Panel: Tribunals as restorative justice
Feb 16, 2010
from Erin Walrath's blog:
Just a day ago I attended a panel titled Tribunals as Restorative Justice. The purpose behind this attendance was to orient myself with the judicial side of tribunals. Technically, I would argue that there is not another side of tribunals but I am sure that others would disagree with me. (Assuming that some others see tribunals as a sort of a SA Truth and Reconciliation equal, though they are quite different).
The panel was a number of Korbel professors... with a range of knowledge regarding law, international law, and tribunals. Restorative justice was the primary concern. It incorporates a focus on victims, the harm done and the needs of those harmed, obligations and accountability, and participation of relevant stakeholders.
According to Susan Sharpe (in Restorative Justice: A Vision for Healing and Change) there is an aim to put key decisions in the hands of those most affected by crime, make justice more healing and, ideally, more transformative, and reduce the likelihood or future offenses. Restorative justice is more common in European court systems but it seems is making its way into the US, especially in juvenile cases... so I have heard.
To follow a true R.J. model then, the victim is involved in the process and feels heard and satisfied at the outcome, offenders must understand how their actions affect others and accept responsibility for them, outcomes must repair the harm done and address the reasons behind the offense, and both the victim and offender gain a sense of "closure".
Tribunals then. They are Criminal Tribunals, not in line with restorative justice. The target of a tribunal is to establish the "truth" regarding the real crime that was planned and who was behind it. The idea is only 15 or so years old... used in Yugoslavia in the early 1990s and Rwanda currently, as well as Cambodia. Tribunals have a different scale and do not lend themselves to restorative justice because there are too many victims. With millions of victims it would take decades to include them all in a true sense of restorative justice.
The goal of tribunals is to establish an international rule of law, and to operationally define the crimes that would be tried in this arena (genocide, war crimes, crimes against humanity, etc). They then have to put a face to that crime and punish that face. The position in which they function is not ideal. Many of the countries that have been involved in previous or ongoing tribunals have no great stake in discovering the "truth" or allowing anyone else that right. As a rule they are dependent on and a function of the domestic legal system in which they reside. Some may function well, while others have non-existent legal systems wiped out my mass atrocities...
Tribunals also seek to deter, on a global scale, mass atrocities. No one is in a position where they can will not be held accountable... even a president, as in the case of Liberal president being held responsible for aiding and abetting crimes committed in Sierra Leone... That brings us into another issue entirely, that of universal jurisdiction. And we will save that for another time.
