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Transforming Restorative Justice for Transitional Settings

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Kerry Clamp discusses the approaches to transitional justice; retributive and reparative.

Image courtesy of interviewee. May 30, 2024

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The speaker discusses their research on transitional justice, focusing on the experiences of South Africa, the Czech Republic, and Northern Ireland in overcoming dictatorship and conflict. They highlight a gap in the existing scholarship regarding restorative justice, which they explored during their PhD. The speaker defines transitional justice as a response to systemic crimes, such as human rights abuses, and describes its evolution over time, particularly following global conflicts like World War II.

They distinguish between two main approaches to transitional justice: **retributive**, which involves punishing offenders through legal mechanisms like tribunals, and **restorative**, which seeks to address the harm caused by these crimes in a manner that fosters reconciliation and healing within communities.

Restorative justice is characterized by various applications including truth and reconciliation commissions, youth justice reforms, and community responses to crime in places lacking effective criminal justice systems. The speaker emphasizes the importance of contextualizing individual transgressions within the broader community dynamics and identities to effectively address past injustices and promote future peace.

However, they critique the effectiveness of transitional justice processes, noting that political and resource constraints often make them selective and inadequate. They argue for a more inclusive understanding of justice that empowers individuals rather than focusing solely on the agendas of international or supranational organizations.

Overall, the speaker advocates for a shift in how transitional justice is conceptualized, underscoring the need for community-led dialogues that can bridge divisions and address the structural issues leading to conflict. They stress the importance of meaningful conversations rooted in the experiences and concerns of individuals in the community as a path towards fostering genuine reconciliation and lasting peace.

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My PhD was on the topic.

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Um, but what I did in that, body of work is focus on

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how South Africa, the Czech Republic in Northern Ireland

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kind of came through their transitions.

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How they moved away from being in a, in a state of,

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you know, dictatorships

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or active conflict between communities.

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And it was really interesting at looking

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how they used the word restorative justice, what it meant,

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how, how they used it to deal with the past,

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but then also how it was used to deal

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to reform criminal justice.

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And what was very evident is that there wasn't a lot

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of work on this.

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And in restorative justice,

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scholarship practice always leads scholarship.

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So it, you know, a, a book that kind

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of gave a broader overview of

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what was happening in post-conflict countries, seemed

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to be, a gap that needed to be filled.

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Transitional justice broadly is just responding

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to any large scale systemic crimes that have occurred.

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So, you know, this might be human rights abuses

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or persecution or violence on a systematic scale.

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And we've seen that it's evolved over a number

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of phases, right?

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So we can see really early on following the second World War

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transitions, in southern Europe.

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So Spain and Portugal, for example,

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and also the collapse of the communist regime, had,

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had particular tendencies.

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And part of that was around, deterrent.

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So prosecuting those that were mostly responsible

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for coming up with the architecture, I guess.

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Um, so you see that in Nuremberg is denunciation, so

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prosecuting leaders in show trials.

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So you saw that in Spain and portal or, incapacitation.

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So in communist regimes, they had a,

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a concept called illustration.

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And basically what happened is

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after the transition, individuals

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who were in power in institutions, so for example,

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the military or, you know, government,

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institutions were removed from the, from those roles,

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and were not allowed to retain that power.

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So there was no undermining of the shift to, to a democracy.

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Um, after the,

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after that kind of period, we see conflict

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that was slightly more complicated,

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because it was about waring communities, right?

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And so what ends up happening is that,

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communities had a particular identity

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and there were no easy winners and losers.

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So approaching,

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transgressions, I guess becomes

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a little bit more complicated.

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So, and it also,

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what it does is if we're gonna prosecute people,

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why are people gonna give up power?

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They're not right. Why, why are they going

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to volunteer themselves to be locked up?

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And so we see opportunities

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or the threat that that will reignite conflict, but also

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after the Cold War, we kind

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of then see this move in transitional justice towards

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talking about reconciliation or nation building

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or, punishing or pardoning human rights abusers

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and that, and that, that debate.

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So, transitional justice encapsulates all of that.

