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?

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)

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)

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)

Lundy, Patricia and McGovern, Mark. 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)

Brounéus, Karen. Truth-Telling as Talking Cure? Insecurity and Retraumatization in the Rwandan Gacaca Courts.

This article presents unique material from in-depth interviews with 16 women in Rwanda who have testified in the gacaca, the village tribunals initiated to enhance reconciliation after the 1994 genocide. The aim of the interviews was to learn more about how testifying in such a public event as the gacaca affects psychological health. Do the women find the experience healing or retraumatizing? Are there other effects involved? There has been an assumption that testifying in truth and reconciliation commissions is a healing experience for survivors, and healing has been a central concept in the general reconciliation literature and in political rhetoric around truth commissions. However, the findings of the present study are alarming. Traumatization, ill-health, isolation, and insecurity dominate the lives of these testifying women. They are threatened and harassed before, during, and after giving testimony in the gacaca. The article provides a picture of the reconciliation process that we seldom see.(author's abstract)

. "Overcoming Apartheid: Can Truth Reconcile a Divided Nation?"

J6a0n3uary Throughout the world, truth commissions are being constructed under the hope that discovering the “truth” about a country’s conflictual past will somehow contribute to “reconciliation.” Most such efforts point to South Africa’s process as an exemplar of the powerful influence of truth finding. But has truth actually contributed to reconciliation in South Africa? No rigorous and systematic assessment of the truth and reconciliation process has ever been conducted. This article investigates the hypothesis that truth leads to reconciliation. Based on a survey of thirty-seven hundred South Africans in 2001, the author begins by giving both “truth” and “reconciliation” clear conceptual and operational meaning. The author reports empirical evidence that the Truth and Reconciliation Commission’s “truth” is fairly widely accepted by South Africans of all races, that some degree of reconciliation characterizes South Africa today, and that the collective memory produced by the process (“truth”) did indeed contribute to reconciliation. The author then considers whether other divided countries might be able to use a similar process to propel themselves toward a more peaceful and democratic future.

Moon, Claire. "Narrating Political Reconciliation: Truth and Reconciliation in South Africa"

This article enquires into the narration of reconciliation in South Africa and its political implications. It scrutinizes the subjects, objects and material practices that flow from the reconciliation story. The investigation turns on two crucial assumptions: (a) that discourse is an ideological system of meaning that constitutes and naturalizes the subjects and objects of political life, and (b) that narrative is a special discursive form, the structural features of which have specific political effects that are not illuminated by a more general discourse analytic approach. A narrative perspective is important because the TRC explicitly undertook the task of telling a story about South Africa’s transition from past violence to future reconciliation, and argued that storytelling was fundamental to catharsis, healing, and reconciliation on an individual and a national level. Narrative theory renders more specifically applicable some of the general claims of political discourse analysis; while the insights of political discourse analysis highlight the political contexts and effects of governing narratives to which most narrative theory, on its own, is blind. The combination of these two theoretical premises furnishes a powerful approach to understanding the story about reconciliation told by the TRC, and its political implications.

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)

Hartmann, Ute. Victim-offender reconciliation with adult offenders in Germany

Since the early 1980s there has been vigorous discussion in Germany whether conflict-mediation and restitution should be integrated into the existing criminal justice system, as against relegating them to practices for "private" justice. Despite various opinions, criminologists and politicians in Germany have agreed to permit victim-offender reconciliation as a means of resolving crime and determining sentence. In this paper, Hartmann focuses on the “WAAGE Hannover" program as an example of a victim-offender reconciliation program for adult perpetrators that has been integrated into the criminal justice system.

Henry, S. Justice on the Margin: Can Alternative Justice Be Different?

The way that extreme cases of alternative justice, such as the non-State forms of private justice in co-operatives and how they reproduce capitalist legal control forms, even where co-optation is absent, is examined. Drawing on the constitutive social theory of Giddens and others, the paper points to the inevitability of such reproduction by marginal justice institutions. This inevitability is argued to result from marginal justice practitioners sharing a common repository of control talk which impedes but does not exclude their ability to sustain divergent forms of justice. How genuine alternatives might develop is then considered.