evolving discourses in transitional justice 2 Restorative justice in transitional contexts 4 Outline of the book 8

2

Restorative justice as a contested response to conflict and the challenge of the transitional context Principles, values and goals of restorative justice: a brief overview 11 The complexities of restorative justice 12 Challenges for restorative justice as a response to mass victimisation 18 A way forward 30

xiii xv xvii 1

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3

The value of restorative justice for transitional settings Striving for ‘transformation’ in transitional settings 32 From concepts to practice 46

31

4

Restorative justice in transition: a multi-layered approach Directions of change 49 Universalism versus local tradition 60 The role of restorative justice in transitional justice 65

48

5

Restorative justice as a mechanism for nation-building Restorative justice and ‘top-down’ transitional justice mechanisms 69

68

xii Contents Conceptual confusion and the contested claims of restorative justice in the transitional context 71 Untapping the potential of ‘top-down’ restorative justice mechanisms 84 From backward-looking to forward-looking agendas 86 6

Restorative justice as a vehicle for reform Reforming justice: trends and obstacles 88 From formal to informal responses to conflict 99

7

Restorative justice as a mechanism for peace-building Community as a stakeholder in restorative justice 102 The challenge of ‘community’ in transitional settings 105 The potential of the restorative ‘community’ in transitional societies 109 Some final thoughts 114 Conclusion: towards a transformative vision of restorative justice Macro and micro-utilisations of restorative justice 116 The impact of restorative justice 120 Notes References Index

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124 130 154

Foreword

Few can have failed to have noticed the prolific expansion of restorative justice over the past two decades. While the parameters of the concept remain somewhat contested, there can be little doubt that policymakers on both national and international platforms are actively seeking ways to promote more effective and more legitimate responses to criminal offending. This shift is, in part, a response to growing doubts concerning the capacity of orthodox criminal justice systems to deliver participatory processes and fair outcomes that are capable of benefiting victims, offenders, communities and, indeed, society as a whole. There is no shortage of literature exploring both the theory and practice underpinning restorative justice in its many guises; its expansion has been particularly well-charted in Australia, New Zealand, North America, England and Wales and (increasingly) continental Europe. Innumerable evaluations consistently show that it outperforms orthodox approaches to criminal justice across range of variables. Yet we know considerably less has been written about the evolution of restorative justice in so-called transitional societies. This is in spite of the welldocumented paradigmatic overlap that exists between restorative justice and transitional justice: both approaches tend to emphasise inclusive and nonadversarial frameworks for conflict resolution, and both espouse similar values, such as truth, accountability, fairness, respect, reparation, reconciliation and participation. At one level, it is clear that aspects of restorative justice often feature prominently at a societal level within certain conflict-resolution mechanisms; the archetypal truth commission is one such example. Whilst there is undoubtedly a growing interest in the potential utility of restorative justice in such settings, there remains a dearth of close analysis as to how restorative such processes are in practice. By the same token, we know very little about the extent to which restorative principles might, integrated into the new democratic institutions, have emerged from conflict-resolution processes. Key questions concern: what drives/impedes the use of restorative justice in transitional environments? Is there a relationship between the use of restorative justice within new criminal justice systems and legitimacy? What is the relationship (if any) between the use of restorative justice at a macro or inter-communal level and its use as a tool for resolving conflicts between individuals at the micro level? Might its adoption (at either level) propel the transition through providing better

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Foreword

levels of transparency, accountability and community participation? Are there risks that the state might seek to ‘colonise’ localised and grassroots initiatives? If so, how might these be counteracted? How might the use of restorative justice impact among the attitudes and experiences of stakeholders? How might the mainstreaming of restorative approaches within criminal justice impact on levels of crime and recidivism? Dr Clamp’s book proffers a very clear lens through which such issues might be probed in greater depth through offering an accessible, yet highly rigorous analysis of the problem-solving potential of restorative justice. There are two key objectives to her book: first, to explore the impact of transition upon the development of restorative justice and, second, to analyse the inverted impact of restorative justice upon the transition. Drawing from the themes of her earlier doctoral work which explored three transitional societies (the Czech Republic, Northern Ireland and South Africa), Clamp examines the use of restorative justice at macrolevel; as a feature of criminal justice reform and at grassroots level. Overall, a lucid and convincing argument is presented that whilst there is no ‘one size fits all’ solution, four core values may be elicited which maximise the problemsolving potential of restorative justice in transitional settings, these being engagement, empowerment, reintegration and transformation. These values, in turn, may be used to provide democratic space for communities to adopt culturally-relevant processes which hold the potential to create and sustain peace. Restorative Justice in Transition is a timely and most welcome addition to a relatively sparse body of literature which should prove an invaluable resource for those interested in transitional justice, criminology and conflict resolution. Professor Jonathan Doak Durham Law School April 2013

Acknowledgements

Writing this book has been a difficult process. The literature on both restorative justice and transitional justice is enormous and this contributed to an everpresent sense that something important would be forgotten or overlooked. This was compounded by juggling the demands of teaching, getting married and moving from the UK to take up a new post in Australia. Nevertheless, there have been many people who have helped me to form my ideas, discuss the structure for the book and to have a drink with along the way and thus kept me sane. The arguments based in the book have evolved from what was my PhD thesis, a journey undertaken at two institutions under the supervision of three inspirational academics. The obvious place to begin with my thanks therefore is at the University of Sheffield, where my journey began, with Professor James Dignan and Professor Jonathan Doak guiding and facilitating the genesis of what today is my first monograph. Both Professor Dignan and Professor Doak have been instrumental, not only in terms of academic input, but also with unwavering support and encouragement when things were not going quite to plan. A large debt is owed in particular to Professor Adam Crawford at the University of Leeds who took up the reins during the second year of this project until its completion. His authority and breadth of knowledge on the subject has meant that all methodologies, arguments and perspectives that I have put forward along the way have been challenged and expanded as a result. I am also personally indebted to the interviewees who found the time in their busy schedules to speak to me. Without their contribution, the much needed depth and insight into the issues and events discussed herein would not have been possible. I am also thankful for the comments and ideas put forward by my external examiners – Professor Kieran McEvoy and Professor David Wall – who provided helpful feedback and constructive criticism. I am very grateful to the anonymous reviewers who provided encouraging and constructive feedback on earlier drafts of the manuscript. I was also lucky enough to be invited to present my ideas at the Leuven Institute of Criminology Research Line on Restorative Justice in December 2012, and the discussion that arose from that meeting helped me to develop my ideas further. As such, I would like to thank all of those who attended, but especially Professor Ivo Aertsen and Dr Inge Vanfraechem who invited me. Despite the help I have received along

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the way, writing is a necessarily selective process and any errors or omissions naturally remain my own. Professor Doak and Dr David O’Mahony, in particular, have provided much needed support and guidance since the completion of my degree, coupled with lots of shenanigans to keep everything in perspective – thank you both very much. I feel very lucky to have you both as mentors! My colleagues at Sheffield Hallam University – Paula Hamilton, James Banks, Craig Paterson and Shawna McCoy; my PhD colleagues Daphne Kaklamanou and Ryan Davenport; my mates Aimee Flatt and Fiona Goldrick; and my little sister Brit Clamp also deserve a mention for constantly checking up on me. Without the love, support and assistance provided by you all, I would not have completed what ultimately has been the biggest professional challenge that I have faced. Finally, mention must be made of my mom, whose only wish has been for me to be the best that I can be (even if that meant being a beach bum!) and my dad who has constantly motivated me to strive for more. You have both instilled me with the belief that anything in life is possible. A special mention should be made of my husband Danny. You have provided much needed support and encouragement throughout this journey and exercised what can only be described as the patience of a saint – words just aren’t enough.

Abbreviations

ACP ANC BWCC CAVR CJINI CPCC CRJI DDR DRC FGC ICC ICTR ICTY NGO NIACRO NIO OHCRH PAGAD PMS PTSD REMHI SDLP SPJ TIRA TRC UDF UNCRC VORPs

Ardoyne Community Project (Northern Ireland) African National Congress War Crimes Chamber of the Court of Bosnia and Herzegovina Commission for Reception, Truth and Reconciliation (TimorLeste) Criminal Justice Inspectorate Northern Ireland Community Peace Consolidation Committees (Red Cross, Sierra Leone) Community Restorative Justice Ireland Demobilisation, disarmament and reintegration Democratic Republic of Congo Family group conferencing International Criminal Court International Criminal Tribunal of Rwanda International Criminal Tribunal of Yugoslavia Non-governmental organisation Northern Ireland Association for the Resettlement of Offenders Northern Ireland Office International Covenant on Civil and Political Rights People against Gangsterism and Drugs (South Africa) Probation and Mediation Service (Czech Republic) Post-traumatic stress disorder Recovery of Historical Memory, Recuperación de la Memoria Histórica (Guatemala) Social Democratic and Labour Party (Northern Ireland) Association for Development of Social Work in Criminal Justice (Czech Republic) Tim Independen Rekonsiliasi Ambon Truth and Reconciliation Commission (South Africa) United Democratic Front (South Africa) United Nations Convention on the Rights of the Child Victim Offender Reconciliation Programmes (Canada, specifically Ontario; USA, specifically Indiana)

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1

Introduction

This book is situated within the contours of the evolving response to international crime, and is explicitly focused on exploring the adoption and implementation of restorative justice theory and praxis within transitional societies. While criminology is often thought to be at the forefront of attempts to understand the motivations for, consequences of and responses to crime, in comparison to law and political science it has paid relatively little attention to international crimes. Restorative justice scholars too seem to have been relatively quiet on the role of restorative justice within transitional settings (Cunneen 2007). As such, little scholarship has been undertaken in this area. Whereas sophisticated work explores the use of reparation to respond to the past, the functioning of truth commissions and some community-based schemes, and the role of truth and amnesty in relation to reconciliation and political transition, only a limited analysis exists on what may be achieved by adopting a restorative framework in situations of mass violence and oppression. Parmentier and Weitekamp (2007) suggest that a lack of attention has been paid to the role of restorative justice in responding to international crimes for two reasons: such investigations are fraught with a number of methodological difficulties (particularly with regard to measuring ‘impact’),1 and the sensitive nature of political crimes committed by individuals with considerable power and influence deters scholars from getting involved. Other difficulties put forward include trying to assess the effectiveness of transitional justice mechanisms in reality; getting an overview of the perceptions and attitudes that individuals hold about the conflict and what they would like to see happen following a move towards peace; the challenges of the mental and physical state of interviewees following protracted periods of conflict; and the fast pace at which the political context can change in these volatile settings (Parmentier and Sullo 2011). Nevertheless, Clark (2011) argues that research in this area is important. First, in order to advance our knowledge of what works and what does not work within transitional settings, we need to develop research instruments that will enable effective assessment. In short, empirical research can ‘provide the very necessary basis’ for evaluating transitional justice mechanisms such as trials and TRCs (Truth and Reconciliation Commissions) (Clark 2011: 245). Second, we need to develop our understanding of contextual and cultural factors that are

2

Introduction

relevant to the nature or shape of an effective transitional justice strategy. All too often there is a ‘one-size-fits-all’ approach to transitional justice. Consistent with ‘peace-building from below’, Clark (2011: 245) argues that evidence-based transitional justice can ‘provide precise assessments of communities’ needs and perceptions of and attitudes towards peace and justice’. A dearth of research that explores the value and tangible outcomes of restorative justice schemes in transitional settings is problematic, given the very broad claims that are often made about the outcomes that restorative processes can generate, not only for victims and offenders, but also for entire nations. This book thus seeks to interrogate the literature where restorative justice and transitional justice intersect. This introductory chapter points to a number of key themes that will be further interrogated in proceeding chapters. It begins by outlining briefly the evolution of transitional justice from its emergence in response to the consequences of the Second World War, which emphasised retributive justice in the form of prosecutions to the experimentation with alternative justice models that are perceived to respond more adequately to an increasingly complex transitional environment. This evolution has included a number of values, which both academics and practitioners have increasingly linked to restorative justice. The next section outlines a number of broadly accepted features that distinguish restorative justice from other forms of justice, before drawing attention to the highly contested nature of this approach within the general literature and in relation to its application to transitional settings more specifically. What becomes evident is that there is scope and indeed a need for further research to be conducted on this topic. The final section provides an overview of the structure for the rest of the book.

Evolving discourses in transitional justice The twentieth century is often referred to as the bloodiest and most costly in history and the twenty-first century appears to be headed in a similar direction. Characterised by two world wars; revolutions across Latin America, Europe, and most recently North Africa; and civil wars or ‘regional conflicts’ in Africa and Asia, the devastation to families and communities across all regions is often unimaginable to those living in more peaceful and stable settings. Media images of men, women and children who have been oppressed, tortured and brutally murdered have spurred individuals into action, demanding an international response to atrocities and human rights abuses. This has resulted in the emergence of two concepts in the international landscape: one to describe the violence, oppression or persecution undertaken or allowed under law by the state (international crime), and one to encompass the variety of responses to that violence, oppression or persecution (transitional justice2). Bassiouni (2003: 24) defines international crime as breaches in international rules that ‘affect international peace and security of humankind or is contrary to fundamental humanitarian values, or which is the product of state action or a

Introduction 3 state-favouring policy’. Crimes against humanity, war crimes and genocide are considered to be the most serious crimes for the international community as a whole and their definitions are located in the 1949 Geneva Conventions and their Additional Protocols of 1977; statutes of the ad hoc international criminal tribunals (Nuremberg International Military Tribunal, International Criminal Tribunal of Yugoslavia, ICTY, and the International Criminal Tribunal of Rwanda, ICTR); and the 1998 Rome Statute of the International Criminal Court. These crimes differ from ‘ordinary’ crime committed in democratic settings in that the state is either explicitly or implicitly involved in their commission, the scale of those who are affected by the violence and oppression is vast and the boundaries between those who are victims and those who are offenders – either due to their own actions or association with a particular group – is often blurred (Groenhuijsen and Pemberton 2011). Responses to these offences – ‘transitional justice’ – have evolved over a number of distinct phases during the twentieth century (Teitel 2003a). The first three phases – the Second World War, transitions in Southern Europe (Portugal and Greece) and the collapse of communist regimes – involved responding to human rights violations that had taken place under strict dictatorships. The approach to achieving ‘justice’ following the collapse of these regimes was characterised by the goals of deterrence (prosecuting leaders through criminal trials), denunciation (prosecuting leaders of the outgoing regime on behalf ‘of the people’ in national trials) and incapacitation (lustrating individuals from key governmental and economic posts) respectively, in a bid to protect fledgling democracies from being undermined by leaders of the previous regime in the new democratic order. In the fourth and fifth phases, however, the type of conflict was much more complex and a ‘paradigm shift involved a more explicit recognition of transitional justice as a tool for a range of political and social goals beyond accountability’ (Bell 2009: 9). Characterised by warring groups (predominantly in Latin America and Africa), these conflicts could not be resolved by holding individual offenders or political leaders to account through criminal prosecutions. Political affiliation in these conflicts played an important part in personal identity and therefore, any retributive approach involving prosecutions raised the potential of reigniting the conflict. Thus, after the Cold War, debates around how to approach transitional justice focused on reconciliation, or nation-building, and whether to ‘punish or pardon’ prior human rights violators in order to move communities into a peaceful future (Leebaw 2005). At this stage, there was a marked fragmentation of the goals that transitional justice sought to achieve, with amnesty, reparation, truth and restorative justice being added to the transitional justice discourse. Due to greater prominence attached to human rights, the limitations of the court system and the inadequacy of criminal prosecution as a means of resolving past abuses, there have been a number of attempts to expand the types of transitional justice mechanisms available to deal with human rights transgressors. In particular, McEvoy and Newburn point out that restorative features such as:

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Introduction [a] focus on reparation and healing of victims as opposed to retribution visited upon wrongdoers, hearings which are directed towards truth finding rather than adversarial processes (which emphasise community involvement and ownership rather than exclusive ‘professional’ stewardship) have become increasingly important as ways in which societies seek to emerge from violent and divisive political conflicts. (2003: 4)

Thus, within these contexts, restorative justice has been increasingly used to describe approaches to, or frameworks for, transitional justice that are more responsive to the needs and circumstances of victims and the broader community. However, there are a number of inherent limitations with the conceptual and theoretical literature on restorative justice that is further exacerbated when applied in transitional settings. While this will be unpacked in further detail in the next chapter, the following section outlines some broad tensions of the application of restorative justice to transitional settings raises.

Restorative justice in transitional contexts Howard Zehr (2002) asserts that restorative justice offers a very different view of understanding and responding to crime and its consequences on a number of levels. First, crime is seen as an act against people, not a violation against the state. Therefore, the primary stakeholders in any conflict are perceived to be the victim, the offender and the community (which may include the family/supporters of the victim and offender), rather than the state and its practitioners. Second, those most affected by crime – victims and communities – are viewed as central to the process and therefore should be offered the opportunity to become actively involved in the response. This allows offenders to take direct responsibility for their actions; assists victims in asking questions, seeking information and clarification from the offender and therefore moving beyond a position of vulnerability and powerlessness towards feeling that the moral order has been restored. Third, the emphasis is on repairing harm and restoring losses. This is in sharp contrast to the retributive approach that perceives crime as a law violation that requires a proportionate and objective punishment to be meted out. Within a restorative process offenders are able to provide material or symbolic reparation as an acknowledgement that the incident was morally wrong, and as a gesture to compensate for the damage or harm caused with input from the victim. Finally, there is a balanced approach to the needs and responsibilities of all stakeholders. Restorative justice theory argues that the needs of victims should be met while promoting accountability and the well-being of offenders. As such, the notion that ‘victim-centred’ justice is restorative justice becomes questionable given that it creates a further imbalance, albeit one that favours victims, rather than prioritising all stakeholders equally. While these guiding principles of restorative justice are broadly supported by all proponents, the specific values, processes and outcomes of restorative justice

Introduction 5 remain highly contested. Von Hirsch et al. (2003a: 22) outline a number of problematic features with restorative justice that have not been adequately addressed within the literature, which also raise a number of questions when restorative justice is applied to the transitional context. They begin their critique by asserting that restorative justice contains a variety of objectives that are ‘ambitiously and vaguely formulated’. Restorative justice operates on the basis that there are distinct categories between individuals, and that action can be taken by one party to repair the harm that has been caused. But Von Hirsch et al. question what it means to ‘repair’ and ‘restore’. Within the context of societal crime specifically, we also need to consider whether these are achievable aims in instances where families have been slaughtered and entire villages destroyed. Next, they argue that the wide bounds within which the upper and lower limits of the outcomes and means to achieve objectives are decided upon creates uncertainty and raises questions about what makes the process ‘restorative’. Claims that ‘truth’ has the power to reconcile not only individuals, but heal entire communities that have brutalised one another for decades seem remarkable (see Herman 1994; Wilson 2001). But how exactly can knowing the details of the past or a loved one’s fate heal and repair the harm that has been caused? It then begs the question that if we cannot be clear about what the objectives of restorative justice are, how can those objectives be achieved? While restorative justice proponents would argue that stakeholders should determine what the aims and objectives of proceedings should be, restorative justice processes are generally evaluated according to levels of participant satisfaction and repeat offending. But as the authors argue, it is unclear how these evaluation criteria relate to the objectives set by the stakeholders during the deliberative process. As such, the tendency for some to assert that restorative justice is ‘superior’ to other transitional justice approaches often glosses over the fact that restorative justice as an area of academic inquiry and practice is hotly contested. There is no agreed definition of what it is, its parameters have not been drawn and the appropriateness of its application for the broad range of crimes that take place in democratic (let alone transitional) settings is a matter of debate. Daly and Proietti-Scifoni (2011) attribute this undefined terrain to (1) the piecemeal fashion in which the concept and practice has developed;3 (2) the capaciousness of the term, which has come to mean everything that is distinct from criminal justice; (3) the divergent views held by prominent restorative justice scholars about what constitutes restorative justice; (4) the application of restorative justice to transitional settings without due regard for distinctions in meaning; and finally (5) the uncertainty of what key terms (such as reparation and restoration) mean in different contexts. A cursory glance at the literature on restorative justice within transitional settings will quickly reveal two things. First, the literature that discusses restorative justice within democratic settings is used and applied to the transitional context without alteration and without being explicit about the means through which the stated objectives can be achieved. Second, restorative justice as a concept and a paradigm has been expanded to include a range of values, principles and goals

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Introduction

that were not initially intended by its founders. The extent and appropriateness of this practice will be dealt with in the following chapters; suffice to say here that such practices only serve to further muddy the conceptual and theoretical waters rather than to clarify them. This contribution therefore has two main objectives. The first is to understand the impact of the transitional justice context on restorative justice. The capaciousness of restorative justice is precisely the reason for its popularity but there is a danger that it will become so encompassing that it will become meaningless. As the literature on transitional justice expands, so does the application of restorative justice, as Daly and Proietti-Scifoni explain: In transitional settings, restorative justice and restoration are concerned not only with individuals but also collectivities and with regime change and state building. International human rights and transitional justice writers have selectively incorporated elements of, or redefined, ‘restorative justice’ and ‘restoration’ to suit their specific frame of reference. Thus, key terms have come to signify differing meanings and aspirations [. . .] in transitional justice [. . ]. literatures. (2011: 212) Restorative justice within democratic settings responds primarily, although not exclusively, to behaviour that has transgressed criminal law. As Rohne et al. (2008: 19) explain, ‘restorative justice processes are generally understood as being focused on direct communication and making amends at the interpersonal level’. This is problematic when applied to transitional settings as acts committed against individuals may not have been legislated for, or may have been promoted by law, such as shoot-to-kill policies. Furthermore, while conventional restorative justice theory is premised on a deprofessionalised process, what happens when the state and the criminal justice system have been involved in instigating and enforcing discriminatory policies against particular groups in society or carrying out violent human rights abuses? The issue here is that contemporary restorative justice theory is not broad enough to encompass institutions as aggressors, or in other words, situations in which the state and its apparatus have been responsible for the violence, intimidation and/or oppression of vast groups of people based on their cultural, religious, historic, political and/or ethnic characteristics. The transitional context thus creates a need for restorative scholars to consider whether or not these types of offences fall within the remit of what restorative justice can be used to respond to; to acknowledge the distinctions in the contexts of application and furthermore to determine the impact that this may have on restorative justice theory and practice more generally. The second objective is to assess the impact of restorative justice in transitional settings. Claims surrounding its potential grab the attention of policymakers, politicians, religious leaders, community and civil society groups and victims alike. The transfer of restorative justice to transitional settings requires

Introduction 7 that steps be taken to protect not only the theory and the practice, but also those who engage with and participate in its processes in terms of raised expectations that it may not be able to deliver. While many claim an unshakable faith in its potential to heal, reconcile and restore, the accompanying evidence to support these claims is inconclusive. The extent to which theory becomes reality is something that is given relatively little attention, and this contribution seeks not only to engage in a theoretical discussion but also to evaluate the claims of restorative justice proponents within transitional settings against available empirical findings. Despite these and other limitations that will become evident as the book progresses, there continues to be an important role for restorative justice within these complex contexts. The central premise is that the primary potential of restorative justice in responding to international crime should be viewed in terms of the lessons that it provides for problem-solving rather than its traditional role as a mechanism or process to respond to conflict per se. As such, while restorative justice may offer a more effective response to crime and conflict resolution and respond to some of the limitations that are characteristic of traditional retributive responses, this can only occur if restorative justice scholars increase their sights and ambitions and adopt a more radical vision of restorative justice. Achieving these objectives involves a complex evaluation of restorative justice as it is concerned not only with the ways in which restorative justice develops at both a formal and an informal level but also its use within the context of criminal justice reform. The book’s arguments are based, in part, on the findings of a doctoral research project, which utilised a comparative case study design. Three countries were included in that study – the Czech Republic, Northern Ireland and South Africa – and the key themes that have arisen from that research have guided the structure of this book. Quotes from semi-structured interviews4 conducted with ‘elites’ (academics, members of national Commissions, government officials and representatives from NGOs) in each country are drawn on from time to time to further illustrate arguments or to provide additional insight into a particular programme or process under discussion. However, it should be stressed that the focus of the book is not specifically on these three transitional states. An additional analysis of empirical data, policy documents and theoretical contributions has been drawn upon to further interrogate the themes that arose from those case studies in order to explore further the application of restorative justice rhetoric and practice within transitional states more generally. This monograph should therefore be perceived as a contribution to broadening the object of criminology by shifting attention from common crimes to political crimes, and deepening our theoretical understanding of the use of restorative justice within the context of transitional states. The capaciousness of restorative justice allows a variety of actors to mould its meanings, applications and origins to suit their agendas in a multitude of ways, which will be demonstrated throughout the following chapters. Daly and Proietti-Scifoni’s (2011: 208) assertion that ‘anyone new to the field would be completely lost’ is certainly apt, and this

8

Introduction

contribution seeks to further embed the notion that it is important to develop our knowledge and critique of restorative justice within these complex contexts. The following section outlines how the argument develops.

Outline of the book Restorative justice as a field of inquiry is rapidly developing and expanding in what some may perceive to be an unwieldy fashion. The restorative justice that we speak of today is markedly different to that which was initially envisaged by practitioners in Canada and the United States some forty years ago. This raises questions about what we are referring to when we speak of ‘restorative justice’. Chapter 2 therefore provides an overview of the conceptual debates that surround restorative justice, particularly in relation to its values, origins and how it is defined. Next, due consideration is given to the key challenges that the transitional context poses for its application. What emerges is that our current conception of restorative justice as either a process or an outcome needs to be broadened for the transitional context. Chapter 3 therefore outlines a value-based approach that emphasises four restorative values for restorative justice practice within transitional settings. Chapter 4 explores the ‘multi-layered’ approach to transitional justice – from the ‘top-down’ and the ‘bottom-up’; with the assistance of international aid or without – and how restorative justice may be used to achieve broader aims at each level. The following three chapters provide an overview of how restorative justice has been applied and evaluates claims about what it can achieve against empirical evidence. Chapter 5 outlines the uses of restorative justice discourse at a macro-level and its application to truth commissions, Chapter 6 focuses on the adoption and integration of restorative justice during periods of criminal justice reform and Chapter 7 explores what is increasingly being referred to as ‘transitional justice from below’, and the role of community restorative justice. The Conclusion then draws the ‘lessons’ from the previous three chapters together to further our understanding of the different uses of the concept and its processes at different levels within transitional states. What becomes evident is that the transformative potential of restorative justice is limited by our current conceptions of justice and the isolated manner in which transitional justice is approached. As such, the book calls for a more ambitious transitional justice agenda that places engagement, empowerment, reintegration and transformation at the centre of any approach and that steps are taken to further link both microand macro-agendas. While many will argue that this is unachievable, Lundy and McGovern (2008a) inform us that over 40 per cent of post-conflict societies return to conflict within a span of five years. This arguably undermines the substantial investment that is often made into grand projects to develop a common and shared narrative about the past; to assert the rule of law; and to co-opt community projects. Instead of asking who is guilty, and what punishment they deserve, we need to start asking who has been harmed, why this has happened

Introduction 9 and what their needs are (Zehr 2002). As Wilson (2001) argues, it is not only human rights abuses that affect individuals, but also interventions by international organisations and the state. We therefore arguably have a duty to push the boundaries of both restorative and transitional justice to achieve a more effective approach to dealing with conflict and oppression for those most affected by them. This book seeks to serve as an impetus for a more nuanced discussion of how that might be achieved.

2

Restorative justice as a contested response to conflict and the challenge of the transitional context

This chapter has two primary objectives. The first is to unpack and explore some of the different interpretations of restorative justice, a concept that is increasingly becoming a normative phrase used in both domestic settings and transitional contexts. As previously stated, there is no agreement around its conceptual meaning, the appropriateness of its application in response to certain types of criminal behaviour or even its origins. These contentious issues reduce the ability of proponents or critics of restorative justice to engage in meaningful conversation with each other, given that their conceptual understandings of and theoretical starting points for restorative justice may be contradictory. More often than not this results in these individuals talking past each other without the possibility of achieving a middle ground where they are speaking in an agreed language.1 The second is to expose and discuss a number of potential obstacles that arise when applying restorative justice concepts and processes to transitional settings. Much has been written on restorative justice in democratic settings where ‘rule of law’ has been characterised by due process and human rights; however, less has been written on restorative justice in emergent democracies. In the discussion that follows, it becomes evident that the semantic difficulties inherent in the concept of restorative justice become more acute when applied to international crimes. This brings into question the portability of concepts and practices from democratic to transitional settings and the extent to which their application will yield the expected and desired results. Thus, additional support is provided for the notion that the transitional context creates opportunities for restorative justice scholars to engage in a discussion around what the parameters of restorative justice should be within these settings. The chapter concludes by suggesting that we need to develop a broader vision of restorative justice that goes beyond processes and outcomes. While established transformative visions of restorative justice suggest a change toward embracing restorative justice principles as part of one’s daily life, the premise of this chapter is that more attention should be paid to how transformation can be achieved in terms of ongoing conflict between parties in transitional states. Before turning to these issues, we must begin by discussing the defining features of restorative justice for those who may be less familiar with the literature.

RJ as a contested response 11

Principles, values and goals of restorative justice: a brief overview Van Ness and Strong (2010) describe three principles of restorative practice that distinguish it from other approaches to responding to crime and conflict. The first is a desire to repair the harm that has been caused by the incident. The second is to encourage the active involvement of all stakeholders (where they want this) in discussing what happened and deciding on the appropriate outcomes to deal with the causes and consequences of the incident. Finally, they draw attention to the fact that this ultimately requires a rethinking or reconsideration of the role of the state and the broader community in responding to crime and conflict. Marshall (1999), like Van Ness and Strong (2010), stresses the importance of participation as a defining feature of restorative justice. However, he also draws attention to the importance of viewing crime problems in their social context, the forward-looking (or preventative) problem-solving orientation of restorative processes, and the flexibility of restorative practice, which allows a certain level of creativity in devising responses to the incident. By including these contextual principles, ownership of the conflict and the subsequent decision-making as to how that conflict should be resolved is further confirmed as falling within the remit of the stakeholders rather than professionals. In order to achieve these broad aims, restorative scholars have singled out a number of values that should guide any process that claims to be ‘restorative’. These are quite diverse and are concerned with how participants should be treated, how the process should be run, the types of behaviour the process should elicit and the outcomes that it should generate. Jonathan Braithwaite (2002a, 2003) has helpfully grouped these values into three categories and further unpacks how and when they should be used or should feature within the process. Constraining values are those that should be actively enforced because they keep the process focused on the interests of all of the stakeholders. These include nondomination, empowerment, honouring legally specific upper limits on sanctions; respectful listening; equal concern for all stakeholders; accountability and appealability; and respect for individual rights as outlined in international human rights documents (Braithwaite 2002a: 569). The key here is that stakeholders should be given an equal voice and stake in the discussion and resolution of the incident. Adversarial approaches are often perceived as a zero sum game when considering the relationship between victims and offenders within the criminal justice process; however, restorative justice argues that needs should be met while promoting accountability and the well-being of offenders. Allowing the active involvement of all stakeholders within clearly defined parameters is thought to create an environment in which the needs of each individual will be met. Maximising values are those that should be actively encouraged, and represent a means through which the process may be evaluated (Braithwaite 2003). These relate mostly to the extent to which self-worth, relationships, physical items and harmony have been restored; services have been accessed (social

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RJ as a contested response to conflict

justice); and further injustice or bad behaviour has been prevented (Braithwaite 2002a). However, Braithwaite (2003) does raise a caveat here. While it is good for facilitators to promote restoration and other tangible outcomes, he argues that stakeholders should be empowered to reject those put forward by the facilitator in favour of their own. In this manner, constraining values should always take precedence over maximising values because it is the stakeholders who should have control over decision-making rather than any professional or facilitator. Unfortunately, this does not always occur in practice. In democratic settings, the restorative process is considered successful if participants are satisfied with the process, agreements or behaviour contracts have been completed and/or repeat offending has been prevented – objectives that have often not necessarily been prioritised by stakeholders, but rather by the state and professionals, who are motivated by the wish to increase perceptions of their legitimacy. Finally, emergent values are those that may or may not result from the process and include remorse, apology, censure of the act, forgiveness and mercy. Braithwaite (2003) argues that facilitators should not explicitly require such outcomes, but should rather be viewed as outcomes of a successful process. He suggests that ‘if we try to make them happen, they will be less likely to happen in a meaningful way’ (ibid.: 13). It is interesting to note that within the transitional justice literature, and increasingly in the literature on restorative justice, it is these final ‘emergent values’ that are most often discussed, debated and promoted as ‘restorative justice’, while the constraining and maximising values receive less attention. Perhaps, in some respects, this can be explained by the breadth of literature that interrogates both procedural values and outcome values of restorative justice. However, as shown in the previous chapter, this creates a gap when considering the constraining and maximising values that should be prioritised within transitional contexts. The remainder of this chapter begins to explore the complexities involved with the theoretical application of restorative justice.

The complexities of restorative justice The origins of restorative justice are hotly contested – some view restorative justice as a return to more traditional approaches of dealing with conflict; while others assert restorative justice theory and practice emerged as a by-product of the development of a more pronounced victim and restitution movement; and still others argue that restorative justice theory has developed out of ‘bottom-up’ or ‘alternative’ practices to conflict resolution. In the first category, debate over the origins of restorative justice centre on claims that traditionally restorative justice was the main response for resolving disputes among indigenous populations and offending behaviour in the Western world. Cunneen (2007) argues that from the twelfth century onwards, these restorative approaches were gradually supplanted by the modern state. An advocate of this position is Jonathan Braithwaite (1998: 323; 1999: 1) who has claimed that ‘restorative justice has been the dominant model of criminal justice throughout most of human history for all the world’s peoples’.2

RJ as a contested response 13 This interpretation of the history of restorative justice is not without its critics, however. Kathleen Daly (2002: 72) for instance, describes this position as ‘the mythical true story of restorative justice’, which presents a ‘restricted and modified history’. Richards (2004) and Sutcliffe (2003) further posit that this portrayal of the origins of restorative justice may be considered strategic in terms of promoting restorative justice practice to policy-makers and legislators. In Daly’s (2002: 62) words: ‘if it can be established that the first form of human justice was restorative justice then advocates can claim legitimacy for contemporary restorative justice alternatives to state-sponsored retributive justice’. Indeed a number of examples can be cited that demonstrate this tendency. In Northern Ireland, for example, a Celtic form of justice known as Brehon Law is said to have emphasised restoration and reparation through negotiation between victim and offender rather than merely seeking retribution for criminal wrongdoing (see Clamp 2013 (forthcoming); Consedine 1999b; Leonard and Kenny 2011; Monaghan 2002). While this system of justice was largely replaced by the British form of adversarial justice in the mid-twelfth century, it has subsequently been used to justify the development of community-based restorative justice schemes (see Eriksson 2009). In South Africa the African concept of ubuntu, which is said to guide the African way of life and may be described as ‘spiritual communalism’ that employs restorative rather than retributive principles in conflict resolution (Anderson 2003; Mokgoro 1998; Tutu 1999), has also been used to frame the functioning of the youth justice system (see Skelton 2005, 2007). Proponents of restorative justice are, therefore, able to cite this heritage as a justification for its revival (Mantle et al. 2005). In the second category, Dignan (2005) and Van Ness (2005) point to the consequences of the ‘crisis of penal modernism’ during the 1970s as influencing the development of this movement, namely: the rise of the use of restitution in the 1970s; the victims’ rights and supports movements of the 1980s; and general dissatisfaction with the traditional adversarial system of justice (Garland 2001: 62). These developments exposed the imbalance of the criminal justice system’s focus on the offender and provided the impetus for alternatives to be sought (Daly and Immarigeon 1998; Dignan 2005; Van Ness 2005). Criticism of the criminal justice system, especially as practised in Western societies, for its failure to engage and empower those most directly affected by crime, particularly victims, has been a consistent feature in the discourse surrounding restorative justice (see Christie 1977; Crawford and Newburn 2003; Green 2007; Strang 2002; Sawin and Zehr 2007; Van Ness 2005). Therefore, according to this view, restorative justice has developed as a direct response to the perceived illegitimacy of the criminal justice system and a desire to increase its effectiveness. In the third category, proponents argue that restorative justice theory emerged out of reflections on practice (Ashworth 2002; Zehr 2002). Experimentation with restorative practice first emerged in the late 1970s in Kitchener, Ontario in Canada and shortly thereafter in Elkhart, Indiana in the United States, in the form of Victim Offender Reconciliation Programmes (VORPs). Howard Zehr (1990) provides an illustrative account of this experiment when he recalls that

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RJ as a contested response to conflict

probation officers, frustrated with ineffective sanctions and increasing levels of recidivism, proposed that the offenders of a particular case meet the victims concerned and recompense them directly for the damage that had been caused by their actions. While the initial process involved ‘frog-marching’ the offenders to the victims’ door to apologise and agree restitution, this has been somewhat refined in current times in light of developments in both victim and offender rights; risks of repeat victimisation and other due process concerns. Since then it has become a popular mechanism for reform on the basis that it can increase victim satisfaction with the criminal justice process, and reduce recidivism, as well as the costs and time involved in the processing of cases (see Johnstone 2011). Zehr (2002: 61), therefore, argues that the contemporary field of restorative justice started as ‘an effort by a handful of people dreaming of doing justice differently. It originated in practice and in experimentation rather than in abstractions. The theory, the concept, came later’. The use of these competing origins is clearly evident within the adoption of restorative justice at macro- and micro-levels outlined within this book. This will be further elaborated on in later chapters – suffice to say here that presenting restorative justice as something that has always been present in society by linking it to indigenous justice practices; as a means through which to ‘democratise’ and ‘legitimate’ the formal system; or a way of doing justice differently, can be an attractive way to engender support and legitimacy for new institutions and programmes. Nevertheless, Richards (2004: 2) warns that these histories – however inadvertently – make restorative justice appear ‘natural’ and unproblematic, and at times a ‘miraculous’ and panacean paradigm of criminal justice. Undoubtedly this has contributed to the ever-increasing portfolio of what restorative justice is said to be capable of achieving for those affected by conflict. Contested debates relating to restorative justice occur not only in relation to its origins but also to what it is. Defining restorative justice Engaging in a discussion of what constitutes restorative justice is particularly important, so that we may be clear about what programmes or initiatives can legitimately claim the label. While this sounds like a relatively straightforward exercise, restorative justice both as a concept and as a process is highly contested. Proponents are primarily divided into two camps – those known as ‘purists’ who emphasise its procedural aspects and those known as ‘maximalists’ who emphasise its outcomes (Clamp and Doak 2012; Johnstone and Van Ness 2005; Zernova and Wright 2007). Those within the predominant procedural camp argue that the act of bringing stakeholders – victims, offenders, their supporters and other members of the wider community – together and allowing them collectively to discuss the incident, its causes and consequences, and to determine a course of action is what makes a something restorative (see Braithwaite 1999; Morris 2002). A number of prototype processes that allow varying levels of stakeholder engagement have emerged which include victim–offender mediation, family

RJ as a contested response 15 group conferencing, community reparation boards and panels, and healing or sentencing circles.3 The key element within a process-focused definition is the empowerment of stakeholders by enabling them to become active participants in the resolution of their offences. Here, any outcome can be considered restorative (even imprisonment) if it has emerged from a discussion and agreement between the stakeholders. Conversely, proponents of the outcome-focused camp convincingly argue that the restorative quality of a sanction should not be diminished by a lack of interaction between stakeholders. Understandably, there will be some instances in which it is not practical or possible to include all stakeholders in seeking a resolution to the incident. Rather, they suggest that ‘every action that is primarily oriented towards doing justice by restoring the harm that has been caused by a crime’ should be considered restorative (Bazemore and Walgrave 1999: 48). This allows them to include within their definition court-based sanctions, such as compensation orders or reparation orders for victims and community service orders (such as reparation to the wider community), where these have not arisen out of, or been preceded by, a restorative process (Crawford and Newburn 2003: 44–45). These proponents emphasise that the impact or intent of the outcome is what determines whether or not restorative justice has taken place. So, for example, despite the fact that a victim and offender may come together and collectively decide on a punishment or sanction, we cannot state that restorative justice has taken place if the outcome of that interaction violates human rights and departs from restorative principles.4 While van der Merwe (2009) points to a shift in focus from the offence to the individuals concerned and a concerted effort to respond to the harm that has been caused to the victim and/or society as the common ground for both camps, these competing perspectives contribute to our murky understanding of what should fall within the parameters of restorative justice and what should not. Some proponents have suggested that a single, clear definition of restorative justice is needed, as it will ensure that practices that are not ‘restorative’ are excluded (Zernova and Wright 2007). However, the difficulty with such a strategy is that there is often a gap between the conceptual and theoretical debates on restorative justice and its practical application. Restorative justice theory tends to evolve with developments in practice and it is unlikely that this will change in the foreseeable future. One could argue that it may even be shortsighted to insist upon one definition given the opportunities for misinterpretation and the potential that this would have in limiting the amount of innovation and creativity that can take place on the ground. As will be discussed in later chapters, macro-level applications of restorative justice within transitional settings (such as truth commissions) and micro-level applications (such as trials and community restorative justice schemes) rely primarily on process-based definitions of restorative justice (Aertsen et al. 2008; Eriksson 2009). This is not problematic in itself, but there appears to be a tendency to assume that by allowing stakeholders to engage in a process, it will result in achieving outcomes rather than discussing and explaining how we might

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RJ as a contested response to conflict

achieve them. As such, what restorative justice means within a transitional context and how it can be applied to dealing with international crimes has received only limited attention (Llewellyn 2007; Cunneen 2008). Importantly, Johnstone and Van Ness (2007) point to a third conception of restorative justice, which has received markedly less attention than those that emphasise encounters through restorative processes and the repairing of harm through tangible outcomes. The transformative perspective of restorative justice argues that we should alter the manner in which we view ourselves and our relationships to those around us. Through this perspective, we are encouraged to consider the structures that influence and constrain us, and thus how we might modify our behaviour as well as the systemic injustices that need to be addressed. As such, this radical approach perceives restorative justice not only as a reactionary response to harm but also an approach that seeks to diminish the contextual and structural factors that perpetuate crime and conflict. While the transformative perspective has received relatively little attention from scholars in comparison to process- and outcome-based perspectives, the transitional context encourages us to rethink this tendency. The theoretical implications of striving for a transformative vision of restorative justice will be explored further in the next chapter; the next section explores the contentious relationship between restorative justice and its relationship to retributive justice. Restorative justice and retributive justice In his seminal publication Changing Lenses, Howard Zehr (1990) introduces restorative justice as a completely new way of perceiving crime, something that is distinct from ‘retributive justice’. While his strict separation of the restorative and retributive paradigms of justice has eased somewhat in more recent times, it did influence others to explore this proposition further. Much like the ‘camps’ discussed in relation to defining restorative justice, different ‘camps’ may also be discussed in relation to the restorative–retributive relationship. Those in the ‘reparative camp’ usually begin by outlining the features of utilitarian justifications for punishment – incapacitation, deterrence (both general and individual) and rehabilitation – and demonstrate how retributive justice fails achieve any of these objectives in a satisfactory way. They argue that not only does retributive justice fail to achieve its own aims, but that it actively marginalises and creates further harm to the victim, the offender and society more broadly. This critique has led to calls for a paradigm shift away from the retributive model to something completely new. Barnett (2003), for instance, proposes a restitution-based system of justice that would allow the offender (as opposed to society) to take responsibility for the costs of censuring his/her behaviour and for compensating the victim directly for the consequences of that behaviour. Walgrave (2003), in a similar vein, argues that both treatment and punishment models of justice are redundant because they use victims and communities to do something to the offender. Punishment, in particular, is perceived to assume that offenders behave on the basis of rational choice that does not result in a

RJ as a contested response 17 satisfactory engagement with the contextual factors that may have led to that offending in the first place (see Zedner 1994). In this manner, neither approach can resonate with restorative justice because it does not provide a balanced focus on all three stakeholders of crime, nor does it respond to their needs. As such, from this perspective, reparation or restitution is not about punishing those who offend, but rather about meeting the needs of those who have been harmed, including the offender, and restoring harm (Levrant et al. 1999; Walgrave 2003). While those in the ‘retributive camp’ initially argued that restoration is incompatible with the goals of punishment – proportionality, consistency and certainty (Ashworth 1993; Zedner 1994) – increasingly proponents have called for both approaches to ‘justice’ to be perceived as complementary strategies in meeting the needs of stakeholders (Boraine 2006; Daly 2012). Chinapen and Vernon (2006), for example, suggest that the concerns and objectives of both retributive and restorative justice are the same given that they both seek to create a moral equilibrium. As such, both approaches are seen to be important in addressing different levels and dimensions of ‘justice’. Antony Duff (2003: 83) has gone further in suggesting that ‘restoration is not only compatible with the retribution and punishment, but requires it’.5 He explains that the ‘process of being confronted, of being censured and making reparation’ is necessarily both painful and burdensome and thus a ‘punitive process’ and ‘a punishment for the offender’ (Duff 2003: 96). If this were not the case, he argues, the offender would not recognise that his behaviour was wrong, he would neither repent nor would he seek to reconcile himself as a good and moral person. However, Lode Walgrave (2003) rejects this line of reasoning by asserting that restorative justice is not about doing something to the offender, nor is it about altering future behaviour. Restorative justice is about repairing harm, which makes it incompatible with retributive justice on a number of levels. First, he argues that ‘painful obligations which are not imposed with the intention to cause suffering are not punishments’ (2003: 63). Second, within the retributive paradigm punishment is a means to achieve other goals, whereas within the restorative paradigm restoration is the desired objective. Finally, he points to the qualitative differences in the way that restorative as opposed to retributive models communicate. The latter seeks to send a message to society that ‘a public wrong’ (Duff 2003) has been committed and to the offender that that type of behaviour is unacceptable. Restorative justice, on the other hand, seeks to engage stakeholders in a process of dialogue that elicits acceptance, repentance and empathy. Despite the existence of this, at times, heated debate between these proponents, the current consensus is that the dichotomy between the two is false. Van Ness and Strong (2010: 52) explain that while the theoretical and conceptual arguments are ‘helpful for analytical precision’, they are less helpful in practical terms for individuals who facilitate and participate in these processes; and that the debate presents restorative justice as the better alternative when this has not really been established and more often than not people are actually discussing or

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RJ as a contested response to conflict

critiquing the criminal justice system rather than ‘retribution’ per se (also see Daly and Stubbs 2006). The complexity associated with understanding what restorative justice is becomes even more acute in transitional settings. The following section demonstrates how our current dominant conceptions of restorative justice are problematic in relation to mass victimisation and oppression, and further unpacks how the tensions between restorative and retributive notions of justice continue to feature.

