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Due Process Issues

Criminal defendants -- and victims -- have fundamental human rights that must be respected in any state-sanctioned proceeding. A variety of legal protections have been established over the centuries, but for the most part these anticipate a formal legal process. How can the benefits of informal processes be gained without jeopardizing the human rights of the parties? How can those rights be observed without formalizing the informal restorative processes?

Four particular areas of concern are:

1. The right to equal protection of the law. The informality of restorative processes might hide discrimination on the basis of race, gender, ethnic background or other protected status.

2. The right to freedom from torture and cruel, inhuman and degrading treatment or punishment. This issue was raised in the early days of restorative justice when the concept of reintegrative shaming was linked with restorative programmes.

3. The right to be presumed innocent. Offenders are required to accept responsibility for their conduct as a pre-requisite to a restorative meeting. After all, there is no point meeting with their victim if all they do is deny involvement. So can agreement to participate be used subsequently as evidence of guilt if the meeting fails to result in an agreement.

4. The right to assistance of counsel. In many early restorative programmes, attorneys were not allowed to participate in the meetings between victims and offenders. The concern was that the attorney would either speak for the offender or unduly constrain them. Offenders were allowed to consult with counsel before agreeing to participate, however. More recently, some countries have included the attorney in the process as an observer whose role is to ensure that the rights of their client are protected.

Because restorative programmes involve both victims and offenders, the human rights concerns are not limited to the defendant. Depending on national law, the victim may also be entitled to equal protection of the law, assistance of counsel, and other rights.

In 2002, the United Nations endorsed a Declaration of Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. These offer guidance to countries incorporating restorative justice in their criminal justice systems on how to avoid human rights violations such as those mentioned above.

For further discussion on these issues in the Tutorial: Introduction to Restorative Justice, see Due Process and Equal Protection/Discrimination.

The following articles discuss the issues surrounding restorative justice and human rights/due process.

Ikpa, Tina S. Balancing Restorative Justice Principles and Due Process Rights in Order to Reform the Criminal Justice System.

Part I of this Note explores the history and underlying principles of restorative justice. Part II will detail the various due process criticisms that have been leveled at restorative justice. Part III discusses New Zealand’s due process system and how it has been able to successfully implement restorative justice in conjunction with due process. Part IV analyzes due process concerns in the United States, and how restorative justice can coexist with the Constitution. Part V contends that the benefits of restorative justice justify the minimal effort required to implement it.(excerpt)

Van Ness, Daniel W. Restorative Justice and International Human Rights. 

Restorative justice theory offers a conceptual framework which may reconcile apparently inconsistent criminal justice norms and standards. The apparent inconsistencies may simply reflect a paradigm shift from a legalistic understanding of crime to a model that recognizes the injuries to victims and communities as well. A review of the documents included in the Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice finds significant support for restorative justice theory.

