Category: Justice

Art is one of the popular forms of expression of human thoughts and deep feelings. In particular, cinema is one of the areas of art that allows people to raise and reveal eternal questions. The Secret in Their Eyes is a good example of a work that addresses critical human issues. It raises moral issues and discusses what people are guided by when acting in a particular way. This film also discusses the manifestations of justice, which can sometimes be cruel. In addition, one of the most important topics of this film is the love and actions that it pushes people to. The purpose of this paper is to discuss how these details appear in the film in terms of form and content.

The plot is built around an immoral crime: the rape and murder of a young woman. Viewers see her life with her husband in retrospect, which allows them to penetrate sympathy better and get to know the characters more deeply. Undoubtedly, murder is a severe crime, regardless of motive. While the plot unfolds, viewers can look at this from the point of view of different characters and make up their minds about the actions of Gomez, the killer. He was in love and jealous and could not forgive the woman for choosing another man, but this does not justify his actions.

It is hard to evaluate the justice of the outcome of this situation. At the end of the film, viewers see that the widower keeps the killer in inhuman conditions for many years, so that he suffers until the end of his days. On the one hand, the widower can be understood, since he suffered a grave loss. On the other hand, he has shown terrible cruelty towards Gomez for many years, which complicates his own life. He keeps seeing the criminal every day, always remembers the events of the past, and cannot continue to live calmly.

Another central theme of The Secret in Their Eyes is love. The crime itself around which the narrative is built was due to love. The relationship between the protagonist Esposito and his colleague Irene is a vital love line as well. After watching the movie, viewers can conclude that the love in it is all-conquering. The loving husband defeats the killer of his wife; Esposito and Irene get together. However, love also pushes people to terrible acts, such as rape and murder. In this way, the director shows the viewer the depth and spontaneity of this feeling, so important for people.

The Secret in Their Eyes has many awards and positive reviews from critics for a reason. It raises profound topics that are important to people and considers them from different angles. For this, the director uses various tricks, for example, a retrospective. In addition, he makes the plot itself unusual and exciting. Thanks to this, the movie creates a lasting impression on the audience and makes them think about eternal questions.

One of my favorite films is the 2011 French movie Intouchables. It also addresses many important issues that everyone should be aware of. For example, kindness, responsibility, and a willingness to help those in need are the most essential human qualities that tfilmsfilm characters have. Social inequality is also a critical issue, and this film shows that it is not always justified and fair. Therefore, cinema helps people rethink various values and make their life and the lives of others more eventful and enjoyable.

The treatment of justice and mercy in Shakespeare’s play The Merchant of Venice is done throughout different layers of narrative.

Firstly, it is done through the city itself. Venice’s economic stability heavily relies on foreign business. To protect the rights of these merchants, the city has economic laws in place. Although these laws are on Shylock’s side when he goes to court to demand his “pound of flesh”, Shylock is still expected to show mercy, as everyone wants to prevent him from cutting a part of a living body.

If he only were to forgive Antonio’s transgressions against him with kindness, Shylock nonetheless makes the fair point that this decision would be questionable. This would indeed be showing mercy, but Antonio never asks for it, while Shylock does not even seem willing to show mercy. Indeed, he does not flinch and wants his pound of flesh he believes he rightfully deserves through a court of Justice. He then continues on saying “my deeds upon my own head.” While he denies Antonio mercy, he is unknowingly denying himself any future mercy from anyone.

On the religious aspect, throughout the play, on the one hand, Judaism is associated with the Mosaic code which strictly emphasizes on justice and following the law to the letter. However, on the other hand, Christianity is associated with the New Testament which emphasizes God’s mercifulness, and his offer of salvation.

Furthermore, Bassanio’s love interest, Portia, is trapped by some uncanny justice. Her father created a strange rule before he died: she could only marry a man who could pick the casket made in lead, and make the suitors that would pick anything but this casket swear to leave and never marry anyone. Although her father is dead, she still abides to this law.

She also holds all her admirers to a high standard of justice. When each and every one (except for Bassanio) chooses the wrong casket— one silver, one gold— she instructs them that they must leave her forever; but also, they cannot court any other woman. They give up their chance of ever being married to a lady. It’s a harsh punishment, even quite an unfair one, but since they agreed to it beforehand, justice has decided that they have to respect those rules. In this case, there’s a flagrant lack of mercy. They punish these men so gravely without any kind of forgiveness.

