An international "truth commission": utilizing restorative justice as an alternative to retribution.

• Author: Eisnaugle, Carrie J. Niebur

ABSTRACT

A restorative justice paradigm emphasizes healing relationships between offenders, their victims, and the community in which the offense took place. It rejects retribution as a response to crime, focusing instead on the needs of all parties involved. This Note discusses the necessity for, and possible benefits of, using restorative justice principles when responding to international crimes and conflicts. Prosecution, war, and other violent means remain the most common responses to crime and conflict today. Such retributive reactions often lead to further violence rather than healing and peace. Using restorative justice principles to address crime and conflict, as was done in the Truth and Reconciliation Commission in South Africa, has proven that focusing on healing can end cycles of violence. In order to promote an end to international conflict and violence, therefore, countries unable to create their own truth commissions should have the opportunity to respond to conflict through restorative means by way of a permanent international truth commission.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND ON RESTORATIVE JUSTICE A. Definition B. Goals C. Methods Used to Achieve Goals III. CURRENT RESPONSES TO CRIME AND CONFLICT ON AN INTERNATIONAL LEVEL A. The International Criminal Court B. The Use of Force: Armed Conflict IV. TRUTH COMMISSIONS A. Definition B. Goals C. Methods Used to Achieve Goals V. SOUTH AFRICA'S TRUTH AND RECONCILIATION COMMISSION (TRC) A. Background of the TRC B. Creation of the TRC C. Theological Parameters of the TRC VI. RESTORATIVE JUSTICE: A BETTER RESPONSE TO CRIME AND CONFLICT A. Promoting an End to International Crimes and Conflicts B. Current Responses: Failure to Promote an End to International Crimes and Conflicts 1. The Use of Force: Armed Conflict 2. The ICC a. Effect on Victims b. Effect on Offenders C. International Truth Commission: Promoting an End to Conflict, Cyclical Violence and Revenge Through Healing, Forgiveness, and Understanding VII. CONCLUSION I. INTRODUCTION

Since the slaying of Abel by Cain, (1) people have been in violent conflict with one another. This first violent disruption in creation was caused in part by Cain's reaction to feeling that he had been treated unjustly compared to Abel. (2) Perceived injustice is the most frequent cause of disruption, pain, and suffering in societies--both because of the effects of injustice itself and because of personal and societal responses to unjust situations. (3) Injustice has most often been addressed by people and groups through war, destruction, and other violent means as an effort to restore justice. (4) Responding to injustice with violence is almost always answered with more violence, however, creating an unending cycle. The need for an alternative response to perceived injustice exists, therefore, especially in a world where conflicts between differing ideologies, beliefs, and standards of living unavoidably cause feelings of unjust treatment.

When international injustices, such as acts of war and terrorism, are committed today, the victims of such crimes most often respond through armed conflict or criminal prosecution. Answering violent acts with violence, however, perpetuates cycles of violence that will end only when alternatives to violence are sought in response to criminal offenses and war. Nations need the opportunity to pursue a non-violent response to injustice, rather than resorting to fighting or attempting to punish offenders through a national or international legal system. An international restorative justice forum would fulfill this need. Such a forum, established as an alternative to violence or vengeance, could be used in response to international conflicts and crimes in much the same way truth commissions are used in response to human rights crimes and conflicts committed in a domestic setting. This Note discusses the need for, and benefits of, utilizing restorative justice through the format of a truth commission when responding to international crimes and conflicts.

2. BACKGROUND ON RESTORATIVE JUSTICE

   1. Definition

      The particular foci of definitions of restorative justice differ somewhat, depending on the person or group doing the defining. (5) All groups seem to agree, however, on the basic and primary foundations of the requirements of a restorative justice paradigm. (6) Generically, restorative justice is a way of thinking about how to respond to crime; it is a set of values and ideals that define a just reaction to the commission of a crime and the crime committer. (7) This "new" way of thinking about justice, that actually hearkens back to views of crime and justice prior to the rise of centralized governments in Europe during the middle-ages, (8) is "a wide-ranging movement ... seeking to transform the systems that are in place to deal with interpersonal and intergroup conflict." (9) Definitions vary from this basic premise, evidenced by subtle differences in the goals and methods that make up a restorative paradigm.

