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Public vs. Private Justice

The criminal justice system addresses the lawbreaking behaviour of the offender. In many countries cases are called Government v. Defendant to reflect that emphasis. Restorative justice expands this focus in two ways. First, it takes the harm that resulted from the lawbreaking into consideration. Second, it acknowledges the interests of victims in both the process and outcome of the justice system. How does restorative justice balance the private and public nature of crime and of a just response to crime?

The following articles address this issue:

Why is criminal justice only partially privatized?
from Ron Wright's entry in Criminal Law Jotwell: Ric Simmons has written an article that makes sense of two long-term trends in the privatizing of criminal justice. He links a growing body of legal scholarship about private policing to an enormous academic literature on restorative justice, and reframes them both as part of a long-term trend toward co-existing public and private systems for delivery of criminal justice. Simmons begins this enterprise by describing the enormous growth of private law enforcement in the United States over the last few decades.... The second major component of this article is a review of the far-flung literature on “restorative justice,” a method of responding to crimes that emphasizes the experience of the crime victim, both during the adjudication of the charge and in the selection and execution of the punishment. After summarizing the diverse literature on this topic (drawn from criminology, psychology, and other disciplines) Simmons moves to the heart of his project: he draws out the connections between these two phenomena.
Redefining justice
from John Hayward's article on Christian Today: An independent study published on Thursday by Victims’ Champion Sara Payne calls on the government to "redefine" justice to give greater priority to victims of crime. The mother of Sarah Payne, who was murdered by a paedophile in 2000, writes, "The most compelling theme throughout my time as Victims' Champion has been the need to treat victims and witnesses as individuals, with individual needs." Most people think of criminal justice in terms of offenders being apprehended by the police, convicted by the courts, and sentenced to prison. At a time when the prison population is greater than ever (it presently stands at 84,622), perhaps that is unsurprising. The truth, however, is just three per cent of people who report a crime ever see a courtroom. What does justice mean for these people?
Wright, Martin. 2008. How far can and should restorative justice distance itself from criminal justice?' Workshop for conference of the European Forum for Restorative Justice. Verona, Italy, 17-19 April 2008.
To the extent that restorative justice has been implemented, it has shown very promising results: the great majority of victims are satisfied, offenders feel that the method is fair, and re-offending rates are as good or better in almost all cases. But in countries such as England and Wales restorative justice is being put into effect in a very piecemeal fashion, lacking many of the features that the full-blown philosophy would require. For example, victims are often not involved, or if they are, they are not empowered: that is, they are not given much influence on the outcome. This paper will consider to what extent this is because the delivery of restorative justice is government-controlled, or mainly done in-house by youth offending teams, probation or police. (excerpt)
Duffy, Aoife. A truth commission for Northern Ireland?
A report published by the Consultative Group on the Past (Consultative Group) in January 2009 recommended that a ‘Legacy Commission’ be established for Northern Ireland that would fulfil a reconciliation, truth-recovery and justice mandate. The work of the Consultative Group highlights how international justice norms are interpreted at a local level in a way that takes account of local histories and priorities. This article critically examines the proposed Legacy Commission and finds that the framework outlined by the Consultative Group does not sufficiently challenge discourses of violence that hinder the bedding down of positive peace in Northern Ireland. Universal human rights and justice concepts remain peripheral to this framework, which avoids the type of profound conflict analysis that might advance societal stability and harmony. Instead of challenging the structural and institutional inequalities that underpinned the violence of the conflict in Northern Ireland and opening up new pathways to accessing truth and justice, the Consultative Group's report advocates a truth-recovery process that is not open to public scrutiny and is couched in the language of forgetting, which begs the question whether this is a genuine attempt to explore sidelined or dissenting narratives of conflict, or merely another forum in which to contain them. (author's abstract)
Pemberton, Antony. Private Versus Public Features of Restorative Justice: The Cases of Terrorism and Intimate Partner Violence
This paper makes three points. First of all it will discuss some main issues whereby the private and public functions of victim-offender encounters may be at odds with each other and will question the wisdom of striving to meet both these functions at the same time, in particular in the case of more serious and violent offences. Like Van Stokkom’s paper the effects of apologies will be discussed. That will in the second place lead the presenter to assert that in these cases it may be preferable to view restorative justice as a complement to criminal justice rather than an alternative. Thirdly the discussion of the public and private features of restorative justice may be furthered by examining different crime contexts that have inherently public or private features. In the final section of the presentation the presenter will reflect first on terrorist acts, which have a highly public dimension, due to the fact that the act was committed to scare, frighten or threaten a wider audience rather than the direct victim. Second it will discuss the issue of intimate partner violence, which by contrast has more private features. The presenter will contend that these differences in crime contexts should also affect the positioning and structuring of restorative justice procedures in general, but in particular their relationship to its public and private features. (excerpt)
Delattre, Gerd. Dialogue with the Public - A Neglected Element of Restorative Justice?