Thus, in The Merchant of Venice, Shakespeare puts justice and mercy at completely opposite poles. When justice is achieved, there is no hope for mercy. When mercy is shown, justice is not fulfilled. The idea of Justice in The Merchant of Venice is tainted by unfairness.

The United States criminal justice system is a set of agencies that were created by the administrations to manage crimes and punish people who break the laws. The two types of criminal justice systems are the state and federal agencies. The state criminal justice systems manage violations occurred in its state limits, while the federal agencies manage violations happened on federal land or within more than one state. The United States criminal justice system is a powerful tool that consists of the three main elements, police, courts, and corrections. These elements operate jointly to help decrease crime, protect the innocents, stop unacceptable demeanor and maintain a safe society.

Police Officers are called the first responder because they respond to emergency calls and are always the first to arrive at a crime scene or a conflict. They patrol the community 24/7 to maintain security, investigate potential violations, arresting suspected criminals of any illegal actions and prevent crimes, while it helps in keeping the society and people safe.

The courts are managed by judges, and they make the law and resolve conflicts. It proceeds with criminal cases and decides if there is sufficient proof to charge, while they also deal with traffic tickets and settle conflicts that require directing legally. The courts also have attorneys and juries who make sure felons are granted a fair hearing.

Corrections isolate criminals from society who have been convicted of crimes and being punished by the sentencing court by supplying them with housing which will have them losing their rights. Correctional officers work in prisons, and they oversee criminals who have been sentenced by the courts to face punishment for their wrongdoings and improve their behavior. Furthermore, corrections offer offenders with schooling along with therapy and also instruct them on moral and self-control.

The United States Criminal Justice System is a large field that contains a broad category of jobs and professions which allows different individuals to provide their valuable service to the society. There are careers in Homeland Security, and they secure the US borders, deal with unlawful immigration, terrorism, and natural disasters. Forensic Investigation looks for evidence of criminal activity and document physical proof. Social Justice Services deals with child custody investigations and much more.

Ethics are the base of the criminal justice system that will support all as a nation, It has a collection of ethical principle to follow that will help in meeting it’s community needs. Police, courts, and corrections are required to cooperate and maintain good communication daily to fulfill their mission and make society a more secure place to be.

However, there have been dilemmas within the correction due to overcrowding of jails that are causing problems like brutal living situations among inmates that have to share a one-person cell. With the vast congestion causing prisoners to not have their privacy, it causes a rise in violence and self-destruction.

Finally, the criminal justice system is the most significant public system for people and society. They operate with exceptional power together to reduce crime and defend the innocent, while some put their life on the line to protect the country.

I Introduction

Over the past several decades in countries like Australia, the response to crime is moving in two directions. One track is innovative. It promises a change in established forms of criminal justice, to do justice differently. The other track is repetitive. It promises to intensify the established forms of criminal justice, to do justice more efficiently, and often more punitively. Crime control and justice policies have always been varied. But there now exists an unprecedented state of penological inconsistency.

Alternative justice forms, such as meetings between victims and offenders, or magistrate who take an active interest in helping defendants, sit alongside mandatory sentences for certain repeat offenders. In other words, policies of inclusion sit alongside those of exclusion in any one country, and countries vary in degree to which their policies are tripped more toward inclusion than exclusion.

The writer does not agree with the theory that innovative justice disrupts the justice system. In fact, it provides a different approach and methods to serve the justice and urges legal practitioners to think out of the circle. It challenges the traditional adversarial justice system. Non-adversarial justice uses processes that are generally more comprehensive and psychologically attuned than conventional justice system processes.

This essay reviews and compares three innovative and inclusion-oriented approaches to justice: restorative justice, alternative dispute resolution, and therapeutic jurisprudence. These techniques and approaches have significant implications for the law; the way judges, magistrates and lawyers undertake their work and legal education. The traditional way of training lawyers and members of the judiciary has been on the knowledge of the law, skills in fact finding and application of law. The introduction of innovative justice and other non-adversarial approaches suggest that emotional intelligence and interpersonal skills are also important parts of their roles.

II Restorative Justice

Restorative justice has been commonly associated with mediated encounters between victims and offenders-and in some cases their supporters-where they discuss what happened in relation to harmful behaviour and why it happened and determine what offenders will do to make amendments. More broadly, restorative justice comprises principles that promote more inclusive, comprehensive and satisfying resolution of the effects of harmful behaviour. It seeks the restoration of victims, offenders and society through the application of these principles in processes dealing with aftermath of wrongful behaviour generally.