Challenges for restorative justice as a response to mass victimisation As the previous section has illustrated, restorative practice is characterised by a number of principal features: putting right the harm caused, a balanced focus on the offender’s accountability and the victim’s right to some form of reparative redress and an inclusive, non-coercive decision-making process for those most directly involved and affected by the offence (Van Ness 2005). However, the transitional context creates a number of challenges in realising these aims. First, the scale and seriousness of the acts committed push the boundaries of conventional restorative practice. Second, individuals often do not fit into neat categories of ‘victim’ and ‘offender’ – individuals can often drift between these two categories over the period of the conflict. Third, given the large numbers involved, it becomes difficult to know whom to hold to account. Finally, it may not be easy to legitimately determine who is responsible for creating harm, and thus it becomes difficult to compel reparative activities. This section considers each of these challenges and the problems they pose for restorative justice in turn. The type of conflict Restorative justice has been used primarily as a response to minor first-time offending by juveniles. While there has been experimentation with more complex crimes committed by adults in countries such as the United States (see Mueller 2004; Umbreit and Greenwood 1999), UK (see Dignan 1990; Shapland et al. 2004, 2007, 2008), Australia (see Strang 2001) and New Zealand (see Consedine 2003; McElrea 2007), these schemes have tended to be highly localised exceptions rather than the norm within the international landscape. Perhaps the most contentious application of restorative justice has been in relation to power-based offences such as sexual assaults and domestic violence. The heated debate over the extension of the application of restorative justice to these types of offences is largely fuelled by the fact that they remain under-researched, which means that a great deal of speculation informs arguments on both sides, rather than empirical evidence (see in particular the debate between Cossins 2008 and Daly 2008; Julich 2006). Those working and writing on gendered violence are particularly weary of the extension of restorative justice to these crimes precisely because they have campaigned for so long for a more robust and serious response to perpetrators and more adequate space and support for victims within the criminal justice process

RJ as a contested response 19 (Hudson 2002; Stubbs 2004). Critics thus warn of the risk of repeat victimisation; risks to victim safety and the potential for offenders to manipulate the process; the message that this will communicate to both victims and offenders in terms of the seriousness of the offence; the conflict that this may cause in relation to family loyalties; and the extent to which the process will affect the offenders’ behaviour (see Daly and Stubbs 2006). Furthermore, as Stubbs writes, the tendency of restorative scholars to reduce crime to incidents between individuals may not be suitable in instances of domestic violence: Theorising crime primarily as a conflict between individuals fails to engage with questions of structural disadvantage and with raced, classed and gendered patterns of crime. Moreover, an adequate account of domestic violence should recognise that it typically involves the exercise of power and control, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target, including children, other family members and supporters of the victim and that it contributes to the subordination of women. Domestic violence typically involves the violation of trust by someone with whom the victim shares or has shared an intimate relationship. The offender may no longer need to resort to violence in order to instil fear and control. (2004: 6–7) As such, the basis of these concerns essentially relates to the standards, safeguards and symbolic nature that a restorative process has in relation to such serious offences. Furthermore, there is a questioning of whether or not the victim will have an improved experience, be able to articulate her feelings and thoughts about the abuse and the extent to which this can result in an altering of the offender’s behaviour. It should be remembered that by its very nature restorative justice is a private, not a public affair. As such, critics of a restorative approach to serious offences such as domestic violence would argue that retributive justice holds the most promise in terms of vindicating the victim where prosecution is successful and reinforcing the fact that a socially unacceptable event has occurred. Proponents, however, usually begin from the perspective that the criminal justice system fails to respond adequately to these offences, has a high attrition rate, a low prosecution rate and provides even less support for victims (Cossins 2008; Hudson 2002). In fact, they argue that the criminal justice process actually revictimises those who have experienced violence; that it creates a significant burden on victims to assist in the process of securing prosecutions, and that the rate of successful prosecutions of offenders is often low, which causes further potential animosity and thus increases fear of (and in some instances, actual) victimisation (Hudson 2002). This leads advocates to suggest that restorative justice could be used as a mechanism to respond to these types of offences in a manner that can empower victims and better respond to their needs than the criminal justice process (Braithwaite and Daly 1994; Hudson 2002; Pelikan 2010).

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The result of this intense debate has led to calls for two diametrically opposed solutions. On the one hand, critics call for the criminal justice system to be further reformed to include specialised witness protection programmes and specialised sexual violence courts (see Cossins 2008). On the other hand, proponents such as Daly (2008: 565) has advocated for a radical change agenda that involves securing early admissions through diversionary conferences, reducing the need for fact-finding through the encouragement of guilty pleas and minimising ‘the hyper stigmatization of sex offending and offenders’. Given that the application of restorative justice to power-based conflict has drawn such strong reactions, it is perhaps somewhat surprising that there has been only a limited discussion around the appropriateness of the use of a restorative response to international crimes (see for example Weitekamp et al. 2006; Aertsen et al. 2008). These offences are distinctive from those that take place in established democracies for their massive and systemic character and that groups of people are targeted based on their religious, cultural, ethnic or national characteristics (Drumbl 2000; Rohne et al. 2008). In conflicts where significant numbers of individuals have been ‘disappeared’, relatives often face unique personal challenges including inter-generational trauma, trauma relating to exhumations and difficulties in coming to terms with loss in the light of traditional funeral practices in which spirits are not at peace until a proper burial is carried out (Greenbaum 2006).6 The consequences of the conflict often results in stereotyping, which perpetuates and ingrains a culture of hatred and fear of the other group; a lack of adequate support networks that provide health care, mental health service and educational opportunities; and an acute lack of trust, which may reduce the impact of any approach adopted to deal with the past and that seeks to construct a democratic future based on tolerance (Manktelow 2007). While much literature exists on the opportunities and constraints of retributive and restorative approaches generally, there is a dearth of literature on how victims perceive these contrasting approaches, and on the practical implications of pursuing either strategy for victims, offenders and the broader community (van der Merwe 2009). Stovel and Valiñas (2010) suggest that victims’ ideas about what constitutes ‘justice’ will vary according to individual personalities, gender, age, power position in society, their role in the conflict and the dynamics of the conflict itself. Drawing on Jackson’s (2004) and Stovel’s (2010) research in Sierra Leone, the authors suggest that the more power individuals have in society the more retributive they are likely to be. Aertsen et al. (2008) also report that the victims in their study from an inter-communal conflict setting (Bosnia and Herzegovina, Israel/Palestine and Rwanda) were more likely to interpret justice in retributive terms than those victims from an intra-communal conflict setting (Sierra Leone, Northern Uganda and Mozambique). This raises questions around the extent to which restorative justice approaches are suitable in contexts where prosecutions are favoured and the negative perceptions that may surround restorative justice if it is perceived as a mechanism through which impunity is legitimised. This is further complicated by ‘problems of bias, establishing “truth”, double standards and “political power” ’, which ‘are particularly relevant in the ideological

RJ as a contested response 21 realm of state-based crimes’ (Rohne et al. 2008: 5). Given that the motivations for engaging in human rights abuses are often grounded in a commitment to perceptions of injustice or threat by the ‘other’, it creates a challenge for restorative justice in that the single incident cannot be removed from the broader political and historical context in which it has taken place. This is because the harm that may have been caused is generally much more serious and the motivations for committing those actions are generally underpinned by much more than just material or psychological gain. Therefore, as Rohne et al. explain: The major challenge posed to restorative justice within the context of largescale conflicts is the fact that the incident at the micro-level cannot be isolated from its more general – historical, political and social – context. In such cases, a violent incident is strongly embedded in – and therefore part of – the conflict at the macro-level. Consequently the macro conflict influences the perception as well as the resolution of the particular incident. Due to the origin of restorative justice as a means to solve interpersonal disputes, it becomes evident that it has to be redefined in the context of large-scale conflicts, taking into account the fundamental principles, values and content of conventional restorative justice theory. (2008: 19–20) In democratic settings, restorative justice has often been criticised for not providing a challenge to the structural inequalities that underlie the causes of offending (see Stubbs 1997; Cunneen 2010).7 Certainly current macro-level institutions which seek to respond to the past under the banner of restorative justice appear to perpetuate this critique, given that the causes of the conflict are often left untouched in favour of a strategy that shifts the gaze from institutions and state policies to individuals (McGregor 2008). This is obviously further complicated in transitional settings, where there are not only serious structural and power inequalities but where the conflict is tied to identity as part of a broader community or group of people. Conflict and identity There are a number of structural, political, economic and cultural factors tied to the recognition of victim and offender status (Rombouts 2002). These concepts are considered to be value-laden because the ease with which we confer these labels upon individuals relates to the extent to which they fit the stereotypes that we hold about them. So, for example, children or elderly females who are victimised by strangers may be considered ‘ideal victims’ (Christie 1986), because one individual (in our minds usually a man) has taken advantage of this vulnerable individual who is in need of protection. Males, individuals who work in the sex industry, those who abuse substances or who have a relationship with the offender, are less ideal because of our perceived assumptions about how their actions may have contributed to their own victimisation. In other words, there

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are certain assumptions attached to the label ‘victim’ that means not everyone will acquire such a status (Walklate 2005: 99). This ‘hierarchy’ of victimhood is apparent not only within democratic settings, but also within the transitional context. McEvoy and McConnachie (2012) illustrate how the label ‘victim’ is used to distinguish one community from another and thus create notions of ‘innocence’ and ‘guilt’. While the authors acknowledge that there may be instances whereby some individuals and communities may have been victimised without any ‘morally or politically justifiable reason’, the reality of post-conflict settings is often one of blurred boundaries between individuals and groups. Nevertheless, current approaches to transitional justice, particularly in the case of truth commissions, place victims who have suffered the ‘most’ at the centre, which then becomes a ‘symbol around which contested notions of past violence and suffering are constructed and reproduced’ (McEvoy and McConnachie 2012: 532). Walklate (2005) and Young (2002) suggest that restorative justice tends to endorse similar stereotypical notions of victimhood. This is primarily because restorative justice is perceived as an alternative to formal justice, which relies on established legal definitions of victimisation (Pavlich 2005). While restorative justice models attempt to circumvent this by conceptualising crime as a breakdown in relationships rather than the transgression of law (Zehr 1990), in transitional settings neither side of the conflict may accept responsibility or they may blame each other for the escalation of events. Perpetrators may be considered heroes and their acts of violence celebrated, rationalised or denied by their communities. In inter-communal conflicts in particular, unless the community recognises that the crimes were wrong, it has little incentive to hold offenders to account (Stovel and Valiñas 2010). Even when confronted with ‘facts’ about atrocities that have occurred, it may still be difficult to get communities to believe that they are factually accurate. This may be illustrated by Clark’s (2011) study in Bosnia-Herzegovina. He argues that three versions of ‘truth’ exist about the past – the Bosnian Serb, the Bosnian Muslim and the Bosnian Croat versions – all of which have been robustly resistant to change. Despite trials taking place at the ICTY in relation to incidents such as the killing of 7,000 Bosnian Muslim men and boys in the eastern Bosnian town of Srebrenica; 116 Bosnian Muslims in Ahmići, and incidents against Serbs in the Čelebići camp, each group disagrees on whether or not these events should be considered war crimes, the ‘facts’ about what actually happened in each incident and the extent to which the incidents may have been provoked. Erin Daly provides additional support for these findings in her own research in Bosnia-Herzegovina, reporting that: While the majority of the interviewees know of and were able to list ‘three crimes committed against Serbs [. . .] they hardly could recall one crime committed by Serbs’. When the interviewees were asked ‘whether the knowledge of new evidence changed their view about the sides involved in the wars’, 85.5 percent said no, while only 14.5 percent ‘were willing and

RJ as a contested response 23 able to adjust their opinion in accordance with the new evidence’. Thus, establishing the truth about an event is no guarantee that beliefs and attitudes change. (2008: 37) This creates a challenge for restorative justice, whereby individuals are able to deny responsibility for particular incidents given that atrocities are often committed in the name of entire ‘communities’ against other ‘communities’, rather than against individuals per se. Indeed, as Sykes and Matza (1957: 668) point out, it is easy to deny responsibility where the individual victim is ‘physically absent, unknown or a vague abstraction’. In procedural terms, the distinction between victims and offenders is essential for restorative justice, because someone needs to acknowledge that they have caused harm and to take the necessary action to address the harm caused to another individual (Marshall 2007). Aukerman (2002: 83) explains that in order for restorative justice to be effective all parties have to be engaged, and must ‘recognise their blameworthiness and accept responsibility for past actions’. However, as research findings demonstrate, while some individuals will feel remorse for what they have done there will be others who are proud of their actions and thus feel little remorse for the harm they have caused (van der Merwe 1999). Others still will be ashamed of the acts that they have committed in order to survive. Individuals may therefore fluctuate between ‘victim’ and ‘perpetrator’ roles over the course of the conflict, showing the complexity of the environment in which the acts are undertaken. Drawing on the work of a number of experimental psychologists, Fattah, for example, explains that: anyone placed in certain situations, under certain pressures and constraints is capable of committing acts of extreme atrocity, cruelty, cupidity, dishonesty and so forth [. . .] The studies of Milgram, Zimbardo, Christie, and Browning, amongst others, are of extreme relevance to those who are trying to comprehend and deal with the atrocities and gross human rights violations committed by former totalitarian, dictatorial regimes [. . .] they shed light on and help us to understand the behaviour of those responsible [. . .] particularly those who were obeying orders or were totally intoxicated by the powers they held over their helpless captives. The psychological processes of rationalization, neutralization, demonization, deindividuation and dehumanization of the victims shed much better light on their seemingly incomprehensible behaviours than any search for the abnormalities or peculiarities of their character and personality. They should be pivotal in any attempt to find the most appropriate ways of responding to, and dealing with, their crimes. (2007: 215–216) Thus, to approach conflict resolution and offending as we would in democratic states is perhaps to approach the situation in an overly simplistic manner. Greenbaum (2006), for example, reflects on a mediated case involving an elderly black

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widow and her teenage grandchild, and an elderly black man accused of participating in the death of the widow’s husband during the mid-1980s in South Africa. The victim was burned to death outside his home after he was accused of being part of a United Democratic Front (UDF )-aligned mob that murdered a local councillor from the black local government structures earlier that day. However, all of the participants in this dialogue claimed to be victims: the widow lost her husband in a violent traumatic episode and was therefore left with this painful memory; the grandchild lost the guidance and support of her grandfather; and the accused was subject to UDF threats, had his house burnt down, his car taken away, his family broken up and his mother, who remained in the community, was subject to harassment. It is unclear how effective a restorative justice process can be in instances where there is no one to repair harm or where multiple layers of victimisation exist. In this way, an over-rigid adherence to labelling can serve to impede any potential progress that may be made during a transitional justice mechanism where these terms are used. In order for restorative justice to be successful, all stakeholders are required to perceive each other with humility, to accept differences and to compromise (Marshall 2007). However, this creates somewhat of a dilemma for restorative justice in situations where group identity is emphasised over individual identity. Stovel and Valiñas (2010) suggest that recognition of another’s suffering and acknowledgement of one’s responsibility will most likely not immediately take place between the direct victims and the perpetrators, and therefore a restorative justice approach must be developed gradually in line with stakeholder capacity.8 Requiring one party to make amends for atrocities that have occurred may only serve to further embed the perception of ‘us’ versus ‘them’, and a feeling that a further injustice has occurred. Even where combatants or civilians are able to acknowledge that crimes have been committed by themselves and/or their communities, there is often significant pressure on these individuals to remain silent (see Fischer 2011; Stovel and Valiñas 2010). There is also an assumption that the status of victimhood will be embraced. However, those who have died may be considered ‘heroes’ who have played an important part in the struggle, rather than mourned as nonsensical losses or conversely individuals may see themselves as participants in a war rather than as victims (see, for example, van der Merwe 1999). Restorative processes are therefore limited in that they can never help all victims or offenders, given that engagement with the process relies primarily on referrals from known victims and offenders and that participation by stakeholders must be voluntary. Where an offence is not detected or where a victim or offender is unwilling to participate the opportunities for addressing the harm caused is further diminished (Johnstone 2011). Ensuring the accountability of offenders The issue of accountability is high on the agenda of transitional states, given the lack of accountability enjoyed by individuals and institutions that committed

RJ as a contested response 25 human rights abuses during the previous regime. This, according to Parmentier and Weitekamp (2007) creates the need for accountability to be pursued on two levels in emerging democracies. On the one hand, embedding the ‘rule of law’ and human rights within the new democratic order is viewed as a means of challenging the ‘culture of impunity’ and of moving towards a ‘culture of accountability’ (ibid.: 132).9 On the other, previous human rights abusers need to be ‘held to account’ for their actions so that calls for justice are satisfied in a bid to ‘re-establish the moral order of the victims and of society as a whole’ (ibid.: 132). Within the transitional justice literature, there appear to be two different interpretations or definitions of accountability that are aligned with the authors’ goals outlined above. First, accountability defined as proportional retribution and procedural fairness through prosecutions suggest that a person is ‘held accountable’ when he or she experiences consequences, usually in the form of some penalty (Roche 2003). It is thought that the pursuit of accountability through prosecutions combats impunity; acts as a general deterrent; and provides a means through which victims may be acknowledged and receive redress (Aertsen 2008). Boraine (2006: 19) also suggests that prosecutions will prevent highranking perpetrators from returning to positions of authority, that it will assist in breaking the cycle of collective reprisals and that due process will avoid summary justice. However, in most cases accountability defined as retributive justice is constrained by the nature of the transition. Wilson (2003: 368), for example, points out that the ‘continued institutional power of old elites in reformed state institutions’ in countries like Chile, South Africa and Guatemala allowed previous leaders to pass and/or negotiate extensive amnesty for previous crimes committed. Where limited prosecutions have been secured, such as in Germany, the vast majority have suffered major setbacks either due to failures on the part of the judiciary (such as in South Africa), or subsequent pardons awarded by later presidents (such as in Argentina). However, even where prosecutions are possible, criminalising political violence is inherently controversial given that it condemns actions committed as a duty to a particular political community (see Drumbl 2000), especially in the event of a negotiated end to undemocratic rule and situations where both parties are unable to defeat the other militarily (Huys 2003). This is further complicated in deciding who should be held accountable – foot soldiers, masterminds, bystanders or beneficiaries. Understandably, one cannot hold all of those who acted explicitly and/or implicitly in the commission of the offences of the previous regime to account. The high volume of cases often make accountability defined as proportional retribution and procedural fairness a selective process, given that pursuing prosecutions often surpasses the amount of resources and capacity of the successor regime (Kerner 2007). Second, while the primary institution for achieving accountability is closely tied to criminal trials, Martha Minow (1998: 9) asks, does accountability ‘require legal proceedings and punishment’? A restorative interpretation of accountability is that consequences should follow an acknowledgement of responsibility for the

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incident and an explanation of the motivations for that behaviour. The extent of abuses committed is often shrouded in silence, and it is thought that learning the ‘truth’ about the past and/or an admission by perpetrators that they committed these acts will vindicate victims. The emergence of institutions to reveal the truth about the heinous actions of a previous regime began in the 1970s and has become an increasingly popular option when prosecutions are not an available option due to a lack of resources, a collapse of judicial institutions or a lack of political will (Hayner 2011). However, Weitekamp et al. (2006) argue that in order for accountability to be considered ‘restorative’ it should also include a requirement on the public. They argue that offenders must be supported in being accountable for their wrongdoings by employing all measures necessary to reintegrate them back into society. It is this joint approach to accountability that distinguishes restorative and retributive responses, and one that the authors argue provides the ‘most sustainable and durable response to gross human rights violations’ (ibid.: 229). Roche (2003: 44) shares this view when he argues that the value of restorative approaches to accountability lie in the ‘combination of informal incentives and sanctions [. . .] to persuade a person to account or his or her actions’, and that ‘Praise and censure, as well as appeals to common morality, are substituted for formal sanctions’. While there is often an assumption that formal mechanisms will always be more effective than informal ones, the vast body of criminological and regulatory literature challenges this (see Roche 2003). Roche (2003: 42) suggests that critics of restorative attempts at accountability ‘limit its sense to a particular type of control or restraint’. Both punitive and restorative approaches to accountability suggest that consequences should follow the commission of an offence; they differ in the role that individuals rather than impartial authorities play in arriving at what those consequences should be. While accountability through the courts is seen by some to be a superior option (see Orentlicher 1991), this glosses over the fact that institutions also need to be reformed to ensure that decision-making is transparent and upholds human rights, which may not be the case during the immediate transitional period. Furthermore, within the realms of criminal justice, the state cannot be held accountable. This is problematic when it has played a central role in abuses committed against its own citizens (Laplante and Theidon 2007), and thus reparations become an important issue in the post-transition landscape to which we now turn. Providing reparation for victims Reparation is said to contribute to the portfolio of activities that seek to ‘redress’, ‘repair’ or ‘restore’ some of the injustice of the past (Clamp and Doak 2012). This is a central goal of restorative justice, in that it constitutes an acknowledgement that the victim has suffered (Roche 2003), which creates an obligation on the offender to do something to restore the moral order (Benomar 1995). The popularity of reparative approaches within the transitional justice landscape is clearly evident in the number of legislative documents in which it appears.10

RJ as a contested response 27 ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation’, for example, outlines restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition as forms of reparation that victims of gross violations of international human rights law and serious violations of international humanitarian law are entitled to on an individual or collective basis (UN 2005, principles 19–23). Leschert and van Boven (2011: 160) emphasise a distinction in the 2005 Reparation Principles between reparation as a right, as a symbol and as a process. ‘Reparation as a right’ rests on the principle that the violation of an individual’s rights ‘creates a corresponding individual right to remedy’, and that a breach of ‘international obligation by a state entails the duty of the state to make reparations’. For the most, part reparation in this category is directed at individuals in the form of monetary compensation. ‘Reparation as a symbol’ moves beyond a concern for the rights of individuals as ‘victims’ and recognises the rights of individuals as citizens and ‘rights holders more generally’. As such, activities within this category are generally directed at restoring dignity through public apologies, commemorations and tributes and through education and training materials. Finally, ‘reparation as a process’ is viewed as creating an opportunity for individuals to engage in activities that will ‘link the past with the future’. Under this banner, all activities that seek to reconcile and reconstruct society to move to a more democratic future are included. Yet Laplante and Theidon (2007) point to a tension in the literature between those who view reparations programmes ‘as the moral and political prerogative of a repentant state’ and those who view reparations as a legal right of victims. Historically, reparation to individual victims has been largely missing from the international criminal justice landscape. After the Second World War, reparations were paid primarily to other nations and the provisions that guided the ICTY and the ICTR only contained theoretical rights for reparations to individuals. Therefore, Laplante and Theidon (2007) warn that many victims will miss out on much needed assistance if the issue of reparations is left to the morality of the state, and therefore call for reparations to be framed in terms of rights for individuals so that they may gain more power to oblige compliance from the state. The International Criminal Court (ICC) represents somewhat of a novelty in international criminal law because it provides victims with actual rights in terms of reparations: Rule 97 provides the ICC with the power to order both individual and collective payments; the Rome Statute expands traditional notions of reparation to include restitution, compensation, assessable damage, rehabilitation, satisfaction and guarantees of non-repetition; and the introduction of the Trust Fund for Victims provides support to programmes that seek to address adverse consequences of conflict and/or repression, and implements reparation awards from the Court (Groenhuijsen and Pemberton 2011). As such, there is an indication that it is increasingly becoming an expectation in international law that where states violate norms and principles contained in international documents or agreements that they have ratified, they will provide reparation to those who have been affected (Doak 2011).

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Increasingly commonplace in transitional justice discourse is the distinction between those measures that are material (restitution and compensation) and those that are symbolic (rehabilitation, satisfaction and guarantees of nonrepetition). While Roht-Arriaza (2004) questions the ability of material or symbolic reparation to ‘undo’ the past, others argue that reparation can make loss easier to come to terms with and a means through which to restore dignity (Bassiouni 2006). In conventional restorative justice theory, reparation – whether material or symbolic – is thought to be most effective when determined by the stakeholders involved. However, there are a number of practical questions that arise when thinking about the use of reparations for gross human rights violations. Take, for example, the Nyange massacre in Rwanda where 2,000 Tutsi died (see Drumbl 2007). When they sought refuge from Hutu extremists in a church, the priests engaged workers to mechanically level the church with the Tutsi inside – those who fled were slaughtered by locals from the Hutu population. How would any action restore the harm that has been caused in these situations? Would it be the responsibility of the driver of the bulldozer to apologise or provide reparation for the killings that he was responsible for, and if so, to whom? Or should responsibility fall to the priests for initiating the massacre? What about those who survived and were subsequently slaughtered by the Hutu? Even where reparations are ordered, how can they be enforced? Questions also arise about the appropriateness or adequacy of reparation for offences committed during extended periods of human rights abuses. VillaVicencio (2008) argues that often the death of a loved one, the rape of a spouse or the destruction of property is the cause of an irreplaceable loss. Nevertheless, symbolic forms of reparation are becoming increasingly commonplace in cases in which the injury cannot be repaired, which may arise where the harm is ‘moral’ rather than ‘material’ in nature (Clamp and Doak 2012). Rombouts and Parmentier (2009) suggest that even by simply telling the truth, the offender already contributes to symbolic redress because this serves one of the primary needs of victims. Learning the truth about the fate of loved ones is said to enable victims to achieve a sense of ‘closure’ and satisfaction that there has been an official acknowledgement that a wrong has been committed (Boraine 2006). While these symbolic measures are stressed across the transitional justice literature, material forms of reparation are still essential in assisting victims to move forward (Boraine 2006; Clamp and Doak 2012). Indeed, anecdotal evidence confirms that in countries that have experienced periods of sustained violence and destruction, victims often prioritise peace and economic stability over other forms of reparation. Research conducted by Vinck and Pham (2008: 402) in the Eastern Democratic Republic of Congo (DRC) and Uganda, for example, demonstrates that peace (50.5 per cent) and security (34.1 per cent) were the most frequently stated priorities, followed by livelihood concerns, including financial assistance (26.8 per cent), education (26.4 per cent) and food and water (25.8 per cent). Surveys conducted in Northern Uganda, Nepal and Rwanda have produced similar results. Vinck et al. (2007), for example, report that Northern Ugandans prioritised direct compensation in the

RJ as a contested response 29 form of money (52 per cent), food (9 per cent) and livestock/cattle (8 per cent) with a further 7 per cent wanting counselling and education for their children. Interestingly, a large proportion (95 per cent) wanted memorials established to keep the memory of what had happened during the war alive for future generations. Apologies, justice and reconciliation, generally the focus of transitional justice mechanisms, were mentioned by only 10 per cent of respondents. An attitudinal survey conducted in Nepal by Robins (2010) also found that victims prioritised compensation (24 per cent), education (17 per cent), housing and clothing (12 per cent), employment (8 per cent) and locating the disappeared (7 per cent). Only 7 per cent of families spoke about justice, and while Robins suggests that most victims would ‘welcome retributive justice’, he argues that ‘this is not their priority’ (2010: 9). Children orphaned as a result of the Rwandan genocide also stressed the importance of supportive relationships, economic livelihood and education in assisting them to achieve a positive future, rather than a desire for retribution against those who had harmed their families (see Pells 2009). These studies appear to indicate that only once material and security needs have been met, would it then be appropriate for strategies in the early transitional period to give way to other, more symbolic reparative activities – a contradiction in contemporary approaches to transitional justice, which prioritise symbolic reparative activities in the pursuit of reconciliation.11 Vinck and Pham (2008: 404) argue: As long as basic survival needs are not met and safety is not guaranteed, social reconstruction programs, including transitional justice mechanisms, will not be perceived as a priority and will lack the level of support needed for their success. However, the scale of those who have been victimised creates a number of practical issues that are not easily surmountable. A lack of resources has often created an environment whereby governments have to define victimisation in a narrow way, which limits the categories of victims who qualify for reparative assistance (both South Africa and Chile provide good examples in this regard) and can create a sense of revictimisation. On the one hand, the provision of compensation by the new government without the documentation and acknowledgement of what happened under the previous regime can be interpreted as insincere, or worse, the payment of blood money (Boraine 2006: 25). On the other hand, truth-seeking efforts without adequate material reparation can leave victims feeling that they have been somehow cheated. In many ways, Boraine (2006) argues that the dilemmas and challenges in reparations are a microcosm of the overall challenges of transitional justice. In this sense, there is a requirement on the government to embrace both material and symbolic reparative activities, not only to improve the lot of its citizens but also as a gesture of accountability for its role in human rights abuses.

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A way forward This chapter has demonstrated that there are considerable semantic difficulties inherent in the concept of restorative justice, and that these problems become more acute when restorative justice is situated within transitional settings. The transitional context, in particular, raises challenges for process-based visions of restorative justice, in that victims and offenders may not always be able to come together to resolve the conflict collectively given the scale of those affected; the blurred boundaries between those who are perpetrators and those who are victims; and the complex causes underlying the conflict. Outcome-based visions of restorative justice are also limited in that it is virtually impossible for the posttransition regime to respond adequately to the needs of all victims, given a lack of resources (and, at times, political will) and the greater demands posed by a need to improve infrastructure at a national level. While conventional restorative justice theory views conflict resolution as a ‘bottom-up’ approach (where the involvement of the state and its professionals is limited), the transitional justice context requires us to give both the state and its agents due consideration given their role in instigating or perpetuating conflict and repression. With this in mind, the book argues that restorative justice should not be limited to a particular justice process or a specific outcome. Clamp and Doak (2012) have argued for a value-based approach to restorative justice, which reflects both its procedural aspects and its outcomes within transitional settings. This, they argue, would allow the multi-faceted nature of civil conflict to be taken into account in any response that is devised to deal with harms that have been committed under the previous regime. Most restorative justice advocates and practitioners who conceive of restorative justice as a distinctive process for dealing with crime and its aftermath also subscribe to certain core ethical values that underpin the process itself (Van Ness 2005). The following chapter seeks to expand on that work by putting forward four values for restorative justice that can be operationalised and pursued in the transitional context in particular.

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The value of restorative justice for transitional settings

Restorative justice as a field flows back and forth between practice that informs philosophy and philosophy that informs practice. As the weaving of practice and philosophy has developed and the variety of practice has grown, it has become increasingly evident that the movement needs unifying concepts that are flexible enough to encompass new practice possibilities, but clear enough to preclude that which is not restorative. Restorative values are emerging as a unifying concept that grounds theory and guides practice. (Pranis 2007: 59)

While the previous chapter described a number of contextual dilemmas of applying restorative justice to international crimes, this chapter focuses on developing a theoretical framework for a restorative justice approach in transitional settings on the basis of a number of key values. Perhaps the most significant reason for considering values is to show how restorative justice may be distinguished from other forms of conflict resolution (Dyck 2008). Kay Pranis (2007) explains that values may be divided into those that refer primarily to the process, and those that refer to the qualities that the process seeks to elicit in those who participate. While most scholars appear to agree that participation, encounter, consensual decision-making, non-domination and respect are core procedural values for restorative justice (Boyack et al. 2004; Braithwaite and Parker 1999; Van Ness and Strong 2002; Zehr 2002), there is less agreement on what the outcome values of restorative justice should be. The most commonly referred to include: truth; healing; forgiveness; reintegration; restoration; reconciliation; and accountability (see Consedine 1999a; Maxwell et al. 2008; Parmentier 2003; Parmentier and Weitekamp 2007; Weitekamp et al. 2006); however, a number of authors have questioned the appropriateness of some of these values for the transitional context (see Clamp and Doak 2012; McEvoy et al. 2006). While the procedural aspects of restorative justice tell us something about how we might approach conflict resolution and the outcomes tell us something about what might contribute to the repairing of harm, what is missing from the discourse is how we might get from one to the other. As the previous chapter has shown, it is impossible to remove individual incidents that have occurred within

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communities from the causes and consequences of the broader macro-conflict that has taken place within transitional settings. It is therefore important to think about the specific values for restorative justice within these contexts, and how they might serve to link both macro- and micro-agendas. This chapter puts forward four steps or stages that should be central to any response to international crime, and explicitly outlines how this approach may contribute to peace-building and democratisation.

