In the first post of this blog, Fabián Raimondo questions whether ‘restorative sanctions’ granted by States in transitional justice (TJ) situations are compatible with the international obligation to punish perpetrators of gross human rights violations. The concept of restorative sanction is the product of combining two different criminal justice paradigms: conventional/traditional criminal justice (CCJ) and restorative justice (RJ). While the former can be summarized as trial and punishment for the offender, the latter is about the offender taking responsibility before victims and the community via the reparation of the harm provoked by the crime. Colombia’s 2016 Peace Agreement is a recent example of this kind of ‘hybrid’ system mixing CCJ and RJ. Following a CCJ process in which victims’ voices are enhanced, high-level perpetrators that acknowledge responsibility and contribute to truth can acquit their responsibility through restorative sanctions’ meaning non-carceral and reduced sentences with a reparative component. 

These mechanisms have an increasing role in TJ situations in view of their greater potential to contribute to TJ aims, including truth, reparation, peace and reconciliation, while at the same time advancing criminal justice. Some international bodies showed receptiveness to hybrid mechanisms (AU Transitional Justice Policy; ACHPR Study on TJ and Human and People Rights; ICC OTP, see Here). However, the still majoritarian position in IHRL seems to reject them. In his recent report on accountability, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence (UNSR) included the Colombian system under the heading of de jure impunity (Report, 42-44). He posited that RJ mechanisms do not fulfil the duty to punish when they do not impose terms of imprisonment proportionate to the gravity of the criminal offence (Report, 24-25). This proportionality principle is a keystone of CCJ. 

Here, I claim that when it comes to assessing hybrid mechanisms, the scope of the duty to punish should be determined not only with CCJ principles but also with RJ theory. However, I will show that this is not a straightforward exercise. Given their structural differences, RJ and CCJ cannot be easily combined.  

RJ and CCJ: two paradigms of justice 

CCJ and RJ are two ways of dealing with crime. CCJ is grounded on the idea that crime is the violation of a fundamental norm that legitimate the exercise of the State’s right to punish. A State-driven process is then triggered to verify the commission of the crime and determine the consequent punishment. Different theories were elaborated to justify punishment (e.g. retribution; prevention), but in all cases, justice is about inflicting pain on the offender. Criminal responsibility in CCJ is only passive, meaning it is retrospective and focused on determining who committed the offence (Braithwaite 2006; Braithwaite and Roche 2001).

RJ proposes a very different idea of criminal justice. This is not casual. RJ fed on a diversity of critical movements that sharply identified the problems of the conventional system in the 1970s. Seminal writings proposed RJ to replace the conventional response to crime. Although the concept remains open to different and sometimes diverging interpretations, the common ground is that crime is defined as an interpersonal conflict harming individuals and relationships. Offenders must make themselves accountable before the individuals affected. Justice, on this understanding, is essentially a horizontal and voluntary process in which victims, perpetrators and the affected community decide how to deal with the conflict. Reparation of the harm is the main aim of the process. 

RJ adds a new dimension to the idea of criminal responsibility. Passive responsibility is still relevant. It is a precondition of RJ, upon which a perpetrator’s willingness to acknowledge the wrong is predicated. However, passive responsibility is not acquitted through punishment but by taking active responsibility. Active responsibility is forward-looking and refers to the reaction expected from the offender to put right the harm. Offenders are expected to undertake necessary actions to repair and restore according to the decision taken in the restorative process. In this way, RJ seeks to achieve reintegration (Braithwaite 2006; Braithwaite and Roche 2001). 

Practically, restorative justice takes different forms, such as peace circles, conferencing and mediation (See Here; for examples in TJ contexts, see Here and Here). 

RJ and CCJ: two sets of standards 

The fundamental differences between CCJ and RJ mean that different standards govern their functioning. 

CCJ standards such as fair trial and due process, as well as the prohibition of cruel, inhuman, and degrading punishment, are universally recognized in IHRL (UDHR, Arts. 3, 5 and 9; ICCPR, arts. 9, 14, 15 and 7; ACHR, arts. 8, 25 and 5; AChHPR, art. 6, 7 and 5; ECHR, arts. 5, 6, 7 and 3). The proportionality principle is the rule to fix the maximum amount of punishment allowed. Following the UNSR interpretation, the rule also establishes a minimum that could not be lowered (Report, 24). Proportionality calibrates punishment to the seriousness of the crime, which is defined differently depending on the theory of punishment endorsed. Following the IHRL case law, which seems in line with retributive views, the seriousness of the crime refers to the ‘gravity’ or ‘nature’ and the degree of participation and culpability of the accused (Report, 24). The gravity is based on the harm provoked, defined in the abstract. Under this logic, offences of the same type must receive the same punishment. The perpetrators’ reaction after the crime is not a central factor in fixing the penalty because it does not change the deserved punishment.

Specific rules on RJ cannot be found in IHRL treaties, most of which were adopted before the global success of RJ during the 1990s and 2000s. The development of soft law documents promoting common principles reflected this expansion (UN Basic Principles on the use of restorative justice programmes in criminal matters (UNBPRJ); the Council of Europe Recommendation CM/Rec(2018)8).

The concern in RJ is not the State’s punitive power but the potential power imbalance among the parties of the conflict (mainly victim and perpetrator). RJ safeguards seek to counteract such imbalance to ensure the voluntariness and inclusivity of the process and agreement (See UNBPRJ); CM/Rec(2018)8). While punishment is a coercive State measure, restorative outcomes must be voluntarily agreed upon and in line with restorative values. Punitive, humiliating or stigmatizing decisions do not contribute to reparation, cannot be considered restorative and therefore should be banned. 