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But most recently we see this distinction

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or a categorization of approaches that are considered to be

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retributive or restorative.

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And that's kind of the two main features at the minute.

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Attritive approaches in general, as you would expect,

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include national

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and international criminal justice processes, tribunals,

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for example, or national inquiries or commissions.

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Um, and they'll explore what happened during the process,

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but also hold very particular people to account for it.

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So it's about dealing with very specific incidents,

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as opposed to thinking about nation building, et cetera.

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Um, and the international community, some,

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some countries can't afford to,

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or they don't have the infrastructure to punish individuals,

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prosecute them, right?

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And so the international community has a

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role to play in that as well.

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So we see that with the international criminal court.

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We see that with tribunals being set up, for example,

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for Yugoslavia

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or in Rwanda, where they, they,

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prosecuted individuals.

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So that's kind of the retributive side of things.

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The restorative justice side is a little bit,

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more complicated, right?

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So most people when they've heard of restorative justice,

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they think about people and a victim meeting

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their offender, right?

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And getting some kind of payback reparation.

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And, and those kinds of ideas are there,

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but they're a little bit more, expansive, I guess in,

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in post-conflict or transitional settings.

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Because again, if we go back to that identity issue,

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although individuals may have been involved in particular

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incidents, the rationales

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or the kind of, motivations

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for those in incidents are plugged into a much broader

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identity whereby people are fighting, for example,

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to realize their own rights.

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You know, that violence might have not been the first

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option, but it might be the last option,

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and they've gone along with that.

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So we see kind

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of restorative justice being used in three different ways.

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First at a conceptual level.

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So we see this mostly with, truth

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and reconciliation commission.

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So South Africa was the first one where this concept,

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restorative justice, really came to the fore, right?

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And Archbishop,

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Archbishop Desmond Tutu spoke a lot about forgiveness,

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about nation building,

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about moving forward together as a community.

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Um, and, and that's kind of where it, where it's,

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really got to prominence, I guess.

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So this is more about normative values, pursuing that

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you then have a strategic level that,

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which I was mentioning, in terms of my PhD whereby,

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post regime governments will use restorative justice

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to initiate criminal justice reform.

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And we see this most often in youth justice,

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which isn't surprising, right?

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Because we, we think kids make mistakes, they need support,

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they need to be educated.

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Um, we don't wanna give them criminal records.

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We want them to be able to understand the harm

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that they're causing, but also to take actions

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to address that harm, right?

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So we are holding them to accountants in

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some way, shape or form.

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So we've seen criminal justice reform based on restorative

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justice principles in South Africa, in the Czech Republic

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and Northern Ireland use conferencing.

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So every, in, every child that gets prosecuted,

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for the most part, borrow a couple of, elements will go

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through a conferencing process, in those countries.

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So it kind of signals a, a shift from the way

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that we have dealt with things to a new way

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that we're gonna deal with things and hopefully

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that those young people are gonna grow up

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and become more law abiding individuals.

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There's a final one, a practical level,

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where restorative justice is, has been used

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to plug a justice gap.

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And very often we see this happening towards the end

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of any conflicts,

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or just in the early days when the new regime is just

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setting up its infrastructure again.

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And, communities, the police, for example,

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who have been instigators in a lot of conflicts and partisan

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and their approaches won't be able to enter a community.

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But just because the criminal justice system has no role

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to play in a community, that doesn't mean

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that crime's not being taken, right?

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And so we see communities coming up

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with community responses, to deal with offenses

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or behavior that is really blight in their community.

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So we see this happening in Northern Ireland, Sierra Leone,

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Columbia, a whole range of places where they're using this.

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So that, that's kind of the, the broad spectrum

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spectrum of transitional justice.

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While transitional justice is mainly looking at both the

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past of what's happened

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and dealing with harm that's being caused,

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it also focuses on the future about let's move from then

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to a new future that's peaceful, et cetera.

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The biggest problem with all transitional justice processes

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is that, the resources and time

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and political constraints make it a really selective

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process, right?

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So it's, there are, there are not kind

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of consistent ways in which,

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the past is dealt dealt with in a meaningful way.