Striving for ‘transformation’ in transitional settings A central tenet of this book is that our conventional conceptions and approach to restorative processes need developing further within transitional contexts. In particular, the literature on restorative justice is perceived to be inhibited by the requirement that victim and offender occupy distinct roles, for one party to be held to account and for another to receive reparation, and by a lack of engagement about the role that the state should play in restorative processes, and whether or not restorative justice is appropriate to deal with very complex macro-issues. According to Mark 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’, this chapter argues that restorative scholars need to move away from clearly prescribed processes and outcomes to values that allow more culturally relevant processes and priorities to emerge. The goal of any intervention or assistance should be to transform conflict into peace. This is no easy feat, but this section outlines a number of steps that could increase the likelihood of realising this grand aim, and describes a number of examples of where or how this could occur. The first is engagement. Periods characterised by violence and oppression often reduce the ability of broad segments of the population to become involved in decision-making, and to have their concerns and priorities heard. As a central tenet of restorative justice, it is important that we stress the inclusion of all parties in all processes that will have an impact on their lives. A conscious decision to promote ‘engagement’ as opposed to ‘participation’ is underpinned by the fact that the former requires a much more active role for individuals than that required by the latter. Often, transitional justice mechanisms claim to encourage participation but these often lack a meaningful role for stakeholders. The work of Edwards (2004) is drawn on to unpack this assertion further. Second, the constraining value of ‘empowerment’ (see Braithwaite 2002a) is emphasised wherever individuals are invited to engage in a process. As outlined previously, while engagement is important it will not contribute to true transformation of conflict into peace if those individuals are not empowered to discuss the issues and needs that are of most importance to them. While engagement is something that most scholars support, there has been a significant and often heated debate over the concept, and the importance of ‘empowerment’ in

Value for transitional settings 33 restorative processes (Sawin and Zehr 2007). However, this section asserts that stakeholders should be empowered during the process and supported in taking the necessary steps to improve their problem-solving skills more generally. This value is often under-emphasised in all transitional justice literature,1 but is perceived to be important in ensuring long-standing peace. Third, although the reintegration of offenders is stressed within conventional restorative justice literature, this is often neglected within transitional settings, even more so in relation to victims. While Braithwaite (2003) argues that maximising values such as reintegration should not be prioritised over the needs or priorities of stakeholders, it is imperative that neither victims nor offenders are excluded from becoming active and law-abiding citizens in the new democratic order. It is thought that peace cannot exist where there is potential for conflict to reignite or for tensions to arise because of increased criminal activity where individuals have a lack of legitimate means to earn a living. It is acknowledged that this value, in particular, may be objected to by a number of scholars and/or practitioners who read this book for being insensitive to those communities or families who may not want to support the reintegration of those individuals who have been ousted and that individuals themselves may not want to be reintegrated. However, what is being emphasised here is creating opportunities for individuals to participate fully in the new democratic order, thus reducing potential for further or continued harm to be caused. As such, more concerted effort should be made to promote reintegrative action following a restorative justice process in conjunction with stakeholders and the state in order to secure future peace than is made at present. Finally, despite the fact that Dignan (2005) attributes the initial popularity of restorative justice to its potential for transformation, this has become one of its most neglected aspects in recent times. Given the need for a more systematic and fundamental change to occur within transitional settings for long-term peace, this value is included here. While all four values are interrelated, it is argued that only once engagement, empowerment and reintegration have occurred can true transformation for all stakeholders be achieved. As such, transformation is held out as an aspiration, a long-term goal of restorative justice rather than something that is easily attainable in the short term. Engagement Central to the restorative justice paradigm is the principle of ‘participation’. Other synonyms that are frequently used include ‘encounter’, ‘inclusion’ and ‘involvement’. However, Sawin and Zehr (2007: 48) explain that these concepts imply a less active role for stakeholders than the principle of ‘engagement’, which may be defined as: ‘the voluntary participation of stakeholders in deciding what happens in the wake of wrongdoing and hurt’. This principle, the authors argue, applies as much to political democracy as to community development and environmental policy. In his seminal publication, Nils Christie (1977) outlines how conflicts are ‘stolen’, by the state and its professionals, from those who are

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directly affected by the incident. Within the criminal justice process both victims and offenders are relegated to ‘witnesses’ and only provided an opportunity to recount any aspect of the event in their own words if called upon in that capacity. Judges and lawyers assume responsibility for crime and its consequences, not only because the act is perceived to have broken laws (rather than harming individuals), but most importantly because a conviction is likely to curb the freedom of the offender. The state is therefore perceived as having a duty to protect the rights of the offender as well as the victim (Ashworth 2002). Restorative justice, on the other hand, seeks to ‘deprofessionalise’ justice and emphasises the participation of all stakeholders – victims, offenders and their respective or shared communities – in the response to crime and conflict. Within a restorative justice process stakeholders should be provided with an opportunity to discuss the incident, its causes and consequences and to devise an agreed strategy to respond to any damage or harm that has been caused as well as solutions to prevent that behaviour from occurring again in the future. In this way, justice moves away from something that ‘happens’ because a conviction has been secured to something that responds to the ‘needs’ and circumstances of the participants. Given that stakeholders and their needs are of central concern in the process, ‘voluntariness’ is generally perceived to be of importance. While all advocates of restorative justice agree that victims should be offered an opportunity to engage in a restorative process without coercion, this is a contested issue in relation to offenders. Proponents such as Marshall (1996), McCold (2000) and Crawford (2002) argue that the voluntary and deliberative nature of restorative justice is what separates it from other approaches to justice. However, Walgrave (2002) raises two issues with striking the element of coercion from the restorative justice landscape. First, he argues that voluntariness should not be held out as the primary principle – just because the process was voluntary it does not absolutely guarantee that it has been restorative. The outcomes, which should respond to the harm that has been caused, must be the defining feature, resulting in the restoration of all those affected by the incident. Secondly, he suggests that only allowing restorative justice processes to be used without any element of coercion will ultimately ‘condemn it to the margins of the system’ (ibid.: 193). This is perceived as a detrimental consequence for stakeholders who may, as a result, not benefit from engaging in a process that could assess and address both the causes and consequences of the offence. In reality, current processes that serve to divert cases away from the adversarial system can never be considered completely voluntary, given that the offender has to choose between engaging with his/her victim and proceeding through the normal adversarial system (a latent form of coercion). However, coercion can be dangerous in a transitional setting, particularly in relation to attributing specific labels of ‘victim’ and ‘offender’, given the possibility that this can entrench hostile feelings and blaming of the ‘other’. But engagement does not necessarily mean that a face-to-face encounter between those who are in conflict has to occur. While some may choose this method,

Value for transitional settings 35 typically after a good deal of preparation, it can be emotionally or practically difficult for them, especially in case of serious offences (Sawin and Zehr 2007: 47). It is, therefore, important that restorative processes can still proceed where a stakeholder refuses to participate or denies responsibility. Shuttle mediation, the use of letters, video-conferencing and telephone calls are particularly under-used in transitional settings, but may have significant benefits in situations where a face-to-face encounter would be unrealistic. In situations where the perpetrator is in prison, lives far away or where the two parties are too fearful or too angry to sit with one another and discuss the issue, a facilitator can meet each party separately and relay messages, and assist with constructing messages for the other party to read and respond to. This could form part of a broader long-term strategy in transitional settings to bring two parties or communities together to engage in meaningful discussion of the harms that have been caused or experienced by each group. Furthermore, there may be others within the family or community who may be more willing than others to engage. These individuals could participate in a range of ways, including those outlined above, with a view to ultimately generating engagement by all those who are affected or involved. These alternative options would ensure that each stakeholder is given a voice and is able to communicate his/her feelings and the needs that have arisen from the incident in a way that feels safe and empowering for him/her. The element of engagement is important within transitional settings in order to ensure that all parties to the conflict are able to contribute to the type of environment that they will live in post-transition. All sides of the divide have reasons for distrusting the state or indeed each other, and creating an opportunity for all stakeholders to feel that they somehow have an equal voice and ownership over the process and its outcomes may assist in increasing perceptions of legitimacy. Edwards (2004) helpfully outlines four categories of participation for victims within criminal justice processes – control, consultation, information-provision and expression – that are useful for advancing our understanding of what we mean by engagement as opposed to participation within restorative justice processes. ‘Control’ means the victims’ input is determinative, in that the victims’ preference for a particular outcome would be adhered to. This could not be considered to be ‘restorative’, in that the power dynamic between individuals or stakeholders is not equal. ‘Consultation’ refers to the fact that the views of the victim are sought but ultimately weighed up against other factors. This could probably be considered more restorative in that the views of the offender and other supporters could be an additional influencing factor; however, the fact that key decisions are not placed firmly in the hands of the stakeholders would bring the restorative quality of the process into question. Regardless of context, this aspect is rarely used – stakeholders are very infrequently given the opportunity to input into the design of processes, outcomes or services that are made available to them. ‘Information-provision’ refers to the process of seeking and considering information from a victim which the victim may or may not have the choice to provide, usually in the context of calling victims to given witness

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Value for transitional settings

testimony. This is the least ‘restorative’ of the four categories, and Braithwaite and Mugford (1994: 148) refer to victims within this context as nothing more than ‘evidentiary fodder for the legal digestive system’. Finally, ‘expression’ provides victims with the opportunity to emote. This can create problems for individuals who may actually feel disempowered by the process, in that while their feelings or needs are expressed and listened to by others, there may not be any corresponding action taken to address those needs or feelings. The distinction between the categories of participation outlined above and participation within restorative justice processes is that these modes of participation lack the essential characteristic of engagement. Restorative justice processes aim not only to include stakeholders within the process, but also to provide them with an opportunity to emote and to suggest ways in which the causes and consequences of the incident may be addressed. In this way, restorative justice combines all of the key elements that Edwards outlines by creating a process that is reliant not only on participation but also on dialogue, which should take place in a safe and respectful environment. Current processes vary in terms of the amount of stakeholders that are included and have evolved over time. Initially, restorative justice practices were linked to victim–offender mediation, in which a trained facilitator prepared and brought together a victim and offender to discuss the crime, the harm that was caused, and the steps needed to put things right (Umbreit 2001). Family group conferencing (FGC), was later developed from elements of Maori traditional practices in New Zealand, which involved not only the victim and offender, but also their ‘communities of care’ and representatives from the formal criminal justice system (McCold 2000; Daly 2002). Later, Sentencing Circles drew on the indigenous justice practices of the First Nations Navajo Indian in Canada. In this process, participants sit in a circle, with discussion moving clockwise from person to person until the participants have arrived at a resolution (Pranis et al. 2003). Regardless of the type of process adopted, the ability of a wide range of individuals to participate creates the opportunity for everyone to become more aware of the problems and needs faced by others.2 This is important when the boundary between victims and perpetrators is blurred. The transitional context, therefore, encourages us to stop thinking of restorative justice as a ‘one-incident encounter’, and to consider it rather as an opportunity to discuss and uncover the ‘chain of causation that has nurtured and intensified conflict, and of debating the consequences thereof for solving’ (Froestad and Shearing 2007: 535). The restorative potential of this interaction is largely based on ‘respectful dialogue’ and ‘non-domination’ (Braithwaite 2002b), which Froestad and Shearing (2007) argue should be based primarily on how local stakeholders experience and conceive the conflict. For this reason, they argue, processes that are reliant on ‘experts’ will always be less ‘restorative’ than those that are 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.

Value for transitional settings 37 Empowerment For Barton (2003), the distinctive quality of restorative justice in comparison with other types of conflict resolution is its capacity to empower individuals and communities. In practice, he argues that empowerment requires primary stakeholders to be aware of their decision-making powers, rights and responsibilities; and to be reassured that they can deal with the causes and consequences of the incident and that they will be supported by facilitators throughout the process to achieve mutually beneficial outcomes. For Barton, therefore, the success of a restorative process can be assessed by the extent to which stakeholders are satisfied with the process – the higher the scores of satisfaction, the more the process can be considered to be characterised by empowerment. Bush and Folger (1994: 84) share this view, arguing that: ‘Empowerment is achieved when disputing parties experience a strengthened awareness of their own self-worth and their own ability to deal with whatever difficulties they face, regardless of external constraints’. Given the very real possibility that individuals within transitional settings will be unable to agree on a single unified history of the causes of the conflict, calls for empowering stakeholders certainly have some merit. The value of the restorative process is not therefore restoration, but rather the transformation of the individual into a stronger, better informed individual as a result of the process – distinct from any outcome that may be agreed and subsequently achieved through deliberation with the other party (Bush and Folger 1994). Tschudi demonstrates the empowerment potential of the restorative process for victims, even where the offender shows no sign of remorse and provides no apology, through the following excerpt from an interview: I’m free. Deceit and corruption officially ended that night. I’m free to perceive, decide and behave in a way appropriate to myself and not the perpetrator of my life [. . .] everything has changed because I have changed. Before the conference friends and family didn’t know how to behave towards me. The conference allowed the best of humanity to come out. (2008: 49) As such, within an empowerment model all parties are encouraged to look at their own roles and capacities rather than focusing exclusively on those of others in the conflict. The importance of being supported through a process and telling one’s story can ‘validate a new and preferred sense of self, and thus create an empowering effect on the victim’ (Tschudi 2008: 50). Although this case involved a crime of long-standing sexual abuse, the importance of being able to share one’s experiences in front of friends and family and to confront offenders (regardless of their response) may be important for victims whose suffering has been denied and silenced for extended periods of time. Barbara Hudson (2003: 183) holds a similar sentiment in talking about domestic violence when she explains that ‘the victim needs the offender not just to hear her story, but for it to be validated by others, and for him to hear that validation’.

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Value for transitional settings

At the same time, a restorative process that does not demand remorse can be empowering for offenders too. It is very difficult to get individuals to describe what they did in a politically charged situation as wrong. In Desmond Tutu’s facilitated meetings between ex-combatants and their victims in Northern Ireland (BBC 2006), for example, I recall hearing the words, ‘I am sorry that my actions caused you loss, but I am not sorry for the actions that I took’. This statement can be understood on the basis that to regret one’s actions, particularly in inter-communal conflict, is to admit that a peaceful option was available, when often violence may have been a last resort. It is therefore important to tread carefully in treating political perpetrators in the same manner as ‘normal’ offenders, given that their victims were often caught up in a struggle for the realisation of their own rights. This is not to condone violence and repression, but rather to stress the complex and sensitive motivations for political crime at a micro- and macro-level. Rather, the extent to which restorative justice is successful in empowering stakeholders in transitional settings should be measured by reference to, among other things, ‘whether it fulfils its true potential to instil in people [. . .] an ability to see their adversaries as real persons with real human needs’ (Johnstone 2011: 124). By enabling local actors (regardless of their culpability) to own a process in which they are able to define local obstacles or problems, and to address those problems, will empower communities to problem-solve in a sustainable way (Lundy and McGovern 2008a: 280). Ruth-Heffelbower reflects on attempts of a multi-faith NGO – Tim Independen Rekonsiliasi Ambon (TIRA) – working in Indonesia to rebuild trust through restorative meetings between Christian and Islamic communities on the island: The team begins by listening respectfully to personal stories. That listening process alone begins to acknowledge the needs and responsibilities created by the violations of relationship. When people have learned that the team is trustworthy by its willingness to listen, its offer of other activities can begin to be accepted. Processes by which individuals and groups acknowledge each other’s needs and responsibilities can be offered. Community-wide events which build trust can be held. Joint rebuilding efforts can be made. It will take a long time for all these things to yield a durable peace and a civil society. Institutions that cross group lines will need to be built. TIRA and other encouraging groups can help to make all this happen. (2000: 14–15) Here restorative justice is characterised by what Pranis (2001) refers to as ‘grassroots democracy at work’. In this respect, restorative justice can contribute greatly to rebuilding trust between victims and ex-combatants and their communities by creating the space where empathy may develop (Fletcher and Weinstein 2002). Coates et al., reflecting on their work on the use of restorative justice to tackle hate crime, suggest that:

Value for transitional settings 39 Through the process of respectful exchange participants may learn about things that matter not only to others but also to themselves. They may even be surprised by discovering common ground. If hate fuels violence, then restorative justice dialogue offers at the very least an opportunity for replacing hate with understanding and respect. (2006: 21) This approach, Lundy and McGovern (2008a) argue, can also form part of a wider emancipation project by challenging the way in which knowledge is constituted and validated. The value of empowering individuals and groups to share their stories, to be heard and to become sensitive to their adversaries as individuals, is an important part of building peace. As Pranis (2001, cited in Sawin and Zehr 2007: 48) argues, practitioners play two important roles here. The first is to deal with micro-level issues by ‘bridging social distance, affirming mutual responsibility and helping to level power dynamics’. The second is to feed this into the ‘macro-level by providing a well-tried model for transforming relationships and power across multiple systems and structures’. In this manner, linking micro- and macro-agendas can significantly improve the quality of action taken by the state and the value of that action for those at a more local level. This too will contribute to challenging the ‘one-size-fits-all’ approach that is characteristic of many post-transition schemes. Reintegration Within the conventional restorative justice literature, reintegration is underpinned by Braithwaite’s (1989) theory of reintegrative shaming whereby the actions of the offender are denounced, but not the offender. Here, the offender is encouraged to acknowledge wrongdoing and make amends for his or her actions, ‘thus demonstrating that he or she remains part of the law-abiding community and recognises its norms of acceptable behaviour’ (Roche 2003: 29). Braithwaite (1989) outlines three essential features for this to occur: (1) mutual respect, (2) mutual commitment and (3) intolerance for the behaviour, combined with understanding. As previously outlined, reintegration places a requirement not only on the offender, but also on the community in supporting the offender to overcome the underlying causes of the offending, which may stem from a variety of practical, emotional and/or psychological needs. Thus, reintegrative efforts within domestic settings have become closely associated with crime control and desistance. While an offender of a ‘traditional’ offence may seek to achieve reintegration through apology, restitution or engaging in rehabilitative programmes, offenders of politically motivated offences would be unable to be reintegrated back into their communities by such means (Clamp and Doak 2012). Societal conflict has often resulted in a breakdown of the social fabric of communities (Vanspauwen and Savage 2008), and reintegrative efforts within such contexts would need to address this before the reintegration of individuals could occur. Wilson (2001:

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Value for transitional settings

181–185) in his own research in South Africa, for example, describes the case of Dennis Moerane who negotiated a return to his home and family but was brutally murdered by armed factions in the area. He argues: The murder of Dennis Moerane [. . .] illustrates the dangers of individual attempts at reconciliation in the context of fragmented community power structures, where there are no effective constraints upon violence. His death exemplifies [. . .] the contradiction between national human rights talk about reconciliation and what happens in townships where there is no retributive justice, only unhindered revenge in a context of impunity. (ibid.: 182) This underlies the importance of reintegrative efforts post-transition, given that where antagonism has not been diffused it creates the potential for disputes and even vigilante action to be taken against these individuals upon their attempted return. Indeed, research conducted by Vinck and Pham (2008) in the Eastern DRC indicated that a significant proportion of respondents (63.3 per cent) had strong negative feelings towards former combatants, and that those feelings were strongest in relation to ex-combatants who were from the same ethnic groups as themselves. These individuals therefore face considerable difficulties in the early transitional period, as they may be rejected by their communities and even discriminated against by employers and state institutions.3 Regardless of context – democratic or transitional – we know very little about the strategies and mechanisms through which reintegration can successfully be achieved (Jennings 2008).4 Even the ‘demobilisation, disarmament and reintegration’ (DDR) literature admits that significantly more attention has been paid to demobilisation and disarmament than to reintegration (Waldorf 2009). However, the importance of seeking out effective ways of reintegrating offenders post-transition cannot be over-stressed. This is largely due to the ability of these highly skilled individuals to destabilise a peaceful and law-abiding future by turning to organised crime in the face of unemployment and homelessness (Theidon 2007; Waldorf 2009). This raises questions about the effectiveness of current reintegration attempts through national transitional justice mechanisms – prosecutions, truth-telling, reparations, institutional reform – and the impact or meaning that they have for local communities. Arguably these institutional responses carry more symbolic value for the state and international community than tangible value for communities and ex-combatants on the ground.5 In this context, restorative justice processes could become a valuable tool in mediating between powerful factions within communities and ex-combatants who want to return to their homes and families post-transition. Eastmond (2010) describes a number of programmes in Cambodia and East Timor where successful reintegration has relied on the expression of remorse by ex-combatants, rather than the truth about their deeds being revealed. This approach was also found by Stovel and Valiñas (2010), who show how reintegration ceremonies in Sierra Leone involved tradition-inspired cleansing rather than the admission of

Value for transitional settings 41 crimes or the provision of redress for victims. In other jurisdictions like Uganda and Mozambique, communities conduct ritual cleansing ceremonies to reintegrate soldiers and rebels who participated in the conflict. Waldorf uses the following explanation to describe the beliefs that underpin Mozambican rituals: After the war, when fighters and refugees return home, they are believed to be potential contaminators of the social body. The spirits of the dead, which might haunt them, can disrupt life in their families and villages. Therefore, the cleansing process is seen as a fundamental condition for collective protection against pollution and for the social reintegration of war-affected people into society. (2006: 18) This reinforces the importance of an empowerment model of restorative justice for transitional settings so that stakeholders themselves can decide what is important, rather than external values such as ‘truth’ and ‘reparation’ being imposed when they have little purchase for the local community. This is not to say that there is no role for external actors in reintegrative efforts. Often the idea that villages and communities are harmonious and close-knit run contrary to the violent and unequal power dynamics that characterise the post-transition context – and therefore the role of external actors can be important in protecting individuals from gender bias and vigilante activity (Duthie 2005). While the reintegration of offenders is one of the underlying goals of traditional restorative justice theory, the transitional context requires scholars to engage with the need to reintegrate victims as well. The literature on this topic is largely undeveloped and overly focused on what financial assistance can do for victims rather than looking at the cultural consequences of being victimised. According to Stovel and Valiñas, for example: Very few comparable efforts are typically expended on victims of serious crimes, especially those with invisible wounds. Survivors of rape or sexual torture and those who have been seriously wounded or traumatized (leading to serious mental illness) often have great difficulties reintegrating. Where discriminatory customary laws prevent females from owning or inheriting property their difficulties are compounded. Such laws and social practices make the situation very difficult for widows, those who have been rejected by men or those who do not want to marry. (2010: 27) This is particularly problematic in countries like Rwanda, where it is thought that between a quarter of a million and half a million girls and women were raped either by combatants or (under duress) by their fathers or other male family members (de Brouwer and Chu 2009). As found among refugees from Bosnia, victims of sexual abuse may resort to silence as both a personal and a cultural strategy of maintaining family relationships and public respect (Eastmond 2010).

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Value for transitional settings

Victims of rape face stigma and rejection because they are seen as somehow tarnished for breaking social norms, even involuntarily, and those with traumainduced mental illness are seen as less able to contribute to the economic well-being of the family (Stovel and Valiñas 2010). Amputees are also viewed as an additional burden on their families who are already living in difficult economic circumstances. While some steps are being taken in countries like Sierra Leone to review discriminatory laws and to raise the awareness of criminal justice and medical practitioners of the issues confronting these victims, Stovel and Valiñas (2010) warn that any measures taken should ensure that they do not create social hierarchies that could create additional problems in countries where inter- and intra-communal tensions already exist. The point here is to engage local actors, particularly those in positions of power, to negotiate tensions, establish needs and support the successful reintegration of both offenders and victims into their communities. This cannot be done at a macro-level because each community may experience different tensions; nor can reintegration strategies that are imposed from the top-down or by external agencies/groups be successful where they are not invested in the local communities in which they are tasked with assisting. Knowing what the core issues are and working on a needs-based approach will assist in dealing with the root causes of problems and cultural dynamics that may perpetuate conflict. This approach can also contribute to positive steps to a longer-term peace rather than merely implementing policies or changing discriminatory legislative practices. Buruma (2004: 23, cited in Froestad and Shearing 2007: 536) reflects that in contexts of societal conflict ‘what victims want, even before redress, is freedom from fear and from the threat of future victimisation’. Rather than conceiving restorative justice in narrow terms as a mechanism to achieve apologies and reparation for harms caused, we should promote the potential that it has for problem-solving, to transform a period of conflict, violence and fear to one of non-violence and security. Sullivan and Tifft (2001: 34), therefore, call attention to the social–structural dimensions that restorative justice must attend to if people are to find themselves in a community in which they can obtain support and into which they might be reintegrated after they have been censured. Transformation Given that in transitional settings the types of transgressions with which restorative justice is tasked cannot be removed from the broader macro-political causes of conflict, we have to embrace a more radical, future-orientated vision of restorative justice than what is currently available. This perspective is not new and can also be found in democratic settings, as Bazemore and Walgrave (1999: 56) argued well over a decade before the time of writing: there is a need to ‘increase the compatibility and resonance between the emphasis on repairing prior harm and these more future-oriented transformative efforts’. However, there is disagreement in the literature over whether ‘transformation’ falls within the remit of restorative justice.

Value for transitional settings 43 Harris (2008) groups restorative justice proponents into four categories on the basis of their views about the compatibility of transformative justice and restorative justice. First, there are those who feel that they are distinct processes primarily because they have different orientations – restorative justice is backward-looking because it seeks to restore, while transformative justice is forward-looking in that it prioritises change at a structural level. Morris, for example, argues that: The very word restorative was unhealthy for victims. A victim’s first instinct is to want the world back as it was [. . .] imagining that you can restore a past, before some trauma changed life forever [. . .] offenders are, more than the average person [. . .] victims of distributive justice. Do we want to restore offenders to the marginalised, enraged, disempowered condition most were in just before the offence? (2000: 18) While some argue that this backward-focused interpretation of restorative justice is inaccurate (see Llewellyn 2007), there is a tendency within the restorative justice, and particularly the transitional justice, literature to link restorative justice to reparation and restoration, without giving adequate attention to how the process and outcomes may lead to transformation. As such, the transformative value of restorative justice within the conventional literature has often been limited to an inner change that occurs within stakeholders as a result of participating in the process. On the one hand, the victim is transformed from a position of powerlessness to one of power by being able to confront the offender and let go of the incident through a process of forgiveness (Zehr 1990). On the other, the offender is transformed through a realisation and acknowledgement of impact that his or her behaviour has had on others (Zehr 2002) through a process of reintegrative shaming (Braithwaite 1989). However, the extent to which such a process has longer-term impacts in terms of self-preservation, empowerment or crime prevention on the part of victims and desistance in relation to offenders and the mechanics of that change are left largely unexplored by the literature. The second camp claims that restorative justice creates spaces for transformation to occur over time, but the two camps remain distinct because restorative justice does not deal with any structural dimensions of conflict. As Zehr points out: Crime [. . .] is at its core a violation of a person by another person, a person who himself or herself may be wounded. It is a violation of the just relationship that should exist between individuals. There is also a larger social dimension to crime. Indeed, the effects of crime ripple out, touching many others. Society too has a stake in the outcome and a role to play. Still these public dimensions should not be the starting point. Crime is not an offence against society, much less against the state. Crime is first an offence against people and it is here we should start. (1990: 182)

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Restorative justice proponents therefore tend not to define crime in terms of its structural causes, but rather in terms of its relational implications. This has resulted in some critiquing restorative practice for predominantly focusing on resolving incidents and issues rather than addressing the contexts that are giving rise to the behaviour and/or victimisation (Dyck 2008). David Dyck (2008), for example, draws on the work of both Harry Mika (1989) and Marie Dugan (1996) to illustrate how current restorative practice involves a ‘surface-level’ approach to conflict resolution that actually reinforces the status quo. He argues that this occurs because restorative justice practitioners are trained to focus on the interpersonal dimensions of crime. As such, they inadvertently ‘cover up deeply rooted dimensions of conflict in favour of an “ideology of harmony” which suggests that shared feelings create empowerment’ (Dyck 2008: 527). A third camp sees restorative justice as occupying a middle ground between criminal justice and transformative justice, thus while they remain distinct we can say that they work in a complementary capacity. Harris (2008: 562) explains that in this view, transformative justice is perceived as building on the ‘ideas and practices associated with restorative justice beyond the micro-level of specific disputes to the macro-level where the values can be applied to any problem or conflict’. However, the processes and values associated with restorative justice are perceived as a useful way of designing responses that will allow for the realisation of transformative aims. Restorative justice, in other words, provides a mechanism whereby transformative activities may be decided upon, but this camp does not see restorative justice processes as bringing about that change. Finally, a small cohort views restorative justice and transformative justice as interchangeable – ‘a set of values and positions to guide choices made by citizens, governments, nation-states, organisations and groups’ (Harris 2008: 563). Regardless of our particular conception of restorative justice, Sullivan and Tifft (2001) argue that at the most elementary level a restorative response to harm grows out of a needs-based conception of justice, and if attended to, will ultimately lead to transformation. Perceiving restorative justice as transformative justice has implications for its use within transitional settings. No longer can we perceive restorative justice as a mechanism that will address incident-specific issues, but we see it rather as a long-term, sustainable process embedded in society that seeks to address the class, race/ethnicity and ideological causes of conflict. Lambourne (2009: 28) argues that such a process will require ‘recognising and addressing the multiple justice needs and expectations of the local population in a way that draws on the various cultural approaches that coexist with the dominant western worldview and practice’. While Eriksson (2009: 320) warns that many will reject such a view of restorative justice as ‘too idealistic at best and unworkable at worst’, we have to become more ambitious in demonstrating how restorative justice can contribute to peace-building in transitional settings. If we continue to view restorative justice in a limited way, many of the criticisms levelled against restorative justice – that it does not challenge the structural causes of conflict, that it serves merely to legitimise the agendas of government officials and criminal justice

Value for transitional settings 45 practitioners and that it is insensitive to context (Cunneen 2008) will continue to ring true. Good restorative practice must allow the underlying causes of conflict to be framed within the broader macro-causes of conflict, and the political, social and economic factors that underlie and sustain criminal and anti-social behaviour in the transitional society to be addressed (Eriksson 2009). This cannot be achieved if we do not design processes that encourage and indeed are reliant upon the active involvement of broad segments of the population. A psychologist involved in a community regeneration project in Alexandra, a township located on the outskirts of a wealthy Johannesburg suburb, spoke of the discussions held by ‘experts’ on the types of services and facilities that the residents would need. Once a plan had been drafted, a community meeting was called to share the plan. However, almost immediately it was pointed out that while a shiny new community centre might be a good idea, the provision of running water and electricity to the roughly 700,000 residents would probably be of greater importance. The point here is that if a community is not engaged to assist in the drafting and planning stages of a regeneration project, a number of key contextual factors and basic community needs may be missed, which may render programmes useless. Abramowitz and Kleinman (2008: 220) also draw attention to the failure of mental health and trauma healing projects in Bosnia precisely because they lacked cultural and contextual frameworks, which resulted in foreign experts diagnosing clinical post-traumatic stress disorder (PTSD) ‘among populations to whom the concept had no meaning or relevance to their experiences of suffering, committing abundant cultural and diagnostic fallacies’. Our current short-term view of conflict resolution is perpetuated by our perception that conflict is somehow abnormal – a temporary disruption of a normal state of equilibrium and harmony – and a bad thing (Froestad and Shearing 2007). Drawing on the work of Christie, Froestad and Shearing (2007) argue that conflicts should ideally give rise to a more protracted ‘political’ debate, in which the whole community participates and in which there are no exclusionary rules preventing people from introducing facts and arguments that they consider relevant. There are many again who would disagree with this approach in the fear that the process may descend into an unproductive exchange of accusations and untruths. However, one only needs to look at the ‘evidence’ that underpins some of the current motivations for civil war or rationales that underpin discriminatory views to know that only allowing positivistic statements to be uttered will not get to the root causes of behaviour or attitudes that give rise to conflict. Coates et al. (2006) reflect on a number of case studies whereby restorative dialogue has been used to address hate crimes. One case study, in particular, contains parallels with macro-level conflict, and thus offers further insight into the approach that is being proposed. A school in Minnesota was plagued by racial tensions that reached breaking point when a young African-American youth was assaulted by five white boys wielding a baseball bat. Although he was not seriously injured, his parents complained to the authorities about the perpetual acts of violence and intimidation against their son. In response, the school

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engaged in awareness campaigns that included educational programmes and guest speakers, however, this did little to assuage tensions. In fact, they escalated into the community and a variety of agencies became involved, including a community mediation team to assist in resolving underlying issues. After three weeks of preparatory work by the community mediation team, 150 individuals gathered at the school for the conference. While several incidents were identified, no single incident or group of victims/perpetrators formed the basis of discussions that allowed for a broad range of experiences and perspectives to be shared. In instances involving such large numbers of people it is difficult to follow a particular script, and in some respects such situations force ownership and control out of the facilitators’ hands and into those of the community. Preparing key participants prior to the conference and carefully planning the structure and process is obviously important. Organisers in this case asked that everyone identify themselves before speaking, set the tone of the meeting with the statements prepared by initial speakers, limited comments to two minutes so that many voices could be heard and encouraged respectful interaction. In this context and transitional contexts generally, bridge-building is the principal aim rather than ‘restoration’ or ‘reparation’. In order to break down barriers, Coates et al. (2006: 17) argue that it ‘requires persons threatened by conflict to get to know one another which in turn requires face-to-face sharing of personal experiences’. According to Ramirez-Barat and van der Merwe: [it is] about redefining the traditional approach to restorative justice practices, from the criminal justice context to one of democracy-building in which the broader objectives would be to build peace in communities, assist ex-combatants with reintegration and provide education in civic values and a human rights culture. (2005: 5) This long-term perspective of conflict resolution is important in transitional settings wherein conflict may have been a normal part of the landscape for decades or even centuries. To expect that a restorative justice process, whereby stakeholders are prepared and supported to ultimately end up in a discussion of a specific incident, will result in long-term peace is perhaps ‘idealistic’ and ‘unworkable’. Dialogic attempts to reduce prejudices take place over multiple occasions and as Coates et al. (2006) point out, some facilitators work on cases for many months, certainly as long as the stakeholders need them to. This is quite a step away from the neoliberal version of restorative justice that dominates current practice, with processes occurring within specified time frames and generally limited to a single meeting.

From concepts to practice The values developed within the restorative justice framework outlined here can be applied usefully in evaluating the impact of restorative justice institutions

Value for transitional settings 47 currently used within transitional settings at different levels: at a macro-level through transitional justice mechanisms such as truth commissions (see Chapter 4); at a meso-level through the adoption and integration of restorative justice during periods of institutional reform (see Chapter 5); and at a micro-level through the use of restorative justice processes within communities to resolve conflict (see Chapter 6). What emerges is further support for a more radical conception of restorative justice that devolves power down to stakeholders and the adoption of a longer-term view of the conflict resolution process. Before evaluating the use of restorative justice in transitional settings, the following chapter considers how conflict resolution and more specifically restorative justice is approached within the transitional setting.

4

Restorative justice in transition A multi-layered approach

As the etymology of ‘transition’ makes clear, the concept implies a journey from an undemocratic past to an anticipated peaceful democratic future. Thus, every transition creates a divide between the old regime and the new regime, and questions of how best to address the injustices of the past and to ensure that the past is not repeated are high on the agenda of the new government, victims and the international community (Otto 2006). Despite the many different definitions of transitional justice,1 by the first decade of the twenty-first century there is increasing consensus among scholars and practitioners about the basic contents of the transitional justice framework. Within this framework, it is accepted that all strategies (judicial and non-judicial) to confront past human rights abuses should be considered by government officials and non-governmental advocates in an effort to contribute to comprehensive justice at a critical political juncture (Bickford 2004; Otto 2006). While transitional justice ultimately seeks to address wrongdoing, resources, time and political constraints make this a selective process. Therefore, the ways in which these overarching goals of a transition are achieved are not universal, and can be seen to be dealt with in transitional periods through a range of mechanisms, including: truth (and reconciliation) commissions; amnesties; trials and purges; financial compensation; and with symbolic gestures such as the building of monuments or the proclamation of commemorative days of remembering. All of these mechanisms are grouped under the banner of ‘transitional justice’ (Barahona de Brito et al. 2001; Iliff 2004; Otto 2006; Posner and Vermeule 2004) and are assumed to contribute to healing for victims and their families, peaceful coexistence, rule of law and social justice (Vinck and Pham 2008). McEvoy (2008: 15–16) suggests that this evolution and expansion of transitional justice demonstrates that it ‘has emerged from its historically exceptionalist origins to become something which is normal, institutionalized and mainstreamed’. This chapter plots how transitional justice mechanisms are devised and implemented and how restorative justice in particular features within this process. The first section explores the different top-down and bottom-up implementational strategies for transitional justice mechanisms and interrogates their strengths and weaknesses. This discussion provides further support for the position that there has to be a multi-layered response to situations where there has been sustained

A multi-layered approach 49 conflict and/or oppression and space is given to explore this approach further. Next, the tension between the roles of external and internal actors is discussed. The final section provides an overview of the way in which restorative justice is used to achieve transitional justice aims – conceptual, strategic and practical. This chapter provides the conceptual and theoretical basis for discussions that occur in the following three chapters, each of which deals with a different ‘layer’ of transitional justice.

Directions of change Over the last 20 years significant effort has been made to create sustainable peace in countries plagued by armed conflict and repression resulting in the creation of a number of new professionals and institutions (Arriaza and RohtArriaza 2008a). Embedding the ‘rule of law’ – justice, objectivity, certainty, uniformity, universality and rationality – is of particular importance in transitional societies as they attempt to distinguish themselves from prior acts of violence and injustices (Crocker 2000; Bell et al. 2006) and thus they frequently form part of negotiated peace agreements. However, there is no consensus about how transitional justice mechanisms should be devised and implemented in order to achieve these aims and who (the new administration or international community) should ‘own’ these processes. Lundy and McGovern (2008a: 266) argue that ‘law is increasingly seen by the international community as one of the safest ways in which to engage with, or intervene, in other countries’ but that these approaches tend ‘to exclude local communities as active participants in transitional justice measures’, which raises ‘fundamental questions of legitimacy, local ownership and participation’. Drumbl (2007: 128) refers to such efforts as the ‘externalisation of justice’, because ‘the pursuit of accountability and the imposition of punishment arise through processes that are distant from or alien to local populations’. The consequences of such ‘externalisation’ are that the goals of adversarial justice – denunciation, retribution, prevention – are often much more visible for the international audience than for the victims at the local level. As such, this leads him to ask: ‘do distant, impartial, and disinterested parties necessarily have greater moral authority to adjudicate atrocity?’ (2007: 136). Of course, and as an extensive criminological literature demonstrates, behaviour can also be moderated by other institutions and mechanisms that fall outside of the law altogether (McEvoy 2008). However, lawyers and those of us used to condemning unacceptable behaviour as ‘criminal’ perceive any response to the violation of human rights that does not involve trials and punishment as falling short or not being treated with the amount of gravitas that is needed. As May intuits: ‘Those of us raised in the Western legal tradition often have a visceral reaction to attempts to sidestep legal trials’ (cited in Drumbl 2007: 183). It is perhaps then not surprising that law and prosecutions tend to form a significant part of the transitional justice landscape. However, we should ask ourselves to what extent this ‘imposition of a “one-size-fits-all” application of these

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modalities creates dissonance’ (Drumbl 2007: 184) and another imposition of Western juridical categories on a diverse world order. The following discussion explores some of the strengths and weaknesses of processes that are devised and implemented by the state and those that are initiated and run at a more local level. Given the inherent limitations of both, some consideration is given to how micro- and macro-approaches might be linked. Transitional justice from ‘above’ The terms ‘formal’, ‘top-down’, ‘macro-level’ and ‘state-based’ justice are frequently used throughout the transitional justice literature to refer to those responses that are focused on the needs of society as a whole, structural relationships and symbolic acts.2 These responses may be considered to be the traditional approaches to transitional justice and include both national and international criminal justice tribunals; quasi-legal truth-seeking initiatives such as truth (and reconciliation) commissions; national inquiries and commissions into deaths and disappearances; and the establishment of memorials. Van der Merwe explains that these mechanisms are selected for their potential to have an impact at a national level and that the needs of stakeholders are very much of secondary consideration: Individual cases are addressed in order to create national awareness of the consequences for perpetrators (national scale deterrence) and to build national consensus around values. If the victim and the perpetrator are not directly affected by the intervention, but an effective message was sent regarding consequences of certain behaviour or affirmation of certain rules, the intervention would be seen as successful from this perspective. (1999: 102–103) As such, these mechanisms may be seen as less relevant to the needs and interests of communities who have been most affected by the conflict and more as institutions designed to provide a symbolic break with the past. McEvoy argues that these responses have come to be dominated by legalism, and thus moved away from a concern of the ‘needs’ of stakeholders to their ‘rights’, for a number of reasons. First, a lack of rule of law – justice, objectivity, certainty, uniformity, universality and rationality – or the distortion of forms of legality during the previous regime means that ‘law becomes an important practical and symbolic break with the past; an effort to publicly demonstrate a new found legitimacy and accountability’ (2008: 20, emphasis original). As such, activities undertaken (such as the drafting of constitutions) and institutions devised (such as local, international or hybrid prosecutorial forums or even truth recovery mechanisms) during the early transitional period are inevitably ‘infused with a legalistic discourse’ (2008: 20). By embracing a commitment to creating institutions, limitations and guarantees through the drafting of a Bill of Rights and a written Constitution, Hart (2001: 153) argues that the new regime is legitimised in two

A multi-layered approach 51 ways: first, ‘as self-justification in the eyes of the world as a promise of justice and democratic rule’; and second, ‘to their own citizens as a manifestation of consent and mutual respect’. As such, legalism forms a seductive quality for democratically emerging states. Second, McEvoy (2008: 21) suggests that the influence of human rights as ‘the new “lingua franca” of global moral thought’ has created a crude characterisation of human rights in contemporary transitional justice discourse that lends itself to a ‘Western-centric’ focus. This has resulted in approaches to responding to international crimes becoming increasingly exposed to rights standards that are prevalent in the West (as opposed to those of the local population) and achieving accountability increasingly becoming equated with retributive justice through criminal prosecutions (as opposed to local justice mechanisms). This leads Arriaza and Roht-Arriaza to conclude: When it comes to post-armed conflict interventions aimed at reconstructing a shattered society, international and national policy makers have treated each country as an undifferentiated whole. This approach is useful in terms of establishing global norms and creating a national (re)founding mythology – undertakings that can only be carried out on a uniform basis and by a state. Such efforts, however, ignore existing local dynamics aimed at reinforcing or transforming the power relations that are often most relevant to people’s lives, especially given the perennial weakness of the central state. In transitional justice, as elsewhere, all politics is local. (2008a: 153) The continuing lack of social and economic justice means that national-level initiatives often do not and cannot by themselves capture the meaning of the conflict for people who were most affected. The dominance of elites and those whose interests and voices are most heard continue under the new ‘democratic’ order through transitional justice mechanisms to the detriment of those who have been and continue to be the most powerless in society. As Lundy and McGovern assert: Far from being neutral, technocratic and apolitical, as proponents would claim, it is argued rather that [transitional justice initiatives] are directed at reconstituting post-conflict societies in the image of Western liberal democracies, establishing such models as the ideal-type and setting externally defined limits to the field of permissible action. (2008b: 105) So, for example, despite the blanket amnesty in Uganda being implemented in keeping with the wishes of victims, the International Criminal Court (ICC) has issued arrest warrants against leaders of the Lord’s Resistance Army (McGregor 2008). In this instance, a tension exists between local attempts to end the conflict that has endured for more than 20 years (a right of safety) and an international

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desire to combat impunity (a right to justice and accountability).3 The assumption here is that by punishing individual perpetrators of human rights abuses it will deter future atrocities from being committed. But as McEvoy (2008) and Fattah (2007) point out, one only needs to look at the number of atrocities committed since the Nuremburg trials and criticisms levelled against deterrence theory in general (let alone in instances of mass violence and oppression) within the criminological literature to question this approach (also see Daly 2008). In his research in Rwanda, Mark Drumbl found ‘the ability of the genocide trials to promote social reunion, communal reconciliation and justice to be quite limited’ and ‘the trials to be hindering the development of a shared national consciousness, a sense of citizenship and political community’ (cited in Valiñas 2009: 185). Finally, McEvoy (2008: 25) posits that there has been a discernible tendency to understand transitional justice ‘as both state-centric and “top-down” ’. This has resulted in the institutionalisation of transitional justice into expensive suprastate and national mechanisms that operate with or without the aid of international expertise. At an international level, institutions include the temporary ad hoc criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the ICC. All three institutions, but the ICC in particular, have been devised as an international response to combat the climate of impunity for those who have committed serious international crimes. While the ICTY and the ICTR were developed to deal with international crimes committed in Yugoslavia and Rwanda respectively, the ICC, which came into force in 2002 is a permanent international body with a global4 mandate (see Waddell and Clark 2008). At a national level, hybrid courts have been devised to investigate and prosecute individuals responsible for international crimes in which international and national judges preside over cases together. Examples include: the War Crimes Chamber of the Court of Bosnia and Herzegovina (BWCC or War Crimes Chamber) which in 2005 began its work investigating and prosecuting those involved in serious violations of international law that took place between 1992 and 1995 (see Ivanišević 2008); the deployment of international judges and prosecutors in courts throughout Kosovo to increase capacity and impartiality (see Perriello and Wierda 2006a); the Special Court for Sierra Leone established by an agreement between the Government of Sierra Leone and the United Nations in January 2002 to challenge impunity and stabilise the region by removing those who threatened the peace (see Perriello and Wierda 2006b); the Special Panels for Serious Crimes in Timor-Leste, which sought to prosecute crimes committed during the 1999 violence (see Reiger 2006); and the Extraordinary Chambers in the Courts of Cambodia which sought to prosecute those who were most responsible for genocide, crimes against humanity, serious war crimes and certain other Cambodian crimes during the Pol Pot era (17 April 1975 to 6 January 1976) (see Scheffer 2008).5 Such developments have been matched by a plethora of additional institutions that drive transitional justice at the national level, including truth (and reconciliation) commissions, reparations bodies and criminal justice reform to secure a