The results of the empirical research on success and acceptance of restorative justice are better than expected, but they are not taken into account and are not implemented adequately by the legal practitioners. Due to the internal perspective and the fact that referrals are dependent on legal practitioners, the full potential concerning application and efficiency of restorative justice cannot be tapped satisfactorily. The dialogue with the public is a neglected element in the development of restorative justice and has to be intensified. Those affected by crimes should be informed very early about the possibility of out-of-court conflict settlements and reparation. It is important to take increased efforts to establish agreeable offers of conflict settlements which are at the same time top-quality and within close range. Apart from informing the general public via various media, the extension of a network with new cooperation partners (schools, police, district offices, quarter mangers, church communities, priest, doctors, crisis line, victim support, crime prevention organisations) is of vital importance. (excerpt)
Ameh, Robert Kwame. Uncovering Truth: Ghana's National Reconciliation Commission Excavation of Past Human Rights Abuses
A key mandate of all truth and reconciliation commissions (TRCs) is to ascertain the truth about past injustices and to establish accurate records of violations and abuses. But truth has different connotations to diverse people and is often applied variously. So, how do TRCs uncover the truth surrounding a case of past human rights abuse? But what is truth? More specifically, how did Ghana's National Reconciliation Commission (NRC) ascertain the truth in the cases that came before it? These are the key questions addressed in this paper, which is based on interviews with members and key staff of NRC, analysis of parliamentary debates and media coverage of the reconciliation exercise, and a two-month observation of the NRC. The paper concludes that the specific yet flexible mandate of the NRC, the standard of proof adopted, the elaborate information management process, and the internal control mechanisms put in place favorably positioned the NRC to ascertain truth regarding the cases it deliberated. (author's abstract)
Amnesty International. Commissioning justice: Truth commissions and criminal justice.
States should recognize that “retributive” justice and “restorative” justice (i.e. criminal justice and truth-seeking mechanisms) do not exclude, but supplement each other. In recent years, a debate has flourished on the possibility to “deal with” crimes under international law using non-judicial mechanisms of accountability, such as truth commissions. Based on the distinction between “retributive” justice and “restorative” justice, some have contended that countries have a choice in deciding “what kind of justice” they may pursue: that they may decide not to conduct criminal investigations and prosecutions of crimes such as genocide, crimes against humanity and war crimes and rather concentrate on truth-seeking and community reconciliation processes. The establishment of truth commissions (commissions of inquiry tasked with the investigation of patterns of past crimes) has often been considered as an alternative to the investigation and prosecution of crimes under international law before national courts. The paper analyses the practice with respect to criminal prosecutions and amnesty of the 40 truth commissions established around the world between 1974 and 2010. (excerpt)
Kashyap, Rina. Narrative and truth: a feminist critique of the South African Truth and Reconciliation Commission.
Prior to the establishment of the South African Truth and Reconciliation Commission (TRC), 'gender was seldom explicitly invoked as a lens into human rights abuse or an organizing principle for the commission's work' (Nesiah et al., 2006, p. 3). In this respect the TRC is a trailblazer, as subsequent truth commissions in other countries have been inspired to incorporate the gender component. The study of the TRC, however, is relatively under-theorized from the feminist perspective. This article argues that the feminist perspective offers a nuanced scrutiny of narrative and truth, two major themes of the TRC. The feminist inquiry helps resurrect 'listening', as a crucial component of narratives. In addition, the value of the feminist perspective lies in its ability to throw light on the experience of both women and men and to create an argument and language for the articulation of the needs of the powerless and dispossessed in society. A feminist critique of truth and reconciliation commissions has the potential to make the transitional justice mechanism more inclusive and democratic. (excerpt)
Isaacs, Anita. At War with the Past? The Politics of Truth Seeking in Guatemala.