McCarthy, Therese. A perspective on the work of the Victorian Sentencing Advisory Council and its potential to promote respect and equality for women.
In most justice systems in the developed world, police, courts and correctional services have had almost two decades of experience in contending with a vocal and sophisticated group of advocates for survivors of gender-based violence. Justice systems across the globe are being asked to collaborate in an effort to clarify the role of law and justice in the elimination of the violence. One last bastion of this system, relatively untouched by gender-based violence activism, is the critically important policy site of sentencing. Here, the struggle for harsher or more lenient sentences plays with monotony in the background of what could be far more informed, just and fair discussion focused on the role of sentencing, of punishment, of rehabilitation and of denunciation in the prevention and elimination of gender-based violence. Before us now is the challenge to force sentencing policy that eradicates violence-supportive attitudes, racism and xenophobia in relation to rape and other gendered violence. (Excerpt)
Fromme, Joan. Restorative Justice and Human Rights.
This study will explore how human rights cases can be redressed through the use of restorative justice and will identify the commonalities, differences and obstacles in the use of restorative justice as a redress mechanism. The BC Human Rights Coalition benefits by being able to utilize the research results to consider alternatives to advance the cause of human rights resolution, as well as enhance the organizational effectiveness in terms of their goals concerning advocacy, education and law reform. The research project explores the concept of utilizing restorative justice processes in human rights cases, the circumstances in which its use would be inappropriate, and considers how restorative justice processes might be used in systemic discrimination cases. Currently, restorative justice is not used in human rights cases. The recommendations outline next steps in terms of future research required in this area. (author's abstract)
Osborne, Michael. Apartheid and the Alien Torts Act: Global Justice Meets Sovereign Equality
"This contribution, using the apartheid suit as an examplar, explores both the opportunities offered by and the limitations of the ATS. The first section reviews the history invoked by Plaintiffs in support of their charge that international corporations were complicit in the system of apartheid. In that context I consider the findings of the Truth and Reconciliation Commission, the limitations and findings of which laid the foundations for the New York suit. The second section reviews ATS case law, as a means of understanding the scope and limits of the statue. Third, I explore the problems encountered in finding a forum for cases against transnational corporations, and the extent to which the ATS may serve as a surrogate in that regard. Next, is an examination of the judgement of the New York court, and criticism of that decision. And finally, I analyse the court's treatment of the objections by the U.S. and the South African governments to the suits." (abstract)
Cunneen, Chris. Exploring the relationship between repatriations, the gross violation of human rights and restorative justice
The relationship between reparations, responses to the gross violation of human rights and restorative justice is only recently finding a place in the broad and expanding literature on restorative justice. This chapter explores the relationship through a consideration of the international movement to provide reparations for the victims of human rights abuses. (excerpt)
Eriksson, Anna and McEvoy, Kieran. Restorative justice in transition: ownership, leardership, and 'bottom-up' human rights
In this chapter we wish to draw out the significance of a number of features of these programs which have not been fully developed elsewhere. In particular we have chosen to focus upon three themes of distinct significance. These are: the strong sense of grassroots community ownership and participation in the programs; the prominent leadership roles which ex-prisoners and ex-combatants have played in the establishment and development of the programs and the related efforts at transforming attitudes towards violence in communities and paramilitary groups; and the prominence of human rights discourses as an embedded feature of RJ practice which has been a defining characteristic of the programs. We will argue that the intersections among these three elements offer the potential for personal and communal transformation of cultures of violence. (excerpt)
Amstutz, Mark R.. Restorative Justice, Political Forgiveness, and the Possibility of Political Reconciliation
The essays in this collection explore different moral, legal, and institutional resources available in promoting national reconciliation in the aftermath of deep injustices. Here I examine the potential role of political forgiveness in reckoning with gross human rights abuses of past regimes. While forgiveness is rarely practiced in politics, it nevertheless remains an important resource for confronting systemic wrongdoing. Because deep political cleavages frequently persist in transitional societies and because of the intractability of justice, collective forgiveness may provide an alternative means by which societies can pursue both national unity and the consolidation of democratic institutions. (excerpt)
Akester, Kate. Restorative Justice, Victims' Rights and the Future
Noting that restorative justice has become established in juvenile justice in England following the Youth Justice and Criminal Evidence Act 1999, Kate Akester also points out that ambiguity and variability with respect to restorative justice theory and practice remain. In this context, Akester examines whether and how restorative justice can be integrated into the criminal justice system, what it has to offer, and what principles form its foundations. In particular, she discusses the importance of safeguards for both offenders and victims (and human rights in general), issues pertaining to community involvement in restorative justice, and the potential development of restorative responses.
Kiss, Elizabeth. Restorative vs. Retributive Justice as Vehicles for a Human Rights Culture