A multi-layered approach 53 fairer and more efficient delivery of justice (McEvoy 2008). International development agencies often aid this process but require that ‘rule of law’ be strengthened, so as to guarantee human rights and equal justice and to ensure the opportunities for corruption are reduced (Newman and Howard 2001). Thus, while assistance may be made available to transitional societies, this is usually done on the basis that programmes, policies or philosophies favoured by the donor agency or country are both adopted and implemented. Indeed, during national transitional justice mechanisms, such as the truth commission (more on this in the next chapter), discourse is often framed around societal notions of ‘forgiveness’, ‘reconciliation’ and ‘nation-building’, and therefore the opportunity for individual empowerment and active participation is reduced. While symbolism is important within the early transitional period, it arguably raises the expectations of those who are living with the consequences of the previous regime, which may not necessarily be met (Eastmond 2010). Lundy and McGovern (2008b) further suggest that the narrow focus on individual violations in formal mechanisms overlooks the range of more systemic injustices that individuals may have had to endure in a bid to develop a common narrative of the past. While all of these approaches are important in drawing a distinction between what has occurred under the previous regime and what is envisaged under the new regime, formal mechanisms have often been critiqued for not responding to the needs of individuals and for being too far removed from communities to have any significant impact on the realities of the circumstances of people who live within them (Lambourne 2009). Arriaza and Roht-Arriaza (2008b) further point to the significant criticism that international and hybrid mechanisms have been problematic in terms of their treatment of witnesses and the division of labour that they create between national justice mechanisms (i.e. those that pursue the little fish) and those of the international community (i.e. those that pursue the big fish). The ICTY, in particular, was perceived as not only being removed from the population, but also used for propaganda purposes by its opponents (McGregor 2008). McEvoy (2008) also notes that despite a range of services that have been developed to support victims throughout the prosecutorial process, there remains a suspicion that this is merely a means to appease victims in order to secure prosecutions. Nevertheless, despite these and other criticisms, international law can play an important role in providing a vehicle through which victims, families and other non-state actors can initiate investigations into human rights abuses locally (McGregor 2008). Thus, international and hybrid mechanisms can provide an impetus for an idle state to respond to the consequences of those abuses under the previous regime in tangible terms where no political will exists. For example, the United Nations Set of Principles on Impunity, the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law and the Rome Statute have increasingly enforced the rights of victims to participate in the proceedings of international hearings either directly or through a legal representative and to assert their right to reparation.6 Furthermore, McGregor argues that international law may be used to transform

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society and initiate change at a local level as a result of the ‘constant internal struggle and evolution’ of the discipline (2008: 54). However, given the grand scale of those affected by the conflict it often means that these mechanisms involve only a minority of victims and offenders. This creates a gap between those who might benefit in some way from a topdown response and the vast majority of individuals, particularly those who have not been physically affected, who will not receive any reparation or direct compensation for their suffering, the lack of opportunities for personal development during the previous regime and safety characteristic of sustained periods of violence and oppression. In such settings, it is frequently victims and survivor groups, community and civil society organisations, human rights nongovernmental organisations, church bodies and others that have been the engines of change. Given these and other criticisms levelled against formal mechanisms, there have been recent calls within the transitional justice literature for a move away from an over-reliance on legalism (as outlined above) towards an increased development of responses ‘from below’ (see McEvoy and McGregor 2008). Transitional justice from ‘below’ ‘Informal’, ‘bottom-up’, ‘micro-level’ and ‘community’ justice are commonly used to refer to those responses that are concerned with the needs and circumstances of individuals that may not always be guided by law (van der Merwe 2001). McEvoy and McGregor (2008: 3) explain that the term ‘from below’ is ‘increasingly used to denote a “resistant” or “mobilizing” character to the actions of community, civil society and other non-state actors in their opposition to powerful hegemonic political, social or economic forces’. ‘From-below’ actors may include: indigenous peoples; ‘urban peripheral organised groups; community-based organisations and their networks; grassroots initiatives; victims’ organisations; local NGOs; and trade unions’ (Diaz 2008: 190). The emergence of action by such groups suggests that the broader populace or segments of communities themselves are no longer passive observers in the transitional process but are more commonly becoming instigators in dealing with the consequences of extended periods of conflict and oppression. According to McEvoy (2008) the impetus for the development of such approaches arises either in reaction to formal mechanisms (such as those outlined above) or in response to a deficit in service provided by the state, such as access to justice or support networks – Northern Ireland, Guatemala and Columbia all provide good examples in this regard. While this approach is still in its infancy, it may indeed enjoy increased momentum as citizens take advantage of their newfound freedoms and seek to develop mechanisms that are legitimate on their own terms. Transitional justice, at this level, has been associated with more localised, indigenous approaches to dealing with the past such as the community restorative justice schemes in both Republican and Loyalist communities in Northern Ireland (see Mika and McEvoy 2001; McEvoy and Mika 2002; Eriksson 2009), the Recovery of Historical

A multi-layered approach 55 Memory (REMHI) project in Guatemala (see Sieder 2001), the gacaca courts in Rwanda (see Drumbl 2005; Waldorf 2006), East Timor’s Community Reconciliation Processes (see Burgess 2006), and Uganda’s traditional justice practices known as mato oput (see Latigo 2008). While the value of community restorative justice schemes will be dealt with in greater detail in Chapter 7, there are a number of key themes that can be interrogated under the banner of transitional justice ‘from below’ drawing on the examples outlined here. First, supporters of more localised community-based schemes argue that such an approach would place communities and those most affected by the conflict at the centre of transitional justice thereby increasing understanding about the causes of the conflict and the local dynamics involved, and thus provide a more relevant response for those affected by the conflict (Lundy and McGovern 2008a). Lundy and McGovern (2008b) provide an example of how victims in the Ardoyne region of Northern Ireland developed the Ardoyne Community Project (ACP) to challenge what was perceived as a ‘hierarchy of victimhood’ in the official narrative contained in the Bloomfield Report. Following a number of community meetings, the ACP was devised to publish a book on the lived experiences of community members during the conflict. The project was wholly owned by the community in terms of control over the design, research, compilation, editing and production of the book – a necessary requirement given the ‘deep-seated distrust of “outsiders” resulting from years of conflict and surveillance’ (Lundy and McGovern 2008b: 114). Reported outcomes of the process included a recognition and acknowledgement of harms caused; community participation, and most importantly intra-community conflict resolution based upon dialogue at the community level about the core underlying issues and dynamics. These are significant and important contributions to the transitional justice landscape that should be actively pursued. However, a significant drawback of this scheme in particular (and ‘bottomup’ schemes more generally) is that they are limited in achieving official recognition, recompense or accountability (Lundy and McGovern 2008a). As such, by their very definition, they are highly localised initiatives and where their remit extends to revealing information about the conflict more generally this can be a particularly dangerous exercise for those involved. For example, in 1995 the Catholic Church in Guatemala began ‘The Recovery of the Historical Memory Project’ (Recuperación de la Memoria Histórica, REMHI) to reveal the nature and extent of human rights abuses under the previous regime (Costello 1997; Kauffman 2005; Sieder 2001; Wilson 1997). During the three-year period over which REMHI operated, over 800 volunteers gathered 5,180 testimonies from survivors, documented 55,021 instances of victimisation (including over 25,000 murders and 422 massacres) and identified more than 300 mass graves across the country (Costello 1997; Sieder 2001; Ross 2006; Wilson 1997). On 24 April 1998, the Human Rights Office of the Catholic Archdiocese published its extensive report Nunca Mas (Guatemala: ‘Never again’), attributing some 80 per cent of responsibility for atrocities to the state security forces (Sieder 2001). The report describes the human rights violations perpetrated

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against the civilian population during the period of war as well as the patterns of violence, its effects, the socio-political context of the war, and a list of the names of the victims. The armed forces criticised the report for political bias, and many on the right stridently condemned it, accusing the Church of political interests and the promotion of conflict over reconciliation (Sieder 2001: 191). Two days later, the Catholic Bishop Monsignor Gerardi, the founder and former director of REMHI, was murdered. His death came ironically in the wake of his own words in the REMHI report presentation speech: ‘To construct the kingdom of love requires it to take risks . . .’ (Cabrera 1998: 30). In the days immediately following his death, a number of church personnel and human rights activists received death threats. At least seven judges, prosecutors, other judicial staff and witnesses in the Gerardi case alone left the country and several witnesses to the murder died suspiciously, including one in prison on 29 January 2001 (Amnesty International 2007). Second, community-based schemes can assist in propelling change at the formal level, particularly in terms of the reform of criminal justice agencies that have been complicit in enforcing partisan policies and committing human rights abuses during the previous regime. In Northern Ireland, for example, paramilitarism served two basic functions in both Republican and Loyalist communities: first, protection against attacks from the other community and second, social control due to a policing vacuum (Johnston 1996; Cavanaugh 1997). Punishment beatings, in particular, became a widespread phenomenon7 to discipline traditional offences (vandalism, graffiti, car theft) and political offences (openly criticising paramilitaries, collaboration with the security services) committed by community members (see Johnston 1996; Silke 1999; O’Neill et al. 2002). The ‘instant justice’ that paramilitaries exerted on perceived offenders grew to be a popular means of retribution within both communities and ranged from warnings to threats, exclusion, right through to knee-capping, beatings and in the most extreme cases execution (Martin 2006). This alternative system of justice began in 1969 and continued to evolve in response to both changes in the political situation and organisational pressures. Following the ceasefires in 1997, however, attempts to move away from punishment beatings to responses that were both more effective and humane in dealing with crime was spearheaded by the Northern Ireland Association for the Resettlement of Offenders (NIACRO). Two research projects were developed, one in the Shankill and one in the Falls area of Belfast. For the Shankill project, a former Loyalist prisoner, Tom Winstone, was appointed and after some difficulties experienced with the initial researcher on the Nationalist side, Jim Auld, a former Republican prisoner, was seconded to conduct the research in the Falls. The research projects subsequently led to the development of community restorative justice schemes in both Loyalist and Republican areas as an alternative to paramilitary violence, known as Northern Ireland Alternatives (Alternatives) and Community Restorative Justice Ireland (CRJI) respectively. However, acute suspicion around the involvement of ex-paramilitaries in the schemes resulted in restorative justice being catapulted into the centre of debates

A multi-layered approach 57 around reform within the formal system. Criticisms levelled against the schemes included the following: it presents a conspiracy to take over the justice system; it may serve as a way for paramilitaries, especially the IRA, to corrupt policing (Gormally 2006); it could be used as a ‘façade not only for illiberal populism but also for vigilantism and community despotism’ (Dignan and Lowey 2000: 26); and finally, it may create a two-tiered justice system (BBC 2007). Given the continued suspicion of criminal justice agencies, particularly of the police in Republican communities, this produced a meta-conflict that manifested in a dispute over the ownership of justice. Nevertheless, it did contribute to pointing out the importance of reforming the institutions in the early transitional period. Third, and rather more sceptically, community-based schemes are perceived by some as an attempt to further expand the state’s reach into local communities and that they can actually serve to reproduce the exact deficiencies that top-down initiatives are often criticised for (McGregor 2008; Schotsmans 2011; Stanley 2008; Waldorf 2006). As such, there are calls to be cautious against romanticising community intention or capacity. In 2002 Rwanda initiated and implemented a hybrid version of a local dispute resolution mechanism (gacaca) to create an opportunity for local communities (made up of perpetrators, victims, bystanders and rescuers) to present, listen to and make decisions on accusations of genocide (see Waldorf 2006). While many refer to gacaca as an example of grassroots restorative practice at work, a number of authors describe how the state-imposed nature and remit of these courts means that they are quite a step away from their ‘traditional’ form (Clark 2011; McGregor 2008; Waldorf 2006). In practice, the approximately 11,000 gacaca courts in operation around the country combine formal proceedings and sanctions with community participation (Schotsmans 2011; Waldorf 2006). These proceedings have been criticised for the absence of reparations for genocide survivors, the refusal to hear allegations of war crimes committed by the current regime’s soldiers (thus ignoring atrocities committed by the Tutsi), inadequate access for female victims of sexual violence, and the length of proceedings, which limits the availability of participants given loss of earnings that attending incurs (Clark 2011; McGregor 2008; Waldorf 2006). McGregor (2008: 63) argues that while gacaca ‘perpetuates the same structural deficiencies as top-down models’ it proves to be ‘more difficult to hold publicly accountable through the cover of cultural relativism’. Further concerns have also been levelled against the co-optation of traditional justice mechanisms in Uganda. Writing on the mato oput, Martien Schotsmans (2011) explains that this forms the only accountability mechanism for the Acholi culture for the crime of murder. This involves quite a lengthy process of mediation to decide on compensation, the sacrifice of animals, ritual cleansing of the perpetrator, the drinking of mato oput (a bitter juice from the root of a tree) and finally the sharing of a meal and beverages with the family who have lost their relative due to the perpetrator’s actions. As such, this process is often not appropriate for crimes committed during periods of political instability given that the victim and offenders family must know each other in order to engage in the process. While Schotsmans (2011) indicates that there have been some instances

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where the process has been used for war killings, he explains that this has been limited due to the extensive amnesty that has been granted to perpetrators and the significant amounts of compensation that are required to be paid by the perpetrators to the victims’ families. Where these processes do take place he raises concern that social pressure is often placed on victims to forgive and to accept the perpetrator back into the community. Elizabeth Stanley (2008: 179) provides a similar assessment of the Commission for Reception, Truth and Reconciliation (CAVR) in Timor-Leste when she argues that although it was created as a process inspired from the bottom-up, which provided a more participatory and inclusive approach for victims than top-down initiatives had, it was unable to ‘challenge the structured disparities that continue to pervade life in Timor-Leste’. She outlines how CAVR personnel were in conflict with one another, there was evidence that some of the hiring procedures were not very stringent, allowing some perpetrators to be hired as workers, and that in some instances hearings were manipulated to facilitate positive outcomes for perpetrators by emphasising the value and need for ‘peace and reconciliation’, thus shielding them from being held to account in any meaningful way. Stanley also shows how gender discrimination was a significant issue, in which men were overrepresented not only in terms of holding more senior positions within CAVR, but also in terms of being allowed to participate within the process as both victims and offenders. She notes that victims who participated in the CAVR appeared to do so as a sense of duty to the local community, often deferring to the panel or the Chefe de Suco (village head) or appearing reticent to speak. In her assessment she concludes that the CAVR ultimately reinforced inequalities of power and economy at local and regional levels and, as a result, created further conflict and thus she questions whether bottomup initiatives ‘might actually create more harm than good’. The transitional process has become increasingly messy, with multiple transitional justice mechanisms – both formal and informal – being used simultaneously (without a clear hierarchy) to respond to a constantly evolving political situation (Bell 2009). Potential therefore exists for competing agendas between national and local messages to emerge and to influence the trajectory of the posttransition landscape. This is largely due to the fact that formal agendas are around promoting a different image of society; whereas community schemes will respond to local issues and priorities. Thus, Lundy and McGovern (2008a) call for a much bolder engagement of local actors at every level of the process – conception, design, initiation, implementation and evaluation – to ensure that the mechanisms that are used have local purchase. The following section argues for a strategy that links transitional justice mechanisms that are adopted and implemented by both the state and ‘from-below’ actors. Linking transitional justice from ‘above’ and ‘below’ Both top-down and bottom-up initiatives tend to emerge in what Woolford and Ratner (2010) have termed the ‘informal–formal justice complex’, whereby

A multi-layered approach 59 state-based and community schemes interact, influence one another and co-exist. While some view a competitive relationship between state-based and community-based schemes, the authors argue that this is somewhat illusory given that informal schemes rely on the state for ‘referrals, support and funding’, which renders them ‘liable to cooptation, professionalization and/or governmentalization’ (2010: 8). In some ways, the previous section provided additional support for this position by describing the increased reach of the state, in cases where hybrid versions of traditional justice practices are used that serve to reinforce further legal domination. However, it has also demonstrated that in communities where state justice practices are non-existent or viewed as illegitimate, bottom-up schemes can provide a challenge to the justice ‘gap’ by drawing attention to the need for reform and providing a more culturally relevant response to conflict at the local level. What is crucially needed, therefore, is a strategy that will allow both topdown and bottom-up approaches to transitional justice to work together in a more complementary fashion. The first step in this approach is to acknowledge the strengths and limitations of each. Ruth-Heffelbower (1991) and Van Ness (1990) argue that top-down restorative justice mechanisms can bring order, but only bottom-up institutions (the community) can bring peace. Scott (1999, cited in McEvoy 2008) further suggests that top-down schemes often fail spectacularly because they oversimplify; they fail to take sufficient account of local customs and practice knowledge, and to engage properly with community and civil society structures. Such failures thus encourage grassroots resistance to such state-led initiatives and further remove individuals from a sense of ownership over responses to the past (McEvoy 2008). This does not mean that the state is not justified in holding a monopoly over certain offences such as economic crime and corruption. Often communities hold neither the capacity nor the resources to be fully integrated into the response in such cases; however, they can play an essential role in lobbying and pressurising officials to take action in this regard (see Cavallaro and Albuja 2008). As such, McEvoy and McGregor suggest that institutions of transitional justice should seek out ways of ‘increasing ownership and encouraging participation of those who have been most directly affected by the conflict’ (2008: 5, italics original). McEvoy (2008) calls upon lawyers in particular to develop a ‘thicker’ understanding of transitional justice, to think more reflectively about the consequences of legalistic discourse in such contexts and to be more imaginative in overcoming some of those consequences. Arriaza and Roht-Arriaza (2008a: 153) further argue that not only should national-level initiatives have a regional aspect or component, but also that individuals assessing past efforts and contemplating new ones should look at independent initiatives arising from the local level as an integral part of the post-armed conflict justice landscape. Such local-level efforts often precede formal national-level initiatives, and they can follow on or extend national-level programmes, making them more locally relevant. This debate intensifies when the international community becomes involved in devising responses to human rights abuses that have taken place. As previously

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outlined, transitional justice scholars often draw a distinction between the punitive retributive responses of the ‘West’ and the forgiving reconciliatory, restorative responses of local actors (see, for example, Tutu 1999; Unger and Wierda 2009). In this context, Unger and Wierda (2009) suggest that the form of justice that should be used becomes embroiled in a debate about universalism versus local tradition. As Newman and Howard (2001) explain, international development agencies often provide assistance to emerging democracies on the condition that ‘rule of law’ be strengthened, so as to guarantee human rights and equal justice and to ensure the opportunities for corruption are reduced. However, while these aims are laudable in societies where gross human rights violations have occurred, they often impose programmes, policies or philosophies favoured by the donor agency, rather than the local community, onto the nation. The following section unpacks these issues in further detail.

Universalism versus local tradition A further tension exists within the transitional justice literature around the role that the international community should play in national conflicts. Some perceive international involvement as a crucial element in the peace process, whereas others argue that it contributes to further instability and hostility (Lambourne 2004). These perceptions are particularly polarised in inter-communal conflicts, as Aertsen outlines: For example, with regard to the atrocities committed in Nyabyondo, the international community has been widely criticised for its inadequate intervention [. . .] Also the intervention in Kosovo and the bombings on Serbia have been highly criticised by the Serbian side which raises the issue of double standards [. . .] A similar situation can be observed in the Israeli– Palestine conflict where the Palestinian side is highly critical of the ‘partial and unjust’ involvement of the international community [. . .] it seems that the international community is not only criticised for its intervention, but also for its lack of intervention. (2008: 450) Kriesberg (2007: 95) suggests that ‘the conventional understanding among partisans and observers of conflicts is that [. . .] coercion is needed’, either through threats or promises to get ‘an adversary to change against its will’. Perhaps the most successful example of international intervention is the involvement of US President Bill Clinton in Northern Ireland. In January 1994 President Clinton made a controversial decision to grant Gerry Adams, the leader of the Irish Republican Party, Sinn Féin, a US entry visa despite a continuing IRA campaign that included the bombing of Warrington and the city of London (Cox 1998). This served as a reminder of the rewards on offer should Sinn Féin pursue the path of constitutional politics (Cox 1998; Darby 2003) and while this act was not directly related to achieving the 1997 ceasefire, it did keep talks between the

A multi-layered approach 61 IRA, Unionists and the British Government going with US assistance (Kinealy 2008). On the basis of examples such as this, proponents argue that ‘outsiders’ are able to put forward points of view and suggestions that both sides of the divide will listen to and agree upon in the hopes of reaching a peaceful settlement (Fischer 2011). On the other hand, it is argued that caution should be exercised in the extent to which international actors become involved in resolving political conflicts, because this robs local actors of the opportunity to develop conflict management skills themselves and often overlooks the needs, values and traditions of the local community (Lambourne 2004). Lambourne uses the example of the United Nations’ peace efforts in both Cambodia and Rwanda, which did not take into account Cambodians’ and Rwandans’ calls for reconciliation and justice; ‘instead the focus in Cambodia was on geopolitical considerations and in Rwanda on the implementation of international law to satisfy the needs of the international community’ (2004: 20). In Cambodia the United Nations undertook a multi-dimensional peace operation – the United Nations Transitional Authority in Cambodia – but the peace it left behind in 1993 was partial, as the Khmer Rouge resumed sporadic armed resistance (Doyle and Sambanis 2006: 2). In Rwanda, the international community was perceived to lavish money on the United Nations ICTR based in Tanzania, rather than investing in more sustainable programmes at the local level (Waldorf 2006). Lambourne (2004) therefore argues that the focus on the political rather than the personal has tended to mask the underlying psychosocial processes that contribute to the willingness and readiness of people to choose a path of peace and reconciliation rather than engaging in further mass violence and/or abuse of human rights. As such, it is important for both international and local actors to be able to work together to negotiate the level of involvement that external actors provide. There are also tensions around which type of justice – retributive or restorative – is most appropriate. According to Braithwaite (2007: 149) ‘the legitimacy ideal that has been articulated for restorative justice is that it would assist the justice of the law to filter down into the justice of the people and the justice of the people to bubble up into the justice of the law’. However, as the following chapters will demonstrate, this continues to be an aspiration rather than a reality within transitional settings, largely because governments are typically resistant to devolving power for conflict resolution down to communities. This is not something that is particular to transitional societies, but a common trend across democratic settings too. Nevertheless, it can have unintended consequences, such as a continued resistance by previously disengaged communities to engage with criminal justice institutions that they perceive to have played a role in the conflict, particularly where these continue to be unreformed. Many scholars also point to the importance of empowering restorative justice initiatives to become embedded in the new democratic order as a way of prioritising local traditions. Van Ness and Strong (2010) suggest that indigenous justice practices have contributed to restorative justice in demonstrating an intention to repair harm rather than to inflict proportionate punishment, providing

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inspiration for the development of restorative justice processes and promoting restorative justice in non-Western countries. However, Cunneen (2002: 43) argues: ‘The selective and ahistorical claims that restorative justice practitioners have made about indigenous social control conforming with the principles of restorative justice, while conveniently ignoring others, are now legend’. Findlay (2000) also questions the extent to which restorative justice processes that claim to draw on traditional forms of justice (such as Maori-inspired family group conferencing or Navajo sentencing circles) actually serve to impose another ‘Western’ form of justice onto local communities. It is, therefore, important at this juncture to consider the legitimacy of linking restorative justice and indigenous justice. Tshelela (2004: 16) has observed that there is a ‘resounding resonance between restorative justice and justice as practiced by Africans through community courts and chiefs’ courts’. Pre-colonial African societies could be categorised into tribes that were largely homogeneous and ruled by Kings or Chiefs, and those that were heterogeneous and ruled by a centralised political authority (see Kalunta-Crumpton and Agozino 2004). Decision-making in both categories involved lengthy deliberation, and those in power (who were almost exclusively older men) were required always to act in the interests of the community (Anderson 2003; Skelton 2005; Skelton and Frank 2001). This inclusive approach extended to crime prevention and the administration of justice where the victim, the offender and the entire community were encouraged to participate in determining the harm caused and finding an acceptable resolution for all stakeholders (Gyekye 1996; Motala 1989; Tshelela 2004). The restoration of rights, dignity, interests and well-being of the community as a whole is said to be the primary goal of African indigenous justice systems (Elechi 2004). This is evident in the philosophy of ubuntu (Zulu) or botho (Sotho), which is said to guide African way of life and may be described as ‘spiritual communalism’ (Anderson 2003; Mokgoro 1998; Onwuachi 1977; Tutu 1999). According to Shutte (1993: 46), ubuntu is a unifying worldview enshrined in the Zulu maxim umuntu ngumuntu ngabantu, which means ‘a person is a person through other persons’. Thus the African indigenous justice system is said to employ restorative rather than retributive principles in conflict resolution. Any wrongdoing is viewed as an act against the community, not only against the individual, and it is for this reason that all members of the community are involved in conflict resolution (Mbiti 1970; Elechi 2004). As the administration of justice in this context is explicitly concerned with achieving peaceful resolution it does not follow a rigid adherence to rules, however, each case does follow a similar pattern (Armstrong et al. 1993). Offenders are encouraged to accept responsibility for their offence, understand the harmfulness of their actions and to experience some form of discomfort, which may be in the form of compensation to the victim, reparation or symbolic gestures such as sacrifice of animals and the sharing of a meal (Skelton and Frank 2001; Skelton 2005). According to Elechi (2004) punishment is not unduly harsh so as to alienate the offender; but rather strenuous efforts are made to reintegrate the offender back into the community once punishment has been fulfilled.

A multi-layered approach 63 Despite a substantial proportion of the population (around 21 million) opting to use indigenous courts in South Africa, this approach to justice has often been sidelined by the post-Apartheid government in favour of Western adversarial responses to crime. Mike Batley, Director of the Restorative Justice Centre, explained in interview: Part of it is simply politics and the position of traditional leaders as an unvetted group of people who have status and it is about the challenge of finding a place for them in a constitutional democracy. So there has been a lot of tension between them as a group and the government. Several people have been saying that we need to recognise that they are actually still running especially in rural areas because at the moment there aren’t really any mutual referrals. There used to be a system where they could refer, especially for more serious cases, but that seems to have fallen into disuse and I don’t think that there is any formal provision where it happens where the magistrates think that it is a good idea to refer cases back to them. (Pretoria, 26 April 2007) Coupled with the question over the role and relationship of traditional courts with the formal criminal justice system is a constitutional dilemma faced by government in terms of its procedural aspects. In practice African indigenous justice systems treat an accused as guilty until he or she can be proven to be innocent; do not recognise the right to remain silent; the system is largely male-dominated with females often assuming a subordinate role throughout; and sanctions have been criticised for being inhumane and unconstitutional (Skelton 2007).8 Therefore, while indigenous justice may be broadly congruent with restorative justice principles in that it aims ultimately to restore harmony in communities, the process of African indigenous justice practices are often criticised for contravening human rights principles and being incompatible with due process protections. In an attempt to overcome these challenges and formalise traditional approaches to dealing with crime, the South African Government has drafted a Traditional Courts Bill, which attempts to marry restorative justice and the indigenous traditional courts.9 Initially, the Bill was due to be tabled in August 2008; however, it attracted considerable criticism for not being compatible with gender rights,10 continuing to exclude legal practitioners; and making use of unconstitutional sanctions, such as corporal punishment and the confiscation of property. Advocate Shireen Said, Director of the Chief Directorate: Promotion of Vulnerable Groups within the Department of Justice and Constitutional Development explained in interview that the traditional system, and restorative justice in particular, is constantly evaluated according to Western standards: The restorative justice system is constantly interpreted on its principles, on its culture, on its ethos through the lenses of a Western system, so people are questioning even with the traditional courts bill so how are we going to

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A multi-layered approach use legal representatives? Our position is that there are no legal representatives because you present the issue on your own. The minute you take away legal representatives what you’re saying is I’m going to be prejudiced against what I say which is an incrimination right, which is due process, which is Western. (Johannesburg, 18 May 2008)

While the Bill attempts to marry constitutional values and customary values, it ensures that Constitutional values trump customary ones (Schärf 2003). Thus, there appears to be a tension within government about the role and status of traditional justice mechanisms. On the one hand, there is a desire to protect and facilitate their continued existence due to the limited reach of the criminal justice system in rural areas. On the other hand, there is a need to subject them to the controls and standards required by the Constitution and the international community. While there may be, at times, often heated debates and disagreements within Parliament about what route to take on these issues, it is not clear what influence the government will have, if any, in ensuring that traditional leaders abide by the Bill once it becomes law. Some scholars have suggested that steps could be taken to transform indigenous justice systems so that they become more aligned with international standards and human rights: Ways must be found to address the retributive attitudes of communities. This could be fostered through demonstrating the benefits of restorative justice [. . .] The linkages to traditional forms of conflict resolution must be clearly made. Ways must be sought to use and convert existing communitybased informal justice systems such as community courts to promote restorative justice. (Mbambo and Skelton 2003: 281) However, Skelton (2007) points out that traditional leaders are particularly resistant to change and Tshelela (2004: 31) further argues that ‘better gender representivity in traditional courts will not necessarily solve the problems encountered by women, as gender inequality is endemic to the people’s lives’. In this way, restorative justice may offer a bridge between a cold and alienating retributive process and an indigenous justice system that fails at the level of human rights and due process in Western terms. By developing codes of practice that are aligned with a Bill of Rights (whether international or national) and standards for human rights protections, restorative justice processes may offer a familiar emphasis for indigenous groups and to satisfy international requirements faced by policy-makers. Although, as demonstrated here with regard to the South African case study, it is questionable how prominent restorative features will be in comparison to adversarial modes of justice. The tendency to link traditional justice practice to restorative justice (that which is good) against retributive justice (that which is bad) can be challenged further by a closer examination of indigenous outcomes themselves. In Sierra

A multi-layered approach 65 Leone, unequal power distribution and strict hierarchies, practices of ostracism, heavy fines and harsh punishment contributed to the economic and social tensions drove many young men from their communities, where they became easy recruits for armed forces (TRC 2004). Justice practices within South African communities are also very punitive (Wilson 2001) and frequently use corporal punishment and beatings as punishment for offences (see Skelton and Batley 2006). As such, Stovel and Valiñas (2010) warn against romanticising indigenous justice practices post-transition, particularly where this could inadvertently reignite conflict and problematic social structures. This section has explored two primary tensions within the transitional justice literature – the role of international actors in devising responses to the past versus local actors and the ever-present tension between restorative justice and retributive justice. The final section provides a conceptual framework for restorative justice before considering its practical application in the chapters that follow.

The role of restorative justice in transitional justice The previous sections have demonstrated that the end of dictatorial regimes and state-sponsored political repression involves a multi-layered process of transition that entails the development of a democratic institutional apparatus and, at the same time, ways to deal with past crimes and state repression (Jelin 2007: 138). The decision to embrace restorative justice may be influenced by a number of factors, including: a desire to move away from the highly punitive approach of the previous regime; emulating international trends as an attempt to win legitimacy and support from the wider global community;11 or even to reduce some of the uncertainty faced by new governments who are able to justify the implementation of programmes on the basis of success stories from other more advanced democratic nations (Clamp 2010). As Figure 4.1 illustrates, justifications for the use of restorative justice in transitional settings can be located on three levels.12 Opportunity for participation

Aims of restorative justice

Conceptual TJ

CJ

Strategic

Reform Community

Practical

RJ

Figure 4.1 Assessing the use of restorative justice for transitional settings.

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First, restorative justice can be used to introduce new values and concepts into society that communicate a new utopic vision of what society could be like away from the shadows of the past. This has been particularly apparent in terms of those that relate to formal transitional justice mechanisms. Both restorative justice and transitional justice discourse emphasises dealing with harm that has been caused and charting a way forward that will ultimately ensure that the past will not be repeated. Moreover, both transitional and restorative models place considerable emphasis on supportive and non-adversarial frameworks that promote reparation and the healing of victims, and hearings focused on truthfinding (du Toit 2000; McEvoy and Newburn 2003; O’Mahony et al. 2012; Teitel 2003b). At this level, restorative justice has become most associated with state-funded macro-level transitional justice mechanisms such as truth commissions. While the outputs of formal transitional justice mechanisms can make recommendations about the steps that need to be taken to secure a peaceful and just future, they are often considered to be primarily ‘backward-looking’ institutions, in that their primary focus is to deal with the past. Figure 4.1 demonstrates that while truth commissions send out messages to society more generally, the number of individuals who are able to participate within the process is relatively small. Second, restorative justice may play a strategic role in transitional societies. In order for its conceptual value to be realised, attention has to be paid not only to individuals through truth commissions and other transitional justice mechanisms, but also to the reform of institutions that have played a role in the abuses of the previous regime. Criminal justice reform, Boraine (2006: 23) argues, is at the ‘heart of transformation’ and restorative justice may be used as a vehicle through which to challenge approaches and attitudes to dispute resolution and increase the legitimacy of state institutions (Clamp and Doak 2012). Uprimny and Saffon (2006) further explain that restorative justice in this role promotes a legal culture based on dialogue and on alternative conflict resolution in communities where, before the transition, conflicts were solved in violent ways. Roche echoes this position when he states: By bringing participatory deliberative democracy back into the centre of the criminal justice system, restorative justice offers a possible route for restoring not just victims and offenders, but also for restoring citizens’ faith in a government perceived to be unresponsive to their concerns. (2001: 238) Strang and Braithwaite (1998) suggest that if restorative justice is integrated into the response to crime it may help to change police attitudes and culture, and potentially act as a catalyst for institutional reform within the criminal justice system itself. In this sense, the rhetoric surrounding restorative justice is one of human rights as reconciliation, mutual respect and equality to transform previously disengaged violent communities (and state institutions) into a new nation that respects the rule of law. However, it should be acknowledged that only those

A multi-layered approach 67 who come into contact with the criminal justice system as offenders, victims or witnesses will be affected. Third, restorative justice has a practical value in that it not only serves to bolster local indigenous justice practices but, as outlined previously, also plugs a ‘justice gap’ in communities where criminal justice institutions have no reach and/or legitimacy. In certain contexts, the demobilisation of armed actors or a perceived illegitimacy of the criminal justice system can leave important vacuums of social control (Dignan and Lowey 2000; Uprimny and Saffon 2006). In situations like these, restorative justice mechanisms operate as ‘grass-root’ alternative responses to crime that are, at the same time, effective social control tools (Ashworth 2002: 580). Crawford (1997: 54) argues that in this setting, restorative justice could ‘connect the formal criminal justice process with informal control mechanisms and to involve ordinary people in its working’. Restorative justice is therefore a response wherein both the victim and the offender are able to resolve their incident in a non-coercive manner in lieu of elite presence and act as a complement to the transitional justice process. All three layers form part of the transitional justice package and interact with each other in the post-transition period. We can learn about the state of society by examining which layer is dominant. Where top-down transitional justice mechanisms are dominant, they communicate a lack of democracy. They are devised by the state with limited input from the population in a bid to centralise power over conflict. Where criminal justice is prioritised without a formal mechanism, the underlying causes of the conflict may be too sensitive to deal with and so state agencies may be reformed in order to develop a perceived legitimacy for the state. Where bottom-up community restorative justice schemes exist, other alternatives may be perceived as less responsive to the needs of communities. As will be argued later, approaching each level in isolation from the others tends to limit the overall impact that these ‘layers’ can have on society as a whole. There tends to be an over-emphasis on top-down institutions within the transitional justice literature, particularly in relation to strengthening the rule of law, and only a limited assessment of the role that local communities might play in contributing to governance and security within transitional settings. Eriksson (2009: 20) suggests that this approach is at odds with trends in democratic settings, and has argued for ‘a more nuanced understanding of the relationships among the state, the community and the individual in the governance of justice and security’. The following three chapters explore each ‘layer’ at which the consequences of the past may be dealt with in a transitional setting. Chapter 5 focuses on topdown transitional justice mechanisms that are said to embrace a restorative justice framework to deal with the past – most notably, the truth commission. Chapter 6 moves the discussion from a focus on the past to a focus on the future and considers how restorative justice is used during the reform of criminal justice institutions. Finally, Chapter 7 presents restorative approaches to transitional justice from below. Each chapter explores the conceptual and theoretical underpinnings of restorative justice in relation to the response under review and investigates the value of restorative justice against available research findings.

5

Restorative justice as a mechanism for nation-building

The relationship between restorative justice and formal transitional justice mechanisms is probably the most taken for granted and least interrogated of all applications within transitional settings. It is within this context that restorative justice theory and practice has been stretched the most as these top-down instruments seek to grapple with the collective consequences of an often violent and/or oppressive past, a marked distinction from the individual, incident-specific issues addressed by stakeholders in traditional conceptions of restorative justice. Cunneen demontrates the importance of state-based mechanisms as follows: The restorative justice literature has been slow to think through the implications of situations where the modern political state has been the perpetrator of crime [. . .] the view that crime is a conflict that must be returned to the community may be misplaced in certain situations. Communities may still play a fundamental role in identifying the crimes of the state and may well play a role in forcing the state to acknowledge and respond to its own wrongdoing. Yet where there have been large-scale abuses of human rights, it is also the case that the state through the allocation of its own resources will play a pivotal role in the process of reparations for the harm which has been caused. In these cases, the state has a responsibility to repair the harm it has caused or allowed to occur. (2008: 355) The state therefore has not only a duty to facilitate and fund processes that will reveal the abuses that took place during the previous regime, but also an obligation to account for the role that it played in human rights transgressions through the provision of both symbolic and material forms of reparation. While rhetoric has been loudest in respect of the potential benefits of so-called ‘restorative’ approaches to dealing with the past at a macro-level, it has probably also been the most inconclusive, and at times, disappointing in terms of its tangible outcomes for victims, as the following discussion will show. This chapter begins by providing an overview of the use of restorative justice at a conceptual and practical level within formal transitional justice institutions. Next, the impact of formal restorative justice schemes within transitional settings is explored. The

RJ as a mechanism for nation-building 69 final part of this chapter concludes by calling for a bolder and more creative adoption of restorative justice that works outside of the standard ‘tool kit’ of formal mechanisms, and a far greater linkage between formal and informal applications of restorative justice in the post-transitional period.

Restorative justice and ‘top-down’ transitional justice mechanisms The capaciousness of restorative justice is striking when one considers its application in responding to mass victimisation. Four uses may be discerned within the transitional justice literature: restorative justice as an alternative to retribution (Cunneen 2007); restorative justice as ‘partial justice’ (van der Merwe 1999); restorative justice as a ‘different kind’ of justice (Tutu 1999); and restorative justice as ‘victim-centred’ justice (Robins 2011). In practical terms, restorative justice is said to adhere to a non-punitive approach that emphasises ‘truth-telling’, usually under the auspices of a truth commission or other such designated bodies (Lamin 2003).1 Teitel (2003b: 78) defines a truth commission as ‘an official body, often created by a national government, to investigate, document, and report upon human rights abuses within a country over a specified period of time’. Roche (2003: 30–32) suggests that the design of truth commissions has been influenced by the restorative justice principle of participation, that all those affected by the conflict should be accommodated. The term was first explicitly used as a framework and guiding philosophy of the South African Truth and Reconciliation Commission. Archbishop Desmond Tutu, the Chair of the Commission, not only used a familiar dichotomy between restorative justice (that which is good) and retributive justice (that which is bad), but also linked restorative justice to a range of concepts – truth, reconciliation, healing, forgiveness – and the African philosophy of ubuntu.2 Furthermore, rather than the truth commission being described as an institution responding to political compromise as other commissions had done, Tutu referred to it as: another kind of justice – a restorative justice which is concerned not so much with punishment as with correcting imbalances, restoring broken relationships – with healing, harmony and reconciliation. Such justice focuses on the experience of victims; hence the importance of reparation. (TRC 1998, Vol. 1, Ch. 1, Para. 36) This dramatic shift away from equating justice with retribution to restoration has certainly evoked strong reactions – both positive and negative – around the role, purpose and abilities of truth commissions in situations of mass violence and oppression. Proponents argue that truth commissions provide ‘justice to the extent possible’ (Zalaquette 1993: xxxi) where prosecutions are not possible due to a lack of capacity or political will (Hayner 2011), and that it can more adequately respond to gross human rights violations in a transitional context in a way that promotes reconciliation (K. Daly 2002; E. Daly 2008; Gutmann and

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Thompson 2000; Kiss 2000; Villa-Vicencio 1999). As Lundy and McGovern outline: A growing number of commentators argue that truth commissions can bring positive benefits including ‘closure’, ‘healing’, ‘reconciliation’ and may assist society in general to move forward by working through a violent past. Underpinning this is the centrality of ‘giving voice’ or enabling victims to ‘tell their story’, coupled with the practical issue of providing reparations for victims and a restorative rather than retributive conception of justice. (2008a: 270) Sceptics, on the other hand, argue that transitions face exceptional political and social circumstances and that the decision to establish a truth commission is a sacrifice of justice in a bid for ‘truth’ for the sake of peace, stability or some other value and is, therefore, an illegitimate option for dealing with the past (Allen 1999; Andrews 2000; Crocker 2002; Hamber 2003; Hayner 2011; Llewellyn 2007; Minow 1998; Rotberg and Thompson 2000; Uprimny and Saffon 2006; van der Merwe 2009; Wilson 2002). Other concerns are that truth commissions may serve to increase rather than decrease hostilities, and that their top-down nature can marginalise victims (Lundy and McGovern 2008a). Brandon Hamber (2003) further argues that truth-seeking initiatives are packaged as a mechanism that responds to the needs of victims, but ultimately raises expectations that cannot be fulfilled. As such, he suggests that they are not focused on victims but should rather be viewed as processes of political and social compromise. Nevertheless, many have defended the political convenience and ethical superiority of using restorative justice as the dominant paradigm of transitional justice (see Minow 1998; Tutu 1999). Truth commissions are said to offer victims restoration by revealing the ‘truth’ about the past and allowing them a platform on which to tell their stories; to hold offenders to account by making them explain their actions prior to receiving amnesty, which creates opportunities for their reintegration; and to make recommendations for reparation to be awarded to victims for harms caused – all of which have been seen as compatible with restorative justice ideals (Dimitrijević 2006; Llewellyn 2007; Popkin and Roht-Arriaza 1995; Stovel and Valiñas 2010; Teitel 2003b). Yet, as Clark (2011: 244) points out, there is a lack of empirical evidence to support these particular assertions, and he therefore argues that embracing ‘evidence-based transitional justice’ will assist in tempering the expectations about what the outcomes and material benefits of transitional justice mechanisms will be. The following section further interrogates the justifications for the development of truth commissions and their restorative value in some detail. In order to assist this approach, the TARR model, devised by Parmentier (2003) and his colleagues (see Parmentier and Weitekamp 2007; Weitekamp et al. 2006) will be used as a framework for analysis.

