Repositioning Restorative Justice

Lode Walgrave

• Publisher: Willan
• Year: 2012
• Print ISBN: 9781843920168
• eBook ISBN: 9781135998745
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Restorative justice has become an increasingly important element in reform and change to criminal justice systems throughout the western world, and there are many reasons for satisfaction with the progress that has been made --from the point of view of victims, offenders, the level and incidence of reoffending, and in terms of public opinion. At the same time there has been cause for concern, not least to do with the confusion on aims that has accompanied the rapid spread of restorative justice practices, an over-estimate of its possibilities, a blurring of concepts and a lack of attention to legal rights and processes. This book, based on papers presented at the 5th international conference held at Leuven, Belgium in 2002, aims to provide an overview of recent experience of restorative justice in the light of these concerns. The central theme is the positioning, or repositioning, of restorative justice in contexts where it can offer hope to communities both fearful of crime and looking for more socially constructive responses to crime. At the same time restorative justice practitioners seek definition in relation to the kinds of crime it is appropriate to apply restorative justice to, how it relates to different forms of punishment, to rehabilitation, and how it fits in with criminal justice systems and the law of different countries --how to reconcile the informal, participatory philosophy of restorative justice with formal legal processes and the need for legal safeguards.

Part IV
Positioning Restorative Justice in Different Countries

Chapter 12
The possibilities for restorative justice in Serbia

Vesna Nikolic-Ristanovic

Concerns about large-scale victimisation during the conflicts in the former Yugoslavia and about their negative impact for present and future relationships led to public discussion and some very precise steps in the direction of applying of restorative justice as one response to the atrocities and their denial. The main purpose of these efforts in some parts of the former Yugoslavia (including Serbia) was to try to break the cycle of violence and to establish long-term peace and normal relationships between different ethnic groups and political opponents. However, it seems there are many unresolved questions and misunderstandings about it and, in first place, about the role, purpose, tasks and organisation of the Truth and Reconciliation Commission (TRC).

One of main problems obviously lies in the specificity of the socio-historical context as well as in the very nature of conflicts and crimes committed in the former Yugoslavia. This makes it difficult to apply existing models of the TRC. This is further complicated in Serbia where, apart from the denial of crimes committed against members of other ethnic groups, the problem is related to a lack of international recognition of the crimes committed against both Serbs from Serbia (by both Kosovo Albanians and NATO) and Serbs from other parts of the former Yugoslavia (who are now living in Serbia as refugees and displaced persons). Also, there has been a large-scale cover-up of the crimes and human rights violations (within the Serbian community itself) committed against Milosevic’s opponents during his dictatorship. Another problem is related to the history of the region, where a series of four national liberation wars (the last one was started in 1991 with the secession of Croatia and Slovenia from what was once Yugoslavia) were waged in the twentieth century. All four wars concerned political control of territory and, in all, civilians were victimised. Moreover, as pointed out by Pavkovic, ‘the past cannot offer any model of reconciliation in the Balkans: no reconciliation among national groups has ever been attempted in this region. Thus we shall have to explore models of reconciliation successfully implemented elsewhere’ (2000: 105).

The main aim of this chapter is to explore the possibilities for restorative justice in Serbia after Milosevic’s rule and to suggest some recommendations for the TRC in Serbia. Thus, up-to-date experiences of restorative justice in societies that have experienced collective violence are reviewed, with a special emphasis on those that may be used as models in Serbia. Then, the characteristics and, especially, the specificity of collective victimisation and the socio-historical context of the former Yugoslavia and Serbia are analysed. An appropriate model of truth and reconciliation is then suggested. The chapter is based on research on war violence and human rights violations in the former Yugoslavia and Serbia I have been doing over the last 10 years, as well as on research on the application of restorative justice in contemporary societies affected by mass violence.

