Rights-based Restorative Justice: Evaluating Compliance with International Standards
| Author | Richard C. Mitchell,Shannon A. Moore |
| DOI | 10.1177/1473225408101430 |
| Published date | 01 April 2009 |
| Date | 01 April 2009 |
| Subject Matter | Articles |
ARTICLE
Copyright © 2009 The National Association for Youth Justice
Published by SAGE Publications
(Los Angeles, London, New Delhi, Singapore and Washington DC)
www.sagepublications.com
ISSN 1473–2254, Vol 9(1): 27–43
DOI: 10.1177/1473225408101430
Rights-based Restorative Justice: Evaluating
Compliance with International Standards
Shannon A. Moore and Richard C. Mitchell
Correspondence: Dr Shannon A. Moore, Department of Child and Youth Studies,
Brock University, St Catharines, Ontario, Canada, L2S 3A1. Email: smoore@brocku.ca
Abstract
The authors’ aim is to promote compliance with international legal standards by articulating
intersections between young people’s human rights and restorative justice principles – for legal
theorists through transdisciplinary thinking and for practitioners by introducing the Rights
Based Restorative Practice Evaluation ToolKit developed through this conceptual framework
(Moore, 2008). This comprehensive approach was developed within the Canadian legal, social
policy and youth justice contexts. Notwithstanding potential bias stemming from cultural
or political milieu, the authors argue that rights-based restorative justice could contribute to
the advancement of ethical practice in many UN-member states attempting to adopt these
common frameworks.
Keywords: community-based evaluation, rights-based restorative justice, transdisciplinarity
Introduction
The article draws upon international legal standards, transdisciplinary thinking and rights-based
restorative justice (Moore, 2007a, 2007b, 2008; Moore and Mitchell, 2007a, 2007b) to explore
conceptual and practice intersections between the UN Convention on the Rights of the Child
(or CRC) (United Nations, 1989) and the Basic Principles on the Use of Restorative Justice Pro-
grammes in Criminal Matters (UN Economic and Social Council, 2002). The authors contend
that a human rights-based approach to engaging with youthful offenders within restorative
justice programmes supports democratic practices that are in compliance with international
law. In addition, a transdisciplinary approach to understanding these documents will facilitate
greater community-based implementation and application in many UN-member states. Rights-
based restorative praxis was established in a Canadian context as a response to repeated studies
that found the texts of the CRC, as well as those from the Basic Principles on Restorative
Justice, have been largely ignored by key stakeholders (Ipsos-Reid, 2004; Mitchell, 2005,
2007; Moore, 2007b: 196; Senate of Canada, 2007). This is similar to Muncie’s (2008: 107)
assessment of European and US youth justice systems that ‘have always been beset by issues of
contradiction and compromise’. Nowhere is this more the case than for those responsible for
extra-judicial responses (see Chandler, 2006 for one exception). A parliamentary study released
28 Youth Justice 9(1)
by the Canadian Senate Human Rights Committee in 2007 chronicles the breadth and depth
of rights violations there, notwithstanding frequent positive diplomatic rhetoric during inter-
national summits and reviews (United Nations Committee on the Rights of the Child, 1995,
2003). One cautionary tale directly resulting from this ‘contradiction and compromise’ for
youthful offenders is the plight of Canadian child soldier Omar Khadr (now 21), who at fi fteen
was shot twice in the back by US military personnel in Afghanistan and transferred to Guantanamo
Base in Cuba in 2003 (Shephard, 2008). While perhaps remote, the application of these widely
accepted international standards could prove a more effective response to such complex human
rights concerns, particularly since both legal frameworks were drafted with Canadian input.
Clearly, however, the theoretical stance one takes up also informs the potentials for effective
interpretation and application of such ‘UN meta-narratives’ (Braithwaite, 2002; Cormier, 2002;
Moss and Petrie, 2002; Mitchell, 2005, 2007; Moore and Mitchell, 2007a, 2007b). Entering the
debate from this perspective, the authors outline how a transdisciplinary standpoint mediates
the formalized treaty rhetoric for translation into local policy and practice. The premise that
various professional and academic disciplines understand and conduct their relations with
young people from vastly different perspectives is one way of appreciating transdisciplinarity. By
advancing a pluralistic, multi-systemic appreciation of adult–child power relations within justice
contexts, the move to more effective interventions is posited. The authors close the article by
introducing the Rights Based Restorative Practice Evaluation ToolKit (Moore, 2008) developed
for community-based programmes and framed with this conceptual approach.
International Standards and Rights-Based Restorative Justice
As authors, we agree with Muncie (2005: 35) who notes ‘the concept of globalization has grad-
ually permeated criminology…and widespread experimentation with restorative justice offers
possibilities for rehabilitation…epitomized by the UN Convention on the Rights of the Child’.
In theory, any intervention within a particular youth justice system must now account for an
increasingly globalized complexity within the social worlds of young people while moving
towards upholding their human rights (Braithwaite, 2002; Mitchell, 2005, 2007; Moore, 2007a;
Moore and Mitchell, 2007a, 2007b;). Whether one sees the current wave of globalization as a
new ideology obscuring trends that have always accompanied colonialist, capitalist expansion-
ism, or whether one sees something novel, the dilemma for social scientists is to make sense of
what they observe (Weber, 2002; see also Luhmann, 1997; McCarthy and Dimitriades, 2000;
Schafer, 2005). It also appears important for stakeholders to attempt to bracket ideological
debates about the merits or disadvantages of globalization since local cultures no longer exist in
isolation from the rest of the world (Beck and Beck-Gernsheim, 2002). This is where UN meta-
narratives come into play as they cut across cultures and political systems.
Douzinas (2000), Lindgren-Alves (2000) and Mitchell (2005: 321) each contend that human
rights represent de facto the world’s fi rst postmodern ideology, and this position transcends the
tired trap of universalism vs. relativism frequently argued as reason to ignore UN-led projects.
Along with Abramson (2006) who calls juvenile justice ‘the unwanted child’ of the child rights
movement, Muncie (2007: 250) also wonders how to bridge the ‘wide disparities between rhet-
oric and reality: between signing up to international standards and putting them into practice’
directly with young people. His concern is that while the Convention on the Rights of the Child
is often described as ‘the most ratifi ed of all human rights instruments but it is also the most
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