Truth seeking in postwar Guatemala is a political battleground in which perpetrators intent on guarding against accountability confront victims’ associations equally intent on exposing abuses endured during the country's 36-year armed conflict. Having stage-managed the peace negotiations that established the restrictive parameters of Guatemala's Commission for Historical Clarification (CEH), army officers and guerilla leaders ceded control of truth seeking to Commission staff and their civil society partners, even as the latter mobilized to push the CEH to its investigative limits. The CEH final report's finding that the army had committed genocide galvanized both sides. Victims’ associations insist on more truth alongside justice and reparations, while army perpetrators reject incriminating Commission findings. The Guatemalan case reveals how truth initiatives are at once politicized and polarizing and how politics interfere with a truth commission's effort to produce a consensus history, end violence or afford reconciliation. While it confirms that confronting the past risks undermining the labor of transition architects, it also suggests that these may be necessary evils that could eventually contribute to transforming and strengthening democracy. (author's abstract)
Dukes, E. Franklin. Truth, Understanding and Repair.
Based primarily upon what I have found through the course of my work with damaged communities, I have developed the following conceptual framework, which allows conflict interveners as well as the parties themselves to think clearly about the path that leads to addressing these unrightable wrongs. This framework represents both the goals of this work and the path to those goals. The framework includes truth, understanding, repair, and relationship, in that order. (excerpt)
Braithwaite, John and Dunn, Leah and Cookson, Michael and Braithwaite, Valerie. Anomie and violence:Non-truth and reconciliation in Indonesian peacebuilding.
This book argues that between 1997 and 2004, theoretically, Indonesia experienced a period of anomie (Durkheim 1897): a breakdown of the regulatory order that secured the institutional order (the rules of the game). A security sector that pursued its own interests by taking sides instead of preventing violence from all sides was one important part of that wider problem of anomie. This will recur as a problem in the next three volumes of Peacebuilding Compared—on Bougainville, Solomon Islands and Timor-Leste. Abuses by the security forces escalated communal defiance before finally helping to bring violence under control. A Mertonian reading of anomie theory that dissects legitimate and illegitimate opportunity structures in a micro–macro way is found to be fertile for understanding the onset of these conflicts. Emulation (modelling) of strategies for seizing illegitimate opportunities contributed to the diffusion of violence. Remarkable accomplishments of the reintegration of combatants from organisations such as Laskar Jihad, in which religious leaders showed great leadership for peace, was a feature of Indonesian peacebuilding. So was reconciliation through sharing power combined with the sharing of work (gotong royong) for reconstruction. The chapter then moves on to consider the complex multidimensionality of the factors that make for both war and peace. This evidence is used to argue for locally attuned multidimensionality and redundancy in peacebuilding strategy. This is the key to managing the inherent risks of violence in the gaming of transitions to democracy. (excerpt)
Editor. A Truth and Reconciliation Commission for Canada.
In June 2008, the Canadian government undertook an effort to understand the history, abuses and intergenerational impact of the Indian Residential School (IRS) system that operated in Canada for over 100 years. The Truth and Reconciliation Commission (TRC) seeks to provide survivors and others affected by the IRS system a safe and culturally relevant opportunity to share their stories. By educating the entire country on the realities of this little understood period of its history, it hopes to build common understanding and better relations among Aboriginal and non-Aboriginal Canadians.
Wing, Adrien Katherine . A truth and reconciliation commission for Palestine/Israel: Healing spirit injuries?
The Palestinians may want to consider the possibility of using a device that has been used by many other countries for societal healing - a Truth and Reconciliation Commission (TRC) - to deal with the spirit injuries that have affected them over the decades. ... Margaret Popkin and Naomi Roht-Arriaza have identified four main goals of commissions: 1) contributing to transitional peace by creating an authoritative record; 2) providing a platform for victims; 3) recom-mending changes to avoid a repetition; and 4) establishing who was responsible and should be held accountable for vio-lations of human rights. ... According to South African TRC Chair Archbishop Desmond Tutu, "it was enormously therapeutic and cleansing for victims to tell their stories and the perpetrators had to confess in order to get amnesty... . ... If the commissioners include a wide variety of individuals such as young women, who do not have status within cus-tomary norms, it is not likely that more conservative Palestinians would embrace the commissioners' authority. ... The issues involving Israelis described above in the first scenario could definitely be part of the third, or binational, cham-ber. ... Some societies have created TRCs via a presidential decree and others passed a parliamentary statute. ... Israel has long felt that the United Nations is biased as anti-Israeli and pro-Palestinian, while many Palestinians have felt the United Nations has failed to protect their rights from Israeli aggressions. (Author's Abstract)
Foster, Don. Evaluating the Truth and Reconciliation Commission of South Africa.
