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Dan Van Ness: Indigenous dispute resolution and restorative justice

May 12, 2009

It is common to link restorative justice and customary principles and traditional practices of justice. The argument is that the underlying beliefs of customary justice are that justice should repair harm and that the parties themselves should participate in deciding how that is done. These are principles shared by restorative justice. However, there is a dark side to this relationship.

I recently returned from Pakistan where I was speaking on restorative justice. As I explained its principles, I was told that it sounded like punchayat, a traditional dispute resolution process in southern Pakistan and parts of India. In northern Pakistan a similar process is called jirga.

But traditional processes sometimes violate international human rights.  An article by Aunohita Mojumdar illustrates this in writing about the Taliban in Afghanistan (see previous post). The well-publicised story ofMukhtaran Mai in 2004 is a Pakistani example of this problem.

It is true that there was much in common between how they were describing punchayat and restorative justice, but restorative justice also incorporates international human rights principles by its usual linkage to the formal justice system. In fact, it is because the informality of restorative practices could lead to (and mask) human rights abuses that the Government of Canada pressed for UN adoption of the declaration of basic principles on the use of restorative justice programmes in criminal matters.

In 2007, the UN Development Program and Kabul University published an excellent analysis of the complex issues involved and offered recommendations for a hybrid model of justice.


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