      In the Christian theological tradition, for instance, restorative justice derives its meaning from older systems of "community justice," including both Christian ideals expressed in the Sermon on the Mount (10) and earlier concepts of justice described in the Hebrew Bible, such as Jubilee (a year of freedom), restoration, forgiveness, and shalom, meaning "peace with justice." (11) Outside of this tradition, restorative justice derives its meaning from the research and observations of practitioners of victim-offender reconciliation and mediation programs (12) that have led to specific beliefs formed in reaction to the failures of current retributive criminal justice systems. (13)

      Both the "secular," or political, theory of restorative justice and the Christian theological model remain focused on restoration, or repairing the harm done by the crime and criminal to the greatest extent possible. (14) In the Christian tradition, restoration is characterized as an effort to restore "right relationships" between victims and offenders, and between offenders and the community. (15) According to the secular definition, this is exemplified as the need to engage the community in the reintegration of victims and offenders, and to enforce community standards of behavior. (16) All proponents of a restorative justice paradigm deny that there is any value in vengeance; as a result, a restorative justice paradigm brings into question many of the assumptions that underlie the retributive instincts and systems that define "justice" in the world today. (17)

   2. Goals

      One of the primary goals of any criminal justice system is to control crime. (18) In nations using a retributive legal framework, crime control has been sought partially through deterrence, assumedly created through the threat of punishment. (19) Restorative justice questions many of the current practices in adversarial and retributive systems of justice, including the idea that the threat of punishment functions as a deterrent, due to the current system's state of crisis. (20) Individuals concerned about the failure of retributive crime-control practices "have been working to develop the theory and practice of restorative justice for over a decade...." (21) The development of this theory and practice has resulted in specific goals and core values that directly contradict assumptions embraced by retributive models of justice. (22)

      For instance, crime is defined differently in a restorative model. Under a retributive system of justice, crime is defined as "an act against the state[;] ... a violation of a law." (23) Under a restorative justice model, crime is defined as a conflict between individuals that results in injury to the victims, as well as to the community and the offenders themselves. (24) From this perspective, crime is seen as "an injury which [sic] violates personal and community harmony." (25) because crime is considered an act against both the individual victim and the community as a whole, justice is defined in terms of reparation and restoration, through which both the community and the victim engage in the process of justice in an effort to repair the harms suffered as a result of the offender's acts. (26)

      This alternative definition of justice and of just reactions to conflict and crime focuses on creating "dialogue and negotiations between individuals or groups that are in conflict with one another" by encouraging those individuals or groups to deal with one another directly, face-to-face, rather than through an advocate such as a lawyer or diplomat. (27) Direct interaction between victim and offender is encouraged because, according to proponents of restorative justice, facing the one who has wronged the victim creates the need to solve problems to the benefit of both parties. (28) Also, some restorative justice proponents believe that face-to-face problem solving is important because the consequences of settling conflicts through anonymous third parties can be fatal. (29) Such dependence on a third party can hinder an individual's ability to cope directly with interpersonal conflicts, which may lead to intolerance and an increased potential for violence. (30)

      A system of restorative justice, therefore, "is not content with fixing blame and punishing someone." (31) Rather, proponents of restorative justice believe that in order to solve the problems that lead to and result from crime, all parties affected by the crime including the victim, the offender, and the community must be involved in the solution. (32) Christian proponents of restorative justice believe that bringing victims and the community face-to-face with offenders may foster "truth telling, repentance, reconciliation, and healing for all parties in a given situation." (33) Restorative justice proponents from the socio-political perspective believe that if the community and the victim are brought face-to-face with the offender...