First published by ST. LOUIS LAWYER, October 1, 2003, at 11A.
Many traditional cultures including native Hawaiians, the Maori people of New Zealand, First Nation people in Canada, South African Tswanas tribesmen and the Navajo in the United States use conflict resolution processes designed to promote healing of relationships and peacemaking within communities through dialog, negotiation and problem-solving between victims and criminal offenders. The process these cultures use emphasizes victim healing, offender accountability, reparation of losses and, in some cases, forgiveness and the reintegration of the offender into the community. This process occurs instead of, or outside of, any criminal prosecutions of offenders. This approach to crime has gained the name “restorative justice.”
Restorative Justice at the Individual Level
This restorative justice philosophy led the Mennonite Central Committee in 1978 to offer in the United States the first mediations between victims and juvenile offenders who had committed property crimes. In carefully planned, victim-centered mediations designed to provide victim safety, victim choice, victim sensitive language and careful screening of cases, the Mennonites found that victims of crime could find the opportunity to better understand how they became victims of crime, could work through the strong emotions they had about the loss resulting from the crime and, in some cases, could forgive the offender. Some victims report that the process brings a form of “closure” and allows them to focus on the future rather than on the past. Some victims report that it restores their sense of safety and feelings of connection and community. The mediations offer an additional chance to understand the crime committed against them and to convey to the offender how the crime has affected their lives.
Proponents of victim-offender mediation suggest that crime victims often feel frustrated and alienated by the current system of criminal justice. Its structure prevents their active participation in the process and due process protections afforded criminal defendants often keep offenders from answering the questions victims have about the crime.
Today, the United States has over 302 victim-offender mediation programs. A few of these programs have even assisted in mediations involving victims of serious violence, including murder, through the use of highly skillful mediators who practice a form of “humanistic mediation.”
Restorative Justice at the National Level
Restorative justice has also found expression at the national level through the various truth and reconciliation commissions (TRCs) sponsored by governments in transition to democracy. Most people have heard something about the TRC in South Africa, which issued its final report in March of this year after a seven year investigation into apartheid related crimes. Rev. Desmond Tutu, the Chairman of the South African TRC, insists that black South African values made restorative justice possible in South Africa. The alternative of a Nuremberg-type prosecutorial or retributive model would have only perpetuated anger, resentment, and revenge, according to him. Without restorative justice, Tutu suggests, the whites who enforced the brutal system of apartheid for over fifty years and the black activists who sought basic human rights would have continued in a military stalemate, with both sides of the dispute leaving a trail of death, sorrow and stagnation.
Rev. Tutu also recognizes that the restorative justice model provided a pragmatic approach to establishing democratic rule. In fact, he admits that without it, whites would not have agreed to re-instating the voting rights of black South Africans. Had whites faced criminal prosecution for the many decades of human rights violations, whites who ran the machinery of apartheid would have simply perpetuated their entrenched control and power. Politically then, restorative — rather than retributive — justice was the only option. At the same time, the model chosen by South Africa granted amnesty to those who committed human rights violations only under certain circumstances. It did not provide a blanket amnesty as some South African whites demanded and as some other countries, primarily Latin American, chose to use.
The restorative justice model also offered economic advantages. South Africa, after years of international boycotts and other sanctions, did not have the financial or judicial resources to engage in the prosecution of human rights violators. From the perspective of summon bonum – a black South African idiom for “the greatest good” – it made more sense to spend South Africa’s financial resources on adequate housing for black South Africans, for sewer, water and power systems in long neglected black communities and, most importantly, for education of blacks who had received few educational resources during the period of apartheid. The cost of the country’s AIDS crisis – the virus infects one in nine South Africans — will place additional burdens on the country’s budget.
Peru’s Effort at Restorative Justice
At the end of August 2003, the Peruvian TRC issued its final report after a two year investigation into the deaths or disappearances of 69,000 people during Peru’s brutal war against the Shining Path insurgency. This 20-year war also displaced 600,000 civilians and led to the creation of at least 4,600 mass graves. The TRC based its findings on the testimony of 17,000 witnesses. The TRC concluded that the military and police caused about 30 percent of the deaths, Shining Path combatants caused another 45 percent of the deaths and other armed peasant self-defense groups, paramilitary groups, death squads, and MRTA (the other Marxist insurgent group) caused the remaining deaths.
The report also concludes that racism and a deep misunderstanding of the highland Indians exacerbated the conflict with Peru’s’ three prior governments, the last of which was lead by former President Alberto Fujimori.
The current government asked the TRC to analyze the political context of the counter-insurgency war, investigate human rights violations, fix responsibility for the alleged crimes, and recommend government reparations. In its recent report, the Peruvian TRC recommends that the government fund those reparations by looking to international sources like the World Bank and to the recovery of the funds allegedly stolen by Fujimori when he fled to Japan in 2000. The Peruvian TRC, unlike the South African TRC, has no authority to grant amnesties to those who confess to crimes. In fact, the Peruvian TRC has recommended the prosecution of six military officers and may make at least 50 more referrals to the Peruvian criminal justice system. In this respect, the Peruvian form of TRC departs from the typical restorative justice model.
In the opening session of the Peruvian TRC, its President read a message from Rev. Tutu. Tutu said that the investigation of human rights abuses would “take you into the darkest corners of the human spirit. You will discover things about your society that you will wish you had not discovered. But it is only through telling the truth that we can begin to forgive.” One member of the Peruvian TRC, Sofia Macher, explained: “Truth is the first step toward attaining justice. Without justice, you will never have national reconciliation.” Human Right Watch activist Jose ViVanco agrees that TRCs can be the first step in contradicting the “official story” of what happened during times of human rights abuses. However, he and many human rights scholars still believe that criminal prosecution and punishment must follow the truth finding phase of any TRC’s work.
If the experience of the South African people is any measure of the experience Peruvians may expect, the TRC process has its limits. South Africans quickly learned that few whites agreed to seek amnesty by full disclosure of their crimes. Whites did not trust the fairness of the process. Also, reparations will not cover the losses of most victims. The government expects to pay about $3,900 to the family of each apartheid victim. In short, of the three goals of the South African TRC, it appears that it accomplished only the truth finding and history making function. The world will watch to see if the Peruvian TRC process better fulfills the promise of restorative justice.