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Conceptual confusion and the contested claims of restorative justice in the transitional context Weitekamp et al. (2006) distinguish four key building blocks for the transitional context. They argue that within the early transitional literature, two key issues were of primary concern. The first related to how to reveal the truth about the past, while the second involved holding perpetrators of human rights abuses to account. More recently, two further issues have emerged, one of which involves providing reparations for victims of gross human rights violations, and the other, which has a more forward-looking orientation, seeking to reconcile groups that are in conflict with one another. These are considered to be the ‘pillars’ of justice in the new democratic order (Parmentier 2003) that are thought to be crucial in securing peace in the future. However, the authors draw attention to the fact that these ‘pillars’ of transitional justice have generally been studied in isolation from each other without considering how they might rely on or complement each other. They further outline that for the most part, retributive justice pursued through national and international courts have not been successful in achieving these primary aims. While the pursuit of retributive justice through the prosecution of human rights abusers was (and still is) considered to be of importance, the authors stress that this does not increase understanding about the causes of conflict. As such, they argue that the pursuit of truth and accountability through truth commissions allows for a more realistic response to the dilemmas posed by the transitional context. In an attempt to further develop the theoretical framework for understanding post-conflict justice and to increase the possibility of achieving their stated aims, they put forward a heuristic model which groups the four key elements of transitional justice together with restorative justice principle as outlined by Roche (2003). As such, we are left with a framework that combines transitional and restorative values: truth-seeking with participation, holding offenders to account with reintegration, the provision of reparation with repairing harm, and reconciliation with personalism (see Weitekamp et al. 2006). While transitional justice scholars have written widely on all of these aspects, the meanings of these elements are contested and the evidence to support the claims that this is what stakeholders want and/or ultimately obtain within transitional settings is largely inconclusive. The language used by advocates is certainly appealing; however, critics can be just as persuasive. Many victims’ hopes are raised when they hear words such as truth, reparation, reconciliation and accountability, which may never be achieved in any meaningful way given the range of dilemmas (as outlined in Chapter 2) that plague these settings. In this section, the conceptual claims for each element are explored and evaluated against empirical findings. Truth-seeking and participation Truth and truth-telling are core themes within the transitional justice literature. This is perhaps unsurprising, given the often heinous acts that are committed

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during protracted periods of conflict and oppression and the amount of secrecy and propaganda that dominates public space during this time. It is thought that ‘no punishment is severe enough’ to deal adequately with the past (Campbell and Turner 2008: 376), and that some form of accounting by perpetrators and their leaders may assist in easing ongoing tensions during the early transitional phase. As such, Mendeloff (2004: 355–356) argues that ‘truth-telling is increasingly considered a necessary, if not vital, component of the peace-building process, as important as demobilisation, disarmament, or the holding of post-war elections’. This is particularly so in situations where the pursuit of prosecutions is not a viable option. Parmentier and Weitekamp (2007) helpfully summarise four reasons why truth is considered to be important. First, it allows individuals who have lost relatives to find out what really happened to them in a bid for closure. The healing effects of truth and truth-telling are probably one of the most popular justifications for the pursuit of truth (see for example Llewellyn 2007; Minow 1998; Rotberg and Thompson 2000). Second, societies are interested in being informed about the general pattern of abuses that have taken place under the previous regime. Third, establishing the truth is thought to provide some way towards establishing an acknowledgement of past abuses by both individuals and society more broadly (see Hayner 2000). Finally, the pursuit of truth is thought to enable the population to construct a collective memory about the legacy of the past (see Minow 1998; Hayner 2011). While the authors indicate some support for these assertions, they caution that they are fraught with difficulties. This is largely due to the fact that claims about the benefits that ‘truth’ and the process of ‘truthtelling’ should be tempered, as they have not been empirically tested, as Mendeloff explains: The literature has done a poor job of specifying the logic of truth-telling arguments, defining and clarifying key concepts, operationalizing key variables, indicating the conditions under which proposed relationships hold, providing compelling empirical evidence to support core assumptions, and testing claims systematically against competing explanations. Assertions are frequently presented as empirical fact when they are merely untested hypotheses. In short, truth-telling advocates claim more about the power of truthtelling than logic or evidence dictates. (Mendeloff 2004: 356) A number of research findings may be drawn upon that provide further support for this assertion. First, Weinstein (2011) suggests that closure3 is largely a Western concept driven forward by a cultural desire to take action and be in receipt of the facts. He therefore warns that truth-seeking efforts may not resonate with conflict resolution mechanisms located in transitional settings, that the pursuit of truth alone may overlook the history and socio-political context that led to the violence, and that seeking the ‘facts’ may stifle the voices of victims themselves. As such, he asserts that while transitional justice mechanisms

RJ as a mechanism for nation-building 73 ‘undoubtedly have important benefits’, and that ‘victims may fantasize that transitional justice mechanisms will bring resolution to the acute pain of loss, the ideal of “closure” appears to exist primarily in the minds of many who advocate for the mechanisms’ (2011: 5). Research findings appear to confirm that public testimony, rather than healing, can have quite negative consequences for testifiers. Hayner (2011) reflects that as psychologists readily recognise, and as can clearly be seen by speaking with some of those who have given testimony to truth commissions, victims and witnesses can in effect be retraumatised by discussing their experiences. Certainly in giving testimony to a truth commission hearing, an event that may be so severe as to result in a multitude of debilitating physical symptoms, such as confusion, nightmares, exhaustion, loss of appetite and sleeplessness. Using the words of Michael Lapsley, who lost both of his hands in a letter bomb sent by the Apartheid Government, Hayner argues that there is a danger in approaching healing too simplistically: If you have a physical wound, you take off the bandage, clean the wound, and re-bandage it. But people take their clothes off in front of the truth commission and don’t get an adequate opportunity to put their clothes back on [. . .] It is naïve to think that it takes five minutes to heal. We’ll spend the next hundred years trying to heal from our history. (2011: 153) Hayner further points to two cases which question the notion that revealing is healing. In the first, Marius Schoon had lost both his wife and child in a bomb attack during the Apartheid era, and while he was not aware who the individual was that had planted the bomb, he knew it was the security forces. He had felt that this generalised knowledge of who was responsible was sufficient and did not want to pursue the issue any further. However, the truth commission revealed the perpetrator’s identity and his feelings of acceptance were replaced with vengeance and he is quoted as saying: ‘there is a good chance that perhaps I might actually shoot him’ (Hayner 2011: 153). In the second, two survivors (a mother and son) of the ‘night vigil massacre’, which resulted in the deaths of 38 people in their homes, reflected that sharing their testimony at the Commission created more significant problems in coping with the memories: I can’t say if the truth commission is good or bad, but for me personally it’s made things much worse. My life has deteriorated since the hearing . . . it’s made me think about these things again. The day that we went to the commission, I started thinking about all of this again, and now all I can think about is the day of the massacre and what happened. At the hearing, her son explained that she was so distraught that she had to leave and he had to finish her presentation; and despite efforts to console the pair on the part of Commission staff, they went home emotionally distraught. Hayner

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(2011) reports not knowing what tangible outcomes they would receive from participating in the process created further distress. They wanted assistance in removing bullets and fixing the holes and damage caused by the attack, but this had never been investigated. Her son felt that the Commission had also put them in danger of retaliation by their perpetrators in asking them to testify. As such, Minow (1998) suggests that ‘healing is an absurd or even obscene notion’ for victims and survivors and Ross (2002) posits that to assume public testimony can have ‘healing effects’ is naïve. Brandon Hamber is also quoted (cited in Hayner 2011: 152) as saying: ‘As long as there is crying going on, there’s an assumption that healing is taking place. For some people it’s the first step; for others, it’s the last step, a completion. But there are a lot of people that feel devastated afterwards’. Colvin (2002, cited in Ross 2003) outlines a further issue in relation to participating in public testimony during truth commission hearings, that of publicity. He argues that those who participated in the public hearings during the South African Truth and Reconciliation Commission could not anticipate the extent to which their accounts of what had happened to them would circulate both nationally and internationally. In Ross’s (2003) study, she examines how personal testimony became raw data for others to use elevated some testimonies above that of others; how experience and pain were appropriated for other commercial purposes (such as victims perceptions of Anjie Krog’s book ‘Country of My Skull’),4 and testimony became distorted and/or condensed as an exemplar for a particular category of suffering (such as the experience of Yvonne Khutwane). A lack of ‘positive reciprocity’ for providing intimate details about hardship and suffering during the apartheid era resulted in a sense of disempowerment for some who participated in public hearings, and this was further frustrated by inertia on the issue of reparations payments by the post-transition government (Ross 2002). The Trauma Centre for Victims of Violence and Torture in Cape Town estimated that ‘from the hundreds of victims it has worked with, that 50–60 per cent of those who gave testimony to the commission suffered difficulties after testifying, or expressed regret for having taken part’ (Hayner 2011: 155). Second, large-scale survey research conducted by Vinck and Pham (2008) in the Democratic Republic of Congo (DRC) undermines the assumption that victims prioritise ‘truth’. They found that concerns around personal safety were more pressing, and that being provided with an opportunity to share their experiences of the conflict scored lower on their list of priorities than trials did. Furthermore, while 88 per cent of citizens considered establishing the truth important, only 62.5 per cent said they would talk openly about what happened to them or their families. Clark, in his research on Rwanda, also found similar attitudes towards truth revealing which may be summed up by a quote from one Tutsi survivor of the 1994 genocide who stated that ‘the intimate truth of the genocide belongs to those who lived it and so does the right to withhold this truth, for it is not something to be shared with just anyone’ (2011: 250). As such, Eastmond (2010: 8) suggests that

RJ as a mechanism for nation-building 75 truth-telling, like silence, are cultural categories and related in complex ways to power and agency; whether it makes sense to speak or to remain silent depends on what the social stakes are for a particularly positioned actor in a particular post-conflict context. Third, the truth may be distorted by the extent to which individuals engage with truth-revealing mechanisms and the political power that groups hold in the democratically emerging state. While victims were able to tell their stories of human rights atrocities and lost loved ones within the South African Truth and Reconciliation Commission (TRC), this was a selective process with the vast majority not being accorded this opportunity.5 Furthermore, while perpetrators had to provide testimony that demonstrated that their actions were politically motivated, they were not required either to engage with the victim or to demonstrate that they were remorseful for their actions. Achieving acknowledgement is further complicated when political leaders choose to deny, question or defend incidents that have taken place or the overarching ‘truth’ that emerges from trials and truth commissions. In South Africa, for example, some political parties – the ANC, the National Party, the Inkhata Freedom Party and former State President Pik Botha – did not accept the TRC’s conclusions. Kotzé (2001) argues that this caused major confusion at a psychological level in a society wherein party political affiliation was a pivotal component of personal identity, further bringing into question the ability of such mechanisms to merge various interpretations held by political groups about the causes and consequences of the past into one national consensus. Finally, a number of authors point out that to assume one can create a unified explanation as to the causes, consequences and responsibilities of a single event, let alone an entire conflict, is to approach the issue in an overly simplified manner (see Clark 2011; Daly 2008; Jelin 2007). Fletcher and Weinstein (2002: 588) explain that this assumes that any truth ‘revealing’ will ‘outweigh individual and group rationalisations for an alternative interpretation of the past’ and that the ‘truth’ that is revealed will not be ‘vulnerable to distortion, denial, rationalisation, and refutation’ on the basis of personal and political allegiances. As Daniel Bar-Tal notes, using the Israeli–Arab conflict as an example, groups tend to form selective ‘collective memories’ about the conflict: [that] focus mainly on the other side’s responsibility for the outbreak and continuation of the conflict and its misdeeds, violence and atrocities; on the other hand, they concentrate on the self-justification, self-righteousness, glorification and victimization. This collective memory is institutionalized and maintained by the groups in prolonged conflict [. . .] imparted to the new generations [. . .] and incorporated in the societal ethos, thus contributing to the group’s social identity. (2003: 80–81) This may be supported further by truth-seeking mechanisms such as the Bloody Sunday Inquiry in Northern Ireland, which confirmed that the 14 Catholic

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individuals gunned down by the British army during a peaceful protest were unarmed. The inquiry did not provide information that the victim ‘community’ did not already know, but it did confirm their status as victims of the other ‘communities’’ actions (Clark 2011). The point here is that revealing the ‘truth’ of events is probably of less importance than how the different sides of the conflict choose to interpret and act upon that information. Fletcher and Weinstein (2002: 589) suggest that what groups are actually most interested in is confirmation of their status as ‘victims’, rather than to learn the truth about an event. These examples appear to provide a challenge to the value of truth in transitional settings and the extent to which victims of gross human rights violations are able, and want, to participate in truth-telling mechanisms. Nevertheless, it should be acknowledged that while anecdotal evidence is often presented to bolster claims about why truth is needed in transitional settings, anecdotal evidence has also been used here to discredit these claims. In this sense, one could argue that the heated exchange between Cossins (2008) and Daly (2008) on the appropriateness of using restorative justice in relation to serious offences could provide further lessons here. While proponents of truth and truth-telling may be criticised for not basing their claims on evidence, we must also acknowledge that we do not have evidence to demonstrate that these claims are completely invalid. Offender accountability and reintegration Despite a range of international legal principles to combat impunity – the right to remedy, truth, justice and reparations – 420 amnesty procedures have been instigated since World War Two, indicating an international failure to ensure that perpetrators are held to account through the retributive system of justice (see Mallinder 2007). The breadth of amnesty provisions is determined largely by the strength of the outgoing regime and the public’s demand for truth and justice (see Bell 2009; Huyse 1995). For example, in Chile the power of Augusto Pinochet’s outgoing dictatorship enabled the military to demand a blanket amnesty (Gobodo-Madikizela 2003), while the deadlock in South Africa only allowed a conditional amnesty to feature. Prior to the South African TRC, all amnesties had been ‘blanketed’ which meant that no individual responsible for human rights abuses during the reign of the previous regime could be held to account for those acts in a court of law (Eisnaugle 2003). This resulted in limited participation by perpetrators in truth commissions due to a lack of incentive for individuals to admit to the harms that they had caused. Although Daly (2008) asserts that accountability is not necessarily an essential element of truth commissions, it can be perceived as an injustice when victims provide and receive information about human rights transgressions but do not see any corresponding action being taken upon the perpetrators. However, as Hayner (2011: 14) warns: ‘Insisting on accountability for past crimes may upset a fragile peace, or make a peace agreement impossible’. In both Mozambique and Zimbabwe, despite significant atrocities being committed there has been almost no focus on accountability, and many perpetrators still hold

RJ as a mechanism for nation-building 77 significant positions of power in Parliament or the armed forces (Waldorf 2006; Hayner 2011). In this sense, claims of impunity are justified as there is no pressure on those individuals who had been involved in human rights violations to account for their actions or to reveal to surviving victims the fate of their loved ones. The use of restorative justice rhetoric and processes post-transition, certainly at a national level, can therefore be questioned in terms of the extent to which they are concerned with victim needs rather than legitimising the process of impunity. Uprimny and Saffon (2007), in a refreshing contribution on the topic, distinguish between transitional justice discourse that is ‘manipulative’ (impunity serving) and transitional justice discourse that is ‘democratic’ (seeks to combat impunity). In respect of the former, transitional justice is often linked to restorative justice, and impunity is defended on the basis that criminal punishment does not contribute to reconciliation and may even prevent peace. This discourse is adopted, according to the authors, in order to legitimate ‘elite’ agreements made during the negotiations process. In this context, transitional justice is ‘fully shaped by politics’, although it is presented in such a manner that it appears as though the transition is constrained by international legal standards and cognisant of victims’ rights (Uprimny and Saffon 2007: 17). An example of the ‘manipulative’ use of transitional justice within the context of Columbia is provided by pointing out that although the ‘Justice and Peace Law’ was adopted to facilitate negotiations between the government and paramilitaries and contains generous acknowledgement of victims’ rights, it does not contain any institutions through which these rights may be realised (also see Diaz 2008). Thus, access to retributive justice is evaded by adopting a legal strategy that upholds restorative notions of reconciliation, pardon and forgiveness. Wilson (2003: 368) also points to the ‘continued institutional power of old elites in reformed state institutions’ in countries like Chile, South Africa and Guatemala, which allowed previous leaders to pass and/or negotiate extensive amnesty for previous crimes committed. Thus, some of the Latin American truth commissions in particular have been subject to the criticism that they have performed inadequately in holding state perpetrators to account (Ensalaco 1994). Even though the conditional amnesty offered by the South African Truth and Reconciliation Commission is said to have, for the first time, offered a ‘carefully balanced legal and moral compromise between impunity and prosecution’ (VillaVicencio 2003: 2) there are still questions about the extent to which it secured ‘accountability’ or ‘reintegration’. The participation of perpetrators during truth commissions, even where amnesty is granted, is for Mallinder (2007) a form of retribution, as it exposes perpetrators, who may experience potential or real social ostracism for their acts (see Krog 1999 particularly in this regard). However, ‘naming and shaming’ is always a difficult strategy given that there is a lack of due process and no clear evidence of culpability with such an approach (see Hayner 2011). The record of truth commissions in holding offenders to account has therefore been somewhat disappointing, because offenders not identified by Commissions or who do not

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come forward ultimately enjoy impunity (see Mamdani 2002). Furthermore, truth commissions are constrained by not having the power to pursue prosecutions, and Llewellyn argues that a lack of prosecutions by the government of those ‘who fail to secure amnesty’ reduces ‘the prospect of restorative justice’ (Mallinder 2007: 365). Conversely, the ‘democratic’ use of transitional justice discourse seeks to combat impunity through the effective application of victims’ rights to truth, justice and reparations. ‘From-below’ actors – primarily human rights organisations, community groups and victims’ movements – criticise and challenge political discourse and the legal framework that enable impunity through Constitutional Courts, and provide alternative proposals for realising victims’ rights and the move towards peace. The rights of victims are viewed in this context as ‘having an actual normative or legally binding dimension that may work as a constraint to the formulas for dealing with the past, which result from the political dynamics of peace negotiations’ (Uprimny and Saffon 2007: 16). Thus, the dilemma posed by transitional justice is that impunity is seen as an obstacle for realising the value of justice and, inversely, the protection of victims’ rights may be seen as an obstacle for realising the value of peace. However, there are questions about the cultural relevance of accountability in retributive terms, as outlined above. As with claims about truth, little evidence exists that truth increases the likelihood of public shaming or accounting or, where accounting does take place, that it will automatically lead to reintegration. In Sierra Leone, for example, Sawyer and Kemshall (2007) report that forgetting was more culturally appropriate than providing testimony through the commission, with one interviewee explaining that the ‘truth’ incited people to seek revenge for the atrocities that had taken place. Hayner (2011) also outlines that accounting through truth-telling can disrupt local grassroots practices for reintegration. Where amnesty is granted, communities may reject the named perpetrators, demand some form of contrition as the price for re-entry into the community or may welcome and protect perpetrators whose acts are seen as justified (Daly 2008). Providing reparation and repairing harm The vast majority of truth commissions make recommendations on the issue of reparations for victims of the previous regime at the end of the process (Hayner 2011). However, while they are able to suggest what action the government should take in meeting the needs of victims, they are unable to compel the government to do so. This has resulted in an uneven response to the issue of reparations across transitional states. In countries like Morocco and Chile, broad reparations packages were distributed fairly quickly following the truth commission. Chile provided substantial reparations in the form of monthly pension cheques to the families of those killed or disappeared, which provided important symbolic value as Hayner was told by the daughter of one victim: ‘Every time a check arrives, it’s recognition of the crime [. . .] After so many years of denial, month by month, it’s recognition that we were right’ (2011: 168).

RJ as a mechanism for nation-building 79 Nevertheless, in other countries such as El Salvador, Haiti or Sierra Leone the political will to meet reparations has been disappointing (see Hayner 2011). In South Africa, for example, the TRC recommended that the government pay roughly R21,7006 to each victim per annum for six years (TRC 1998). Despite this, in 2003 the government announced that a small one-off payment of R30,000 would be paid to some individual victims (iAfrica 2006), and that others would be compensated symbolically through the establishment of monuments and clinics in deprived areas. The frustration felt by victims who had given testimonies during the South African TARC but who had not received reparation may be illustrated by a quote from a victim participant in a study conducted by Nomoyi and Pretorius: It is unfair that the Commission had to raise our expectations for nothing. Since its inception, we were given the impression that it was founded on Christian principles, which to me, implied that the truth and honesty would prevail. Archbishop Desmond Tutu assured us that our needs will be met by the granting of the reparations and thus we should be willing to forgive for the benefit of reconciliation. We were asked to be the forgiving children of God, which we have done. However, we got nothing in return, but the perpetrators have been awarded amnesty even if they told lies. It is difficult for me to have faith in the Commission. What the TRC has done was to deprive us of our right to sue the perpetrators of these abuses. Are we expected to reconcile? (2001: 8) Victims will ultimately expect their needs to be met where they have participated, and where their expectations have not been tempered by the reality of the context in which the truth commission is operating frustration will often be felt. While there has been widespread agreement on the issue of reparations at an international level (Cunneen 2007), local governments tend to determine the breadth of reparations policies on the basis of what is possible and important, and who they perceive the deserving beneficiaries to be (Hayner 2011). While many countries will point to a lack of resources as justification for not meeting the recommendations set by truth commissions, Hayner (2011) suggests that reparations need not be defined in a limited way in terms of direct financial payments but could also include collective reparation in terms of increased access to services, education and poverty eradication. Often there is the potential for individual payments to mask the underlying causes of the conflict, and it is important that the economic, social and cultural rights of those affected by the violence is addressed and prioritised. However, it is also possible that victims may not embrace reparative efforts by post-regime governments. The Madres de Plaza de Mayo (Mothers of the Plaza de Mayo) in Argentina, for example, have rejected individual reparations that they are entitled to for the ‘disappearance’ of their children at the hands of the Argentine military junta between 1976 and 1983. They perceive payments as

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‘blood money’ and publicly denounced the decision by the government to award perpetrators amnesty. Woolford and Ratner (2010) argue that examples such as this one demonstrate that victims can engage in a process of counter memory and create the conditions for a broader debate about what justice means in the post-transition period. Where victimhood is embraced, it should be acknowledged that this might stem from material or political motivations (Rombouts 2002). Official recognition and affirmation of victimhood is important for victims, given that it allows them access to reparation.7 Those who do not fall within the remit of reparation policies will obviously not be awarded any material assistance. As such, there is a tendency for victims to compete for victim status by attracting attention to themselves in the pursuit of recognition and compensation. Drawing on the work of Chaumont, Rombouts provides an example of the success of Jewish victims to usurp attention and assistance as the sole victims of the Second World War, which meant that others ‘were denied recognition and were thus forgotten’ (2002: 225). Arriaza and Roht-Arriaza (2008b) further demonstrate the tensions that economic reparations can elicit when they describe how the recommendations on reparations by the Commission for Historical Clarification in Guatemala led to fighting between civil society organisations that competed over what the remit of reparations should be, and the associated politicisation of victims that transpired as a result. Some argued that financial assistance should be distributed among the Mayan community as a whole, whereas others argued that nonMayans should also be compensated for the victimisation that they experienced, ultimately increasing tensions. In the new democratic order, politicians may also use the plight of victims to further their own agendas. While these particular victims may enjoy increased status and accompanying resources, other victims who are not acknowledged may indeed experience negative consequences as a result. The state has a vested interest in creating a hierarchy of victimisation (not least on cost grounds) and thus there exists a tendency to define both victims and offenders in isolation from the structural context in which the incident has occurred. Walklate (2008: 283) refers to this as ‘victimhood [. . .] as a source of oppression’, because it results ultimately in unequal access to justice and support services. Torture victims in Argentina and Chile, for example, who remained an undefined category of ‘victim’ within the remit of the countries’ respective commissions, received not only limited access to compensation but also less recognition (Stanley 2004). This is also apparent in the South African case, whereby the focus on individual victims who had suffered at the hands of another individual afforded limited opportunities for the victims of the generalised system of Apartheid itself to engage in the process and to receive reparations from the state (Bradshaw 2002; Mamdani 2002). Even Rwanda provides a good example in this respect, whereby the Hutu population as a whole have been denied victim status at any level, while the Tutsi have been able to ultimately emerge as the innocents in the conflict (see Rombouts 2002). As such, as Green (2007: 185) argues: ‘If restorative justice is to continue providing a compelling alternative to conventional

RJ as a mechanism for nation-building 81 justice, then it needs to find some conceptual space from which to fend off competing notions of how the criminal or victimisation process is understood’. Presently, restorative responses such as truth commissions are limited by their legal conception of ‘victims’ and ‘victimisation’, which limits the impact that they can have at a formal level. Reconciliation and personalism Reconciliation is a popular term that is often held out as a principle aim of transitional justice mechanisms (Aiken 2010). Weinstein (2011: 2) points to the religious overtones8 and understandings of reconciliation in the South African TRC as the source that ‘spawned an industry of reconciliation advocates and practitioners [. . .] that could lead only to inflated expectations and ultimate disappointment on the part of those who suffered’. Since then, member states of the United Nations and the European Union have expended considerable amounts of money and human resources on this elusive aim (Clark 2006). However, it is plagued by problems around its conceptual meaning and the ‘ideological use of the “reconciliation” discourse’ (Parmentier and Weitekamp 2007: 136). As Chapman eloquently explains: One reason for the difficulty in understanding the requirements for reconciliation is that the term refers to a wide variety of types and levels of relationships and an equally broad array of initiatives to overcome ruptures in them. Reconciliation is used synonymously with such diverse processes as peace-building, mutual accommodation between former antagonists, reconfiguration of individual and group identities, healing, restorative justice, social repair, and community building. (2009: 145) To illustrate this point further, Shriver (2003) shows that reconciliation can be categorised into: national reconciliation (political consensus and interaction); societal reconciliation (which includes both individual and communal reconciliation); personal reconciliation (between victims and offenders); and finally, political reconciliation (between hostile groups). Amstuz (2006) also distinguishes between reconciliation as a process (through which broken relationships are healed) and as a condition (harmonious relationships or co-existence), which are said to speak to outcomes sought by both restorative and transitional mechanisms respectively. However, the issue with this approach to understanding reconciliation is that the conceptual issue is not a problem around the layers of reconciliation, but rather about what the term actually means. Is it about ‘social cohesion’ (Parmentier and Weitekamp 2007: 135) or ‘peaceful co-existence’ (Chayes and Minow 2003); ‘forgiveness’ (Shriver 2003) or ‘tolerance’ (Van Stokkom 2012); a shared narrative and understanding of the past (Shriver 2003) or reintegration (Eastmond 2010)? Crocker (2002) has attempted to provide some clarification of what

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we mean by reconciliation by distinguishing between ‘thick’ and ‘thin’ notions of reconciliation. ‘Thick’, ‘maximalist’ or ‘communitarian’ notions of reconciliation require victims and broader society to build strong ties with human rights abusers. Here, it is the development of a shared narrative of the past and unity in a past and unity in a shared future that is prioritised, with the elements of truth, justice, acknowledgement and forgiveness all seen as the vital components (Eastmond 2010). Elite rhetoric during transitional processes that have employed ‘thick’ notions of reconciliation have been clearly evident in Columbia and South Africa, where individuals rejecting such ideals have been labelled ‘enemies’ of peace (see Uprimny and Saffon 2007; Wilson 2001 respectively).9 Critics of the South African TRC have drawn attention to how both the Christian-inspired ethos of ‘reconciliation’ and that of ‘rainbow nation-building’ precluded certain things being said by the relatives of victims and those who had been tortured by the apartheid regime, particularly in public hearings, which led to a form of ‘secondorder traumatisation’ (see Lundy and McGovern 2008a: 271). Kohen (2009) does assert, however, that acts of public forgiveness and acknowledgement by notable victims and offenders are essential to achieving political reconciliation. This is, according to Govier (2002), because trust and co-operation are essential features of a democratic order that cannot materialise if individuals are consumed with anger, vengeance and suspicion. Conversely, ‘thin’ conceptions of reconciliation acknowledge that while victims and perpetrators may not hold the same view of the past, they are able to recognise and accept each other as equals in the new democratic order. Eastmond (2010) argues that this type of reconciliation is frequently embraced where divisions may be unresolved (such as in Bosnia-Herzegovina) and is simply about ‘peaceful co-existence’. A number of authors argue that this notion of reconciliation is more realistic in transitional settings where gross human rights violations have occurred, because it is very unlikely that victims and offenders will be able or willing to establish significant ties and relationships with each other (Uprimny and Saffon 2007). These conceptual issues are further clouded by the lack of an agreed approach of how previously disengaged groups might be reconciled. Here, the familiar dichotomy between retributive versus restorative justice approaches once again emerges. On the one hand, a reconciliation-based argument for prosecution is premised on the notion that retribution is a precondition for societies to ‘come to terms’ with their past, to achieve ‘closure’ and societal ‘healing’ (Aukerman 2002; Fletcher and Weinstein 2002). However, as Hadden (2004: 212) contends, ‘strict punishment of all violators may serve to maintain rather than reconcile the differing recollections and attitudes of the various communal or political groups from which the conflict arose’. This is further complicated when retributive justice mechanisms such as the ICTY and ICTR are based abroad and far removed from the local context, which reduces local knowledge of such processes (see Longman et al. 2004). This reinforces the perception that trials are mainly used for ‘international consumption’ (Eastmond 2010: 7). Indeed,

RJ as a mechanism for nation-building 83 Selimovic’s (2010) research on addresses by ICTY representatives in Bosnia and Herzegovina found local actors questioned their credibility, neutrality and competence in meting out justice; and Stover and Weinstein also found: no direct link between criminal trials (international, national, local/ traditional) and reconciliation [. . .] In fact we found criminal trials, especially of local perpetrators, often further divided small multi-ethnic communities by causing further suspicion and fear. Survivors rarely, if ever, connected retributive justice with reconciliation. (2004: 323) On the other hand, the reconciliation-based argument for truth commissions is that the focus is on the victims, it creates a medium through which to develop a shared narrative about the past as the basis for a shared future, and that it can facilitate the active involvement of victims, perpetrators and the larger community (Aukerman 2002). However, the requirements for reconciliation at a national level are very different from the reconnection of a previously existing close relationship. Chapman (2009) asserts that much of what is claimed about reconciliation is derived from studying interpersonal relationships and smallscale group interactions, sometimes under controlled circumstances. It is therefore questionable whether these findings can be applied to situations of mass victimisation, and if they will have purchase in non-Western cultures. In Northern Uganda, for example, victims were asked: ‘what would you like to see happen to those Lord’s Resistance Army (LRA) leaders who are responsible for violations’. Twenty-two per cent opted for forgiveness (including reconciliation and reintegration), and 66 per cent for punishment – trial, imprisonment or death (Unger and Wierda 2009: 288). Roche (2003) argues that at the heart of restorative justice is the belief that crime is a violation of relationships and therefore steps should be taken to restore harmony in those relationships. However, while restorative justice is concerned with restoration there are questions about whether or not reconciliation is actually something that restorative justice is concerned with. Bas Van Stokkom asks: Is it reasonable to expect forgiveness and reconciliation between people who do not know each other and might have very diverging views on the criminal event? Although many theories do focus on reconciliation and forgiveness, in practice restorative justice schemes and guidelines do not mention these aims. (2008: 400) Zehr (2002: 8) asserts that ‘forgiveness or reconciliation is not a primary principle or focus of restorative justice [. . .] There should be no pressure to choose to forgive or to seek reconciliation’. While Braithwaite (2002b: 571) includes remorse, apology, censure of the act, forgiveness and mercy as values in his work, he argues that they should not be pursued as outcomes in themselves but

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rather that they should constitute values that are ‘emergent properties of a successful restorative justice process. If we try to make them happen, they will be less likely to happen in a meaningful way’. It appears that transitional scholars have stretched a restorative justice concern with restoration to include one of reconciliation. However, achieving these values within the context of mass victimisation takes significant preparation and possibly multiple discussions between those affected, which undermines the ability of top-down institutions like truth commissions to achieve them. Mark Drumbl (2007) has noted that despite large-scale gross human rights violations, such as mass repression, genocide and ‘ethnic cleansing’, which are almost exclusively carried out against ‘large numbers of individuals based on their actual or perceived membership in a particular group that has become selected as a target on discriminatory grounds’, transitional justice interventions very often ignore how collective animosities can be addressed in any meaningful way. The following discussion explores how steps may be taken to make topdown transitional justice mechanisms more meaningful for local actors.

Untapping the potential of ‘top-down’ restorative justice mechanisms While truth commissions are most frequently claimed to be a restorative justice mechanism, this chapter suggests that these institutions fulfil a symbolic role, rather than providing stakeholders with any substantial material outcomes. There are arguably much more tangible benefits that restorative justice can provide if we become more creative in the design of top-down mechanisms to deal with the past. Currently, top-down transitional justice mechanisms are limited in terms of their restorative outcomes, because their primary objective is not to provide individuals with a sense of justice, but rather to engage in a process that will promote nation-building, legitimacy10 and a moral high ground for the incoming regime. While this may create the space for political negotiations to proceed, it does not resolve any underlying issues and these frequently emerge as meta-conflicts between adversaries following the transition. In South Africa, for example, while advances have been made in terms of creating further socio-economic opportunities to ‘level the playing field’ for previously disadvantaged groups, it is mostly the middle class and affluent groups within those communities that benefit. Relative deprivation is rife and the power of Julius Malema (the President of the ANC Youth League) to rally and incite racial hatred among disaffected black youth, angry about the lack of improvement in their socio-economic standing, is a cause for concern. Van der Merwe (1999) warns that the manner in which restorative justice has been co-opted within transitional justice discourse distorts the meaning of restorative justice (also see Daly and Proietti-Scifoni 2011). Currently ‘elites’ are able to claim that restorative justice is being done, because they take the procedural definition of restorative justice at face value. The South African TRC was purported to be restorative because it allowed both victims and offenders

RJ as a mechanism for nation-building 85 to participate in the process, and broad claims were made about the outcomes – accountability, restoration, reconciliation, peace, justice – that would be achieved by engaging in the process. What was lacking was meaningful engagement for both victims and offenders. Without this, the process could not be restorative. For restorative justice to become a successful mechanism that achieves its aims in relation to transitional justice we need to return to a more value-based definition of restorative justice. Doak (2011) argues that truth commissions in particular have a duty to victims, due to the fact that victims’ participation is central to their functioning. Secondary victimisation should be minimised, victims should be allowed to recount their experiences fully, and an opportunity should be provided, as far as possible, for victims and perpetrators to engage in dialogue. However, Doak acknowledges the limits of the current design of top-down institutions, and therefore calls for a referral process, not too dissimilar to that found in the Northern Ireland Youth Conferencing Scheme, whereby perpetrators who plead guilty are able to opt to have their offending resolved through a conference with their victims. In a transitional setting it would be the courts that would refer consenting stakeholders to a conference/mediation process. Roche (2005) has also suggested that referrals could be made to existing local justice institutions, which would be able to report findings and make recommendations to national commissions on the basis of their own experiences thus reducing the gulf between these institutions and local communities. Where community-based justice initiatives have ownership over processes, work carried out by perpetrators to assist in meeting not only their victims but also the community’s needs could form a condition of amnesty. Furthermore, Mallinder (2009: 158) suggests that by including a more integrative approach to justice it can ‘contribute to breaking the cycles of power and oppression which frequently exist in transitional societies’ and potentially result in a better chance of perpetrators becoming fully reintegrated back into their communities. These proposals in many instances may circumvent some of the issues raised in earlier parts of this chapter in terms of achieving a sense of justice for victims and a meaningful role for stakeholders. The question is how to get both victims and offenders to consent and where the resources for this would come from. Perhaps there is a need to look to restorative practice in dealing with conventional offences for the answer. Many restorative schemes are outsourced to NGOs or conducted in-house by various criminal justice agencies. This could, arguably, be conducted in a similar way, with referrals being given to service providers who have sufficiently trained staff and who are fully supportive of restorative justice values. This would allow both victims and perpetrators to feel that they could explore both the causes and consequences of offending at a more personal level, thus generating an insight into each other’s circumstances, away from the political justifications that emerge from societal platforms such as truth commissions and tribunals. In this way, it would allow what Halpern and Weinstein (2004) term an ‘empathic connection’ to emerge, which would allow adversaries to move beyond a position of co-existence and cohabitation to one of lasting peace.

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From backward-looking to forward-looking agendas This chapter has explored the claims about what truth commissions can achieve for emerging democracies against a number of empirical findings. Both practitioners and academics widely support the idea that transitional justice mechanisms are necessary in the early transitional period, but disagree on the best approach. Proponents of truth commissions have argued that they can promote reconciliation, healing, closure, hold offenders to account and take steps to repair harm through reparations. However, the aims set out above may not necessarily have local purchase, but rather stem from a Western approach to justice and one that might assist in fulfilling a broader nation-building project. As such, there are risks in pursuing truth – including increased tensions between adversaries, frustration felt by victims in the face of a lack of prosecutions and reparation, and that the ‘truth’ about what happened in the past may be rejected and contested by different parties at worst and provide confirmation of what people already know happened at best. The pursuit of truth is perhaps an expensive way of not really achieving much for either victims or offenders, and it fails to live up to the claims of those who see it as an essential component of the early transitional period. Thoms et al. (2010: 331) in their review of research findings conclude: ‘Given the dearth of reliable evidence, strong claims about transitional justice, which continue to pepper academic and policy writing, appear to be based more on faith than on fact’. Perhaps the most damning critique of truth-seeking initiatives comes from Erin Daly (2008: 37), who argues that ‘truth is irrelevant to reconciliation not because reconciliation happens anyway but because it does not happen at all’. This has led some to argue that it is necessary to shift conversations about transitional justice from an exclusively retrospective scrutiny of past injustices to a strategic and proactive engagement with the new challenges that face justice institutions in emerging democracies – to increase trust (Jelin 2007; Shriver 2001; Sieder 1998; Simpson 2002). Truth commissions are explicitly set up to ‘establish and uphold the rule of law’ (Aryeh Neier 1994: 2, cited in Wilson 2001: 21) by demonstrating to the public that the new state is able to control and respond effectively to crime and disorder. In other words, as outlined above, the state introduces new concepts into society that conjure up a new ‘we’ – a ‘reconciled’ nation – and manufacture legitimacy for state institutions through ‘a theatricalisation of the power of the new state’ in granting or denying amnesty (Wilson 2001: 20). The following chapter considers how restorative justice has been used during periods of criminal justice reform.

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Restorative justice as a vehicle for reform

Literature on restorative justice theory and practice is most advanced within the realms of criminal justice. While the focus on the relationship between restorative justice and criminal justice has traditionally been on countries that have strong democratic traditions such as the United States, Canada, Australia and New Zealand, there is now an emerging literature that considers the adoption and integration of restorative justice during periods of criminal justice reform in transitional settings (see Clamp 2008, 2012; Doak and O’Mahony 2011; O’Mahony 2012; O’Mahony et al. 2012). Practice demonstrates that restorative processes may be used at all stages of the criminal justice process – as a pre-trial diversion mechanism, as a sanction and as a process through which to decide on a sentence. However, there is no agreement among restorative justice scholars about how restorative justice should be implemented or what its relationship to the criminal justice system should be.1 This debate becomes even more acute within transitional settings given the strained relationship between criminal justice agencies and the population that it serves. Criminal justice systems under authoritarian and partisan regimes are inextricably linked to the conflict because of the role they play not only in responding to criminal transgressions but also punishing dissidents to the prevailing ideology. As such, the reform of these institutions – police, courts and prisons – is very important in creating a sense of legitimacy and respect for the rule of law post-transition. Some have convincingly argued that restorative justice can play an important role in improving the legitimacy of criminal justice institutions, contributing to peace-building through increased positive contact between practitioners and the public, and increasing democratic participation in justice (Doak and O’Mahony 2011). This chapter explores the relationship between restorative justice and criminal justice and gives due consideration to the claims outlined above. What becomes clear is that the transformative potential of restorative justice can become lost in a meta-conflict whereby the state seeks to re-impose its hegemony over justice practices, which can come under significant resistance by community or alternative legalities that have existed during the conflict. The arguments made in this chapter are supported by research undertaken in the Czech Republic, Northern Ireland and South Africa.