A Definition & History

There is no easy or straightforward definition of restorative justice. It promises to hold offenders accountable to crime in constructive ways. These ways may not be punitive or harsh. They may include the voice and experience of crime victims, to be dialogic and participatory, with an emphasis on communication between offenders, victims and their supporters. There is less attention on formalities of legal system. It is another form of informal justice, which puts citizens into a central role and not just legal professionals or legalities. Restorative justice uses methods in resolving the disputes, which are more directed to engage victims, offenders and the community.

There is also a disagreement on what is restorative justice and is not. One popular definition is that restorative justice is a process whereby all the parties, with a stake in a particular offence, come together to resolve collectively in dealing with the aftermath of the offence and its implications for the future. Some scholars regard this as a narrow approach because its based on face to face interactions and the emphasis is only on repairing the harm but ignores that this repair need to include coercive response. There is another suggestion that restorative justice should be about restoring victims, restoring offenders and restoring communities.

Some restorative justice advocates believe that restorative principles should be fundamental to all human interactions. These principles include empowerment of individuals affected by particular issues or problems, respectful dialogue and collaborative decision-making to resolve the issue or problem. These principles can also be used at school levels to resolve various teacher-student issues. This approach emphasis on telling one’s story and listening to other’s, on individual responsibility for one’s actions, on respect and empathy for others, on collective resolution of disputes and on schools creating communities of care.

As per above definitions, writer is of the view that restorative justice can be used at all stages of criminal justice. It can also provide a diversion from court prosecution. Actions can be taken parallel with court decisions and meetings between victims and offenders can also take place during this process. The major ways of restorative justice are conferences, circles and sentencing circles. Australia and New Zealand are world leaders in utilizing restorative justice practices. In New Zealand, restorative justice begins with passing the regulation of the Children’s and Young People’s Well-being Act in 1989. With the passage of this act, New Zealand became the first country to provide a statutory base for conferencing.

A conference is a meeting between an admitted offender, victim and their supporters. They discuss the offence and its impact and then decide on what should be an appropriate penalty or outcome. Circle methods are methods of dispute resolution that have been practiced by Indigenous peoples around the world. They involve similar participants to family group conferences and usually also include community representatives. Participants sit in a circle to promote respectful discussion.

In Australia, restorative justice conferences began in Wagga Wagga in 1991. It was later replaced by a statutory scheme for New South Wales. Police run conferencing was piloted in early 1990s in NSW, ACT, Tasmania, NT and Queensland. There were arguments for police run or non-police run conferences. South Australia was the first to legislate and incorporate conferencing as one component in a hierarchy of response to youth crimes in 1994. Since then, all Australian jurisdictions have legislated and enacted statutory based schemes.

B Restorative versus Retributive Justice

A common approach of restorative justice advocates is to differentiate restorative justice sharply from retributive justice. Adversarial justice system relies heavily on the discrimination of wrongdoing, separation and immediate application of prescribed punishment of suggested in the symbolism of the sword whereas restorative justice embodies the re-balancing, bringing together and individual and collective healing suggested by the scales.

There is a difference between modern justice system and restorative justice. Modern justice systems do not always use conflict to resolve criminal matters. Prosecutors and defence may agree on guilt and appropriate sentence and consider they have both won. Sentencing does not always involve the inflation of pain-some offenders are released without sentence and some participate by consent in rehabilitation programs.

Modern justice systems are mostly hybrid. They reflect different values with different emphasis at various stages of the justice process. Justice systems are increasingly using practices that most restorative justice proponents would regard as restorative. Indeed, in many jurisdictions they are a predominant approach in juvenile justice and are even used at times when punitive approaches are imposed. For example, before the imposition of a term of imprisonment or while it is being served. Solution focused courts often use processes based on the therapeutic jurisprudence, involving principles such as inclusion, respectful dialogue and empowerment that are valued for promoting healing by restorative justice.

C Strengths and Limits

Conferences are perceived as fair and that participants are satisfied with the process and outcome. Elements of procedural justice, such as being treated with respect and having a say, are evident to a high degree. These methods can also play an important role in reducing victim’s anger and fear towards offender. There can be some positive moments between the victim and offender during these conferences.