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So that presents quite a, a challenge, if you will.

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Um, and certainly in my work, and,

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and a lot of my colleagues work would argue

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that transitional justice is quite inadequate

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because it doesn't really address the past, right?

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So one, one, I think it's, you know, that I refer

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to in the book and, and I use it quite a bit, is

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that roughly about 40 to 50% of all conflicts in the 19th,

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in the 20th century, 21st century, it seems to be going

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that way, who go

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through a peace process will end up back in

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violent conflict within five years.

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So if you think about the millions and millions of dollars

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or pounds that are spent on transitional justice mechanisms,

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and very often for a short defined period of time,

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Columbia's going through a, a peace process, I think, again,

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for the third or fourth time at the minute.

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And that's over a slightly longer period,

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but their REIT is still very narrower and focused.

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So those are really challenging.

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So the way that we conceptualize peace is quite,

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narrow.

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It's not necessarily meeting the needs of individuals

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that make up their population.

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Um, and it's, it's not necessarily about,

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long lasting peace, it's more about the absence of co

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of conflict or violence that we're really focusing on,

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not a positive piece, where, you know, it,

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it addresses kind of the structural issues

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that have been driving that conflict.

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And so, if you think about the fact that roughly

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we have about 66 million, persons

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of concern, and by that we mean refugees,

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we mean asylum seekers, we mean displaced people.

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They've got a number of needs and deficits, right?

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Um, that aren't being addressed at all anyway.

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And a lot of the time, transitional justice can just be,

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I always think about it as, as a visible effort to make sure

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that the international community thinks

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that something's happening.

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And so as a South African,

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the Truth Reconciliation Commission, you know,

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to give a practical example, we couldn't prosecute people,

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because there's no way

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that the apartheid regime was going

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to relinquish control if they were just gonna be prosecuted

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and ended up in prison.

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So we had to negotiate an amnesty,

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and that was the first time that amnesty was partial.

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Um, and the way that they then dealt with that was

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through the Truth Commission.

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And they said, if you come forward as a,

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as a perpetrator, and you explain what happened

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and why it happened, as long

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as it had a political motivation,

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you will get amnesty the slides.

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And, and that sounds great on paper,

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but what we know happened is

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that not many perpetrators came forward

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because, well, what are you gonna do?

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You know? So there's, there's really challenges.

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There are a lot of challenges in terms of,

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of restorative justice,

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and some, some of my colleagues,

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like Kira McAvoy have argued

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that legalism is a huge problem.

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It's too dominant that we are not thinking about

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justice on a broader scale that's gonna be meaningful,

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people that's actually gonna

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achieve the change that we want.

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And this book, in part, makes a case

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for restorative justice in much broader terms, about,

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about how we can give ownership back

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to individuals rather than it being priorities

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of the international community

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or supernational organizations

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that are driving particular institutions

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of transitional justice.

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I think that the book and,

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and subsequent work on, on the topic that I've done is

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that if we want to achieve positive change,

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actual real change, enduring peace,

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equitable relationships, we have

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to look at things differently.

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And as we all know, you know, even in our own relationships,

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when we have arguments or tensions

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or conflict, the people that best know what the issues are,

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where they coming from

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and how to deal with them come from the

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individuals themselves, right?

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Sometimes you might need some help from professionals

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to guide those conversations.

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It's about helping you to communicate

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what you want to say better.

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It's not about saying, actually this is your problem

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and this is what you need to do.

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Right? And transitional justice is very similar.

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So we have, we have these deep rooted conflicts.

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So if you think about Rwanda,

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the Sies and the tootsies, right?

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If you look back in history, the inverse was true.

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The tootsies dominated the hoodies.

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And so conflict has a long history.

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If we are just dealing with one particular incident,

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what all we are doing is we are turning the current losers

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into winners, which means that that animosity

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and tension still stays there between those communities.

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And that's, that's a risky, risky, dynamic.

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Ultimately, what we want to do is to make sure

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that we create a situation wherein we're honest about

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the structural violence in our societies

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that are creating these kinds of, hierarchies

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of communities of issues.

