Katarina Planckaert Kris Vanspauwen Law & Society Institute, Catholic University of Leuven

1. Restorative Justice in Post-conflict Situations. A Comparative Analysis of the Truth Commissions of South Africa and East Timor on the Basis of the UN Basic Principles on the Use of Restorative Justice Katarina Planckaert Kris Vanspauwen Law & Society Institute, Catholic University of Leuven The XIV World Congress of Criminology "Preventing Crime & Promoting Justice: Voices for Change"Philadelphia, Pennsylvania, USA      August 7-11, 2005

2. Introduction • Background • Focus • Objectives: clarify the concept and use of restorative justice

3. The Rise of Post-Conflict Justice • Mass victimization in 20th century • 220 conflicts – 87 million killed • Need for precise definition

4. The Rise of Post-Conflict Justice • E. Fattah: mass victimization “victimization directed at, or affecting, not only individuals but also whole groups. In some cases the groups are very diffuse, the members have nothing or not much in common, and the group is not targeted as a specific entity. More often, however, the acts ofvictimization are directed against a special population” • D. Kauzlarich: state crime victims “individuals or groups of individuals who have experienced economic, cultural, or physical harm, pain, exclusion, or exploitation because of tacit or explicit actions or policies by the State [or actions against the State] which violate law or generally defined human rights”

5. The Rise of Post-Conflict Justice • High levels of victimization contributed to debate on dealing with the past • New discipline transitional justice: “the study of the choices made and the quality of justice rendered when states are replacing authoritarian regimes by democratic state institutions. In almost all of these regimes gross violations of human rights took place (Siegel)

6. The Rise of Post-Conflict Justice • Post-conflict justice: more comprehensive and broad approach (Mani) • Outcome-based: • Rule of Law • Rectificatory Justice • Redistributive Justice • Focus on Rectificatory Justice without neglect interdependency • Post-conflict justice as part of peacebuilding agenda

7. Truth commissions of South Africa and East-Timor compared on the basis of the UN Basic principles on the use of restorative justice programmes in criminal matters • Objective: assess the applicability of the UN Basic Principles in the context of states that are dealing with the aftermath of mass violence through the establishment of truth and reconciliation commissions. • Critically analyze the UN Basic Principles departing from the knowledge we gained from the two case studies, South Africa and East Timor

8. The emergence of “restorative justice” in the field of post-conflict justice • 20th century: various mechanisms • gradually more oriented towards victims’ needs • context where RJ can contribute to PCJ developments • lack of clarity concerning the concept of RJ: often too simply linked with processes as reconciliation and forgiveness • learning from RJ theory developments in CJS • Outcome-based definition of Bazemore and Walgrave “doing justice by repairing the harm caused by a crime”

9. Truth commissions of South Africa and East-Timor For the purpose of the comparative analysis two different and distinct truth commissions are presented. Both the truth commissions of South Africa (TRC) and East Timor (CAVR) were loudly proclaimed to be restorative justice mechanisms. In addition the CAVR’s creation was influenced by the TRC and its achievements.

10. The South African Truth and Reconciliation Commission (TRC) • Mandate • Structure • Important features

11. East Timorese Commission for Reception, Truth and Reconciliation (CAVR) • Mandate • Structure • Important features Focus on The Community Reconciliation Process (CRP)

12. TRC and CAVR analyzed on the basis of the UN Basic Principles Vision on crime. Based on traditional and indigenous justice. Restorative justice initiatives often draw upon traditional and indigenous forms of justice which view crime as fundamentally harmful to people.

13. TRC and CAVR analyzed on the basis of the UN Basic Principles Addressing needs of all parties. This approach enables those affected by crime to share openly their feelings and experiences, and aims at addressing their needs. This approach provides an opportunity for victims to obtain reparation, feel safer and seek closure; it allows offenders to gain insight into the causes and effects of their behavior and to take responsibility in a meaningful way; and it enables communities to understand the underlying causes of crime, to promote community well being and to prevent crime.

14. TRC and CAVR analyzed on the basis of the UN Basic Principles Flexibility and complementary to criminal justice system. Restorative justice gives rise to a range of measures that are flexible in their adaptation to established criminal justice systems and that complement those systems, taking into account legal, social and cultural circumstances. The use of restorative justice does not prejudice the right of State to prosecute alleged offenders.

15. TRC and CAVR analyzed on the basis of the UN Basic Principles Process. “Restorative process” means any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator. Restorative processes may include mediation, conciliation, conferencing and sentencing circles.

16. TRC and CAVR analyzed on the basis of the UN Basic Principles Outcome. “Restorative outcome” means an agreement reached as a result of a restorative process. Includes responses and programmes such as: reparation, restitution, community service. All are aimed at meeting individual and collective needs, meeting responsibilities of the parties, and achieving the reintegration of the victim and the offender.

17. TRC and CAVR analyzed on the basis of the UN Basic Principles Parties. “Parties” means the victim, the offender and any other individuals or community members affected by a crime who may be involved in a restorative process.