Denial and acknowledgement

Many authors have stressed the limited nature of legal truth and its inadequacy for restoring relationships between victims and offenders (i.e. between enemies) (Arendt 1994; Minow 1998; Cohen 1999; Osiel 1999). This has been known since Nuremberg. Cohen, for example, is perfectly right when he stresses that ‘only cultural dummies would think of reading a legal verdict as a historical record of the event, let alone its context and why it happened’. ‘Even a complete mosaic of legal truths’, he continues, ‘cannot create a full or shared knowledge of “what really happened”, let alone why it happened’ (1999: 1). Hence it is not surprising that, in the 1980s and 1990s transitions, many alternative ways of getting at the truth were used, some of which were new (e.g. truth and reconciliation commissions), while others were traditional (devising art and memorials to mark what happened to honour victims, and to communicate the aspiration of ‘it will never happen again’) or adaptations of existing models (opening up access to secret police files; removing political and military officials and civil servants from their posts and from public benefit rolls; publicising the names of victims and the names of offenders; securing reparations and apologies for victims; making available appropriate therapeutic services for anyone affected by the horrors; public educational programmes intended to convey what happened and to strengthen participatory democracy and human rights) (Minow 1998; Cohen 1999).

Truth and reconciliation commissions are needed in two different kinds of circumstances: the Latin American model where truth was, in many ways, hidden (literal denial – Cohen 2001: 104) and the South African model where, as in the former Yugoslavia, there were multiple truths/interpretations/justifications of truth as a consequence of the denial of the crimes committed by one’s own side/people (literal, interpretative and implicatory denial). A third set of circumstances leads to other forms of restorative justice, such as lustration, the opening of secret files, memorialisation, etc. For example, in post-communist countries the concept of ‘cultural denial assumes that we can assess what millions of people actually do know despite their denials’ (external knowledge – Cohen 2001: 160) as a consequence of difference/conflict between personal knowledge/experience and officially established truth that existed during communism.

On the other hand, bearing in mind an international role for the TRC, it is possible to differentiate between three models.¹ In El Salvador, for example, a wholly international TRC was established due to the severe polarisation of the society, that prevented this country from undertaking this on its own. More recently in Guatemala, however, it was determined this should be a local process with an international chairman. Finally, in South Africa, the process is wholly domestic but, none the less, one with the extensive involvement of the international community (in consultations, donations and in the provision of staff and technical assistance).

Different truth and reconciliation commissions have been launched in different ways: by the decisions of parliaments, presidents or executive bodies and by the efforts of non-governmental organisations.² However, only the South African TRC grew from extensive public debate and public involvement in its design (Minow 1998). As pointed out by Cohen, ‘the Commission saw its role as establishing as “complete a picture as possible” of injustices committed in the past, coupled with a public, official acknowledgement of the untold suffering that resulted from these injustices’ (2001: 227). The acknowledgement of denied sufferings was enabled by the public nature of the hearings and their intense media coverage, which offered a stage for people (victims and perpetrators) to tell stories that had never been told. The TRC has put an end to those denials because of the information it has received from the testimonies of 25,000 victims and over 7,000 perpetrators. As a result, the main achievement of the TRC was, on the one hand, the coming to a single truth, that replaced previous multiple truths, and on the other hand, the healing and restorative character of this truth (telling). Or, to borrow Cohen’s words again: ‘the narratives that face the past in order to go forward … the truth goes beyond a factual record (recovery) towards interpretations (clarification) directed as self-healing, reconciliation and reparation. This requires the acknowledgement that everyone’s suffering was real and worthy of attention’ (2001: 228).