Although the process is fair, there may be limits on offender’s interest to repair the harm and on victim’s capacity to see offender in a positive light. It is not surprising that some conferences are better than others. Some conferences have remorseful offenders who make sincere apologies, while others do not. Some have more pro-active and more sympathetic victims than others.

The strength of the process is the potential to communicate the impact of the offence and the potential for the offender to make a sincere apology, take responsibility for the offence and attempt to make up for the wrong. When offenders are remorseful and when conferences outcomes are achieved by a genuine consensus, the prevalence of re-offending are reduced. There can be some gaps in restorative justice ideal and actual practices. Sometimes it is hard to achieve a sincere apology. The process can help some victims recover from crime, but this also depends on the degree to which the crime distressed them in the first place.

Restorative justice seeks to promote more comprehensive, inclusive and satisfying resolution of disputes between people. It emphasizes empowering parties to wrongs to be actively involved in their resolution through respectful dialogue and cooperative decision-making facilitated in a supportive environment. Although, the main focus of restorative justice is on crime, its principles are increasingly applied in a broader range of contexts outside the criminal justice system.

III Alternative Dispute Resolution (ADR)

Alternative dispute resolution is the one of the oldest forms of non-adversarial justice. The modern ADR movement emerged in the USA in the late 1960-1970s and transplanted to Australia in the late 1970s and early 1980s. Since then ADR has been enthusiastically championed, criticised, modified, regulated and in many places, accepted as a legitimate part of the legal system. ADR is usually associated with the civil justice system. However, there are strong links between ADR and the restorative practices used in the criminal context, such as in victim-offender mediation. Indeed, both informal processes emerged at similar times with some parallel purposes. It includes an emphasis upon more holistic processes and solutions for legal problems than the traditional adversarial system can provide.

A Cost Effective

The most important argument in the favour of ADR is the adversarial nature of civil litigation and the ability of ADR processes to remedy the perceived ills of the adversarial system. One of the key reasons for preferring ADR to litigation is that ADR is perceived to cost less. Scholars argue that the cost and delay of litigation act as rationing devices for court processes. The real and perceived costs of litigation encourage individual disputants, courts and governments to prefer ADR, or at least to settle matters that might otherwise proceed to court. This cost argument is closely linked to the access to justice movement, where ADR is often seen as a vehicle for providing a more affordable source of justice than traditional litigation.

The incorporation of ADR into case management processes may also be useful method of courts to reduce cost of litigation, either in the form of judicially supervised ADR or judicial referral to an appropriate ADR processes. From consumer’s point of view, cost may be central to choosing ADR. Some researches found that almost all of the separated Australian families, who attended family mediation, choose mediation over litigation because of the perceived lower costs of ADR. The costs associated with litigation were seen to arise from lawyer’s fees rather than from the court itself. The involvement of lawyer was one of the most objectionable features perceived about litigation.

B Reduces Delay in Judicial Process

Another important argument for preferring ADR to traditional litigation is that ADR is quicker and more efficient than court proceedings. This argument is also closely linked to cost arguments. There is a universal complaint of delay in judicial processes. Delay can be both a form and a cause of injustice. The formality of adversarial court procedures, complexity of legal procedures and size of caseloads within the courts may all cause significant delays. On the other hand, ADR can be faster. A dispute can often be resolved in a matter of months, even weeks, through ADR, while a legal proceeding can take years.

Many ADR processes are flexible and can tailor the process to the needs of the dispute and disputants, hastening the resolution process. In individual cases, where the parties all agree to use ADR and can achieve an outcome acceptable to all, ADR is likely to save time. ADR used in conjunction with court processes may encourage early settlements, although unsuccessful ADR may add an extra step onto existing court proceedings, exacerbating delay. The use of ADR shortens the time taken to resolve dispute is highly dependent on the circumstances of the dispute.

C Creative Solutions

Another reason to choose ADR over litigation is that it allows for a range of creative win-win solutions that could not be sanctioned by the adversarial legal system. From this prospective, adversarial litigation is challenged for only producing divisive win-lose outcomes, for failing to recognise the human dimensions of the problems behind the dispute and for limiting to the narrow range of remedies available under law. The binary nature of adversarial litigation may ignore the interests of persons who are not parties to the dispute but who are affected by it, such as children in family disputes.