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You know, we see this everywhere, not,

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not only in in conflict settings,

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but we need to acknowledge actually what's driving these,

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these inequalities, these inadequacies, these,

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I don't know, resentment.

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The, the kind of narratives, the intergenerational trauma

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that's passed down that continues to fuel things,

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to achieve change.

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And the wonder of restorative justice isn't necessarily

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about a meeting between two individuals

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who have been affected by a particular incident.

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The value of it, I think is about,

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it's discursive nature, the fact

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that we can talk about things,

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and it's about creating an environment whereby we can talk

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about things in a non-threatening way.

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And so one of, one of the examples that I use from America

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actually, is, is

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by an author called Co co his colleagues,

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and they talk about a restorative justice process,

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community mediation in a community

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that was having real problems with racism.

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And they invited the whole community

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to come to this meeting.

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And what they did there is they gave people very specific

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short amount of time, two minutes to talk about

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what it was like for them to live in that community,

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what they felt threaten was threatening in their community,

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what they were worried about,

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and actually this type of society

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that they really wanted to live in.

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And what was really surprising is

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that there weren't really distinctions when we're talk,

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when we're talking about those things.

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People, regardless of

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Culture, color, or creed,

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are basically saying the similar things.

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So if we could be having those conversations

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whereby we can move out

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of senseless violence into something much more productive

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where everybody's winning, then

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that is a much better place to be.

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And that's kind of the arguments in, in, in my work that,

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that I put forward.

00:00 - My PhD was on the topic. but what I did in that, body of work is focus on how South Africa, the Czech Republic in Northern Ireland kind of came through their transitions. How they moved away from being in a, in a state of, you know, dictatorships

00:18 - or active conflict between communities. And it was really interesting at looking how they used the word restorative justice, what it meant, how, how they used it to deal with the past, but then also how it was used to deal to reform criminal justice. And what was very evident is that there wasn't a lot of work on this. And in restorative justice, scholarship practice always leads scholarship.

00:43 - So it, you know, a, a book that kind of gave a broader overview of what was happening in post-conflict countries, seemed to be, a gap that needed to be filled. Transitional justice broadly is just responding to any large scale systemic crimes that have occurred. So, you know, this might be human rights abuses or persecution or violence on a systematic scale. And we've seen that it's evolved over a number of phases, right?

01:13 - So we can see really early on following the second World War transitions, in southern Europe. So Spain and Portugal, for example, and also the collapse of the communist regime, had, had particular tendencies. And part of that was around, deterrent. So prosecuting those that were mostly responsible for coming up with the architecture, I guess. so you see that in Nuremberg is denunciation, so prosecuting leaders in show trials.

01:43 - So you saw that in Spain and portal or, incapacitation. So in communist regimes, they had a, a concept called illustration. And basically what happened is after the transition, individuals who were in power in institutions, so for example, the military or, you know, government, institutions were removed from the, from those roles, and were not allowed to retain that power. So there was no undermining of the shift to, to a democracy.

02:10 - after the, after that kind of period, we see conflict that was slightly more complicated, because it was about waring communities, right? And so what ends up happening is that, communities had a particular identity and there were no easy winners and losers. So approaching, transgressions, I guess becomes a little bit more complicated.

02:37 - So, and it also, what it does is if we're gonna prosecute people, why are people gonna give up power? They're not right. Why, why are they going to volunteer themselves to be locked up? And so we see opportunities or the threat that that will reignite conflict, but also after the Cold War, we kind of then see this move in transitional justice towards talking about reconciliation or nation building

03:01 - or, punishing or pardoning human rights abusers and that, and that, that debate. So, transitional justice encapsulates all of that. But most recently we see this distinction or a categorization of approaches that are considered to be retributive or restorative. And that's kind of the two main features at the minute. Attritive approaches in general, as you would expect, include national and international criminal justice processes, tribunals,

03:32 - for example, or national inquiries or commissions. and they'll explore what happened during the process, but also hold very particular people to account for it. So it's about dealing with very specific incidents, as opposed to thinking about nation building, et cetera. and the international community, some, some countries can't afford to, or they don't have the infrastructure to punish individuals, prosecute them, right? And so the international community has a