Can justice be done without punishment? The idea of retributive justice denies this possibility, asserting that punishment is required to correct a moral imbalance created by wrongdoing and to maintain a legitimate moral and legal order. In recent years an intriguing counterpoint to retributive justice has appeared in a number of contexts, most notably in the work of the South African Truth and Reconciliation Commission. Referred to as "restorative justice," it is described as an alternative - perhaps even a morally superior alternative -- to retributive justice. In its Final Report the Commission appeared to make two claims about restorative justice: that it is (1) an alternative conception or dimension of justice and that it is (2) better suited than retributive justice to the task of building a human rights culture, especially in societies undergoing transition from repressive authoritarian rule to democracy. My paper seeks to unpack and analyze these two claims. I compare retributive and restorative justice and examine how each approach seeks to reshape relationships among victims, perpetrators, and the larger community. I conclude that restorative justice is indeed a coherent variant of corrective justice and that it could fruitfully be applied to a variety of contexts, not only to transitional societies. However, this ideal conception of restorative justice is difficult to pursue well, as the struggles of the TRC demonstrate. And because neither forgiveness nor remorse can be compelled (ethically and logically), advocates of restorative justice should affirm the legitimacy of retributive justice even while promoting an alternative approach. Author's abstract.
Parmentier, Stephan. The South African Truth and Reconciliation Commission: Towards restorative justice in the field of human rights
The South African Truth and Reconciliation Commission (TRC) conducted its work from 1995 to 1998. A vast amount of commentary has been generated on the TRC, particularly on its endeavors with respect to the first component of its name – the pursuit of truth. Stephan Parmentier believes that less attention has been paid to its efforts with respect to the second component – reconciliation – though the TRC dealt extensively with this notion in its report. Additionally, in its report the TRC explicitly linked truth and reconciliation with restorative justice. This is noteworthy because restorative justice stems from a very different background, namely, the field of criminology and criminal justice. Hence, in this paper, Parmentier asks whether the work of the TRC, with its focus on the violation of human rights, can be understood as a form of restorative justice. Thus, Parmentier explores the intersection of these distinct perspectives – restorative justice and the field of human rights.
Braithwaite, John. Setting Standards for Restorative Justice
Three types of restorative justice standards are articulated: limiting, maximizing, and enabling standards. They are developed as multidimensional criteria for evaluating restorative justice programmes. A way of summarizing the long list of standards is that they define ways of securing the republican freedom (dominion) of citizens through repair, transformation, empowerment with others and limiting the exercise of power over others. A defence of the list is also articulated in terms of values that can be found in consensus UN Human Rights agreements and from what we know empirically about what citizens seek from restorative justice. Ultimately, such top-down lists motivated by UN instruments or the ruminations of intellectuals are only important for supplying a provisional, revisable agenda for bottom-up deliberation on restorative justice standards appropriate to distinctively local anxieties about injustice. A method is outlined for moving bottom-up from standards citizens settle for evaluating their local programme to aggregating these into national and international standards.
Trepanier, Jean. "Restorative justice: A question of legitimacy."
Trepanier examines the question of legitimacy with respect to juvenile justice. Legitimacy refers to the question of whether the measure imposed on a juvenile offender is fair and reasonable. The question of legitimacy pertains both to the process of determining the measure to be imposed and the measure itself. Legitimacy is distinct from the question of legality. Legality refers to whether the process and measure conform to law. Legitimacy includes the question of legality but goes beyond to address the question of whether the process and measure possess a fair and reasonable character. The legitimacy of traditional systems for juvenile justice – pertaining, for example, to issues of due process, and to measures intended to rehabilitate the youthful offender – has been questioned by many over the years. Trepanier argues in this paper that the alternative processes and measures put forth by restorative justice advocates – such as mediation, reparation, and community service – require further reflection and research to determine whether they are fair and reasonable.
Lerman, David.. "Restoring Dignity, Effecting Justice."
Discusses the role of the restorative justice movement in providing human rights. Aims of the restorative justice movement; Example of cases wherein restorative justice movement is at work; What can the Victim-Offender Conferencing provide.
Van Ness, Daniel W. "Restorative Justice and International Human Rights."
Restorative justice theory offers a conceptual framework which may reconcile apparently inconsistent criminal justice norms and standards. The apparent inconsistencies may simply reflect a paradigm shift from a legalistic understanding of crime to a model that recognizes the injuries to victims and communities as well. A review of the documents included in the Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice finds significant support for restorative justice theory.
Daly, Kathleen. Diversionary Conferences in Australia: A Reply to the Optimists and the Skeptics.
Daly explores four critiques of restorative justice. These inclusd (1) due process, (2) Anti-racist, (3) feminist, and (4) a potpourri. While noting the possible problems of power imbalances and net widening, Daly uses observational data to counteract many of the arguments. In the end, Day finds that conferencing 'does more good than harm.'
Musila, Godfrey M. Between rhetoric and action: The politics, processes and practice of the ICC’s work in the DRC