The most distinctive feature of TRCs, in comparison to prosecutions, is, obviously, their focus on victims and, in the case of the South African TRC, an emphasis on reconciliation and healing through the telling of the truth. However, the South African commission was both a victims’ forum and an amnesty-type commission – which means it also granted amnesty to perpetrators of politically motivated crimes in exchange for the truth. The linking of truth with amnesty was seen by some as one of the features that made the South African TRC have ‘far and away the greatest internal and international impact’ in comparison to other commissions (Sachs 2001: 57). Amnesty was assumed to be the price paid for a relatively peaceful transition to full democracy: ’trading truth for amnesty, and amnesty for truth, the commission was intended to promote the gathering of facts and the basis for the society to move toward a strong democratic future … It combined a notion of restorative justice with the search for truth’ (Minow 1998: 55, 56). Thus the TRC was not a complete replacement for prosecutions and trial but, rather, a kind of institution with complementary, qualitatively different tasks. Those whose applications for amnesty were not accepted since they did not meet the TRC’s criteria are left to face criminal prosecutions and civil suits. Also, national prosecutions did not stop and ‘the information unearthed by the TRC may lead to some legal charges and trials, but its central direction, enhanced by its power to grant amnesty to perpetrators on the condition that they co-operate fully, moves away from prosecutions toward an ideal of restorative justice’ (Minow 1998: 90). Thus, the TRC was committed to repairing the injustices and to restoring relationships and future behaviour and, in that respect, it also included economic and symbolic acts of reparations for the survivors and devastated communities (Minow 1998).

Serbia is not Africa, Africa is not Serbia

The South African model of a TRC is the best known and most often mentioned, both in Serbia and in other parts of the former Yugoslavia (e.g. Croatia and Bosnia) where the question of truth and reconciliation was recently raised and discussed. This it is not surprising, bearing in mind that the South African model is the best developed and most successful model in comparison to other TRCs. It is also possible to find similarities between the South African and the former Yugoslavian situation. For example, the scope of the crimes committed in the former Yugoslavia is such that, as in South Africa, it is difficult to believe that all perpetrators will ever be brought to justice. In addition, for reintegration and the establishment of long-term peace in the whole region, it is crucial that the truth about crimes is told by the victims – who must be encouraged to speak not only for the sake of justice but also for the sake of their own and society’s healing through the breaking of the cycle of violence. However, there are significant differences between the political and socio-historical situations in South Africa and the former Yugoslavia (i.e. Serbia) as well, and these differences seem to have created serious problems in the application of some aspects of the African experience to Serbia.

There are three main specificities of the Serbian situation: an interconnection between the past and the present and a high level of complexity in both victimisation and in the contemporary political context (national, regional and international). All these specificities are also strongly embedded in the social context of the region (i.e. in the heritage of a similar cultural context and in historical relationships with other newly established countries of one former (common) country – Yugoslavia). All these specificities had a strong impact on both victimisation and its acknowledgement/denial during and after the wars. Thus, all these specificities have to be taken into account in the search for an appropriate model of truth and reconciliation in Serbia.

Past and present

As already mentioned, the region has a history of wars for national liberation, with people from different ethnic groups waging wars against each other. Moreover, the region also has a history of denials and multiple truths (each ethnic group passing its own truth from one generation to the next) as well as a history of the exploitation of (their own people’s) victimisation. The implications of a lack of any attempt to obtain a single (common) truth and reconciliation were obvious in the recent wars, where past and present ‘truths’ were so interlaced that, as Ignatieff put it, ‘reporters in the Balkan wars often observed that when told atrocity stories they were occasionally uncertain whether these stories had occurred yesterday or in 1941, or 1841, or 1441’ (cited in Minow 1998: 14). The main danger, however, lies in the fact that these multiple (one sided, partial, which see only their own victims) truths may be best described as ‘ghosts in a bottle’ – ghosts who can always be taken out and used for the manipulation of national sentiments and the provocation of wars.³ As Pavkovic (2000: 104) puts it:

in seeking support from powers outside the region, each national liberation movement presented its ‘own’ national group(s) as an innocent victim or victims of its opponents’ oppression or aggression. The need to aid innocent victims and to stop the aggression – forcefully and vividly presented in the sympathetic media - in all four series of wars justified the military support and, at times, intervention by powers outside the region i...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• Notes on contributors
• List of figures and tables
• I Discussing the principles of restorative justice
• II Evaluating aspects of restorative practices
• III Extending the scope of restorative approaches
• IV Positioning restorative justice in different countries
• Index