ADR processes may provide solutions that match the party’s own conception of fairness, rather than the external standards imposed by law. Agreed solutions reflect the individual circumstances of each dispute in contrast to the generic solutions imposed by the law that may not adequately fit each case. In this sense, ADR processes may be more just, from the party’s prospective. Surveys of ADR outcomes often produce high levels of participant satisfaction with ADR processes. Litigation lacks empowerment, self-determination and consent. It involves a third party, the judge, who has the ability to impose an outcome upon the parties against their wishes. Although, mediation or conciliation also involves the use of a third party facilitation, a mediator or conciliator usually has no coercive power.

Consent, or party self-determination is an important aspect of most forms of ADR, with parties choosing their own process, third party facilitator and sometimes, outcome. In court, law imposes these variables. ADR processes also empower parties to reach their own mutually acceptable settlements. Empowerment means the restoration to individuals of a sense of their own value and strength and their own capacity to handle life’s problems. It is argued that combination of party consent and empowerment in ADR creates more durable solutions than those imposed by courts by law, because the parties are more likely to abide by what they have participated in forging.

ADR as a tool of innovative justice has the potential to enhance communication, develop cooperation and preserve relationship between disputing parties, where as the adversarial legal system is premised upon conflict and may damage existing relationship. The rhetoric structure of adversarial discourse prevents not just better and nicer behaviour but more accurate and open thinking. In this respect, the philosophy behind innovative justice and the critique of adversarial system inherent in it are compatible with the ideas of therapeutic jurisprudence and restorative justice. The need to focus on personal rather legal dimension of the problem is aid to be particularly acute where relationship must continue after the resolution of dispute, such as between business partners, employees or parents.

D Limits

The critiques of ADR and innovative justice argue that it provides a second class of justice when compared with adjudication. Challenges to ADR have emerged from two key perspectives: the first come from a notion of the courts as public institutions applying the law as an objective measure of fairness, in which the entire community has an investment. ADR is said to diminish that system. According to this theory, ADR incorporates the idea of court providing an important public service, beyond mere dispute resolution. The court job is not to maximize the ends of private parties. Not simply to secure the peace, but to explicate and give force to the values embodied in authoritative texts, such as Constitution.

The second challenge to ADR springs from concerns about the private nature of ADR. It is argued that entrenched inequalities of bargaining power will prevail without any outside interference and that the stronger party’s wishes will dominate any argument made. ADR claims to be more empowering than adversarial process, arguing that the harmony ideology covers up much of the coercion that occurs during ADR processes.

Most disputes do not come before the courts and almost all cases that do reach the court settles. ADR is now a typical part of the practice of civil courts. The pressure on courts, public preferences and political power all ensure that ADR will continue to be a part of the judicial system. All Australian courts have incorporated ADR into their service to some extent. The increasing cost of civil litigation at a party and system-wide level have prompted greater use of ADR by the courts. Lord Woolf’s 1996 report into the English and Welsh civil justice system recommended that courts encourage the use of ADR at case management conferences and at pre-trial review.

The need to cut cost, reduce disposition time and increase access to justice has meant that within courts, a great deal of effort is directed towards achieving settlement as early as possible. Early settlements preserves court resources for the cases that cannot be negotiated and must be litigated.

The existence of ADR and innovative justice pose challenges for legal practice and legal education because most lawyers have been schooled, trained and practice within an adversarial paradigm. The gap between ADR and legal practice is potentially significant. There is a need for future lawyers to have knowledge and skills to practice ADR along with a sense of willingness to advise their clients to use it.

IV Therapeutic Jurisprudence

The legal system, in action affects everyone in society. However, at times, some people-such as parties to litigation, victims, offenders, witnesses and jurors-are more significantly affected by it than others. Law can affect people in different ways: economically, socially and in their relationships. Therapeutic jurisprudence asserts that the law can affect wellbeing. It studies the law and its affects on the wellbeing of those involved in its operation. It proposes law reforms directed at minimizing negative effects and promoting positive effects on wellbeing. It is said to be emotionally intelligent approach to justice.

A Implication of Therapeutic Jurisprudence

Therapeutic jurisprudence is not simply a field of intellectual discourse. It has significant implications in the daily work of the judiciary, lawyers, legal educationists and behavioural science professionals. The daily work of these professionals has contributed to the development of the therapeutic jurisprudence in terms of its understanding and expanded application of its principles in legal practice, court practice and work of other associated professionals. It has also affected the government policies and has begun to generate policy changes in legal systems.