This monograph considers various aspects of the work of the ICC [International Criminal Court] in the DRC [Democratic Republic of Congo] since it became engaged in that country. It attempts to respond to some of the questions posed above. The study has three general objectives. First, it examines the cooperation relationship between the Court and the government of the DRC as well as various other relevant players in that country, including civil society and the UN Mission in the country (known by its French abbreviation, MONUC). Second, it examines the role of politics – domestic or otherwise – in the work of the ICC in the DRC. Third, it examines perceptions around the work of the ICC in various sectors of Congolese society: government, victims and civil society. By extension, it addresses some of the broader questions that the work of the ICC in Africa has raised, including the proposition that the ICC is ‘targeting’ African countries. (excerpt)
. Restorative Boards of Inquiry: Fostering dignity and respectful, responsible relationships. Draft framework and procedures.
Relationships in conflict sometimes result in allegations of discrimination, triggering a complaint under the Nova Scotia Human Right Act. 1 This complaint creates an opportunity to address individual conflicts and to examine a) the larger societal influences on the conflict and b) how these influences impact the systems we set up to relate to each other. The restorative board of inquiry model, outlined here, seeks to foster respectful, equal, 2 and responsible relationships as it addresses complaints. These objectives are met by parties involved being empowered to work collaboratively. Some of the benefits of the restorative approach are: emotional closure, the process creates reduced conflict between the parties thereby lessening harms throughout the process of resolving the complaint, a better opportunity to have the other party meaningfully understand one’s harm, a greater possibility of the other party meaningfully taking responsibility for the harm, as appropriate. A restorative board of inquiry necessarily considers the public interest by its inclusion of community members in participation circles and the inquiry. (excerpt)
Prichard, Jeremy. Net-widening and the diversion of young people from court: A longitudinal analysis with implications for restorative justice.
Internationally, many youth justice systems aim to divert young people from court through informal mechanisms, such as police cautions and restorative conferences. Among other things, diversion avoids the potentially criminogenic effects of formal contact with the criminal justice system. However, in some instances, the sum of court appearances and diversionary procedures indicates an overall increase in the numbers of young people having contact (formal or informal) with the criminal justice system — a phenomenon known as net-widening. This article summarises previous debates about the risks of net-widening. It then presents results from analysis of over 50,000 police records pertaining to young people's contact with the Tasmanian criminal justice system between 1991 and 2002. Across that decade, court appearances markedly reduced, while a corresponding increase in diversions was recorded. There was no evidence of net-widening. However, there was a significant increase in detention orders. Implications for policy and future research are considered. (excerpt)
Sanchez, Gabriel Gomez. Between Reconciliation and Justice: The Struggles for Justice and Reconciliation in Colombia.
Over the past decades, Colombian society has endured the impact of a longstanding political conflict among different actors and outrageous expressions of violence, especially among left wing guerrillas, right wing paramilitary groups and the state government. Drawing on socio-legal studies in transitional justice and human rights, this research attempts to analyze the recent experience of transitional justice in Colombia. The main purpose of this research is to understand how political, institutional and social actors, especially the government, the courts, the human rights and transitional justice NGOs, and victims associations, frame the mechanisms of transitional justice and use legal instruments to transform the conflict and reach what they consider "justice." It also attempts to understand the relations between politics and law in the context of a hegemonic discourse of security and give account of the expressions of resistance of human rights networks. (Excerpt).
This contribution deals with the position of child victims of armed conflict. An explanation is tendered of the circumstances under which children are considered to be the victims of armed conflict. Specific reference is made to the question of whether or not a former child soldier may be viewed as a child victim. In the second place the question is addressed how a monist or dualist approach regarding the incorporation of treaty law into municipal law influences the rights of child victims in terms of article 39. Thirdly, article 39 is discussed against the background of the CRC as an international human rights instrument.(Excerpt)
Aisha Pena. Protecting Muslim Civil and Human Rights in America:The Role of Islamic, National, and International Organizations
The focus of this article is on examining the civil and human rights of Muslims in America and the bias and prejudice that they encounter in their local communities. The paper includes a list of Muslim, national, and international civil and human rights organizations, and examines their functions. The significant functions of these organizations include providing educational opportunities for Muslims, as well as for non-Muslims, to foster cooperation and promote understanding through dialogue within and between communities. The importance of Muslim involvement with, and contribution to, these organizations, is emphasized; and Muslims are encouraged to access the services of these organizations more fully and in a proactive manner to help reduce the marginalization they currently face. The significance of political participation on the part of the Muslim communities in the wider American society is noted, and the techniques and methods of restorative justice are examined and recommended for adoption. The paper concludes with the assumption that these organizations and affiliations can help protect the civil liberties of Muslims in the US by developing within the community, a political milieu that is conducive to the protection of human rights and promotion of justice.

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