“Enough Already!”: The Challenges of Restorative Justice in War Crimes

“Enough Already!”: The Challenges of Restorative Justice in War Crimes

. 6 min read
“Because crime hurts, justice should heal” – John Braithwaite

The history of the world is marked by violence. Yet, this pattern of constant struggle has taught humanity the importance of creating institutions that can punish offenders and heal victims. Restorative justice was born to help address conflicts under special judicial procedures. According to the University of Wisconsin Law School,  restorative justice “seeks to examine the harmful impact of a crime and then determines what can be done to repair that harm while holding the person who caused it accountable for his or her actions.” Restorative justice looks not to punish, but to arrive at reconciliation between the victims and the perpetrators by supporting victims in the process of sharing their experiences and giving them a voice to influence how the reparations should look. The restorative justice process seeks to understand the causes of the conflict and tries to repair the damage and prevent new conflicts. The processes of restorative justice include the victim, the offender, and the broader community. From each of these actors, there are key expectations that allow for a successful judicial process, which, ideally, results in community safety, competency development, and accountability.

Restorative justice has been primarily discussed in academia, trying to understand how to address “colonial/indigenous” crimes and ongoing conflicts. However, there are not many countries that have actually implemented it. One supposedly successful case is Germany which has used restorative justice to address the crisis of juvenile detention systems since the 1970s. Yet, its impact in addressing civil war crimes is yet to be determined. This article explores restorative justice in countries that have suffered from internal armed conflict and analyzes its challenges. It focuses on civil wars because they encompass a more significant sector of the population—their effects mostly do not discriminate by either gender or age. In Bosnia and Herzegovina, the claim to propose restorative justice initiatives has increased due to the 1990s genocides that were carried out during the Yugoslav Wars and have not been recognized by the government. In comparison, Colombia’s restorative justice program began just five years ago. It has attempted to address the demobilization of guerrillas and heal the most affected communities by the armed conflict, which lasted for almost seven decades. The pain runs deep across many of these communities. Its outcomes are still unclear, however, they do not seem as promising as what the government had initially envisioned.

Even though both countries have different records of restorative justice programs, researchers believed in their importance to clarify the events for the victims and avoid repetition. What are the challenges that restorative justice faces when trying to be implemented, even if they follow standards advised by the international community?

Bosnia and Herzegovina: Crime Recognition to Avoid Repetition

During the 1990s, the Balkans experienced a mass wave of violence due to the struggle between nations in the region. The conflict between the different ethnic factions inside Yugoslavia killed almost 100,000 and displaced two million people from their homelands. During the fight, Bosniaks—term for Bosnians that practice Islam—were targeted by the Yugoslav army and expelled from their territories. In 1995, 7,000 Bosniak men were killed in the Srebrenica massacre, and in the Bikavac Fire case, 70 Muslim civilians were burned alive. The Dayton Accords helped settle the conflict between Croatia, Serbia, and Bosnia. Yet, the European Islamophobia Report argues that “the [accords] entrenched the results of ‘ethnic cleansing,’ cementing the divide in the country.” The genocides perpetuated in Bosnia and Herzegovina against the Muslim population were not recognized by the new government nor published in the OSCE Office for Democratic Institutions and Human Rights which recollects information about hate crimes against Muslims in member countries.

Bosnian activists are clamoring for the construction of historic memory—the process of creating a common narrative about past events, usually with a contemporary focus. One of the key challenges restorative justice faces in Bosnia and Herzegovina is the fact that many of the leaders of the genocide have still not faced war crimes tribunals. Many of them are still considered national heroes. When the Muslim victims share their stories, they are not heard by the rest of the Bosnian population. Instead, they are attacked. For example, in Doboj, slogans have condemned the presence of Islam, and, in Prijedor, local authorities have obstructed the construction of a memorial of the ethnic crimes perpetrated in the zone. They are still manifested through violent acts and widespread beliefs throughout society. In an article published by Humanity in Action, it is said that “not only that the crimes and harms done are not acknowledged, but they are denied, which makes restorative justice impossible to achieve.” The denial of crimes across protests, the lack of testimonies, and the glorification of the genocide leaders have undermined activist efforts to prevent further conflicts from arising within the population.