Therapeutic jurisprudence has been criticised as an approach to examine the law, legal processes and the work of legal professionals. The definition is considered to be too vague. Scholars have said that if therapeutic jurisprudence is simply a matter of beneficial versus harmful, then it is not distinguished from other areas of inquiry. Whether a law is good or bad has been a long-term concern of the lawyers and community. To address this issue, therapeutic jurisprudence can be defined as the use of social science to study the extent to which a legal rule or practice promotes the psychological or physical well being of the people affected.

On contrary, therapeutic jurisprudence does not assert that well being promotion should be law’s paramount role. However, it believes that the role of law should be as far as possible, not to do harm. There is a conflict between different values of legal system. Therapeutic jurisprudence must subordinate to other values and can suggest a more therapeutic procedure. It’s direction is to improve the ways law operates and towards making reforms in law.

B Effect on Procedural Justice

There has been considerable work conducted in the field of procedural justice as to the circumstances in which people will respect the actions of authority figures like judges and police officers. This approach implies an ethic of care. If a judge or lawyer does not give the litigant his or her full attention, while the litigant is addressing him or her, it may create the impression of a lack of concern for the litigant. Stan Winford in one of his videos presented this in second weekend workshops session.

Coercion and paternalism have been the hallmarks of the justice system’s response to behavioural change and compliance with law. Litigants coming into the justice system place a dispute that has not been able to resolve themselves in the hands of others-legal experts-for resolution. Unless unrepresented, their participation in and control over the process may be very limited, with lawyers and the judiciary handling the matter. An outcome may be an order or judgment that brings them little satisfaction and even less commitment to its implementation.

Therapeutic jurisprudence scholars have highlighted the problem that coercive and paternalistic approaches present in motivating behavioural changes. They observed that people do not generally respond well, when told to do something. Unless, they themselves see the merits in achieving a particular goal, they often will not pursue it, or comply only half-heartedly. On the other hand, by involving people in decision-making, one can tap into deep source of motivation within. It also increases the prospect of successful action. Therapeutic jurisprudence suggests that in particular circumstances, promoting individual choice can promote therapeutic effects and justice system outcomes. Not that it can be applied in all circumstances, sometimes, there is a need to imprison someone. A person’s mental abilities are sometimes so deteriorated that they cannot make decisions for themselves.

V Conclusion

Innovative jurisprudence is not static. It is an ongoing research endeavor. It encourages the researchers to think creatively as how development in the behavioural sciences can be used in the justice system. Before the introduction of therapeutic jurisprudence, the effect of law and its processes on the physical and psychological wellbeing of parties was limited concern to the law and its officials.

Innovative jurisprudence has demonstrated that this study is valuable and it can limit the negative side effects of legal processes. It promotes justice system outcomes such as conflict prevention and resolution, respect for the law and legal officials, institutions and offender rehabilitation. The challenge remains for the innovative jurisprudence to extend from specialist applications such as problem-solving or solution-focused courts and mental health law into mainstream legal education, legal practice and judging.

Social Justice

Social justice is a complex and contested term (Morgaine, 2014). Although it is universally accepted and adopted in community work it holds different meanings and interpretations (Watts & Hodgson, 2019). According to Morgaine (2014), social justice refers to the view that every individual deserves the same economic, social, and political rights and opportunities. This definition is consistent with the one described by Austin (2014) that social justice involves arranging economic, social, and political organizations in a manner that allows all individuals, including the oppressed, vulnerable, poor, and marginalized to be able to accomplish their developmental and basic needs. Austin (2014) further suggests that for social justice to be achieved the same civil and political freedoms, fair opportunity equality for a socioeconomic political sphere is necessary. On the other hand, it has been defined as a framework of political goals trailed through economic, social, political, and environmental strategies founded on accommodation of diversity and divergence, and directed by principles concerned with embracing equal worth and dignity, practicing fairness, forging every individual’s self esteem (Taylor, Vreugdenhil, & Scneiders 2015). Social justice thus acts as a central organizing value for community work but its meaning has not been agreed upon (Stewart, 2013). In this regard, although a common definition of social justice has not been agreed upon, there are certain themes that appear in all definitions.