18. TRC and CAVR analyzed on the basis of the UN Basic Principles Facilitator. “Facilitator” means a person whose role is to facilitate, in a fair and impartial manner, the participation of the parties in a restorative process.

19. TRC and CAVR analyzed on the basis of the UN Basic Principles Voluntary consent. Restorative processes should be used only where there is sufficient evidence to charge the offender and with the free voluntary consent of the victim and the offender. The victim and the offender should be able to withdraw such consent at any time during the process. Agreements should be arrived at voluntarily and contain only reasonable and proportionate obligations.

20. TRC and CAVR analyzed on the basis of the UN Basic Principles Referral. Where restorative processes are not suitable or possible, the case should be referred to the criminal justice authorities and decisions should be taken as to endeavour to encourage the offender to take responsibility vis-à-vis the victim and affected communities, and support the reintegration of the victim and the offender into the community.

21. TRC and CAVR analyzed on the basis of the UN Basic Principles Procedural safeguards. Fundamental procedural safeguards guaranteeing fairness to the offender and the victim should be applied to restorative justice programmes and in particular to restorative processes: a. Legal counsel. b. Fully informed. c. No coercion. Neither the victim nor the offender should be coerced, or induced by unfair means, to participate in the restorative process or to accept restorative outcomes.

22. TRC and CAVR analyzed on the basis of the UN Basic Principles The Agreement. Judicial status. The results of agreements arising out of restorative justice programmes should where appropriate, be judicially supervised or incorporated into judicial decisions or judgments. Where that occurs, the outcome should have the same status as any other judicial decision or judgment and should preclude prosecution in respect of the same facts. • No dismissals. Where no agreement is reached among the parties, the case should be referred back to the established criminal justice process and a decision as to how to proceed should be taken without delay. Failure to reach an agreement alone shall not be used in subsequent criminal justice proceedings. • Monitoring. Failure to implement an agreement made in the course of a restorative process should be referred to back the restorative programme or, where required by national law, to the established criminal justice process and a decision as to how to proceed should be taken without delay. Failure to implement an agreement, other than a judicial decision or judgment, should not be used as justification for a more severe sentence in subsequent criminal justice proceedings.

23. Evaluating the restorativeness of the TRC and the CAVR South Africa • TRC was regarded as a too legalistic process, whereby traditional and indigenous conceptions of justice were overlooked. • TRC failed to establish an encounter between victims and perpetrators • The establishment of the Amnesty Process could have created an opportunity victims and perpetrators to face one another. It would have given the perpetrator a chance to apologize and to show remorse.

24. Evaluating the restorativeness of the TRC and the CAVR South Africa • The TRC did not produce any binding agreements in the cases. • The perpetrators did not play any role or whatsoever the reparation process. • The TRC was in the first place intended to meet the interests at the national level. National reconciliation was prioritized above community and personal forms of reconciliation. • The TRC Mandate was limited to gross human rights violations. By consequence the mass of victims were merely excluded in the process.

25. Evaluating the restorativeness of the TRC and the CAVR East Timor • - According to the UN Principles the CAVR community reconciliation process can be defined as a restorative justice process. • - The inclusion of this on restorative justice based process within the CAVR was seen as needed given the particular post-conflict context of East Timor. • - Missed opportunity to create a fully fledged restorative justice mechanism as victims’ needs were insufficiently addressed. • CAVR as a complementary process raised high expectations among the population concerning the prosecution of most serious crimes. • -Trained and educated facilitators needed to safeguard a fair process

26. Lessons to be learned • Restorative justice contributes to reintegration of offenders in post-conflict communities. • Restorative justice mechanisms drawing upon indigenous ways of conflict resolution certainly make sense in traditional societies.

27. Lessons to be learned • Moreover, restorative justice mechanisms will often not have such disruptive effects as retributive mechanisms imposing prison sentences upon the perpetrators. • Taking into the account that most post-conflict countries are faced with dramatic socio-economic conditions, it is an unbearable task for a truth commission to repair the harm of all victims. It would be a more realistic option to provide truth commissions with a mandate to formulate binding recommendations regarding a comprehensive reparation policy, preferably in dialogue with the new government.

28. Lessons to be learned • Truth commissions should be aware of the risks to formulate a too ambitious agenda for peacebuilding whereby they envisage the incorporation of national, community and personal reconciliation. As Humprey aptly stated, “the politics of trauma witnesses suffering as a strategy of social reconstruction”.

29. Lessons to be learned Violent conflicts often the tail end of structural injustices Restorative justice approaches oblige perpetrators of all kind to face survivors and victims' families, to see the effects of their acts, and to make amends for the harms. That is why we should not, to paraphrase Braithwaite, limit ourselves to selective trials and some elite diplomacy while at the same time leaving the victimized people untouched. Nevertheless the sensitivities that are specific to each post-conflict context – as shown in the examples of South Africa and East Timor – teach us that a clear-cut approach is nothing but a wishful thinking. Proposing a purely restorative justice model for successful transitions will risk jeopardizing the restorative potentials that are present in every culture or society that has suffered a violent past. We argue that a one-sided restorative justice approach is neither feasible nor desirable in post-conflict reconstruction.