"Here is a book rather far away from the frivolities of postmodernism, which sets out to test hypotheses, make contributions to political science (against the tide of the ‘‘perestroika’’ movement) and which argues that good science should inform policy. The topic is important; a serious assessment of the Truth and Reconciliation Commission (TRC) in South Africa. Overcoming Apartheid poses a range of theoretically informed questions, but ultimately one big one: did the truth of the TRC contribute to reconciliation? The answer is as large: yes, ‘‘those who are more accepting of the TRC’s version of the truth are more likely to be reconciled’ (Excerpt).
Kline, Scott and Shore, Megan. The Ambiguous Role of Religion in the South African Truth and Reconciliation Commission
This article examines the ambiguous role that religion, particularly Christianity, played in the South African Truth and Reconciliation Commission (TRC) and in South Africa's transition from apartheid to democracy. On the one hand, religious-symbolic discourse was an empowered truth-telling discourse used by victims and survivors in recounting their stories of apartheid abuse. Moreover, it was a discourse publicly affirmed and encouraged by TRC leaders such as Desmond Tutu. On the other hand, religious discourse was prohibited for perpetrators who came forward seeking amnesty; for amnesty applicants, only a legal-forensic mode of truth-telling was authorized by commissioners. We argue that this tension between religious and legal discourse in the TRC has contributed to the establishment of a democratic political culture in South Africa; yet, at the same time, it has also contributed to delays in social and economic justice for victims and survivors. (Excerpt from Author)
Pisani, Kobus. After the Truth and Reconciliation Commission: challenges facing the historian in a democratic South Africa
The South African Truth and Reconciliation Commission (TRC) was mandated to establish "the truth" about the causes, nature and extent of gross violations of human rights in the country between 1960 and 1994. This article assesses the significance of the TRC for historians and the writing of history in South Africa. The first section focuses on the task of assessing the TRC evidence and providing guidelines on how this evidence may be used in the quest for historic truth. The strengths and weaknesses of the TRC evidence are pointed out. A discussion of the role of the TRC in narrowing the gap between academic and public history follows in the second section. The third section deals with the significance of the TRC in the reinterpretation of a period in South African history. It is the main objective of the article to reflect upon the tasks of historians after the TRC. (Excerpt from Author)
Garcia-Godos, Jemima. Victim Reparations in the Peruvian Truth Commission and the Challenge of Historical Interpretation.
The Peruvian Truth and Reconciliation Commission (Comisión de la Verdad y Reconciliación (CVR)) has been praised for challenging positivist approaches to truth by focusing on victims and narrative interpretation. In this article, I argue that such a focus is not as problem-free as widely assumed. In spite of its normative human rights base, the CVR underestimated the issue of historical and political recognition of particular actors during the Peruvian armed conflict – an issue that bears practical and tangible consequences for the actors involved. I use the case of peasant self-defense groups and their treatment regarding potential reparations benefits to explore the challenges involved in combining a human rights agenda with issues of historical interpretation. (author's abstract)
McGovern, Mark and Lundy, Patricia. A Trojan Horse? Unionism, Trust and Truth-telling in Northern Ireland.
The aim of this article is to examine the relationship between trust, testimony and truth recovery processes as part of post-conflict transition. The paper uses the case study of unionist attitudes toward a community-based truth-telling project in Northern Ireland to demonstrate the impact an absence of trust can have upon what the French philosopher Paul Ricoeur has described as the ‘space of controversy’ that emerges between the ‘certification’ and the ‘accreditation’ of testimony. The paper suggests such distrust is a legacy, not only of conflict, but also of the particular circumstances of transition and the specific mechanisms of truth recovery adopted. Ultimately the paper argues for a holistic, community-centred approach towards truth-telling and raises issues relevant to other violently divided societies undergoing transition and grappling with ways in which to deal with the legacy of political conflict. (author's abstract)
Savage, Tyrone and Vanspauwen, Kris. Restorative justice and truth - seeking in the DR Congo: much closing for peace, little opening for justice
"In this chapter we will try to gain a better understanding of the role and the relationship of these seemingly incompatible goals of peace and justice. How have they affected the transitional process in the DRC? We argue that restorative justice could offer some elements to reconcile peace and justice, or to mutually reinforce one another. To elaborate on this argument, we will take a closer look at the roles that restorative justice principles - through formal and informal justice mechanisms - have played in enhancing or in inhibiting the peace and justice process in the DRC." (abstract)

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