04:04 - role to play in that as well. So we see that with the international criminal court. We see that with tribunals being set up, for example, for Yugoslavia or in Rwanda, where they, they, prosecuted individuals. So that's kind of the retributive side of things. The restorative justice side is a little bit, more complicated, right? So most people when they've heard of restorative justice,

04:26 - they think about people and a victim meeting their offender, right? And getting some kind of payback reparation. And, and those kinds of ideas are there, but they're a little bit more, expansive, I guess in, in post-conflict or transitional settings. Because again, if we go back to that identity issue, although individuals may have been involved in particular incidents, the rationales or the kind of, motivations

04:53 - for those in incidents are plugged into a much broader identity whereby people are fighting, for example, to realize their own rights. You know, that violence might have not been the first option, but it might be the last option, and they've gone along with that. So we see kind of restorative justice being used in three different ways. First at a conceptual level. So we see this mostly with, truth

05:16 - and reconciliation commission. So South Africa was the first one where this concept, restorative justice, really came to the fore, right? And Archbishop, Archbishop Desmond Tutu spoke a lot about forgiveness, about nation building, about moving forward together as a community. and, and that's kind of where it, where it's, really got to prominence, I guess. So this is more about normative values, pursuing that

05:42 - you then have a strategic level that, which I was mentioning, in terms of my PhD whereby, post regime governments will use restorative justice to initiate criminal justice reform. And we see this most often in youth justice, which isn't surprising, right? Because we, we think kids make mistakes, they need support, they need to be educated. we don't wanna give them criminal records. We want them to be able to understand the harm

06:09 - that they're causing, but also to take actions to address that harm, right? So we are holding them to accountants in some way, shape or form. So we've seen criminal justice reform based on restorative justice principles in South Africa, in the Czech Republic and Northern Ireland use conferencing. So every, in, every child that gets prosecuted, for the most part, borrow a couple of, elements will go through a conferencing process, in those countries.

06:34 - So it kind of signals a, a shift from the way that we have dealt with things to a new way that we're gonna deal with things and hopefully that those young people are gonna grow up and become more law abiding individuals. There's a final one, a practical level, where restorative justice is, has been used to plug a justice gap. And very often we see this happening towards the end of any conflicts,

06:55 - or just in the early days when the new regime is just setting up its infrastructure again. And, communities, the police, for example, who have been instigators in a lot of conflicts and partisan and their approaches won't be able to enter a community. But just because the criminal justice system has no role to play in a community, that doesn't mean that crime's not being taken, right? And so we see communities coming up with community responses, to deal with offenses

07:25 - or behavior that is really blight in their community. So we see this happening in Northern Ireland, Sierra Leone, Columbia, a whole range of places where they're using this. So that, that's kind of the, the broad spectrum spectrum of transitional justice. While transitional justice is mainly looking at both the past of what's happened and dealing with harm that's being caused, it also focuses on the future about let's move from then to a new future that's peaceful, et cetera.

07:52 - The biggest problem with all transitional justice processes is that, the resources and time and political constraints make it a really selective process, right? So it's, there are, there are not kind of consistent ways in which, the past is dealt dealt with in a meaningful way. So that presents quite a, a challenge, if you will. and certainly in my work, and, and a lot of my colleagues work would argue

08:25 - that transitional justice is quite inadequate because it doesn't really address the past, right? So one, one, I think it's, you know, that I refer to in the book and, and I use it quite a bit, is that roughly about 40 to 50% of all conflicts in the 19th, in the 20th century, 21st century, it seems to be going that way, who go through a peace process will end up back in violent conflict within five years. So if you think about the millions and millions of dollars

08:53 - or pounds that are spent on transitional justice mechanisms, and very often for a short defined period of time, Columbia's going through a, a peace process, I think, again, for the third or fourth time at the minute. And that's over a slightly longer period, but their REIT is still very narrower and focused. So those are really challenging. So the way that we conceptualize peace is quite, narrow. It's not necessarily meeting the needs of individuals