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Reforming justice: trends and obstacles The relationship between restorative justice and the state is complex and contested, with commentators generally falling into one of two camps. First, proponents such as Braithwaite (2002b) argue that the state poses a threat to restorative justice. This is largely due to the fact that restorative justice is premised on returning ownership over justice to communities and individuals, while the process of human rights and standards setting are primarily the domain of the state, thus driving ownership back in the opposite direction. Mawby and Walklate (1994) perceive the state, not as a neutral arbiter of the law and social relations, but as an institution that prioritises its own wider interests to maintain order over the broader populace. The state therefore constructs social order around unseen interests, which may, at times, not be supported by broader society. This can create tensions in transitional settings where government agencies may have been involved in perpetuating and enforcing inequality and oppression for extended periods. As such, where institutions and agencies are not reformed, state-based restorative justice initiatives may lack legitimacy, thus limiting the amount of participation and engagement with those mechanisms. Second, proponents such as Ashworth (2002) view restorative justice as posing a significant threat to human rights and the standards upheld by the state, particularly in respect of consistency, objectivity and due process. Restorative values such as participation, empowerment and an active decision-making role for those who have been directly involved in the incident are viewed as running contrary to the right to have access to a lawyer, the right to appeal, the principles of proportionality and double jeopardy and other offender-focused concerns (McEvoy and Eriksson 2008b). As such, Ashworth argues that the state, as the primary political authority, must ‘retain control over criminal justice and its administration’, even where state legitimacy is contested (2002: 581). While most, if not all, restorative justice proponents would agree that standards are required to protect stakeholders during any process, the extent to which the state can and should hold a monopoly over such a framework for protection of due process is subject to debate. Skelton and Sekhonyane (2007: 591), for example, argue convincingly that Ashworth adopts a rather narrow interpretation of human rights, which is designed to meet the aims of a criminal justice trial rather than rights more broadly. Thus, the authors assert that this approach elevates due process concerns and overlooks the realisation of other rights, which may include dignity, respect and equality. McEvoy attributes this approach to reluctance on the part of lawyers to ‘relinquish control’, and a presumption that somehow state institutions and agencies are the ‘sole guarantor’ of rights (2008: 33, emphasis original). Ashworth’s position certainly becomes questionable when the state itself has been responsible for oppression and violence against its own citizens, or where restorative justice processes or systems are being designed in countries that are not located in the neoliberal west. As Boyes-Watson (1999) points out, the Western value of neutrality is foreign to Navajo peace-making processes in

RJ as a vehicle for reform 89 Canada, and Nyerere (1998) draws attention to the Western emphasis on individuality, which jars with the African notion of collectivism. These challenges will be explored in further detail in the sections below; suffice to say here that the extent to which restorative justice should be framed and constrained by standards and values that are typically ‘Western’ in societies that do not share the same cultural and legal traditions should be given further consideration. Despite a fervent theoretical debate on the role of the state in relation to restorative justice, evidence from praxis on the adoption and integration of restorative justice during periods of reform in the Czech Republic, Northern Ireland and South Africa has revealed a number of useful insights. First, while the international experiment with restorative justice has created an awareness of this alternative approach to crime and conflict resolution, it was civil society that provided the impetus in pushing it onto the national agenda. In the Czech Republic, for example, the development of the Probation and Mediation Service (PMS) resulted from a small group of social work students learning about international practice. Through the development of an NGO – the Association for Development of Social Work in Criminal Justice (SPJ) – they were able to stimulate interest in and support for restorative justice and alternative sentencing (see Clamp 2012). In South Africa, civil society also played an important role in pushing for reform, particularly within the juvenile justice sector. Many children were being detained for political offences and groups lobbied for extensive change to be brought about (see Clamp 2008). Northern Ireland was perhaps somewhat different in that state experimentation with restorative justice following the ceasefires was in response to practice that was already taking place within Loyalist and Nationalist communities. Second, all three jurisdictions have created completely new systems, which have placed both restorative justice processes and principles at the heart of the system. In the Czech Republic, mediation became available at all stages of the criminal justice process for both adults and juveniles – as a diversion option, as a means to determine a sentence and as a condition as part of a sentence imposed by the court (Asiedu 2005). In Northern Ireland, the youth justice system was completely overhauled and a new Youth Conferencing Service was developed. Referral by the prosecutor and youth court to a conferencing process is mandatory in all cases (except those that attract a mandatory penalty of life imprisonment – murder, rape and treason) where the offender admits guilt or is subsequently found guilty and consents to participation in the process (Beckett et al. 2005). South Africa launched its first Child Justice System in 2010 after many years of lobbying by civil society groups. Both conferencing and mediation are available as a diversion option, as a means to determine a sentence and as a disposal for the court and restorative justice has become heavily equated with the African philosophy of ubuntu. While at face value, these jurisdictions stand out as impressive models of restorative criminal justice systems their history, institutional arrangements and culture have impacted on the extent to which restorative justice features in reality. Third, interviews conducted in all three jurisdictions revealed that increasing perceptions of legitimacy, the effectiveness of the criminal justice system and

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the amount of sentencing disposals on offer were important considerations at a policy level. However, transitional states are often characterised by highly visible and oppressive crime control methods under authoritarian regimes and a reduction in this approach can lead to an increased fear of crime and insecurity (see Shaw 2002). The challenge for policy-makers therefore is to stem demand for increasingly punitive sanctions by many who want to see justice done (Camerer 1997). Undoubtedly, this can give rise to vigilante groups2 emerging where the government is perceived to be falling short, which creates a further challenge for restorative options that may be developed in getting individuals to engage with them as a meaningful and equally effective response. The following discussion explores not only the claims about what restorative justice can achieve – increased perceptions of legitimacy, increased democratic participation and a transformation of the culture of criminal justice personnel – but also evaluates these against the tensions outlined above. Increasing legitimacy Increasing legitimacy is perceived as an important pursuit within transitional settings as it separates the new regime from the old and simply because ‘legitimate authority is more efficient than coercive or induced authority’ (Wrong 1979: 52). Without it, policies will be undermined and contested (Tyler 2003). Only when power is exerted according to justifiable rules, beliefs and with evidence of consent from those over whom such power is exerted may it be considered ‘legitimate’ (Beetham 1991: 205). Doak and O’Mahony (2011) argue that reaching a position wherein individuals abide by the law because they believe that it is the correct moral approach to take rather than due to fear of sanctions that may arise in contravening laws offers the most potential for peace-building and lawmaking. Drawing on the work of Tyler (1990), the authors demonstrate that if offenders are treated with respect and dignity this will contribute to fostering a sense of ‘fairness’ between criminal justice agents and the citizenry, a quality largely lacking during periods of violence and oppression. Once achieved, this is likely to make a positive contribution to law-abiding behaviour and co-operation (Sunshine and Tyler 2003). As such, Bell et al. (2004: 12) argue that ‘legal reform is debated not just in terms of the intrinsic value of reasserting the rule of law, but also as a form of broader political affirmation or denial of certain constitutional and political pasts and futures’. The need to build ‘an effective rule of law which protects and enforces the rights and obligations of citizenship’ is therefore common to all transitional states (Sieder 1998: 97). Due to the nature of national conflict, any transitional society is likely to exhibit sharp distinctions between communities in the confidence displayed in legal structures and processes (Valji 2006). PostSoviet criminal justice agencies, for example, were seen as an extension of the Soviet state whose remit was to enforce Communist ideals and punish dissidents. Arguably, in intra-communal conflicts like Northern Ireland concerns have been more to do with the ‘partisan’ operation of the criminal justice system. Yet still,

RJ as a vehicle for reform 91 in many Latin American and African countries the main complaint appears to be that the existing criminal justice system is felt to be failing to fulfil its basic protective role by most sectors of the community. These different circumstances all impact on the nature and extent of reform that needs to take place. New regimes therefore attempt to increase perceptions of legitimacy by altering laws and rules that guide acceptable and unacceptable conduct and/or by reforming institutions to make them more transparent and responsive to the needs of its stakeholders (Crawford 2008). These are essential elements of any effective criminal justice system given its reliance on engagement of the public in terms of reporting crime to the police, providing witness testimony in court and sharing information more generally on community needs and expectations. As Shapland argues: If the perceived legitimacy of parts of criminal justice seems to be sinking too low, or citizens are too restless about the effectiveness of the criminal justice system in dealing with crime, then there is a perceived need to readjust the justice/civil society or justice/community balance. (2008: 26) It is, therefore, logical that governments (where possible) would seek to relegitimise their role in resolving individual-level conflicts by encouraging community involvement in response to offending, and perhaps offers insight into why restorative justice is attractive for post-transition policy-makers.3 Like the ‘contact hypothesis’, which proposes that ‘contact between members of different racial and/or ethnic groups will result in a reduction of prejudice between these groups and an increase in positive and tolerant attitudes’ (Connolly 2000: 170), similar ideas have been proposed concerning the legitimating potential of integrating restorative justice into reform efforts. Doak and O’Mahony (2011: 319), for example, draw on a range of anecdotal evidence4 to claim that ‘one positive experience with a particular aspect of the criminal process can be instrumental in building trust and confidence in the system as a whole’. By allowing interaction between the public and criminal justice practitioners to be guided by the restorative values of respect, dignity and fairness stronger bonds may be developed between previously disengaged communities and the state. However, further lessons can be drawn from criticisms levelled against the contact hypothesis in this regard. First, that it ‘reduces divisions to individual ignorance and misunderstanding’, and second, that it ‘rules out any analysis of the broader social processes, institutions and structures that help to create and sustain [. . .] divisions’ (Connolly 2000: 171). In this manner, much as with truth commissions, the state is absolved of responsibility for the systemic impact that the past may have had on society and the legitimacy of the criminal justice system. Instead, the state adopts a rather limited role in creating better conditions for criminal justice personnel and citizens to engage with one another, rather than giving due consideration to how discriminatory tendencies are constructed and maintained within the criminal justice process itself. This can arguably limit

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the amount of transformation that takes place, and ultimately reduce the potential for broad legitimacy to be enjoyed across the sector. Strategies for building trust or legitimacy from the top-down often assume that legitimacy is unidirectional (Eriksson 2009). However, it should be acknowledged that in transitional settings characterised by ‘legal pluralism’ (see Merry 1998) individuals have a multitude of options for resolving conflicts, with the criminal justice system being one of those options. As such, while restorative justice can be developed by the state to increase positive contact between individuals and criminal justice practitioners, communities can also develop their own restorative processes to deal with conflict in lieu of state presence, as the next chapter will demonstrate. While Sunshine and Tyler (2003) argue that criminal justice agencies cannot effectively control crime and disorder without the co-operation of the community, increasing democratic participation across all sectors of the community remains the most significant challenge for new democratic dispensations. Increasing democratic participation Although truth commissions may contribute to criminal justice reform by unveiling abuses of power by criminal justice agencies and eliciting debate on how to reform procedures, increase accountability and oversight and improve hiring practices, it is difficult to envisage how this might be effectively achieved in the absence of a dynamic and effective partnership between state institutions and the communities that have been formerly alienated from – or indeed adversaries of – those very same institutions (Clamp and Doak 2012). A central premise of restorative justice is that conflicts have been ‘stolen’ by the state and professionals, and therefore need to be ‘returned’ to those most affected by the offence – victims, offenders and communities (Christie 1977). However, within a criminal justice setting the state retains a central role in the creation, management and resourcing of restorative justice initiatives. By adopting restorative justice processes in this manner the state appears to release a substantial amount of control to the stakeholders of crime while maintaining control through the use of stateappointed professionals and protocols. The tendency, therefore, to claim that the process somehow rebalances power in favour of the victim and empowers the offender has been viewed with some scepticism in the conventional literature on restorative justice. While there are numerous references to the possibility that integrating restorative justice within the criminal justice process may be nothing more than a means of state expansion (see Cain 1988; Cohen 1985, 1994; McEvoy and Eriksson 2008a) it does provide an opportunity for restorative justice to gain hold over conflict resolution at a formal level in transitional societies. Yet, restorative justice scholars are still divided over the appropriateness of state involvement in restorative justice schemes. Some argue that the state’s interests are contrary to those of restorative justice and therefore any involvement should be severely curtailed (see McEvoy and Eriksson 2008a), while others believe that the state

RJ as a vehicle for reform 93 has a duty to ensure the rights of individuals participating within all justice processes, and therefore should maintain oversight over any programmes; including periodical inspections (see Ashworth 2002). In some transitional contexts, however, the state for whatever reason may be unwilling or unable to invest in restorative justice practices, or conversely, communities may develop their own responses to criminal behaviour affecting them. This can create a meta-conflict over the issue of the ownership of justice whereby the state attempts to reassert hegemony over justice practices and communities refuse to engage at any level with these institutions. Critics of informal justice argue that it is unnecessary, that it has failed, that it is sinister and that it is impossible (Cain 1988: 52). These claims are not completely unfounded, in that there are concrete examples of more popular forms of justice transforming into vigilante activity by communities frustrated by the level of crime and antisocial activity in their immediate environments.5 Cain (1988: 66) points out that until recently professionalised justice has ‘monopolised the language of legitimacy’, and as a result, community programmes may be a considerable source of contention, as the state may view such practices as a direct challenge to their power over justice (also see Cohen 1994). The first move by transitional states is therefore to centralise responses to crime and conflict by ‘eradicating and assimilating other coercive structures’ (Wilson 2001: 20). As McEvoy and Eriksson explain: [D]espite the contemporary prominence of ‘neo-liberal’ theorising about the role of the state in general, many states in reality [. . .] often display a marked unwillingness to cede authority over such areas of policy and practice. (2008a: 163) Restorative justice emerged in Northern Ireland, for example, due to a failure of policing which posed a significant problem for the state in that communities appeared to be developing their own alternative legalities again6 post-transition. The root causes of these misgivings were twofold: there was concern, first about the people who were involved in the projects; and second about the communities in which they were operating (Eriksson 2009). The managers of the community schemes in Republican and Loyalist areas were ex-paramilitaries and there was a strong presence of former combatants and ex-political prisoners who were volunteers within the schemes. While the presence and support of notable figures certainly provided credibility in these communities, it raised questions for the state in terms of their actual aims and intentions. Thus, the initial reaction was one of ‘defensive formalism’, whereby the state sought to impose control over the programmes and to compel a relationship with the police (McEvoy and Eriksson 2008a: 168) through the development of Protocols to guide the practice and parameters of these schemes. Bill Lockhart (former Chief Executive of the Youth Justice Agency and member of the Northern Ireland Criminal Justice Review) explained in interview (Belfast, 10 April 2008) that the Protocols were designed to ensure that the

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schemes operated to stringent human rights and due process principles,7 that they were properly inspected, and to create an interface between the schemes and the formal criminal justice system. However, some argued vehemently against the Protocols (particularly the Social Democratic and Labour Party or SDLP) as they were seen as providing the schemes with official legitimacy that ‘many felt was underserved, or as expressed by some political parties, outright dangerous’ (Eriksson 2009: 151). While community schemes from both sides of the conflict applied for, and ultimately received,8 accreditation from the Criminal Justice Inspectorate Northern Ireland (CJINI), the Protocols were not supported on either the Loyalist or Republican sides. This was largely because neither community was consulted on the drafting or on the contents of the final Protocols, and they created limits and parameters on the work that the schemes could undertake. Both schemes could have refused to engage with the process; however, much needed funding for their operation from the state was tied up in their compliance, as the following quotes from managers at each scheme illustrate: If we had been in from the beginning then there may have been a different Protocol. It could have helped engineer something where we could all sing off the same hymn sheet, but it was you sign these or else and it was a threat if you don’t sign them you don’t get government accreditation, and if you don’t get that you’ll not get any funding. (Belfast, 8 April 2008) The police that we work with will tell you that the Protocols are restrictive, that they actually hold back the relationship. We need to get a Review to get these changed and that’s our view. (Belfast, 10 April 2008) Clamp and Doak (2012: 350) argue that attempts to reassert hegemony in the way outlined above ‘could have detrimental consequences for peace-building and democratic renewal, including institutions and processes that adopt restorative practices to deal with the past’. This is largely because a relationship is compelled without acknowledging the underlying causes of frayed relationships in the first place. In order for legitimate authority to be achieved, all sections of the community need to feel that they are being consulted and can change and add to the agenda from the bottom-up. Nevertheless, the tendency to view any community scheme with sceptism is not uncommon within transitional settings – not only did the Northern Ireland Criminal Justice Review recommended that community schemes be co-opted by the state, but so did the South African Reconciliation Commission Report (see Criminal Justice Review 2000: 196–197; Wilson 2001 respectively). At a micro-level then, the state embraces the newfound language of human rights as a means to undermine alternative legalities established during the previous undemocratic regime and to reposition the formal system as the sole

RJ as a vehicle for reform 95 justice provider. This is often conducted by pointing out the potential threats to stakeholders engaging with these schemes and/or seeking to impose operating and training standards or protocols to which such programmes must adhere. This causes a significant problem within transitional contexts where legitimacy and trust is not a commodity that is enjoyed by either ‘state’ or ‘community’. Braithwaite (2002b: 564) points out that scepticism of the state is justified when it has ‘disempowered their people’, and that scepticism of informal groups is justified when they have ‘sustained armed tyranny over local communities’. While most restorative justice proponents agree that some form of top-down standards are needed, these should be contestable from the bottom-up. Transitional contexts experience difficulties in this respect due to the sceptical relationship between community and state which, during the conflict, is characterised by a tradition of blocking democratic communication from below and a questionable human rights culture (see Braithwaite 2002b). Without the ‘opening up’ of communication channels within these settings, meta-narratives that come from above will be void of any meaning and context for disengaged communities. This is not to say that the drafting and rhetoric of human rights and standards should not emanate from the top-down (this is particularly important to prevent tyranny by both communities and the police) but that there should be opportunities for the meaning and parameters to be informed from the bottom-up to fuse moralities and expectations (Braithwaite 2002b). There are a number of ‘neutral’ sources upon which both formal and informal restorative justice programmes may draw to overcome these tensions. The United Nations (UN) Basic Principles were drafted to provide a guide to policymakers, community organisations and criminal justice officials on the use and operation of restorative justice processes, to ensure that participants are protected by appropriate legal safeguards (UN 2006). In this way, local and national programmes can develop their own standards suitable for their particular context and may be a useful starting point for concessions to be made by both the state and disenfranchised communities in terms of the basis from which restorative justice programmes should work. In both Northern Ireland and South Africa, for example, ‘community’ restorative justice programmes adopted and translated international rights standards into locally understandable language as a benchmark for service delivery. McEvoy and Eriksson (2008b) outline that both Community Restorative Justice Northern Ireland and Alternatives used human rights to form the basis of not only their training packages for volunteers but also elaborated on human rights discourse by expanding it with restorative justice values. So, for example, due process concerns such as having access to a fair trial would be discussed in conjunction with impartiality, fairness and non-violence among others. This is particularly evident in the Republican ‘Blue Book’, which was distributed within the community for discussion (see Auld et al. 1997). Froestad and Shearing (2007) in their discussion of the Zwelethemba model also refer to the presence of a ‘Code of Good Practice’, which guides and limits practice according to a constitutional framework.

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This demonstrates that while governments may seek to undermine community restorative justice programmes by questioning the extent to which they can be trusted to uphold and abide by human rights concerns during the early transitional period, the founders and promoters of these programmes often begin from a position of embedding human rights concerns at the heart of their practice. In some respects, the desire of post-transition governments to centralise responses to justice can be understood as a means of drawing a line under the fragmented justice systems that prevailed under the previous regime. However, rather than viewing anything that is distinct from the state as ‘bad’, perhaps it should be acknowledged that communities can play a role in raising the bar for human rights discourse and its manifestations in the early transitional period. Thus, while the state contests and attempts to control community programmes using human rights discourse, communities may actually ‘thicken’ the human rights debate by sharing its experiences and practices (see McEvoy 2007, 2008) Transforming culture in criminal justice The adoption and integration of restorative justice is said to promote humanitarian rather than oppressive/exclusionary values for practitioners, which will ultimately transform the way in which crime is both understood and responded to. As Braithwaite explains: Restorative justice conceived as an intellectual tradition or as an approach to political practice, involves radical transformation. On this radical view restorative justice is not simply a way of reforming the criminal justice system; it is a way of transforming the entire legal system, our family lives, our conduct in the workplace, our practice of politics. Its vision is of a holistic change in the way we do justice in the world [. . .] The evidence is at the same time that restorative justice conferences help people to become less punitive. This is what I mean by the democratic pragmatism of the restorative justice approach to transition. (2003: 3–5) However, as in democratic settings, institutional arrangements limit the amount of transformation that can take place. The values, processes and goals of restorative justice are markedly different to those embraced under authoritarian regimes and there will, understandably, be resistance to change during the initial transitional period. Despite a convergence of responses to crime around the world,9 particularly in relation to restorative justice, localities remain distinct in terms of their adoption and integration of criminal justice policy. This can be explained by the fact that punishment is a complex phenomenon that is likely to be affected and influenced by a wide range of societal factors, including that which is often referred to as the ‘cultural’ (Cavadino and Dignan 2006). Shapland (2011) argues that culture plays an important role in determining the ways in which the state and its citizens view justice, both in terms of what it is and what the state’s role should be.

RJ as a vehicle for reform 97 Accordingly, these views have an impact on reactions to innovation, localisation and lay people, as Karstedt (2002: 114) explains: ‘Policies and practices cannot become embedded without, in some way, appealing to or complementing existing practices and the institutional pattern as well as the legal system that allows for or restricts their implementation’. Carey (2001: 155) suggests that organisational culture ‘creates a sense of predictability that allows employees to feel comfortable, establish meaningful relationships [. . .] rules for behaviour’, and that ‘New values and expectations upset this stability and naturally cause anxiety and consternation’. As such, in order to increase the chance of true transformation to take place, there would need to be wholescale reform rather than adding restorative justice elements into the criminal justice process. Dignan (2005) suggests that the intellectual pioneers of restorative justice may be grouped into three broad policy strands – abolitionists, separatists and reformists. In the first strand, abolitionists such as Howard Zehr (1990, 2002) draw sharp distinctions between restorative justice and retributive justice, which they perceive as incompatible. As such, they argue for a paradigm shift in favour of a completely new system of justice. However, strides made in realising this revolutionary approach have been relatively limited for a number of reasons. First, restorative justice is overly reliant on and tends to be defined by criminal justice policy. As previously mentioned restorative justice proponents have yet to devise their own definitions of victimisation, and thus tend to use the established ideological and policy-driven construction of victims and victimisation. Restorative justice, as it currently stands, therefore has little room to offer an alternative perspective or paradigm from which to advance, or protect, victims’ interests (Green 2007). Second, its proponents have been unable, or unwilling, to change the fact that restorative justice has no fact-finding objective but rather serves as a sanctioning mechanism (Daly 2002). This limits restorative justice to receiving referrals from the existing criminal justice system once an offender has pleaded guilty, and this can happen only if both the victim and offender agree to participate in any of its processes. Third, restorative justice (like criminal justice) is limited in that it only deals with victims and offenders who have been identified as such – it provides no alternative for those who do not wish to report their crimes or where an offender has not been identified. Therefore, there has been no attempt on a practical level to devise a ‘system’ of justice based on restorative principles or processes that is not housed within a standard criminal justice framework. In the second strand, proponents such as Marshall (1990) and Wright (1991) have acknowledged that restorative justice is unlikely to provide a serious challenge to the status quo. Instead, they argue as ‘separatists’ that restorative justice programmes should operate alongside, but independently from, the criminal justice system. Within this ‘stand-alone’ model, restorative justice programmes would supplement the formal system by processing cases that have been diverted from the criminal justice process by either police or prosecutors. While it is thought that this approach would safeguard restorative justice from being undermined or co-opted by practitioners committed to achieving the overall objectives

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of criminal justice, some have suggested that restorative justice schemes will in practice be doomed to a precarious and marginal existence at the periphery of the criminal justice system (Dignan and Lowey 2000; Shapland 2003). In the third ‘reformist’ strand, proponents suggest that the operation of the criminal justice process itself could be made more restorative by either increasing the opportunities for reparative penalties (i.e. through court-ordered reparation or community service); by integrating restorative justice principles and/or processes into the functioning of the criminal justice system (i.e. police-led conferencing, whereby charges are dropped against the offender in the event of compliance); or by mainstreaming restorative principles and/or processes whereby they form the basis of the newly reformed criminal justice system through mandatory legislation (Dignan 2005). Dignan and Lowey (2000) and Shapland (2003) argue that only through embedding or mainstreaming restorative justice within the criminal justice system will it provide a challenge to current approaches to justice and resist being marginalised by professionals in favour of more traditional punitive sanctions. While democratic settings demonstrate a tendency to divert cases either to independent restorative justice programmes or to localised schemes run by particular criminal justice agencies, the adoption and integration of restorative justice in democratically emerging settings appears to be much bolder. For the most part, this is due to a need to engage in a more systematic reform of criminal agencies given the severe lack of trust in justice institutions in the early transitional period. Reforms therefore become an important task for new administrations, allowing them to respond to increased crime rates and fear of crime that inevitably occur in the early stages of democracy; to the need to increase compliance with human rights and international standards; but most importantly, to increase the perceived legitimacy of the criminal justice system in the eyes of the community that it serves. However, the extent to which restorative justice is able to transform organisational culture has not been fully interrogated, and there does appear to be some contradiction within research findings. On the one hand, O’Mahony and Doak (2004) in their research on restorative policing and Campbell et al. (2005) in their evaluation of the Youth Conferencing System in Northern Ireland argue that there are high levels of satisfaction and a significant commitment to the values of restorative justice. On the other hand, Shearing explained that in South Africa the ability of restorative justice to become embedded could be frustrated by existing institutional arrangements: One of the biggest problems here was Apartheid police were not designed to do crime fighting, they were designed to apply risk profiling, and they were designed to enforce the pass system which was the single most important crime prevention strategy. So first of all you make that strategy illegal and then you tell the institution that’s designed to do that to do something else and then you change its composition. You shouldn’t really be surprised that it doesn’t work [. . .] if you build a prison to keep people in isolated parts

RJ as a vehicle for reform 99 and then you come up with another mentality as to what to do but you don’t change the building, that building has a mentality built into it, that institution has a mentality built into it that’s always going to bring you back to the same place. (Cape Town, 8 May 2008) Umbreit provides a similar assessment of the risk to restorative justice in reform efforts: As any reform moves from its early stage of development and attempts to become accepted and institutionalized, the probability of ‘losing its soul’ is increased. As the primary focus of the process shifts from offering an experience of healing and closure for those most affected by crime to serving justice system goals, the initial passion and creativity of the movement can be quickly lost. (1999: 214) Perhaps the success of the Northern Ireland reforms can be attributed to the complete overhaul of the youth justice system based on mandatory referrals to conferencing processes. In South Africa and the Czech Republic restorative justice has been less prominent because it features as one option in a range of measures that are dominated by more retributive aims. In other words, while both South African and Czech Republic policy-makers embedded restorative principles in the new systems, the framework for those systems was still housed within a process that emphasised existing institutional arrangements. Restorative justice in these systems thus became an element of a predominantly punitive process that could never provide a serious challenge to traditional forms and cultures of criminal justice. In Northern Ireland, referral out of the system is mandatory and even where the offender initially declines participation in a conference he or she is still able to opt back into the process at a later stage of proceedings. In this manner, the standard criminal justice process becomes an exceptional experience, thus allowing restorative justice aims and principles to be elevated above those of the predominant adversarial system of justice.

From formal to informal responses to conflict This chapter has discussed the use of restorative justice during periods of criminal justice reform. Claims that restorative justice can respond to the legitimacy deficit, increase democratic participation and transform the culture of criminal justice agencies were explored. What has emerged is an acknowledgement that there is perhaps not enough research evidence to support these claims and, perhaps more importantly, that the nation-building project can inhibit the transformative potential of restorative justice during reform efforts. The way in which hegemony may be reinstated is through the development of standards or protocols through which community programmes are ‘legitimated’ from the top down.

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In Northern Ireland, in particular, this was perceived as a forced strategy due to resource constraints, with the result that programmes had to meet certain requirements and to endure unannounced visits by government inspectors in order to access funding provided by the state. However, it is also evident from this discussion that a retributive framework diminishes the impact that restorative justice can have. This is evident within democratic settings too, as Cunneen (2008) argues that restorative justice merely serves to legitimise the agendas of government officials and criminal justice practitioners – or in other words a context whereby the state ‘steers’ and the community ‘rows’ (Froestad and Shearing 2005: 34). Furthermore, while restorative justice empowers individuals to deal with the consequences of offending, it does not challenge the structural inequalities in any way that will result in change at a national or community level. Much more work could be done to link macro- and micro-projects. There has been some success at the micro-level, to which we now turn.

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The relationship between restorative justice and its third stakeholder – the community – has been subject to significant debate between various scholars about its meaning and role. Nevertheless, there appears to be a broad consensus that community participation and development are essential elements of restorative justice (Kurki 2000; McCold 2004; Roach 2000). Proponents generally outline two justifications for community participation. The first relates to the belief that ‘communities of care’ are the entities with the most power to influence the offender to repair the damage caused and who can provide the most support in terms of dealing with the underlying causes of that behaviour (Braithwaite and Mugford 1994; Johnstone 2002). The second relates to the assertion that involving the community in the resolution of offences increases its capacity to regulate itself, and one way of revitalising a sense of community among neighbours so as to prevent further crime from occurring (Christie 1977; Crawford and Clear 2003; Kurki 2000). For the most part, this discussion has developed within literature that is primarily located in democratic settings; although there has been a move more recently to consider the role of ‘bottom-up’ initiatives in transitional justice (see Eriksson 2009; McEvoy and McGregor 2008). This chapter seeks to advance the debates that have occurred within advanced liberal democracies about community involvement in restorative justice by applying them to the transitional context. What becomes clear is that transitional communities offer a very rich setting for restorative justice to evolve far beyond its traditional aims of healing personal disputes. Often, a form of transformative justice emerges, which not only allows the values of the new democratic era to take hold, but also creates a mechanism through which peripheral disputes may be settled between communities and criminal justice agencies that were perceived to perpetuate violence under the previous regime. As Nelken (1985, cited in Eriksson 2009: 11, italics original) notes: ‘For restorative justice, community is both subject and object, in that restorative justice is realised in community and, at the same time, can be transformative of community’. This chapter begins by providing an overview of the conceptual debate of the relationship between and role of community in restorative justice. Next, the challenge of community restorative justice schemes within transitional settings is discussed. The final, and most substantive, part of this chapter explores the positive contributions that community restorative justice schemes have had.

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Community as a stakeholder in restorative justice There is extensive debate within the restorative justice literature about what community is and the role that it should play in resolving disputes. The difficulty that arises is that the term ‘community’ can be too abstract.1 As Bell and Newby explain: Everyone – even sociologists – has wanted to live in a community [. . .] The subjective feelings that the term community conjures up thus frequently lead to a confusion between what it is (empirical description) and what the sociologist feels it should be (normative prescription) [. . .] What the concept involves has not proved too difficult to elaborate; attempts to describe what it is, however, have proved impossible without making value judgements. (1971: 21, italics original) Bazemore and Schiff (2005) illustrate this point by explaining that community may be considered geographically (a ‘community of place’), socially (a ‘community of interest’ such as a church, workplace or recreational group) or even as a ‘micro-community’ (such as a school, prison or housing project). Proponents such as Braithwaite and Daly (1994) and Zehr (2002) further extend definitions beyond locality to include communities that are defined in terms of their relational and emotional aspects. Schiff (2007: 235) suggests that it is necessary to expand notions of community beyond a geographic or social definition, because these definitions are often ‘insufficient to capture the maze of emotions, harms and relationships that the criminal event may have spawned’. The expansion of the notion of ‘victim’ to include a broader subset of those ‘significant others’ therefore acknowledges that harm can extend to more than just the direct victim and may directly have an impact on those who are emotionally tied to the individual and whose lives may have be disrupted by the incident (Crawford and Clear 2003). In an attempt to blend these contrasting approaches to categorising various layers of ‘community’, McCold (1996) distinguishes between communities within restorative justice practice and theory that may be considered to be microcommunities (which consist of individuals who have a relationship with the victim/offender and who may/may not have been directly affected by the offence) and macro-communities (which are geographically defined in terms of neighbourhoods, broader society and government). This framework is important in transitional settings whereby human rights abuses and institutionalised oppression have a far wider reach than ‘normal’ crimes committed in democratic settings. The inclusion of a broader ‘community’ or ‘group’ of individuals to deal with these offences is therefore important in such a context. Micro-communities Traditionally when we speak of ‘community’ as a stakeholder of restorative practice, this refers to those individuals who have a relationship with the

RJ as a mechanism for peace-building 103 victim(s), the offender(s) or the event and are known as ‘communities of care’ (Braithwaite 2003; Daly 2001; McCold 1996; Pranis 1998). Membership is subjective, in that it is not pre-determined by geographic location and does not exhibit any fixed attributes beyond an emotional relationship between members (Braithwaite and Daly 1994). This is one of the concept’s ‘distinctive appeals’ (Crawford and Clear 2003: 220), as the voluntary nature of membership results in a more concerted investment by individuals than in communities in which membership is coerced or constrained by geography or some other variable. The power and importance of communities engaging in restorative justice can most clearly be explained by drawing upon Braithwaite’s (1989) theory of reintegrative shaming, which he defines as follows: Reintegrative shaming is disapproval dispensed within an ongoing relationship with the offender based on respect, shaming which focuses on the evil of the deed rather than on the offender as an irredeemably evil person, where degradation ceremonies are followed by ceremonies to decertify deviance, where forgiveness, apology, and repentance are culturally important. (Braithwaite 1993: 1) Braithwaite argues that denunciation by those who are close to the offender is generally more effective than sanctions imposed by a remote legal authority. Traditional responses to offending are seen to perpetuate a criminal cycle due to the stigmatising and often humiliating nature of the process. In a restorative process, the offender is given the opportunity to take responsibility for his/her actions by explaining why the incident occurred, to explore the potential motivations for and consequences of that behaviour and to suggest ways in which the harm can be addressed with the support of individuals who care for him/her. The participation of the victim is also seen to increase the likelihood that offenders will feel remorse for what they have done. In this manner, the offender is unable to deny accountability and due to his/her full participation is more likely to see the process as legitimate and thus successfully complete the conditions outlined in the agreement. It is evident then, that the community McCold refers to is distinct from the wider, indirectly affected community. Personal micro-communities may be affected by the incident due to their relationship with the offender/victim, may have needs arising from the incident and obligations in terms of assisting the offender to ‘make things right’ (McCold, 1996; McCold and Wachtel 1998a; Moore and O’Connell 1994). Garland (2001), like Braithwaite, has argued strongly for the delegation of sentencing powers to communities. The power of involving those closest to the offender in the process relates to the fact that the legitimacy of their perceptions and suggestions is likely to be much higher than that of objective criminal justice professionals (also see Braithwaite and Mugford 1994). Here, the process is of central concern (McCold 2004), allowing a meaningful engagement and discussion to occur around the process – a quality largely ignored by ‘state justice’ (Zehr 2002: 28).

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Macro-communities Dignan and Lowey (2000) report that while there is significant evidence to suggest that micro-community involvement is perceived as positive in the resolution of disputes, there is markedly little evidence to suggest that such community involvement is able to successfully build or improve the physical communities in which these stakeholders live. As such, there has been a move to include broader members of the locality, which may include community leaders; representatives of particular ethnic, religious, social or cultural groups; or members of organisations that support particular types of victims in the resolution and prevention of crime. Such individuals may not know the victim(s) or offender(s) on a personal level, but they represent the impact that victimisation may have at a broader level and may mediate or facilitate the process in place of the state. As such, we may distinguish between communities of care who support change at an individual level and communities of interest, which may play a role in changing the character of the environment in which the offending took place (although it should be noted that they may overlap). A macro-community is therefore created by an offence, as its membership in terms of the process will cease to exist once the meeting has drawn to a close. According to Eriksson (2009) the issue of central concern here is not specific harms, but rather an aggregate of harm, whereby multiple incidents can result in high levels of fear and insecurity. The responsibility of this community is to challenge behaviour that contributes to this in a manner that is non-coercive and restorative of both the individuals concerned and of the environment in which they live. Schiff (2007: 235–236) explains that the role of the macro-community is to communicate the indirect harm that has been caused by crime and how that might be repaired; develop, communicate and uphold the standards to which its members are expected to adhere; and create a ‘collective ownership’ of crime by ‘monitoring and enforcing community standards of behaviour’ (Pranis 1998: 1). By pursuing such objectives, it is argued, the community will increase its skills base as well as the capacity of its members to deal with its own problems. Many see the ‘state’ as having a primary responsibility in this regard (see Ashworth 2002); however, it is acknowledged that due to the inability of the state to deal with the crime problem effectively on its own (Garland 2001), the responsibility for dealing with crime is increasingly shifting from ‘state agencies to the local community’ (Johnstone 2002: 156). Therefore, the community has not only a right to participate, but also a duty to assume responsibility for the resolution and prevention of crime (McCold 1996). This draws attention to two issues: first, that restorative justice requires adequate resourcing (Marshall 1999; Bazemore 2001) and second, that a community–state partnership is required to prevent both further offending by the individual concerned and future offending in that community more generally (Van Ness 1996). However, programmes that are run by community groups are frequently plagued by funding issues, and those that are implemented/funded by

RJ as a mechanism for peace-building 105 the state are often expected to provide an evidenced reduction in costs (whether in terms of responding to crime or reducing recidivism more broadly). Furthermore, partnerships between the state and community programmes are notoriously difficult because criminal justice ‘agencies tend to be very hierarchical and not well-suited to grass-roots participation’ (Pranis 1998: 1). While there appears to be a general expectation in the literature that community involvement in and responsibility for the resolution of crime is a positive development, there is relatively little evidence to demonstrate how this works on a practical level with any level of success for a sustained period. There are, however, a number of texts that point to the associated risks of devolving power over justice to communities, and the following section seeks to contribute to that literature in terms of the challenges that periods of conflict and/or repression may raise in relation to the character of communities generally and their associated risks for restorative justice in particular.

The challenge of ‘community’ in transitional settings Conflict at a societal level has a significant impact not only on individuals within those jurisdictions, but also on the existence and character of communities themselves. On the one hand, the nature of the undemocratic regime may have been so pervasive that it destroyed any community and civil society during its reign. Communist regimes such as those in Eastern Europe, for example, were very effective in creating widespread suspicion and mistrust among individuals who lived in the same neighbourhood and even among families and friends (see Clamp 2012). As a result, post-transition, individuals have been very reluctant to engage in programmes that have a strong ‘community’ component. This creates problems when we speak of empowering communities to respond to crime, as they may not have the capacity to do this. On the other hand, the conflict may have been fought between communities wherein approaches to resolving disputes may be characterised by violence and intimidation; regimes in both Latin America and Africa provide good examples here. In these contexts, powerful communities are characterised by exclusion and definitions of community may have been (or continue to be) constructed to distinguish one group of people from another (exclusionary notions of community) and/or in opposition to the ‘state’. Furthermore, while communities in democratic settings may be weak and the state strong, transitional societies can often be signified by very strong communities and weak state structures (Eriksson 2009). As such, the impact of the conflict on communities can have important consequences for restorative practices that include the community as a stakeholder. Each of these will be explored in greater detail in turn. The non-existent ‘community’ Cunneen (2003) asserts that community ‘is not a natural set of relations between individuals or a natural social process lying at the foundation of civil society’.

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This is because what community means is determined largely by both history and politics. This is most evident within the transitional setting, where the previous regime may have created great suspicion among family, friends, neighbours and colleagues (as in post-Soviet states), or murdered or ‘disappeared’ a significant proportion of the ‘community’ (as was characteristic of many African and Latin American regimes). This poses a challenge not only to the involvement of micro- and macro-communities as outlined above, but also to the acceptance of informal justice as a mechanism through which to resolve disputes. For example, many Central and Eastern Europeans have great difficulty with the term ‘community’ due to the negative experience of informalism, suspicion of the other and the educative, moralising aims of law and order under the Socialist regime. Krushchev, Stalin’s successor, emphasised ‘the role of the community in strengthening law and order’ (Lloyd and Freeman 1985: 995) and the 1960 Constitution established local people’s courts, which were entrusted with making decisions and passing judgements on less dangerous offences, described as ‘wrongdoings’, for which sentences were passed of an above-all educational nature (Karabec et al. 2002). In achieving these aims, the community (co-workers, social organisations, neighbours, the Young Communist League and other Communist Party organisations) were given a central role in contributing to and, in some cases, even initiating proceedings. Trials were held not only in courtrooms but also at factories and other places of work, apartments or educational establishments to drive home, to all concerned, the moral and social implications of the proceedings (see Lloyd and Freeman 1985; Karabec et al. 2002). The central and explicit purpose of judicial proceedings and Soviet law more broadly was therefore not only to regulate conduct, but also to influence the attitudes and relationships of citizens. In this respect, ‘the judicial contest’ was ‘more akin to that of a family than to that of an impersonal civil society’ (Berman 1972: 91). As such, it could be argued that restorative justice shares with Soviet legal culture the goal of enabling citizens and community groups to mobilise informal social control and socialisation processes. However, the often severe and ostracising nature of the procedure jars with the values of restorative justice, and this experience could inhibit support for community restorative justice within such states (see Clamp 2012). On the other hand, Prascilla Hayner (2011) speaks of a Rwandan government official who lost 17 members of his immediate family during the genocide. Cases such as this are not isolated and it raises questions for restorative scholars about how to circumvent the non-existence of micro-communities. Is bringing the consequences of offending home to the offender doomed where there is no family or friends to draw on for support? On the basis of these scenarios, ‘community’ as a stakeholder needs to be given further consideration due to the fact that the involvement of this stakeholder may lead to a rejection of restorative justice altogether or not exist at any level in responding to offending as a source for supportive change.

