RESTORATIVE JUSTICE AND HUMAN RIGHTS

DOIhttps://doi.org/10.1016/S1521-6136(07)09007-0
Pages171-191
Publication Date10 Oct 2007
AuthorAnn Skelton
RESTORATIVE JUSTICE AND
HUMAN RIGHTS
Ann Skelton
1. INTRODUCTION
1.1. The Search for a Definition of Restorative Justice
Defining restorative justice has proved to be a challenge for restorative
justice writers. This is partly because the concept is a contested one, and
partly because restorative justice writers prefer to keep the parameters broad
to allow for further development of the concept. Johnstone and Van Ness
(2006) have identified three basic conceptions that proposed definitions of
restorative justice usually incorporate. The first of these is ‘‘encounter’’,
which focuses on the importance of a meeting at which stakeholders discuss
the crime, what contributed to it, and its aftermath. In restorative justice
processes, the victim, offenders and other interested parties discuss the crime
in a fairly informal setting, and that process helps them come to terms with
what happened. The second conception is described as ‘‘reparative’’. From
this perspective, restorative justice must provide some sort of redress either
directly to victims or more broadly to communities. ‘‘Transformation’’ is the
third conception. This is concerned with mending damaged relationships. It
can deal with relationships between individuals, but can also deal with social
injustices such as racism or sexism.
The field of restorative justice has been powerfully influenced by concepts
and practices of indigenous justice (Skelton, 2005). In fact, Johnstone has
Crime and Human Rights
Sociology of Crime, Law and Deviance, Volume 9, 171–191
Copyright r2007 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1521-6136/doi:10.1016/S1521-6136(07)09007-0
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argued that in order to obtain a comprehensive understanding of restorative
justice, it is necessary to ‘‘engage with accounts of its use in historical societies
and in contemporary indigenous communities’’ (Johnstone, 2002, p. 10).
This chapter will deal specifically with human rights in restorative justice
processes, as compared with the application of human rights in the
mainstream criminal justice system. The application of restorative justice at
the macro level such as truth commissions is dealt with elsewhere in the
book. In this chapter the risks that restorative justice may pose to human
rights is explored, as well as some ideas about how those risks might be
managed. It is further proposed that the discourse about rights needs to be
broadened beyond the Western legalistic focus on individual rights.
1.2. Is the Protection of Human Rights Necessary in Restorative
Justice Systems?
Although restorative justice processes appear to be less punitive than the
mainstream criminal justice process, it must be borne in mind that
restorative justice processes do have consequences. Barnett has pointed out
that ‘‘as the punitive characteristic of criminal justice measures is
diminished, so too is the perceived need for strong procedural protection’’
(Barnett, 1980, p. 119). Johnstone (2002) is of the view that advocates for
restorative justice tend to neglect procedural protection for suspects, and
even view formalistic procedural rules as a stumbling block to achieving
restorative outcomes. This may be because many proponents of restorative
justice see restorative justice processes as being non-punitive, focused on
restitution and reparation, similar to a civil law compensation claim.
Johnstone warns that this approach is dangerous, because in most systems
the wider context against which restorative justice operates is essentially one
of crime and punishment. The process is organised around a ‘‘crime’’ or
‘‘offence’’. The terms ‘‘offender’’ and ‘‘victim’’ are used, and the police or
prosecutors are often involved. An offender who fails to fulfil his or her
obligations is likely to end up back in the criminal justice system.
1.3. A Restorative Justice Perspective on the Evolution of Human
Rights in Criminal Justice
A popular, though not uncontroversial theory (Daly, 2002;Johnstone, 2002)
posited by some restorative justice writers is that restorative justice is not a
ANN SKELTON172

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