Restorative agreements can only contain ‘reasonable and proportionate obligations’ (UNBPRJ, 7) or ‘fair, achievable, and proportionate actions’ (CM/Rec(2018)8, 50). However, the reference to proportionality should not be confused with the CCJ proportionality. RJ proportionality must align with the ideas of active responsibility, reparation of the harm and stakeholder ownership of the process. RJ proportionality would refer to ‘the maximum restorative effort’ that can be expected from the offender (Walgrave 2003). This upper limit does not pretend to reflect a maximum deserved punishment. It seeks to avoid outcomes that are not in line with restorative values.

The maximum effort should not be determined in the abstract and ex-ante for a category of crimes but in concreto. In contrast to CCJ proportionality, perpetrators’ reaction after the crime and the concrete experience of victims appears pivotal elements in defining offenders’ obligations. RJ proportionality neither imposes a minimum quantum of reparative action. The parties are free to agree that dialogue sufficiently satisfies their needs and interests, and ‘tangible outcomes’ are not necessarily needed (CM/Rec(2018)8, 52). 

The idea of equal justice, meaning equal reaction for a similar crime, is not a RJ value. RJ does not seek a general crime solution but involves unequal responses to different conflicts and unequal perpetrators’ reactions (Braithwaite 2002). Given that each conflict is different, it is beneficial for the response to be tailored to the case.

Final reflections: is a hybrid standard on duty to punish possible?

As shown, CCJ and RJ do not assess the fairness of their respective outcomes -imprisonment and restorative agreement- with the same tools. If one takes an exclusive CCJ perspective, like the UNSR Report, RJ mechanisms may look like impunity for not imposing a minimum required amount of carceral punishment. RJ may also be accused of not respecting the principle of equality among offenders. This is not to speak about the potential violation of other IHRL, which are not the focus of this post (e.g. requirement of an independent and impartial tribunal). However, from a RJ perspective, a harsh penalty may be seen as an obstacle to justice. It would be ineffective and inappropriate to fight against impunity (understood as the absence of justice) because it does not require perpetrators to acknowledge responsibility before victims and to take reparative actions corresponding to victims’ needs. 

Thus, IHRL should admit RJ mechanisms as legitimate ways to fight against impunity because they are based on a fully-fledged theory of justice. As a matter of principle, they should not be exclusively based on Western hegemonic understandings of justice but be flexible to include alternatives. From a practical perspective, IHRL would become obsolete if it does reflect practice. The potential of RJ to complement or be an alternative to CCJ is today globally recognized, at least for common criminality. Indeed, nothing in positive law excludes these options. IHRL courts and bodies considered that the duty to investigate, prosecute and punish was implicitly included in certain rights, such as effective remedy. However, treaties do not generally require a certain type and amount of punishment. From this perspective, it would be better to think about a duty to ensure individual criminal responsibility instead of the very specific duty to investigate, prosecute and punish.

However, hybrid mechanisms further complicate the question as they try to combine the CCJ and RJ. Given their structural differences, the combination of CCJ and RJ is not an easy task. Although RJ and CJ are no longer portrayed in binary and exclusive terms, how their relationship should go is among the main contested issues in the RJ field. Some RJ scholars reject their combination for distorting the paradigm. The idea of restorative sanction would be an aberration, as it touches on a defining feature of RJ. However, hybrid mechanisms could be helpful in situations such as TJ where fully RJ options may not be possible because of the nature of violence and contextual factors (e.g. amount of victims and perpetrators; intervention of a diversity of other actors in different roles; duration of violence; limited time and resources to set the mechanisms). Certain limitations of RJ theory are also clearer in these contexts. For instance, gross human rights violations are not just interpersonal conflicts but are embedded in structures of violence.

Then, to put these two ideas together, compromises are necessary. For instance, in the Colombian case, the Constitutional Court argued the restorative sanctions keep the CCJ ‘retributive’ dimension because they imply a restriction of rights and liberties under strict conditions of supervision during the sanction period (See Here, section 4.1.9). However, this is far from the CCJ minimum penalty that would have corresponded according to CCJ proportionality. RJ gained in the reparative component of the sanction. Still, even if there is a dialogic principle enhancing the voices of the stakeholders, the process is far from being owned by them. A professional tribunal takes the decisions in line with CCJ guarantees. 

While CCJ proportionality is inappropriate to assess these processes, applying RJ standards could also be problematic, given that hybrid mechanisms are not fully restorative. Many questions remain open for further discussion. What criteria should we use to assess these mechanisms? What weight should be given to CCJ and RJ parameters? Does it depend on the degree of restorativeness of the mechanism? Is it possible to come up with hybrid standards?

Agustina Becerra Vázquez. Teaching Assistant, Geneva Academy; PhD Candidate, IHEID

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Bibliography

Braithwaite J, ‘Accountability and Responsibility Through Restorative Justice’ in Michael Dowdle (ed), Rethinking Public Accountability (Cambridge University Press 2006)

Braithwaite J and Roche D, ‘Responsibility and Restorative Justice’, Restorative Community Justice: Repairing Harm and Transforming Communities (Anderson Publishing Co 2001)

Walgrave L, ‘Imposing Restoration Instead of Inflicting Pain: Reflections on the Judicial Reaction to Crime’ in Andrew Von Hirsch and others (eds), Restorative justice and criminal justice: competing or reconcilable paradigms? (Hart 2003)