09:24 - that make up their population. and it's, it's not necessarily about, long lasting peace, it's more about the absence of co of conflict or violence that we're really focusing on, not a positive piece, where, you know, it, it addresses kind of the structural issues that have been driving that conflict. And so, if you think about the fact that roughly we have about 66 million, persons of concern, and by that we mean refugees,

09:54 - we mean asylum seekers, we mean displaced people. They've got a number of needs and deficits, right? that aren't being addressed at all anyway. And a lot of the time, transitional justice can just be, I always think about it as, as a visible effort to make sure that the international community thinks that something's happening. And so as a South African, the Truth Reconciliation Commission, you know, to give a practical example, we couldn't prosecute people,

10:25 - because there's no way that the apartheid regime was going to relinquish control if they were just gonna be prosecuted and ended up in prison. So we had to negotiate an amnesty, and that was the first time that amnesty was partial. and the way that they then dealt with that was through the Truth Commission. And they said, if you come forward as a, as a perpetrator, and you explain what happened

10:49 - and why it happened, as long as it had a political motivation, you will get amnesty the slides. And, and that sounds great on paper, but what we know happened is that not many perpetrators came forward because, well, what are you gonna do? You know? So there's, there's really challenges. There are a lot of challenges in terms of, of restorative justice,

11:12 - and some, some of my colleagues, like Kira McAvoy have argued that legalism is a huge problem. It's too dominant that we are not thinking about justice on a broader scale that's gonna be meaningful, people that's actually gonna achieve the change that we want. And this book, in part, makes a case for restorative justice in much broader terms, about, about how we can give ownership back

11:35 - to individuals rather than it being priorities of the international community or supernational organizations that are driving particular institutions of transitional justice. I think that the book and, and subsequent work on, on the topic that I've done is that if we want to achieve positive change, actual real change, enduring peace, equitable relationships, we have

12:00 - to look at things differently. And as we all know, you know, even in our own relationships, when we have arguments or tensions or conflict, the people that best know what the issues are, where they coming from and how to deal with them come from the individuals themselves, right? Sometimes you might need some help from professionals to guide those conversations. It's about helping you to communicate

12:23 - what you want to say better. It's not about saying, actually this is your problem and this is what you need to do. Right? And transitional justice is very similar. So we have, we have these deep rooted conflicts. So if you think about Rwanda, the Sies and the tootsies, right? If you look back in history, the inverse was true. The tootsies dominated the hoodies. And so conflict has a long history.

12:46 - If we are just dealing with one particular incident, what all we are doing is we are turning the current losers into winners, which means that that animosity and tension still stays there between those communities. And that's, that's a risky, risky, dynamic. Ultimately, what we want to do is to make sure that we create a situation wherein we're honest about the structural violence in our societies that are creating these kinds of, hierarchies of communities of issues.

13:23 - You know, we see this everywhere, not, not only in in conflict settings, but we need to acknowledge actually what's driving these, these inequalities, these inadequacies, these, I don't know, resentment. The, the kind of narratives, the intergenerational trauma that's passed down that continues to fuel things, to achieve change. And the wonder of restorative justice isn't necessarily about a meeting between two individuals

13:49 - who have been affected by a particular incident. The value of it, I think is about, it's discursive nature, the fact that we can talk about things, and it's about creating an environment whereby we can talk about things in a non-threatening way. And so one of, one of the examples that I use from America actually, is, is by an author called Co co his colleagues, and they talk about a restorative justice process,

14:17 - community mediation in a community that was having real problems with racism. And they invited the whole community to come to this meeting. And what they did there is they gave people very specific short amount of time, two minutes to talk about what it was like for them to live in that community, what they felt threaten was threatening in their community, what they were worried about, and actually this type of society

14:42 - that they really wanted to live in. And what was really surprising is that there weren't really distinctions when we're talk, when we're talking about those things. People, regardless of Culture, color, or creed, are basically saying the similar things. So if we could be having those conversations whereby we can move out of senseless violence into something much more productive

15:01 - where everybody's winning, then that is a much better place to be. And that's kind of the arguments in, in, in my work that, that I put forward.

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