RJ as a mechanism for peace-building 107 Violent and oppressive communities When we think of community, it often engenders positive images and evokes a cluster of values – solidarity, reciprocity, mutuality, connection, care, sharing – rather than the potential that it holds for manipulation, exclusion, power struggles and inequality. Both Clifford Shearing (1994) and Dirk van Zyl Smit (1999) challenge the perception that communities are homogeneous and peaceful entities. Dignan and Lowey (2000) also draw our attention to the potential dangers of relinquishing power from the state to communities. They warn of the danger of an exclusionary mind-set, which demands that everyone abides by the norms and culture of the (assumed) wishes or prejudices of the majority of the population. Examples from both Northern Ireland (punishment beatings) and South Africa (community courts) during their respective undemocratic periods are used to show the potential for community initiatives to be vulnerable to powerful personalities and cliques, decisions to be based frequently on circumstantial evidence and punishment to reflect violent and summary ‘justice’. Hughes (1996) also shows the potential for one community to maintain ‘the tyranny of the majority’ (Braithwaite 1989: 158), and risks for offenders in terms of a lack of procedural safeguards. Such exclusionary versions of ‘justice’ run contrary to the inclusionary vision that is expressed by John Braithwaite’s theory of ‘reintegrative shaming’, which is said to underpin the concept of community restorative justice. A number of positive examples that may be cited where local community initiatives based on restorative values have been implemented with great success and challenge the warnings outlined above; but these scholars (Eriksson 2009; Froestad and Shearing 2007) often conveniently forget or fail to mention the exceptionalism of such programmes2 and the over-riding desire for and existence of punitive and highly visible justice initiatives (see Wilson 2001). Roche (2002) echoes this position when he argues that the challenge for community restorative justice programmes in transitional states is not to persuade people to use them for the resolution of their conflict; rather it is to persuade community members to choose restorative justice over other more punitive informal mechanisms. Ingrained cultures of violence to solve disputes following periods of extended societal conflict have not been adequately explored within the restorative or transitional justice literature. As outlined here, this requires further exploration if restorative justice programmes are going to provide a serious challenge to the popular and highly punitive initiatives that have been adopted by that community to respond to crime and disorder during the conflict and break down distinctions of ‘us’ versus ‘them’. Powerful communities and ‘exclusion’ Divided societies are often characterised by dynamic civil society structures due to a rejection of the legitimacy of criminal justice agencies that are perceived to have been implicit in the conflict. In such contexts, a weak state or ‘justice gap’

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creates the space for informal justice alternatives to emerge. Social disorganisation theorists argue that where community controls have broken down, crime will occur (Crawford and Clear 2003). McCold (2004: 21) further suggests that ‘community bonds are usually weakest where crime is greatest’ and Strang (1995: 217) argues that strong communities are inherently moral and allow ‘the policing by communities rather than the policing of communities’ (emphasis in original). However, in transitional states characterised by inter-communal conflict, experience suggests that the inverse might be true. These settings often have very strong communities that experience high levels of crime and policing by communities has, at times, resulted in severe punishments being meted out by that community against its own residents. Northern Ireland provides a good example in this regard, whereby paramilitarism served not only to protect one community from another, but also filled a ‘policing vacuum’ by developing a policing role and administering justice on those seen to be disturbing the public order (Cavanaugh 1997). While Crawford and Clear (2003) argue that the weakness of ‘community’ is often seen as a problem for restorative justice in democratic settings, the strength of the community in polarised conflicts also poses important challenges. Valiñas and Arsovska (2008) writing on the Kosovo conflict, explain that a significant stumbling block for restorative justice relates to a lack of individualism. As outlined previously, ‘communities of care’ are central to the restorative process because the emphasis is on individual harm, individual needs and attempts to create empathy between individuals. However, this is made difficult when ‘individuals and interpersonal relations continue to be determined primarily and peremptorily by political affiliation and group identity’ (Valiñas and Arsovska 2008: 198). Restorative justice requires that individuals participate as such, so that feelings of anger, distrust and revenge can be replaced by mutual understanding and recognition of the harm suffered by each person. In highly politicised settings, it can be difficult to bring individuals together and to create empathy between them beyond ethnic lines. This may be illustrated by the failure of the South African TRC successfully to implement a strategy of moral equalising in relation to harms caused by various actors during the conflict. The TRC rejected the claim that the ‘just war’ doctrine exonerated the ANC and other liberation movements from any human rights abuses, which resulted in all political groups rejecting the findings of the TRC Report when it was finally published. Kotzé (2001) argues that this caused major confusion at a psychological level in society wherein party political affiliation was a pivotal component of personal identity, further bringing into question the ability of such mechanisms to reconcile political groups. What is missing here is an overarching sense of community, which ultimately means that the same person may be regarded by one community as a ‘war criminal’ and by another as a ‘war hero’ simultaneously, with such perceptions remaining unchallenged over time and generations. Unsurprisingly, much of the literature on communities within transitional settings has been located where the conflict has been fought between two distinct

RJ as a mechanism for peace-building 109 communities rather than where violence is institutionalised. In the former, communities are distinguished through symbolism and actions (Cohen 1985) and may become exceptionally polarised (and violent) in an attempt to protect culture, history and/or place from another community that may also be claiming purchase over it. This creates a challenge for restorative justice proponents in democratic societies, who perceive community as something that we should ‘strive for’ (Braithwaite 2002b). Given the challenges for the restorative justice approach within communities that have experienced high levels of serious and sustained violence, it is questionable why a restorative justice strategy would ever be adopted in these contexts. However, there are a number of important contributions that a community restorative approach can achieve that are important for sustained peace. The following section gives these issues due consideration.

The potential of the restorative ‘community’ in transitional societies The key potential of restorative justice within transitional states is arguably located in informal programmes developed by both community groups and civil society. While restorative justice processes in democratic settings may seek to deal with the broader underlying causes and consequences of offending, their impact is often limited to those individuals participating in the process. In transitional settings the potential for restorative outcomes is far greater, since societal conflict itself has a far wider impact on communities than the individuals who make up those communities. As such, involvement of the community in restorative justice enables individuals to assist not only in addressing particular harms caused by and exerted upon other individuals, but also in drawing attention to and devising strategies for larger social and political issues that may be a contributing factor to sustained conflict. As such, we may distinguish between community as a means and community as an end (Nelken 1985). This is pertinent to transitional contexts where community may be a valuable resource in terms of achieving a number of aims during the early transitional period and whereby a new collective identity is strived for within a new democratic order. The potential of local community restorative justice schemes can arguably be located on three different levels. Examples from efforts in East Timor, Northern Ireland, South Africa and Indonesia are used to further illustrate the positive impact that such schemes can have. Bridging potential Community restorative justice schemes can create opportunities for increased contact between previously disengaged communities and criminal justice agencies that lack legitimate authority given their perceived role in facilitating injustice by one party over another. Very often these schemes originate as a response

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to vacuums of social control (Dignan and Lowey 2000; Uprimny and Saffon 2006) and are therefore said to play an important role in linking previously disengaged communities and criminal justice agencies (predominantly the police) that have been rejected by those communities due to their perceived participation in the conflict (Eriksson 2009). While community restorative justice projects in Northern Ireland were successful in reducing the incidence of punishment beatings, there was still a severe distrust of the police in both Loyalist and Republican communities. Given that recommendations and moves to reform the police had been undertaken and political settlement on the issue of policing had been reached at a national level, the schemes came under increasing pressure to develop links with and refer cases to the police. However, this posed a problem for the schemes, in that the legitimacy of the police within these areas was still very low and engaging with the police might have undermined the credibility of the schemes within their respective communities as the following quotes illustrate: Just because Gerry Adams and Martin McGinnis have signed up to policing doesn’t mean that everybody has bought into the idea that all cops are lovely guys[.] (Belfast, 8 April 2008) The difficulty we face is convincing people out there that we’re going to give this to the police and if they feel that we’re informing the police on their sons or daughters then they might not want to come to us, and some of them don’t and that’s understandable. (Belfast, 10 April 2010) However, the need for a legitimate relationship to be developed between the police and the community was also acknowledged. This has meant that the nature of the schemes’ work has been to assist not only with micro-community events (individual criminal incidents) but also with macro-community events (political developments) by facilitating increased links between the community and state agencies, which were traditionally scorned during the conflict. Similarly, in Indonesia, anxiety, conflict and mistrust between Muslim (who predominantly make up the police) and Christian communities is being targeted by an NGO called Tim Independen Rekonsiliasi Ambon (TIRA). TIRA was jointly created in Yogyakarta, Indonesia, on the island of Java, by Duta Wacana Christian University, the public Gadjah Mada University and the Islamic University of Indonesia, which brought together representatives that are diverse and neutral in the conflict to help rebuild trust between the two communities (RuthHeffelbower 2000). The scheme allows stakeholders to take ownership of the programme and to engage together in activities that respond to injustice and regeneration projects to break down barriers. In particular Ruth-Heffelbower (2000) argues that the process of respectful listening and dialogue between the two communities increases understanding and acknowledgement of the harms

RJ as a mechanism for peace-building 111 and needs that have arisen from the conflict. In this manner community restorative justice facilitates transitional justice from the bottom-up through deliberative democratic transformative justice. In this respect, Braithwaite et al. (2011a: 137) argue that ‘top-down political settlement and bottom-up restorative justice form a virtuous circle that consolidates deeply sustainable peace’. ‘Local’ potential A second potential that may be put forward is the ability of these schemes to create a moral mandate that reflects the community, not state/international, agenda. Very often dominant transitional justice mechanisms – international trials and tribunals, TRCs – are not able to resolve effectively deep-seated and often complex issues that have persisted for some decades. As such, it is essential that top-down initiatives be accompanied by culturally appropriate grassroots programmes, which can respond to the issues that continue to be a source of contention once the fighting has ceased. While restorative justice is often criticised in established democracies for not responding to or diminishing the underlying structural injustices that may contribute to offending behaviour (see Crawford and Clear 2003), community restorative justice can create an opportunity for such injustices to be addressed effectively within transitional settings. Programmes in both Northern Ireland (CRJI and Alternatives) and South Africa (peace committees) provide a wide variety of services that are responsive to community needs, as the following excerpt from an interview conducted in Northern Ireland shows: You’re always on call, you’re always mediating, and you’re always busy because you’ve got a reputation of doing something good. The community are using us for everything from helping out with filling out forms, to helping out with housing benefit or getting repairs done on houses or whatever, we’re just a community voice. We happen to be a restorative justice programme but it’s grown into something that we never really thought that we would be doing but because we are grounded in the community, we have to do that. (Belfast, 8 April 2008) In South Africa, Zwelethemba Peace Committees are made up of local township residents who determine what steps need to be taken to reduce or eliminate the source of conflict between the stakeholders in question (Skelton 2005). The process does not follow strict procedural rules; however, a code of good practice has been developed to guide not only the structure of the meeting, but also problem-solving techniques that may be utilised (Hergovan 2008). The Zwelethemba model deviates from other restorative justice programmes in that there is no requirement for an admission of guilt from the accused. Shearing explained in interview that it is ‘not about blaming but asking how we create a better tomorrow’ (Cape Town, 8 May 2008). The Zwelethemba model does not

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draw on community, it creates the mechanisms to bring people together to solve problems as a way of creating community, a moral code of what is acceptable and what is not. According to Froestad and Shearing (2007: 547) the uniqueness of the Zwelethemba model, compared with both retributive and restorative justice arrangements, ‘is that the matters of dispute are not addressed through backwardlooking processes that seek to balance wrongs with burdens but through a forward-looking one that seeks to guarantee that the disputants’ moral good will be respected in the future’. Furthermore, the code of the scheme requires that a portion of the funds received from holding meetings has to be invested to respond to broader needs within that neighbourhood (for example, creating a playground for children or building a community centre). Arguably, this increases the potential of restorative justice as a transformative ideology, rather than diminishing or ignoring the proactive steps that can be taken to prevent further crime from taking place within the community. While the Zwelethemba model insists on the full participation of civil society, this is matched by an insistence on pursuing mutually respectful partnerships with the state (Skelton 2005; Skelton and Batley 2006). Community restorative justice schemes run by civil society also offer a way forward by reintegrating perpetrators and victims and their communities. Red Cross Community Peace Consolidation Committees (CPCC) in Sierra Leone work with individuals and communities through traditional reintegration ceremonies3 at a pace that is sensitive to the local context (Park 2010). Similar reintegration ceremonies take place in East Timor for refugees wishing to return to their communities and are known as nahe biti (see Babo-Soares 2004). The importance of local ownership to achieving meaningful transformative justice may be explained by Braithwaite et al.’s studies on Bougainville (2011a) and the Solomon Islands (2011b). They argue that the local ownership of reconciliation is imperative in a lasting peace as it departs from ‘grand narratives’ about the causes of the conflict. Often, they warn, it is the micro-narratives that can contribute to and perpetuate violence at a local level and may depart quite significantly from the aspects that are thought to be important at a formal level. The message here is that the establishment of peace is a deliberatively democratic process that can only be developed with any amount of endurance at a pace that is sensitive to the community and based on the resolution of their grievances and resentment. The authors argue that ‘the bottom-up restorative justice resilience of traditional reconciliation and the linked sequencing of credible commitments – did not arise from any grand plan of outside state builders’ (Braithwaite et al. 2011a: 81). They evolved dynamically out of conversations among the main factions – each step a response to what happened at the last step to peace. Here the reintegrative possibilities for previous ‘combatants’/‘freedom fighters’/‘political prisoners’ to be integrated into the new democratic order is increased as ‘democracy from below’ is facilitated by restorative justice programmes that create a moral mandate that reflects the community, not state/international, agenda.

RJ as a mechanism for peace-building 113 Transformative potential of community-based schemes Community restorative justice schemes have a transformative potential in that individuals are able to reframe the way that they think about wrongdoing and justice during the initial stages of the transition. This is propelled by ‘frombelow’ actors who seek to transform harmful responses to behaviour that transgress societal and communal norms to responses that are more aligned with democratic governance. In Northern Ireland, for example, the absence of any ‘normal’ policing within these communities had led to punishment beatings4 by paramilitaries becoming the normal response for responding to individuals engaging in anti-social and criminal conduct. Interviews conducted with founders of both of the schemes indicated that the community had become used to paramilitaries undertaking highly visible and punitive action against those who were perceived to be transgressing communal norms and values by engaging in anti-social or criminal behaviour. As such, they had a difficult time convincing paramilitaries and community members that punishment beatings were not an effective means of dealing with such behaviour and, instead, that they should use the schemes to deal with conflict within their community. The success of these projects was not achieved overnight, but paramilitary support of the schemes and the positioning of the schemes in opposition to the police further enhanced their credibility within the community. One of the schemes’ founders explained in interview that the use of ‘common sense’ arguments and challenging the status quo enabled them to make progress with community members who supported punishment beatings and wanted them to continue: It’s fine for people to get up and say I want them battered, shoot the fucker you know. In response I’ll say great come on you shoot him, here’s a baseball bat, you do it. When you confront people in that way they back off because for the vast majority of them it’s all talk, they say: No I don’t want to do it, get somebody else to do it. The lunatics who want to do it are seen to be the minority and they’re seen to be lunatics and nobody wants to be associated with them. The vast majority of the ‘beat them, hang them high’ brigade is just bravado and the sense of frustration that people have because of what’s happened in their communities. So we face the community at public meetings and argue for a more humane way of doing things. (Belfast, 10 April 2008) The reduction of punishment beatings since their inception and a high volume of self-referral to community restorative justice schemes (see Eriksson 2009) indicate an increasing acceptance that engaging with individuals on a one-to-one basis is viewed as a legitimate way to resolve conflict.

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Some final thoughts This chapter has considered the role of ‘community’ in restorative justice, beginning with a review of the restorative justice literature on the role of its third stakeholder – the community – within democratic settings. This illustrated a distinction between ‘communities of care’ that are known to the victim and/or the offender, and ‘communities of interest’ that may not know the victim and offender personally but who are affected by the offending that takes place within that locality. However, the involvement of such ‘communities’ in transitional contexts is challenged by the nature of the conflict – the particular issues raised include: a widespread suspicion of communitarian responses to conflict resolution and a lack of a micro-community to draw upon for support; polarised and exclusive communities that engage in highly visible and punitive conflict resolution; and, finally, the potential for communities and unreformed justice agencies to become embroiled in a meta-conflict over justice. Despite these potential stumbling blocks, this chapter has suggested that the potential of well-resourced and supported community projects far outweighs the associated challenges raised by the transitional context. The potential of community restorative justice was perceived as opportunity to achieve broader aims such as challenging ingrained cultures of violence and increasing contact between previously disengaged communities and criminal justice agencies. Furthermore, restorative justice initiatives create opportunities for new versions of ‘community’ to emerge between individuals and groups, who may have been previous combatants during the conflict. These schemes allow these individuals to determine a moral code for their own interaction and the norms that should guide behaviour between individuals more generally in lieu of state presence. In particular, the chapter has sought to explore the ways in which debates around ‘community’ in restorative justice discourse is relevant for the transitional context. Community restorative justice plays an important role in bringing into question the state’s monopoly over justice during the early transitional period. It may also have a potentially important role to play in terms of bridging the gap between the community and the state (particularly the police), empowering communities and individuals, and increasing tolerance and respect in a fragmented and fast-changing environment (Eriksson 2006). In this way, restorative justice from the ‘bottom up’ is important in creating and promoting peace in transitional societies. Braithwaite and Daly (1994: 206–207) further argue that the inclusion of community as a stakeholder of restorative justice opens it up to greater public scrutiny in what can otherwise be a private process (this is particularly important given the often ‘hidden’ nature of dealing with individuals under the previous regime); limits the power of professionals; confirms accountability upon those citizens who have concerns for victims and offenders; and addresses the potential unequal bargaining power of the parties involved by incorporating extended members. Given that the vast majority of human interaction, whether good or bad, is conducted without state interference we should perhaps be less suspicious

RJ as a mechanism for peace-building 115 of empowering communities and individuals and focus instead on developing democracy from below. This chapter and the previous two have outlined the current conceptual and practical use of restorative justice at different levels within transitional settings. While there have been some impressive claims and examples where restorative justice has overcome contextual challenges that have arisen from a period of sustained violence and/or oppression, these have been modest and highly localised rather than having a significant impact on society as a whole. Consequently, the conclusion will now argue that restorative justice is limited by our conceptions of what ‘justice’ is, and suggest a radical reframing of how we approach justice in contexts that have experienced extended periods of violence and/or oppression.

Conclusion Towards a transformative vision of restorative justice

The previous three chapters have outlined the conceptual and practical uses of restorative justice within transitional settings. Despite the fact that restorative justice has been used primarily as a micro-level theory, in other words an approach that is concerned with the relationships between individuals, the transitional justice literature has expanded its use to include the needs of society as a whole. While there have been some impressive claims and examples where restorative justice has been used to overcome contextual challenges that have arisen from a period of sustained violence and/or oppression, these have been modest and highly localised rather than having a significant impact on society as a whole. The central issue that has been emphasised throughout is a lack of robust research evidence to demonstrate (1) what is achievable through a restorative justice response as opposed to any other response, and (2) an understanding about how to achieve desired outcomes. This final chapter seeks to draw the key themes from the previous chapters together and in doing so argues for a much broader application of restorative justice across all levels in transitional settings – within transitional justice mechanisms, criminal justice reform and communities – to overcome the core issues that contribute to hostility between protagonists. The first section considers the application of restorative justice at different levels. The second section reflects on why restorative justice has had a rather limited impact on transitional settings, and calls for a transformative vision of restorative justice to be adopted for these complex contexts.

Macro and micro-utilisations of restorative justice The term ‘restorative justice’ has been used throughout this book to refer to formal mechanisms dealing with macro-level issues (truth commissions) and micro-level issues within formal programmes run by criminal justice agencies devised during periods of criminal justice reform and informal initiatives within the community that have developed as an alternative or supplement to the formal system. Figure C.1 provides a summary of the different ‘layers’ of transitional justice, their associated strengths and weaknesses and an indication of the role of restorative justice within them. As the previous chapters have demonstrated, and

Conclusion

Top-down mechanisms

Criminal justice reform

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Bottom-up mechanisms

Backward-looking: investigate and reveal the violence and oppression that took place under the previous regime

Forward-looking: seeks to reform criminal justice agencies responsible for abuses under the previous regime

Forward-looking: deal with incidents or disputes that take place within the geographical community in which it is based

May make recommendations for the prosecution of some perpetrators or the reform of criminal justice institutions

As a rule does not engage with either top-down or bottom-up processes, but may receive referrals from both

Can develop in complete isolation from either of the two without any state involvement or input

Committed to broader objectives of nation-building and, at times, may be described as defensive formalism

Concerned with increasing the legitimacy of the system in the eyes of the populace and encouraging engagement

Can be viewed as a response to vaccuums of social control and a lack of legitimate authority of the state as a result of the conflict

Restorative justice expanded to build national consensus around values that are prioritised in the new democratic order

Restorative justice is used in a manner that is similar but applied to a broader range of conflicts

Restorative justice is used to transform violent responses to conflict and to provide a link between previously disengaged communities and criminal justice agencies

Can raise expectations of victims and communities

Can be co-opted and distorted to achieve more punitive aims

Can create opportunities for powerful to dominate over less powerful

Figure C.1 An overview of the nexus between transitional justice and restorative justice.

as the figure shows, these tend to stand in isolation from each other, limiting the transformative potential of transitional justice. While increasing democratic participation, increasing perceptions of legitimacy and providing a symbolic break with the past are a common impetus for the adoption of restorative justice at both macro- and micro-levels, there remain

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some stark differences. The first is that the application of restorative justice at each level begins from a different perspective. Restorative programmes that are used at the micro-level begin with a specific incident and seek to resolve wider structural motivations for offending as a by-product of the offenders’ behaviour. By contrast, programmes employed at a macro-level take their starting point from broader factors that are seen to be central to the injustices that have been experienced. However, a frequent criticism levelled at restorative justice within this book and across the diverse range of literature on restorative justice is that it fails to challenge adequately the structural causes of conflict and crime across both levels. At a macro-level, transitional justice is dominated by legalism resulting in primarily elite-driven processes that do not adequately address the needs of the vast majority of individuals who have been affected by the conflict in any meaningful way (McEvoy and McGregor 2008). The paradox of successor governments utilising restorative justice in the form of truth commissions is that while the truth is viewed as essential to establishing the rule of law, it is often only possible to achieve truth by granting amnesty, which may actually corrode respect for the law and encourage vigilantism (see van Zyl 1999). This can arguably reduce the appeal of restorative justice, as it may be associated with a rights culture that protects offenders from prosecution and provides little for victims. Surely then it is at the micro-level where restorative justice offers the most potential for transitional societies to determine for themselves what is important and how to move forward to a more peaceful future. Through this ‘bottom-up’ approach to transforming dispute resolution, restorative justice is ‘thickened’ within transitional settings, as it is not plagued by the international agenda. However, current practice and indeed the transformative potential of restorative justice, are limited by the highly localised characteristics of community-based schemes. Second, the purpose of restorative justice at each level is different. The micropolitical usage of restorative justice is far more focused on the instrumental dimensions of law, in that it is wholly concerned with the regulation and resolution of disputes between individuals at the local level. In this way, restorative justice at the micro-level may actually facilitate the direction and impetus of restorative justice at the macro-level when communities are perceived to be devising conflict resolution processes in lieu of the state (Northern Ireland has been used as a good example of this). The role of restorative justice at the macrolevel, however, is primarily concerned with introducing new values and concepts into society, particularly in terms of those that relate to justice institutions. The macro-level usage of restorative justice may therefore be regarded as the most exceptional as it often seeks to plug a justice gap (rather than to secure justice) and secure hegemony over justice practices (rather than being used as a means to return conflicts to the stakeholders). Third, the role of stakeholders is also a distinguishing feature between macroand micro-level responses. Supporters of procedural interpretations of restorative justice may be adamant that a face-to-face meeting has to occur; however, this

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voluntary aspect of micro-level applications is somewhat illusory as the alternative contains a threat of prosecution through the formal justice system or pressure exerted by family or other powerful community members. At a macro-level, it is particularly difficult for the same coercion to be used due to the fragile nature of transitional contexts and the difficulty of investigating large-scale crimes committed as a result of allegiance to a political party. Rohne et al. (2008) adopt a procedural definition of restorative justice and therefore disregard programmes that do not allow the stakeholders to meet face-to-face, whether at a macro- or micro-level. However it could be argued that excluding processes that do not allow for stakeholder interaction from the parameters of restorative justice, particularly at a macro-level, unnecessarily restricts restorative justice and arguably overestimates the potential that comes from interaction alone. While many truth commissions are labelled ‘restorative processes’ they do not always provide the space for victims, offenders and the community to collectively resolve the aftermath after the event. The majority of the decisions are arguably made by ‘neutral’ individuals (or elites), and the process itself involves addressing each of the stakeholders individually – the offender through amnesty; the victim (by the state) through reparation and truth-telling; and finally, the community through social development and wider notions of ‘reconciliation’. However, these outcomes largely reflect those of restorative justice mechanisms aimed to resolve individual-level conflicts, except in the case of the offender whose obligation to provide reparation – material or symbolic – is usurped by the state. Arguably, what is important, at this juncture, is not to be restrictive about what may or may not be regarded as restorative. Rather, it is to ensure that restorative justice encourages a more satisfactory and legitimate response to any conflict so that injustices do not re-occur and stakeholders feel that they have been heard and respected, and that justice has been served. Llewellyn (2007) has argued that we should move towards perceiving restorative justice as a theory of justice rather than as a process or ‘lens’ (Zehr 1990) through which to respond to crime and disorder. She describes how restorative justice challenges the way that we think about conflict resolution, the way we respond to crime and our notion of who is responsible for the conflict. The objectives of such an approach would be to repair harm that has been caused, to restore relationships to ones of social equality, to perceive wrongdoing in terms of the harm that it causes rather than the fact that it has broken laws and finally, to acknowledge that harms can extend beyond the victim and offender thus elevating the context in which harm is created to a much more significant level of importance than it is currently given. A common limitation of both democratic and transitional literature on restorative justice is its focus on it as a response to crime, which relegates it to an alternative to criminal justice or a ‘special kind’ of justice or ‘partial’ justice when there are no other viable alternatives. Thus, the transformative potential of restorative justice is arguably limited by legalism. This is most obvious within the context of formal transitional justice mechanisms, where we continue to adhere to legalistic notions of harm. If restorative justice is about harm and wrongdoing, these are subjective criteria that

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determine whether or not a restorative process should proceed, rather than adhering to positivistic determinations of categories of victims and offenders. Given that two individuals who are ‘victimised’ in the same manner may not interpret their situation as victimhood, or label themselves as victims, then why would we place these restrictive categories on a process that emphasises a subjective interpretation of the event in such a manner? In order for transitional justice mechanisms to become truly transformative we need to engage in a much deeper and meaningful application of restorative justice across all levels of the transitional process. The following section explores the opportunities and limits of this proposed strategy.

The impact of restorative justice Restorative justice has a strong group of followers from a range of professions and disciplines, who believe that it provides an effective approach to dealing with crime and conflict. Perhaps the most significant drawback, and one that is articulated most often by critics and at times acknowledged by its proponents, is that the power of restorative justice lies in its rhetoric rather than in its outcomes. In many respects, this book has provided additional support for this latter view. For the most part, this is largely due to the fact that we really do not know very much about how change is achieved or what the precise dynamics of a successful restorative process are (see Clamp and Doak 2012). As such, it might seem somewhat antithetical that this book calls for an even more ambitious version of restorative justice when the modest version does not appear to live up to its claims. However, I attribute the limited application of restorative justice within both democratic and transitional settings to our Western architecture of ‘justice’. Even a cursory glance of the transitional justice literature will reveal that it is overly legalistic (McEvoy 2007, 2008); there are limited opportunities for victims to actively participate in any process (Doak 2011) and a corresponding lack of reintegration and meaningful participation for offenders (Waldorf 2010). More specifically in relation to transitional justice, mechanisms often create opportunities for ‘politics by other means’ (Abel 1995), which are primarily concerned with nation building rather than the needs of those who have been caught up in an ideological struggle. This limits the version of restorative justice that can gain purchase, because the version that emerges must be able to sit comfortably within the institutional arrangements in which it is being applied. In other words, the same criticisms that can be levelled against a criminal justice response will always be relevant to a restorative justice response when the dominant approach in any society is based on legalism. Real restoration and reintegration for stakeholders will remain an elusive goal, precisely because they are not the main objectives of the societal response. As Clifford Shearing explained in interview: I think of an institutional arrangement like architecture, like a building, so if you built a prison to keep people in isolated parts and then you come up

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with another mentality as to what it will be used for but you don’t change the building, that building has a mentality built into it, that institution has a mentality built into it that’s always going to bring you back to the same place. People think that they’ve made a difference when they’ve taught something; however you only make a difference when it’s been learnt. Learning is not just an individual thing, you can’t learn if all the incentive structures stay the same as they were. So I can give you insight to your life [. . .] I can show you that insight but it won’t be different for you until you have a different incentive. (Cape Town, 10 May 2008) In a review of 58 cross-national comparative studies, David Backer (2009) confirms that many studies on transitional justice mechanisms applied in Latin America, Europe, Africa and Asia tend to focus on legal mechanisms, their implementation and their compliance with international law and human rights, rather than the nature of micro-level engagement in transitional justice and societal responses. This creates a gap in our knowledge, in that we do not know how processes impact on the lives of people on whom they are applied, or how they are interpreted by local actors. This results in Backer concluding that the vast majority of our knowledge to date is based primarily on ‘assumptions and anecdotal evidence’, which leads to ‘an excess of written material that is subjective and ideological’, as authors advocate particular policies ‘without ever justifying their stances based on sound empirical findings’ (2009: 67). This book supports Backer’s assessment and extends it to the adoption, integration and implementation of restorative justice. Practice, research findings and justifications for the use of restorative justice are often contradictory, and authors tend to mould the meaning of restorative justice to suit their particular agendas. People have built careers out of promoting restorative justice and it is, therefore, not surprising that a vested interest exists in ensuring that this form of justice continues to permeate responses to conflict, whether at a societal or individual level. However, we must take care not to inadvertently co-opt local justice practices to further legitimate restorative justice when it runs contrary to the beliefs, rituals and practices of local people. There exists a tendency within the transitional literature, much like that which exists in democratic settings, to point to local indigenous justice practices as ‘restorative’ solutions to dealing with conflict – one only needs to skim the contents pages of any of the texts on restorative justice to confirm this.1 Indeed many anecdotal examples may be provided, and have been within this book, of the restorative quality of indigenous practices. Cunneen (2007) argues that this trend has existed since Christie’s (1976) account of conflict resolution among the Barotse people of Africa. Pratt (1996: 149) asserts that a general dissatisfaction with ‘the formal gesellschaft process of law’ has ‘coincided with a resurgence of interest in the rights and cultures of indigenous peoples’. In this context, state programmes and policies that allow ‘government at a distance’ have been attractive and have included attempts to appropriate certain aspects of indigenous forms of governance in ‘community-based’ processes (Cunneen 2002).

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The desire by incoming regimes to become part of the international community, and a widespread international experiment with restorative justice, arguably provide an attractive motive for governments to propel any indigenous justice traditions into the rhetoric of a localised restorative justice response. However, critics argue that restorative justice is nothing more than the colonisation of indigenous justice practices as a way of securing hegemony over justice and re-legitimating the criminal justice system in the eyes of those it has previously disenfranchised (see Findlay 2000; Cunneen 2002).2 As such, scholars should avoid romanticising indigenous justice practices and elevating them to a position of superiority against Western retributive practices.3 Beyond jarring with restorative values, indigenous justice practices also come under significant criticism for their incongruence with human rights, particularly in relation to gender dynamics and the use of corporal punishment. While it may be acknowledged that the key dynamics of restorative justice in established and emerging democracies are similar, they need further developing and nuancing in transitional settings. In isolation, both restorative justice and transitional justice are limited in their abilities to respond to the underlying causes of the conflict and therefore create a sustainable peace. Restorative justice is limited in that it is about interpersonal justice. In other words, it is concerned primarily with dealing with harms by one individual rather than with the largerscale injustices inflicted by communities against other communities or states against their own citizens. Conversely, transitional justice is limited in that it is primarily about responding to the collective. In other words, it fails to engage with the more localised issues that are very often the impetus of large-scale conflict. Restorative justice’s strength is that it gives both victims and offenders a voice, with a view to arriving at a space whereby all parties involved can move forward to a position of peace and harmony. As such, restorative justice adds a personal element into the transitional justice agenda. Transitional justice has a symbolic strength, a strength that communicates how the future might be, that acknowledges that harm has been caused and that steps need to be taken to demonstrate that what has occurred is unacceptable. As such, each approach can learn from the other and if combined to deal with the aftermath of conflict in transitional states, it can result in a powerful strategy for conflict resolution. This book has sought to provide an initial attempt to explain why this ambition has, as yet, not been met and suggested a way that we might realise this untapped potential. I have argued for restorative justice that prioritises four values – engagement, empowerment, reintegration and transformation. It is thought that these values provide enough space for local actors to devise their own processes in pursuing them and that they are modest enough for them to be achievable. Furthermore, the book has argued that individuals should be given every opportunity to participate in the conceptual, strategic and practical stages of processes that will address the underlying causes and consequences of conflict within their community. I am particularly taken with Christie’s (1982) work, which argues that people too often seek to deal with conflict quickly, to make it go away when actually it

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should be viewed as a valuable commodity through which to learn and grow. This is particularly relevant in transitional settings, when the root causes for misgivings between individuals, groups and the state may go back decades or even centuries. As such, Christie suggests that conflict resolution is ultimately a process that we negotiate over time: it is important not to presuppose that conflict ought to be solved. The quest for solution is a puritan, ethnocentric conception. For most of my life I have taken it for granted that the outcome ought to be a solution, until I was kindly made aware of my limited perspective. Then for a while I clung to an alternative concept: ‘conflict management’. Again a narrow, ethnocentrically determined choice [. . .] It is very far from a participatory term. Conflicts might be solved, but they might also be lived with [. . .] Maybe participation is more important than solutions. (Christie 1982: 92–93, italics original) There is far too much obsession with the symbolic nature of current transitional justice discourse and practice – what matters is what change takes place on the ground and the empowerment of individuals to become more proficient in dealing with conflict in a non-violent and effective manner. The Zwelethemba model provides a particularly good example that embraces the values that I have outlined here. Reconciliation, reparation, forgiveness and truth are not prioritised by the scheme, but can be if that is what the stakeholders want, which makes it a truly deliberative process. The fact that ‘offenders’ do not need to admit guilt may be a step too far outside the comfort zone of some restorative justice scholars, but as I have argued elsewhere, this is a particularly important feature given that blame and culpability do not always lie with one individual or group. Rather, responses are directed at developing solutions to the causes of the conflict and it is this problem-solving aspect of restorative justice that needs to be emphasised to a much greater extent in societies that have experienced protracted periods of conflict and oppression. In this manner, we can harness local knowledge and facilitate local actors to develop, engage with and pursue outcomes that are both relevant and sustainable.

Notes

1 Introduction 1 See Clark (2011) for more on this. 2 It should be noted that this is a summary version of what transitional justice is. Various scholars have put forward definitions (see for example: Bell 2000, 2009; Bell et al. 2004; Benomar 1995; Posner and Vermeule 2004; Roht-Arriaza 2006; Teitel 2000), which have been critiqued and expanded by others (see for example: Boraine 2004; Nagy 2007; Otto 2006). I have been most convinced of the definition provided by Kaminski et al. (2006: 295), who present arguably the broadest conceptual clarification of ‘transitional justice’ to date when they assert: ‘Transitional justice refers to formal and informal procedures implemented by a group or institution of accepted legitimacy around the time of a transition out of an oppressive or violent social order, for rendering justice to perpetrators and their collaborators, as well as to their victims’. In this definition, enough conceptual space is left for top-down and bottom-up – legal and restorative – responses for dealing with the past. They are also the first to state explicitly that the group or institution developing transitional justice mechanisms must hold some degree of legitimacy within the populace. In addition, they provide a distinction between those groups that are from society itself instigating proceedings against perpetrators and their collaborators, and those that form part of the international community. They fail to mention, however, what these ‘formal’ and ‘informal’ procedures entail and what their possible outcomes may be. They also fail to mention repressive institutions and how this may contribute to achieving the overall aims of transitional justice. 3 Johnstone and Van Ness share this position when they explain that ‘restorative justice is an appraisive, internally complex and open concept that continues to develop with experience, and [. . .] this helps explain why it is so deeply contested’ (2007: 8). 4 A purposive sample was drawn from individuals who could provide insight into the adoption and integration of restorative justice. The sample was small, given that policy communities on specialist areas such as transitional and restorative justice generally and within transitional societies in particular are very small. For example, key roleplayers interviewed were aware of each other (even when located in different countries and institutions) or had personally known each other for some time. In some ways, this reduced the need for large samples of elites to be drawn on for the particular topic under study (see Clamp 2010 for further details). 2 Restorative justice as a contested response to conflict and the challenge of the transitional context 1 See Daly (2012) for a good discussion around this point. 2 Umbreit et al. (2005) report that the practices of many Native American tribes within the United States, the Aboriginal or First Nation people of Canada, the Maori in New

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11

Zealand, Native Hawaiians, African tribal councils, the Afghani practice of jirga, the Arab or Palestinian practice of Sulha, and many of the ancient Celtic practices found in the Brehon laws resonate with restorative justice principles. For a comprehensive discussion of these processes, see Dignan (2005), Marshall (1999) or Umbreit (2000). See Pickering (2007) for a South African case in which the outcome of a restorative process was deemed unconstitutional or Braithwaite (2002a), where a restorative process resulted in humiliation rather than shaming in Australia. See also Kathleen Daly (2001) who concurs with this assertion. Arriaza and Roht-Arriaza (2008b) report that in Guatemala the military would leave its victims’ bodies on display in towns and along side roads and forbid families to recover and bury their loved ones, which contributed to its general campaign of terror. This is particularly distressing for cultures in which the living and the dead are perceived to be connected; a relationship that requires a proper burial and customary ceremony. Although see Pranis (2001) and Braithwaite (2003), who challenge this perception. The authors draw attention to programmes such as the International Commission for Missing Persons, civil society initiatives in Bosnia and Herzegovina or the Israeli– Palestinian Parents Circle Families Forum, which attempt to establish sustainable relationships between victims belonging to different ethnic groups by encouraging them to share experiences of suffering. Also see Bloomfield (2006); Illiff (2004); Otto (2006); Skaar (1999). See, for example, the International Covenant on Civil and Political Rights (OHCRH) (1966), the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) and the Final Report of the Special Rapporteur, Mr M. Cherif Bassiouni, to the United Nations Economic and Social Council. Waldorf (2012: 3) gives four reasons for this: (1) transitional justice has been heavily influenced by human rights and, as such, has replicated that discipline’s longstanding legalistic bias towards civil and political rights because it is easier to identify violations, violators and remedies when it comes to civil and political rights; (2) the rise of transitional justice has been profoundly shaped by criminal justice, which emphasises individual criminal responsibility rather than structural causes with the result that international criminal law conceptualises justice in narrow terms as accountability and procedural fairness (due process); (3) transitional justice operates on the premise that market democracies are less likely to go to war and therefore that political and economic liberalisation – building the rule of law, instituting electoral democracy, and carrying out neoliberal economic reforms – will promote sustainable and ‘positive’ peace; and (4) the initial absence of economic, social and cultural (ESC) rights is explicable in terms of transitional justice’s intellectual history – revolutions were relatively quick affairs and thus economic and structural change were seen as something for the successor regime to tackle in the post-transition phase.