Colombia: Historic Memory to Heal Society

The armed conflict between the drug dealers, the guerrillas, the paramilitary groups, and the state has deeply scarred Colombian society. According to the National Center for Historic Memory, almost every single person in Colombia has had some kind of contact with the armed struggle that has taken place for almost seven decades now. In response to this ongoing crisis, the government set out to find a way to close up fronts of the conflicts that can help heal and forgive. In 2016, the government signed a peace treaty with the oldest guerilla group in the country, the Colombian Revolutionary Armed Forces (FARC), pushing for a new set of justice reforms to introduce demobilized soldiers into civil society while paying reparations to the thousands of victims. Steven Pinker, psychology professor at Harvard University, and Juan Manuel Santos, ex-president of Colombia, called this treaty a “milestone” for peace across the world. From this treaty was born the Special Jurisdiction for Peace (JEP). An entity that would be in charge of the transitional justice of integrating guerillas into civil life while ensuring restorative justice toward the victims for the next 20 years.

The JEP has been in charge of addressing many of the promises made by the peace treaty, such as creating special courts where the peasants who were displaced from their lands can come back to them with guarantees and protections from the State. It has also been in charge of creating spaces of conversation for the victims to tell their stories and share their vision for reconciliation. However, many people in the country feel that restorative justice was not enough to punish the amount of pain and fear the FARC spread across the territory. There is public discontent with the transitional justice system because it gives guarantees to guerrillas and militias that have deeply wounded Colombian society. Legal researcher Luis Fernando Vélez Gutiérrez explains that transitional justice has become part of the conversation across the Colombian public sphere. Yet, it feels like a conversation dominated by the newspapers and foreign to the masses. He still mentions that one of the biggest distrust is the leniency towards the perpetrators of massacres and child violence. However, he believes that there are more advantages than disadvantages to the system.

Building Restorative Justice in a Conflicted World

Restorative justice has been recognized as a preferable alternative to traditional justice systems. In 2002, the United Nations Economic and Social Council formalized the Basic Principles for Restorative Justice as a step-by-step plan when implementing restorative justice programs. A key idea is that countries that have carried out restorative justice processes should share their experiences with fellow countries on the same path. As has been explored in the Bosnian case, restorative justice faces challenges of implementation because the resentment from the civil war still runs deep across the territory. Due to the political and institutional divisions left by the Dayton Accords, restorative justice has been unworkable. The denial of historic memory for Bosniaks and other ethnicities in the country keeps the anger intertwined in Bosnian society.  

Even though Colombia’s case is still in the making, we can start to see how the construction of historic memory through the education system and places like museums has opened the conversation about the conflict’s events; how to grieve and remember the losses, while presenting hope and recognition that a nation needs to stand together and forgive. Its base presents a hopeful look for preventing the repetition of conflicts with roots that are still alive in society. Nevertheless, a challenge resides around the concept of historic memory to avoid repetition. Some questions have been raised in previous research about how much we should remember, which stories should be shared, how they generate a historic consciousness, and how to portray a massacre for the families of the deceased in an honorable way and not open wounds again. It also questions how restorative justice can help cement peace and give closure to the conflict—should the government opt for transitional justice or put the whole weight of the law on the perpetrators? At this point, restorative justice encounters a struggle between the victims and the communities, which often have different meanings of closure in mind. Due to this, restorative justice still faces a lot of skepticism. One possible answer to this challenge is to start implementing restorative practices in schools where children learn in small environments what restorative justice could do on a bigger scale.  

Restorative justice should not expect to return everything as it was before. The goal is to address what happened and create solutions that can redeem the victims while setting communities up for better futures. Despite the challenges, the progressive use of restorative justice has demonstrated its potential to heal society—an effort to move on while not forgetting the weight of what happened.

Isabela De los Rios Hernández

Isabela is a staff writer originally from Colombia. She is a Government Concetrator interested in international development and public policy.