3 The value of restorative justice for transitional settings 1 For an exception, see Eriksson (2009). 2 It is important to note that some scholars contest the increasing tendency to allow vast numbers of individuals who are not obviously affected to participate in the process. Sawin and Zehr (2007: 47) report on objections coalescing around the fact that ‘it can have harmful consequences; the process stalls because there are too many decisionmakers; the case becomes so high profile that the parties become unwitting posterchildren for larger groups of people; the autonomy of the central players is eroded; and the needs of the central figures is not given adequate consideration’. However, it has to be acknowledged that in transitional settings it is often necessary to include broad

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segments of the community or population, given that incidents are often linked to broader macro-issues that are related to the conflict in general. 3 See Gear’s (2002) study on South Africa. 4 See research conducted by Humphrey and Weinstein (2007) in Sierra Leone, which produced inconclusive results about how to reintegrate ex-combatants successfully, and the special edition of Focaal edited by Marita Eastmond (2010) for a similar assessment across a range of different transitional settings. In relation to democratic settings, see Shapland et al. (2006), who report that evidence of reintegration ‘back into’ a specific community is largely missing from the restorative justice literature. 5 See Jennings’ (2008) study on Liberia, which demontrates how a lack of clearly defined and realistic goals can raise expectations and ultimately undermine the programme’s overall effectiveness. 4 Restorative justice in transition: a multi- layered approach 1 See, for example: Bell (2000); Benomar (1995); Kaminski et al. (2006); Posner and Vermeule (2004); Roht-Arriaza (2006); Teitel (2000) who all promote and emit a range of different elements that constitute what transitional justice is. 2 But see Woolford and Ratner (2010: 6), who define informal as ‘less structured, more participatory practices, such as truth commissions, compensation, restitution, symbolic atonement (e.g. apologies), as well as multiple forms of commemoration (e.g. museums and days of remembrance)’. 3 McEvoy (2008: 23) also draws on the work of Stanley Cohen to demonstrate that nation states have also become adept at using human rights discourse to deny atrocities that it has committed by pointing to a range of human rights documents that it has implemented or ratified. In South Africa, the post-transition government inserted a constitutional ‘post-amble’ to prevent victims from asserting their right to sue perpetrators in a court of law. These examples illustrate the contrary use of human rights to support impunity, unlike that outlined above. 4 It should be noted that the ICC has concentrated its first investigations and prosecutions on African countries such as the Democratic Republic of Congo (DRC), northern Uganda, Darfur and Central African Republic (Waddell and Clark 2008). 5 Also see Linton (2001) for a general discussion on Cambodia, East Timor and Sierra Leone. 6 Admittedly these remain theoretical given that the extent of participation that will be allowed in ICC proceedings is still subject to debate (see McGregor 2008). 7 O’Neill et al. (2002: 69) report that between 1973 and 1999 there were 2,241 punishment shootings and between 1982 and 1999 there were 1,500 beatings. 8 Pratt (1996) points out that blood and body sanctions are also prevalent in Maori society. 9 Restorative justice features frequently in the Traditional Courts Bill as a philosophy that resonates with that of African values and as a defining feature of the way in which they function to ‘resolve disputes where they have occurred, in a manner that promotes restorative justice and reconciliation and in accordance with the norms and standards reflected in the Constitution’ (Para. 7(c)). 10 In keeping with custom, women continue to be excluded from leadership in the courts and do not receive fair representation in hearings, thus having to maintain the traditional obedient and subordinate role (PMG 2008). 11 This is found to be true of policy transfer in general (see Jones and Newburn 2005; Pollitt 2001; Tews et al. 2003). Muncie (2005: 36) points out the ‘necessity of attracting international capital compels governments (if they are to achieve status as modern states) to adopt similar economic, social and criminal justice policies’. 12 Uprimny and Saffon (2006) were the first to describe conceptual and practical complementarities between restorative justice and transitional justice. I later expanded this

Notes 127 work in my PhD thesis (see Clamp 2010) and then again with Jonathan Doak to include a strategic value for restorative justice within the transitional context (see Clamp and Doak 2012). 5 Restorative justice as a mechanism for nation- building 1 While tentative claims have also been made about the restorative potential of international criminal tribunals, such as those of Rwanda and the former Yugoslavia, as well as the ICC (see Doak 2011; Henham 2009; Roberts 2003), they have been criticised by a number of scholars for failing to engage the public (see Lundy and McGovern 2008a: 278) and therefore will not be dealt with in this book. 2 See the discussion in the previous chapter. 3 Despite the frequency with which claims are made about the relationship between truth-telling and closure, there is little empirical evidence to support this, and our conceptual interpretations of what closure means varies. On the one hand, Hamber and Wilson (2002: 39) associate closure with ‘acceptance’ while on the other, Weinstein (2011: 4) asserts that closure occurs when ‘resolution’ of trauma is achieved. In the former definition, the victim has to come to terms with the injustice on his/her own whereas in the latter, closure is achieved by engaging in a process that allows the victim to resolve the underlying emotions that have arisen from the incident/s. 4 Ross (2002) also refers to the anger and frustration felt by Shirley Gunn and Yazir Henri (previous uMkhonto weSizwe soldiers) on finding their testimonies had been moulded into stories without their prior knowledge or consent. Henri in particular points to the removal of the individual from the story as the most damaging effect of the Commissions methodology. 5 All victims were asked if they were prepared to testify at a public hearing, however, only around 10 per cent of victims who made a statement were actually given the opportunity to speak at a public hearing (see Roche 2005; van der Merwe 1999). 6 This amount was the median annual household income in South Africa in 1997 (TRC 1998). 7 In research conducted by Van der Merwe (1999) on the South African TRC, 67 per cent of interviewees expressed the motivation for wanting to give testimony as a desire for reparations. This is perhaps unsurprising as many individuals live below the poverty line in post-conflict situations. 8 The religious undertones of reconciliation are matched by churches playing a significant role in promoting forgiveness and healing within society. Examples include the church-sponsored ‘Recovery of Historical Memory’ project in Guatemala, mediation efforts by the Catholic Church in Chile, the organisation of reconciliation projects by churches in Rwanda and Burundi, church support for and co-operation with the TRC in South Africa, and the efforts of the Catholic and Protestant churches to promote healing in Northern Ireland. 9 Human rights organisations and victims’ movements have harshly criticised this notion for imposing forced forms of reconciliation, which go against victims’ rights to justice, freedom and dignity, and which seem anti-democratic. 10 Erin Daly (2008) suggests that this was the case in South Africa, Sierra Leone, Argentina and Chile. 6 Restorative justice as a vehicle for reform 1 See Bazemore and Walgrave (1999); Braithwaite (2002a); Dignan (2002, 2003); McCold (2000); Van Ness (1989, 1993); Van Ness and Strong (2002); von Hirsch et al. (2003b); Walgrave (1999, 2000); Wright (1996, 1999). 2 Again, the degree to which this manifests itself in any society depends on its history and traditions. In Eastern and Central Europe and the former Soviet Union, cases of

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vigilante type activities appear to be less well developed given a historic over-reliance on the state under communism for the delivery of services. In countries in Africa and Latin America where communities have, often in response to authoritarian rule, sought community responses to ensure local safety, vigilante groups in various guises have become quite common. State responses to these vigilante groups range from attempts to co-opt them to direct attacks upon them (Shaw 2000). Despite state opposition to well-known vigilante groups such as People against Gangsterism and Drugs (PAGAD) and Mapogo a Mathamaga in South Africa, both groups enjoy a high degree of support in sections of the community for their willingness to deal with crime and anti-social behaviour (often in a brutal manner). Some examples of where this has occurred include the English Youth Offending Teams; the New Zealand Family Group Conferences; the Canadian Circle Sentences; and the Northern Ireland Youth Conferences, to name a few. Cunneen (2007) has suggested that the proliferation of restorative programmes in Australia has been instrumental in opening new pathways of communication between indigenous peoples and ‘institutions of the colonizer’, thereby helping to forge a new depoliticised understanding of the role of law and justice. By offering indigenous communities a direct input into justice processes, Cunneen contends that longstanding suspicions have been broken down and new channels of co-operation have been opened. As a result, the working culture of criminal justice professionals is likely to change, and the capacity of citizens and local communities to address crime effectively is likely to be increased. Through its emphasis on the importance of procedural justice, empirical research has consistently shown that both victims and offenders report higher levels of satisfaction with restorative mechanisms than with the conventional criminal process. See Comaroff and Comaroff (2007) and Mbambo and Skelton (2003) for an interesting discussion of community justice ‘gone bad’ in South Africa. During the conflict, punishment beatings became a widespread phenomenon to discipline traditional offences (vandalism, graffiti, car theft) and political offences (openly criticising paramilitaries, collaboration with the security services) committed by locals (see Johnston 1996; O’Neill et al. 2002; Silke 1999). Specifically: the Human Rights Act 1998, the United Nations Convention on the Rights of the Child, the Human Rights Act 1998 and all current equality legislation, Section 5 of the Criminal Law Act (Northern Ireland) 1967, and the relevant sections of the United Nations Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. CJINI reported finding ‘no evidence of Alternatives providing an alternative policing or judicial system’ (BBC 2007), and that ‘there is no cause for concern in the way that Community Restorative Justice (Ireland) schemes now operate’ (NIO 2008). As such all four Alternatives schemes and ten CRJI schemes have now been accredited. According to Pollitt (2001) such convergence may take place at a number of different stages or levels within the policy-making process – debate, reform decisions, implementation (or actual practice) and even in results. Bennett (1991) further distinguishes between converging policy styles (where countries adopt similar means of formulating policy); policy goals (in which countries seek to deal with similar problems in similar ways); policy content (by way of copying legislation that has already been drafted or passed in another country); policy instruments (by adopting similar programmes or processes that enable policy to be administered); and policy implementation (whereby similar strategies are adopted for providing the service or ensuring the objectives of policy are met). In doing so, Bennett draws attention to the fact that convergence can range from ‘more symbolic elements such as ideas and rhetoric on the one hand to more concrete manifestations such as policy instruments and practices on the other’ (Jones and Newburn 2006: 21).

Notes 129 7 Restorative justice as a mechanism for peace- building 1 Zehr (2002) argues that this is further complicated in situations where traditional communities have eroded, or where the community itself has been guilty of abuses. 2 Community restorative justice programmes within Northern Ireland are highly localised and do not work with any conflict that concerns members of the ‘other’ as far as I could ascertain from interviews conducted with the founders of each scheme. 3 Such processes require an admission of guilt by the perpetrator, an expression of remorse, and some form or restitution or reparation to both the immediate victim and to the community. 4 A form of ‘instant justice’ that paramilitaries exerted on perceived offenders that ranged from warnings to threats, exclusion, right through to knee-capping, beatings and in the most extreme cases execution (Martin 2006). Conclusion: towards a transformative vision of restorative justice 1 See, for example, Aertsen et al. (2008); Consedine (1999a); Johnstone (2004); Louw (2008); Ross (2011); van Ness and Strong (2002); Zehr (1990); and Zion and Yazzie (2008). 2 Arguably there is some validity to this assertion, as the groups that are meant to benefit from a new found commitment to indigenous justice mechanisms sometimes continue to be excluded and dealt with more punitively (see Cunneen 2002; Maxwell et al. 2004; Stout 2006). 3 See Skelton (2007) on African indigenous justice practices, Stovel and Valiñas (2010) on Sierra Leone and Pratt (1996) on Maori justice practices that run contrary to restorative justice principles.

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Index

Page numbers in italics denote tables. Abel, R. 120 Abramowitz, S. 45 accountability of offenders 4, 62; ensuring 24–6; and reintegration 76–8 Adams, G. 60, 110 adversarial approaches to justice 11, 13, 49, 63; see also punishment; retributive justice Aertsen, I. 15, 20, 25, 60, 129n8.1 Africa 91, 121; indigenous justice systems 62, 63; see also Mozambique; South Africa; Tanzania; Uganda; Zimbabwe Agozino, B. 62 Aiken, N. 81 Albuja, S. 59 Allen, J. 70 Amnesty International 56 amnesty procedures 56, 80; blanket amnesties 51, 76 Amstuz, M. 81 Anderson, A. 13, 62 Andrews, P. 70 Arab–Israeli conflict 75 Ardoyne Community Project (ACP), Northern Ireland 55 Argentina: Mothers of the Plaza de Mayo 79–80; torture victims 80 Armstrong, A. 62 Arriaza, L. 49, 51, 53, 59, 80, 125n6 Arsovska, J. 108 Ashworth, A. 13, 17, 67, 88, 93, 104 Asiedu, D. 89 Association for Development of Social Work in Criminal Justice, Czech Republic 89 Aukerman, M. J. 23, 82, 83 Auld, J. 56, 95 Australia 87, 128n4

Babo-Soares, D. 112 Backer, D. 121 Barahona de Brito, A. 48 Barnett, R. 16 Barotese people, Africa 121 Bar-Tal, D. 75 Barton, C. 37 Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UN) 53, 95 Bassiouni, M. C. 2–3, 28 Batley, M. 63, 65, 112 Bazemore, G. 15, 42, 102, 104, 127n6.1 Beckett, H. 89 Beetham, D. 90 Bell, C. 3, 49, 58, 76, 90, 102, 124n1.2, 126n1 Bennett, C. 128n9 Benomar, J. 26, 124n1.2, 126n1 Berman, H. 106 Bickford, L. 48 Bill of Rights 50, 64 Bloody Sunday Inquiry, Northern Ireland 75–6 Bloomfield, D. 125n9 Bloomfield Report 55 Boraine, A. 17, 25, 28, 29, 66, 124n1.2 Bosnia-Herzegovina 20, 22–3, 41; civil society initiatives 125n8; mental health and trauma healing 45; War Crimes Chamber of the Court of Bosnia and Herzegovina (BWCC) 52 Botha, P. 75 ‘bottom-up’ conflict resolution 12, 30, 101, 112, 118

Index 155 Bougainville 112 Boyack, J. 31 Boyes-Watson, C. 88–9 Bradshaw, G. 80 Braithwaite, J. 11, 12, 14, 19, 31, 32, 33, 36, 39, 43, 61, 66–7, 83, 88, 95, 96, 101, 102, 103, 107, 109, 111, 112, 114–15, 125n4, 125n7, 127n6.1 Brehon Law, Northern Ireland 13, 125n2.2 Burgess, P. 55 Buruma, Y. 42 Bush, R. 37 Cabrera, R. 56 Cain, M. 92, 93 Cambodia 40; Extraordinary Chambers in the Courts of Cambodia 52; UN Transitional Authority 61 Camerer, L. 90 Campbell, C. 72, 98 Canada 87, 124n2.2 Carey, M. 97 Cavadino, M. 96 Cavallaro, J. 59 Cavanaugh, K. 56, 108 Central and Eastern Europe 106, 127n6.2 Changing Lenses (Zehr) 16 Chapman, A. 81 Chayes, A. 81 Child Justice System, South Africa 89 Chile 25, 29, 77, 78; torture victims 80 Chinapen, R. 17 Christie, N. 13, 21, 33–4, 45, 92, 101, 121, 123 Chu, S. 41 Clamp, K. 13, 14, 26, 28, 30, 31, 39, 65, 66, 87, 89, 92, 94, 105, 106, 120, 124n4, 127n12 Clark, J. 1, 2, 22, 57, 75, 76, 124n1.1 Clark, P. 52, 81, 126n4.4 Clear, T. 101, 102, 103, 108, 111 Clinton, B. 60 closure 72–3, 127n3 Coates, R. 38, 45–6 ‘Code of Good Practice’ 95 coercion 34–5 Cohen, S. 92, 93, 109, 126n4.3 Columbia 54; ‘Justice and Peace Law’ 77 Colvin, C. 74 Comaroff, J. and Comaroff, J. 128n5 Commission for Historical Clarification, Guatemala 80

Commission for Reception, Truth and Reconciliation (CAVR), Timor-Leste 58 communist regimes, collapse 3, 105 communities 121; of care 103, 104; challenge in transitional settings 105–9; community-based restorative justice schemes 13, 15, 56, 95, 109–10, 113, 129n7.2; empowering 105; exclusionary notions 105; of interest 102, 104; layers of 102; macro communities 8, 104–5; as a means and as an end 109; microcommunities 8, 102–3; non-existent 105–6; overarching sense of community 108; place, community of 102; potential of restorative ‘community’ in transitional societies 109–13; powerful 107–9; as stakeholders in restorative justice 102–5, 114; strong 108; violent and oppressive 107; weak 108; see also peace-building, restorative justice as mechanism for Community Reconciliation Processes, East Timor 55 community reparation boards and panels 15 Community Restorative Justice Ireland (CRJI) 56, 95, 111 conflict: ‘bottom-up’ approaches to resolving 12, 30, 101, 112, 118; formal to informal responses 99–100; and identity 21–4; individual-level 91; intercommunal 20, 22, 60; meta-conflict 93; perception of as abnormal 45; powerbased 20–1; stealing of conflicts 33–4; structural dimensions 43; types 3, 18–21 Connolly, P. 91 Consedine, J. 13, 18, 31, 129n8.1 Constitution, written 50 Constitutional Courts 78 constitutional politics 60–1 contact hypothesis 91–2 Cossins, A. 18, 19, 20, 76 Costello, P. 55 ‘Country of My Skull’ (Krog) 74 Cox, M. 60 Crawford, A. 13, 15, 34, 67, 91, 101, 102, 103, 108, 111 crimes 43; criminal behaviour 49; international see international crimes; limitations of seeing only as incidents between individuals 19; ‘normal’ 102; outline of types 18–21; sexual assaults 18, 41–2; social/relational context 11, 44; see also violence

156

Index

criminal justice: faults with system 6, 13, 19; reform see reform of criminal justice system, restorative justice as vehicle for; and restorative justice 87; transforming culture in 96–9 criminal justice agencies 85, 109, 110, 114, 116; and peace-building 101, 107; and reform 87, 92, 98, 99; Soviet 90; and transitional justice 56, 57 Criminal Justice Inspectorate Northern Ireland (CJINI) 94, 128n8 Crocker, D. 49, 70, 81–2 culture, transforming in criminal justice 96–9 Cunneen, C. 1, 12, 16, 21, 45, 62, 68, 69, 79, 100, 105–6, 121, 122, 128n4, 129n8.2 Czech Republic 87, 89, 99 Daly, E. 18, 20, 22–3, 52, 69, 75, 76, 86, 127n10 Daly, K. 5, 6, 7–8, 13, 17, 18, 19, 36, 69, 84, 97, 102, 103, 114–15, 124n2.1, 125n5 Darby, J. 60 De Brouwer, A. 41 defensive formalism 93 demobilisation, disarmament and reintegration (DDR) 40 democracy: ‘grass-roots’, at work 38; increasing democratic participation 92–6; restorative justice within democratic settings 6, 10, 12, 21, 87 Democratic Republic of the Congo (DRC) 28, 40, 74 deterrence theory 52 development agencies, international 53 dialogue, respectful 36, 39 Diaz, C. 54, 77 Dignan, J. 13, 18, 33, 57, 67, 96, 97, 98, 104, 107, 110, 125n3, 127n6.1 Dimitrijević, N. 70 Doak, J. 14, 26, 27, 28, 30, 31, 39, 66, 85, 87, 90, 91, 92, 94, 98, 120, 127n5.1, 127n12 Doyle, M. 61 Drumbl, M. 20, 25, 28, 49, 50, 52, 55, 84 Duff, A. 17 Dugan, M. 44 Duthie, R. 41 Du Toit, A. 66 Dyck, D. 31, 44 Eastmond, M. 40, 41, 53, 74–5, 82, 126n3.4

East Timor 40; Community Reconciliation Processes 55 Edwards, I. 32, 35, 36 Eisnaugle, C. 76 Elechi, O. 62 elites 7, 25, 51, 77, 84, 119, 124n4 Elkhart, Indiana 13 El Salvador 79 empirical research, importance 1–2, 7; evidence-based transitional justice 2, 70 empowerment 19, 88; of communities 105; defined 37; and value of restorative justice for transitional settings 32–3, 37–9, 41 engagement 14–16, 32, 33–6; defined 33 Ensalaco, M. 77 Eriksson, A. 13, 44–5, 54, 67, 88, 92, 93, 94, 95, 101, 104, 105, 107, 110, 113, 114, 125n1 Falls area, Belfast 56 family group conferencing (FGC), New Zealand 14–15, 36, 62, 128n3 Fattah, E. 23, 52 Findlay, M. 32, 62, 122 First Nations Navajo Indian, Canada 36, 62 Fischer, M. 24, 61 Fletcher, L. 38, 75, 76, 82 Folger, J. 37 Frank, C. 62 Freeman, M. 106 Froestad, J. 36, 42, 45, 95, 100, 107, 112 Garland, D. 13, 103, 104 Gear, S. 126n3.3 gendered violence 18–19 Geneva Conventions (1949) and Additional Protocols (1977) 3 genocide 3, 52, 74, 84, 106; see also Rwanda Gerardi, Monsignor 56 goals: policy 128n9; restorative justice 11–12 Gobodo-Madikizela, P. 76 Gormally, B. 57 Govier, T. 82 Green, S. 13, 80–1, 97 Greenbaum, B. 20, 23–4 Greenwood, J. 18 Groenhuijsen, M. 3, 27 Guatemala 25, 77, 125n6; Catholic Church 55, 56; Commission for Historical Clarification 80; Nunca Mas (Never

Index 157 Again) Report 55–6; Recovery of Historical Memory Project (REMHI) 54–5 Gunn, S. 127n4 Gutmann, A. 69–70 Gyekye, K. 62 Hadden, T. 82 Haiti 79 Halpern, J. 85 Hamber, B. 70, 74, 127n3 harm, repairing 4, 5, 11, 15, 17, 61, 78–81 Harris, K. 43, 44 Hart, V. 50–1 Hayner, P. 26, 69, 70, 72, 73–4, 76, 77, 78, 79, 106 healing/sentencing circles 15, 73–4 Henham, R. 127n5.1 Henri, Y. 127n4 Hergovan, H. 111 Herman, J. 5 Howard, G. 53, 60 Hudson, B. 19, 37 Hughes, G. 107 human rights: as ‘lingua franca’ 51; microlevel 94–5; narrow interpretation 88–9 human rights abuses 2, 6, 9; contested response, restorative justice as 21, 28; and international law 53–4; transitional justice 48, 59–60; treatment of violators 3, 71 Humphrey, M. 126n3.4 Hutu extremists, Rwanda 28 Huyse, L. 25, 76 identity, and conflict 21–4 Iliff, A. 48, 125n9 Immarigeon, R. 13 impunity 25, 52, 76, 77; United Nations Set of Principles on 53 indigenous justice systems 62, 63, 65, 122 individuals/individuality 5, 6, 89, 119 Indonesia 110–11 ‘informal–formal justice complex’ 58–9 information-provision, and participation 35–6 ‘instant justice’, paramilitarism 56 instruments, policy 128n9 inter-communal conflict 20, 22, 60 interest, communities of 102, 104 inter-generational trauma 20 International Commission for Missing Persons 125n8 international crimes 1, 2–3; crimes against

humanity 3, 52; defining 2–3; ethnic cleansing 84; genocide 3, 52, 74; hate crime 38–9, 45–6; political crimes 1; role of restorative justice in responding to 1, 20; war crimes 3, 52 International Criminal Court (ICC) 51, 52, 126n4.4; Rome Statute (1998) 3, 27, 53 International Criminal Tribunal for Tanzania 61 International Criminal Tribunal of Rwanda (ICTR) 3, 52, 82, 83 International Criminal Tribunal of Yugoslavia (ICTY) 3, 22, 27, 52, 53, 82 international law 27, 53–4 IRA (Irish Republican Army) 57 Israeli–Arab conflict 75 Israeli–Palestinian Parents Circle Families Forum 125n8 Ivanišević, B. 52 Jackson, M. 20 Jelin, E. 65, 75, 86 Jennings, K. 40, 126n3.5 Johnston, L. 56, 128n6 Johnstone, G. 14, 16, 24, 38, 101, 104, 124n3, 129n8.1 Jones, T. 126n11, 128n9 Julich, S. 18 justice: adversarial approaches to 11, 13; appropriate 61; ‘different kind’, restorative justice as 69; externalisation of 49; informal alternatives 108; ‘informal–formal justice complex’ 58–9; ‘instant’ 56, 129n7.4; justice gap 107–8; partial, restorative justice as 69; ‘pillars’ of 71; restorative see restorative justice; transformational see transformative justice; transitional see transitional justice; ‘victim-centred’ 4, 69; see also criminal justice ‘Justice and Peace Law’, Columbia 77 juvenile offending 18 Kalunta-Crumpton, A. 62 Kaminski, M., 124n1.2, 126n1 Karabac, Z. 106 Karstedt, S. 97 Kauffman, C. 55 Kemshall, T. 78 Kenny, P. 13 Kerner, H. 25 Kinealy, C. 61 Kiss, E. 70 Kitchener, Ontario 13

158

Index

Kleinman, A. 45 Kohen, A. 82 Kosovo 52, 108 Kotzé, D. 75, 108 Kriesberg, L. 60 Krog, A. 74, 77 Krushchev, N. 106 Kurki, L. 101 labelling 34 Lambourne, W. 44, 53, 60, 61 Lamin, A. 69 Laplante, L. 26, 27 Lapsley, M. 73 Latigo, J. 55 Leebaw, B. 3 legalism, domination of 50, 51, 119, 120, 121 legal pluralism 92 Leonard, L. 13 Leschert, R. 27 Levrant, S. 17 Liberia 126n3.5 Linton, S. 126n4.5 Llewellyn, J. 16, 43, 70, 72, 78, 119 Lloyd, L. 106 local tradition, vs. universalism 60–5 Lockhart, B. 93–4 Longman, T. 82 Lord’s Resistance Army, Uganda 51, 83 Louw, D. 129n8.1 Lowey, K. 57, 67, 98, 104, 107, 110 Lundy, P. 8, 38, 39, 49, 51, 53, 55, 58, 70, 82, 127n5.1 macro, meso and micro-levels of restorative justice 8, 116–20; contested response, restorative justice as 14, 15, 21; human rights, micro-level 94–5; multi-layered approach to transitional justice 50; value of restorative justice for transitional settings 32, 39, 44, 47 macro-communities 104–5 Malema, J. 84 Mallinder, L. 76, 77, 78, 85 Mamdani, M. 78, 80 Manktelow, R. 20 Mantle, G. 13 Marshall, C. 23, 24 Marshall, T. 11, 34, 97, 104, 125n3 Martin, M. 56, 129n4 Matza, D. 23 Mawby, R. 88 Maxwell, G. 31, 129n8.2

Mayan community 80 Mbambo, T. 64, 128n5 Mbiti, J. 62 McCold, P. 34, 36, 101, 102, 103, 104, 108, 127n6.1 McConnachie, K. 22 McElrea, F. 18 McEvoy, K. 3–4, 22, 31, 48, 49, 50, 51, 52, 53, 54, 59, 66, 88, 92, 93, 95, 96, 101, 118, 120, 126n4.3 McGinnis, M. 110 McGovern, M. 8, 38, 39, 49, 51, 53, 55, 58, 70, 82, 127n5.1 McGregor, L. 21, 51, 53–4, 54, 57, 59, 101, 118, 126n6 mediation: and reform 89; shuttle 35; victim–offender 14, 36 Mendeloff, D. 72 Merry, S. 92 meta-conflict 93 micro-communities 102–3 micro-level see macro, meso and microlevels of restorative justice Mika, H. 44, 54 Minow, M. 25–6, 70, 72, 74, 81 Moerane, D. 40 Mokgoro, Y. 13, 62 Monaghan, R. 13 Moore, D. 103 Morocco 78 Morris, A. 14 Morris, R. 43 Motala, Z. 62 Mothers of the Plaza de Mayo, Argentina 79–80 Mozambique 20, 41, 76–7 Mueller, J. 18 Mugford, S. 36, 101, 103 multi-layered approach to transitional justice 8, 48–86; directions of change 49–60; role of restorative justice in transitional justice 65–7; universalism vs. local tradition 60–5 Muncie, J. 126n11 Nagy, R. 124n1.2 ‘naming and shaming’ 77, 78 nation-building 3; from backward-looking to forward-looking agendas 71, 86; conceptual confusion and contested claims of restorative justice in transitional context 71–84; harm, repairing 4, 5, 78–81; offender accountability and reintegration 76–8;

Index 159 reconciliation and personalism 81–4; reparations, providing 78–81; restorative justice as mechanism for 68–86; ‘topdown’ restorative justice mechanisms 84–5; ‘top-down’ transitional justice mechanisms 67, 69–70; truth-seeking, and participation 71–6 needs-based conception of justice 44 negotiation 13, 49 Neier, A. 86 Nelken, D. 109 neo-liberalism 93 Nepal conflict 28, 29 Newburn, T. 3–4, 13, 15, 66, 126n11, 128n9 Newby, H. 102 Newman, G. 53, 60 New Zealand 18, 36, 87, 124n2.2; family group conferencing 14–15, 36, 62, 128n3 Nomoyi, C. 79 Northern Ireland 13, 38, 54, 87, 89, 99; Ardoyne Community Project 55; Bloody Sunday Inquiry 75–6; ‘Blue Book’, Republican 95; community-based restorative justice schemes 129n7.2; Criminal Justice Review 94; intracommunal conflict 90; paramilitarism 56, 57; Protocols 93–4; Sinn Féin 60; Youth Conferencing Scheme 85, 89, 98, 128n3 Northern Ireland Alternatives (Alternatives) 56, 95, 111, 128n8 Northern Ireland Association for the Resettlement of Offenders (NIACRO) 56 Nunca Mas (Never Again) Report, Guatemala 55–6 Nuremberg International Military Tribunal 3 Nyange massacre, Rwanda 28 Nyerere, J. 89 O’Connell, T. 103 offenders: accountability 4, 62; accountability and reintegration 76–8; denouncing of actions but not character 39; ensuring accountability 24–6; empowerment of 38; as ‘witnesses’ 34 O’Mahony, D. 66, 87, 90, 91, 98 O’Neill, C. 56, 126n7, 128n6 ‘one-size-fits-all’ approach, problems with 2, 39, 49–50 Onwuachi, C. 62 Orentlicher, D. 26 Otto, M. 48, 124n1.2, 125n9

outcome-based vs. procedural (processbased) approaches to restorative justice 14–15, 16, 31 paramilitarism, Northern Ireland 56, 57 Park, A. 112 Parker, C. 31 Parmentier, S. 1, 25, 28, 31, 70, 71, 72, 81 participation 88; and control 35; vs. engagement 32; and expression 35, 36; four categories 35–6; and truth-seeking 71–6 Pavlich, G. 22 peace-building, restorative justice as mechanism for 101–15; challenge of ‘community’ in transitional settings 105–9; community as stakeholder in restorative justice 102–5; potential of restorative ‘community’ in transitional societies 109–13; see also communities Peace Committees, Zwelethemba model 111–12 Pelikan, C. 19 Pells, K. 29 Pemberton, A. 3, 27 penal modernism, crisis of 13 People against Gangsterism and Drugs (PAGAD) 128n2 Perriello, T. 52 Pham, P. 28, 29, 40, 48, 74 Pickering, J. 125n4 Pinochet, A. 76 policy-making 128n9 Pollitt, C. 126n11, 128n9 Popkin, M. 70 Posner, E. 48, 124n1.2, 126n1 Pranis, K. 31, 36, 38, 39, 103, 104, 105, 125n7 Pratt, J. 121, 126n8, 129n8.3 Pretorius, R. 79 Probation and Mediation Service (PMS), Czech Republic 89 procedural (process-based) and outcomebased approaches to restorative justice 14–15, 16, 31 Proietti-Scifoni, G. 5, 6, 7–8, 84 proportionality 17, 25, 88 prototype processes 14–15 public testimony 73, 74, 79 punishment 16–17, 49, 56; and accountability 25–6; punishment beatings 56, 65, 113; see also adversarial approaches to justice; retributive justice

160

Index

Ramirez-Barat, C. 46 rape 41–2 Ratner, R. 58–9, 80, 126n4.2 reconciliation 3; and personalism 81–4 Recovery of Historical Memory Project (REMHI), Guatemala 54–5 Red Cross Community Peace Consolidation Committees (CPCC) 112 reform of criminal justice system, restorative justice as vehicle for 8, 20, 66, 87–100; conflict, formal to informal responses 99–100; criminal justice, transforming culture in 96–9; democratic participation, increasing 92–6; legitimacy, increasing 90–2; trends and obstacles 88–99; see also ‘transformation’, striving for in transitional settings; transitional justice Reiger, C. 52 reintegration 33, 39–42; and offender accountability 76–8; reintegration ceremonies, Sierra Leone 40–1; reintegrative shaming 39, 103, 106 remorse 23, 38 Reparation Principles (2005) 27 reparations for victims, providing 13, 26–9, 78–81; reparation as a right, symbol and process 27 restorative ‘community’, potential in transitional societies 109–13; bridging potential 109–11; ‘local’ potential 111–12; transformational potential of community-based schemes 113 restorative justice: as backward-looking 43, 66; capaciousness 5, 6, 7, 69; community as stakeholder in 102–5; complexities 12–18; as contested response to conflict 2, 5, 10–30; current literature 5–6, 20; definitions 2–3, 5, 8, 14–16; within democratic settings 6, 10, 12, 21; domestic violence, response to 18, 19, 37; and empathic connection 85; goals 11–12; hate crimes, response to 38–9, 45–6; history 12–13; impact 1, 6–7, 120–3; macro and micro-levels see macro, meso and micro-levels of restorative justice; as mechanism for nationbuilding 68–86; vs. other forms of conflict resolution 31; as partial justice 69; principles 4–5, 11; private nature 19; procedural (process-based) and outcome-based camps 14–15, 16, 31; and retributive justice 4, 16–18, 100;

theory 6, 7, 14, 15, 31, 119; ‘top-down’ mechanisms, untapping potential of 84–5; in transitional contexts see transitional contexts, restorative justice in; values 2, 8, 11–12; victimisation response 18–30; see also transitional contexts, restorative justice in retributive justice, and restorative justice 4, 16–18, 100 Richards, K. 13, 14 Roach, K. 101 Roberts, P. 127n5.1 Robins, S. 29, 69 Roche, D. 25, 26, 39, 69, 71, 83, 85, 107, 127n5 Rohne, H. 6, 20, 21, 119 Roht-Arriaza, N. 49, 51, 53, 59, 70, 80, 124n1.2, 125n6, 126n1 Rombouts, H. 21, 28, 80 Rome Statute (1998), ICC 3, 27, 53 Ross, A. 55 Ross, F. 74, 127n4, 129n8.1 Rotberg, R. 70, 72 rule of law 10, 49, 50, 60, 90 Ruth-Heffelbower, D. 38, 59, 110–11 Rwanda 80; gacaca courts 55, 57; genocide in 52, 74, 106; Nyange massacre 28; rape of women and girls in 41–2; UN peace efforts 61 Saffon, M. 66, 67, 70, 77, 78, 82, 110, 126n12 Said, S. 63 Sambanis, N. 61 Savage, T. 39 Sawin, J. 13, 33, 35, 39, 125n2 Sawyer, E. 78 Schärf, W. 64 Scheffer, D. 52 Schiff, M. 102 Schiff, M. F. 102, 104 Schoon, M. 73 Schotsmans, M. 57–8 Scott, J. 59 Second World War 2, 3 Sekhonyane, M. 88 Selimovic, J. 82–3 semi-structured interviews 7 Sentencing Circles 36, 62, 128n3 Set of Principles on Impunity (UN) 53 sexual assaults 18, 41–2 shame 23, 39; see also ‘naming and shaming’; reintegration, reintegrative shaming

Index 161 Shankill area, Belfast 56 Shapland, J. 18, 91, 96–7, 98, 126n3.4 Shaw, M. 90, 128n2 Shearing, C. 36, 42, 45, 95, 98, 100, 107, 112, 120–1 Shriver, D. 81, 86 Shutte, A. 62 shuttle mediation 35 Sieder, R. 55, 56, 86, 90 Sierra Leone 20, 42, 64–5, 79, 126n3.4, 129n8.3; reintegration ceremonies 40–1; Special Court 52 silence, right to 63 Silke, A. 56, 128n6 Simpson, G. 86 Sinn Féin 60 Skaar, E. 125n9 Skelton, A. 13, 62, 63, 64, 65, 88, 111, 112, 128n5, 129n8.3 Social Democratic and Labour Party (SDLP), Northern Ireland 94 Solomon Islands 112 South Africa 13, 25, 29, 77, 87, 89, 126n4.3; Child Justice System 89; community regeneration project, Johannesburg 45; indigenous justice systems 62, 63, 65; institutional obstacles to restorative justice 98–9; Traditional Courts Bill 63–4, 126n9; Trauma Centre for Victims of Violence and Torture, Cape Town 74; Truth and Reconciliation Commission 69, 74, 75, 77, 79, 84–5, 108; ubuntu (spiritual communalism) concept 13, 62, 69, 89 Southern Europe transitions 3 Soviet Union 127n6.2 Special Court for Sierra Leone 52 Special Panels for Serious Crimes in Timor-Leste 52 stakeholders 4, 11, 12, 17, 24; communities as 102–5, 114; engagement 14–16, 32, 33–6; macro and micro-level responses 118–19; multi-layered approach to transitional justice 50 Stalin, J. 106 Stanley, E. 57, 58, 80 state/state liability 6, 11, 12, 68; and reform 88, 91–2, 95; weak states 107–8 stereotyping 20, 22 Stout, B. 129n8.2 Stovel, L. 20, 22, 24, 40–1, 42, 65, 70, 129n8.3 Stover, E. 83 Strang, H. 13, 18, 66–7, 108

Strong, K. 11, 17, 31, 61–2, 127n6.1, 129n8.1 Stubbs, J. 18, 19, 21 styles, policy 128n9 Sullivan, D. 42, 44 Sullo, P. 1 Sunshine, J. 90, 92 Sutcliffe, S. 13 Sykes, G. 23 symbolic vs. material redress 28, 29 Tanzania, UN ICTR 61 TARR model 70 Teitel, R. 3, 69, 70, 124n1.2, 126n1 Tews, K. 126n11 Theidon, K. 26, 27, 40 thick reconciliation 82 Thompson, D. 69–70, 70, 72 Thoms, O. 86 Tifft, L. 42, 44 Timor-Leste: Commission for Reception, Truth and Reconciliation (CAVR) 58; Special Panels for Serious Crimes in 52 TIRA (NGO) 38, 110–11 ‘top-down’ mechanisms: restorative justice 84–5; transitional justice 8, 67, 69–70 Traditional Courts Bill, South Africa 63–4, 126n9 transformative justice: and communities 101; community-based schemes, transformative potential 113; empowerment 19, 32–3, 37–9, 41; engagement 14–16, 32, 33–6; as forward-looking 43; reintegration 39–42; in relation to restorative justice 43, 44; striving for ‘transformation’ in transitional settings 32–46 transitional contexts, restorative justice in 4–8; ‘community’, challenge in transitional settings 105–9; from concepts to practice 46–7; conceptual confusion and contested claims 71–84; transitional contexts – contd. obstacles when applying to transitional settings 10; restorative justice as contested response to challenge of transitional contexts 2, 5, 10–30; striving for ‘transformation’ 32–46; value of restorative justice for transitional settings 31–47; see also reform of criminal justice system, restorative justice as vehicle for; transitional justice

162

Index

transitional justice: from ‘above’ 50–4; accountability of offenders 25; from ‘below’ 8, 54–8; definitions 48, 124n1.2; directions of change 49–60; etymology of ‘transition’ 48; evidencebased 2, 70; evolving discourses 2–4; formal mechanisms, and restorative justice 68; human rights abuses 48, 59–60; impact on restorative justice 6; layers of 116; linking from ‘above’ and ‘below’ 58–60; material vs. symbolic measures 28, 29; ‘peace-building from below’ 2; and reparative approaches 26–7; role of restorative justice in 64, 65–7, 117, 126n9; ‘top-down’ mechanism and restorative justice 8, 48, 67, 69–70; twentieth century 3; see also transitional contexts, restorative justice in trauma 20 Trauma Centre for Victims of Violence and Torture, Cape Town 74 trials 1, 15, 49 truth commissions/Truth and Reconciliation Commissions (TRCs) 1, 8, 15, 52, 92; defined 69; public testimony 73, 74, 79; restoration role 70; in South Africa 69, 74, 75, 77, 79, 84–5, 108 truth-seeking, and participation 71–6, 86; closure 72–3; importance of truth 72; public testimony 73, 74, 79 truth-telling 69, 71, 72, 75 Tschudi, F. 37 Tshelela, B. 62, 64 Turner, C. 72 Tutu, D. 13, 38, 60, 62, 69, 70 Tyler, T. 90, 92 ubuntu (spiritual communalism) concept, South Africa 13, 62, 69, 89 Uganda 41; Lord’s Resistance Army 51, 83; mato oput (traditional justice practices) 55, 57–8 Uganda conflict 20, 28–9, 51–2 Umbreit, M. 18, 36, 99, 124n2.2, 125n3 Unger, T. 60, 83 United Democratic Front (UDF) 24 United Kingdom (UK) 18, 128n3 United Nations (UN) 53, 61, 95 United States (US) 18, 87, 124n2.2 universalism, vs. local tradition 60–5 Uprimny, R. 66, 67, 70, 77, 78, 82, 110, 126n12

Valiñas, M. 20, 22, 24, 40–1, 42, 52, 65, 70, 108, 129n8.3 Valji, N. 90 Van Boven, T. 27 Van der Merwe, H. 15, 20, 23, 24, 46, 50, 54, 69, 70, 84, 127n5, 127n7 Van Ness, D. 11, 13, 14, 16, 17, 18, 30, 31, 59, 61–2, 104, 124n3, 127n6.1, 129n8.1 Vanspauwen, K. 39 Van Stokkom, B. 81, 83 Van Zyl, P. 118 Van Zyl Smit, D. 107 Vermeule, A. 48, 124n1.2, 126n1 Vernon, R. 17 victimisation 97; ‘hierarchy’ of victimhood 22; ‘ideal’ victims 21; Jewish victims 80; reparations for victims, providing 13, 26–9, 78–81; restorative justice challenges as response to 18–30; and revictimisation 19, 29; ‘victim-centred’ justice 4, 69; victims as ‘witnesses’ 34 victim–offender mediation 14, 36 Victim Offender Reconciliation Programmes (VORPS) 13 video-conferencing 35 vigilante groups 90, 118, 127n6.2 Villa-Vicencio, C. 28, 70, 77 Vinck, P. 28, 28–9, 29, 40, 48, 74 violence: communities, violent and oppressive 107; domestic 18, 19, 37; gendered 18–19; punishment beatings 56, 65, 113; sexual assaults 18, 41–2; see also crimes voluntariness 34 Von Hirsch, A. 4–5, 127n6.1 Wachtel, B. 103 Waddell, N. 52, 126n4.4 Waldorf, L. 40, 41, 55, 57, 61, 77, 120, 125n11 Walgrave, I. 15, 42, 127n6.1 Walgrave, L. 16, 17, 34, 127n6.1 Walklate, S. 22, 80, 88 War Crimes Chamber of the Court of Bosnia and Herzegovina (BWCC) 52 Weinstein, H. 38, 72, 75, 76, 81, 82, 83, 85, 127n3 Weinstein, J. 126n3.4 Weitekamp, E. 1, 20, 25, 26, 31, 70, 71, 72, 81 ‘Western-centric’ focus 51 Wierda, M. 52, 60, 83 Wilson, R. 5, 8–9, 25, 39–40, 55, 65, 70, 77, 82, 86, 93, 94, 107, 127n3

Index 163 Winstone, T. 56 ‘witnesses’, victims and offenders as 34 Woolford, A. 58–9, 80, 126n4.2 Wright, M. 14, 15, 97, 127n6.1 Wrong, D. 90 Yazzie, J. 129n8.1 Young, R. 22 Youth Conferencing Scheme, Northern Ireland 85, 89, 98, 128n3 Youth Offending Teams, UK 128n3

Zalaquette, J. 69 Zedner, L. 17 Zehr, H. 4, 8, 13–14, 16, 22, 31, 43, 83, 97, 102, 103, 119, 129n7.1, 129n8.1 Zernova, M. 14, 15 Zher, H. 13, 33, 35, 39, 125n2 Zimbabwe 76–7 Zion, R. 129n8.1 Zwelethemba model 95, 111–12

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