As an ethical value, social justice theory is a recent concept (Watts & Hodgson, 2019). However, attempts have been made to make the concept clearer. According to Cournoyer (2014), social justice constitutes of different orientations, namely, (a) distributive justice, (b) retributive justice, (c) restorative justice, (d) procedural justice, (e) intergenerational justice, and (f) environmental justice. Distributive justice refers to just and fair allocation of opportunities, resources, and burdens of the community (Taylor, Vreugdenhil, & Scneiders 2015). Retributive justice is evenhandedness and impartiality linked with chastisement and reimbursements for the harm experienced b y others. Restorative justice involves compensating or rehabilitating for encountered damage while procedural justice involves just and fair decision making manners in institutions and policies (Jost & Kay, 2010). On the other hand, intergenerational justice and environmental justice concerns with burdens or benefits left from generation to generation and who can access the clean environment respectively. Evidently, all these types of social justice have a common theme suggesting equitable and fair treatment of all individuals (Ruger, 2004). Further, social justice is a multidimensional, sociopolitical and intricate concept that emphasizes the right of people to access to both tangible (wealth and income) and non-tangible materials (opportunities, prospect, and involvement) as outlined by Taylor, Vreugdenhil, & Scneiders (2015).

Historical Events Relevant to Current Social Justice Principles

The history of the social justice concept is long and has evolved from Plato and Socrates justice and rights’ accounts and across different religious frameworks (Taylor, Vreugdenhil, & Scneiders 2015). Social justice materialized in the late eighteenth century in the political philosophy literature (Jackson, 2005).

Social justice is about making sure that every Australian – Indigenous and non-Indigenous – has choices about how they live and the means to make those choices. Social justice is grounded in the practical, day-to-day realities of life.

An example for the Historical event is what happen to the Aborginal and Torres Strait Islander children were removed from their families by Australian Federal and State government agencies and church missions between 1910 and 1970 and it was called The Stolen Generations.

The children who were separated from their families are forced to adopt the white culture. This policy was legal, the reason behind this was to make less population of the Aboriginal and Torres Strait Islanders, It was believed these children would be more easily assimilated due to their lighter skin.

These kids were unable to speak their traditional languages or name themselves in their family names. These kids were forced to study but with very low education and make them work as domestic servants at there very young age with very low wages.

As a Report of the Senate Legal and Constitutional References Committee Inquiry published in 2006 named Unfinished Business, recorded these actions and reported that these Indigenous peoples wages where stolen.

During 13 February 2008, the Australian Government formally apologized to the Stolen Generations of Aboriginal and Torres Strait Islander People. Kevin Rudd, the Prime Minister of Australia at the time, delivered the speech in Parliament House.

Current Ethical and Legislation Requirements

The pursuit of social justice is protected in practice standards, ethical codes, and literature. As noted by Taylor, Vreugdenhil, & Scneiders (2015) the focus of implementation of social justice has been on the values and principles of social justice and how they form a context for practice. Social justice is a fundamental core value in the National Association of Social Worker’s code of ethics. Similarly, the code of ethics of the Australian Community Workers Association exists to help in the promotion of social justice in three dimensions, namely, cooperative, professional, and compassionate services (Chenoweth & McAuliffe, 2017). What is more, social justice has been incorporated into the Australian Association of Social Workers’ mission and vision. The vision of this body is to work together with the sole aim of offering social justice and excelling professionally (AASW, 2018). The association seeks to enhance the social work profession, advance social justice, and uphold standards of member (AASW, 2018). As Austin (2014) outlines social justice is one of the five core values that act as the foundation of the distinctive principle and perspective of social work. The community and social work profession emphasize that social justice is a central obligation which should be upheld societies with the community striving to offer protection and utmost benefit for all members (Chenoweth & McAuliffe, 2017). Further, social and economic justice is deemed as the organizing value for social work as a profession (Watts & Hodgson, 2019).

Conclusion

Social justice is a principle that underpins the definition of community work as a profession, its practising standards, and code of ethics. Although it is a complex and contested term it is universally accepted and adopted in community work. The concept has evolved since the eighteenth century from Plato and Socrates justice and rights’ accounts and across different religious frameworks to the currently embraced principle in community work as evidenced by its incorporation in the Australian Association of Social Workers and Australian Community Workers Association’s practice guidelines and code of ethics.

To Kill a Mockingbird was published in 1960 at the height of the Civil Rights movement in the US. Set in the depression, circa 1930, it was an instant success and focussed on common humanity through the eyes of an innocent, uncorrupted girl, Scout Finch. Set in the South, Scout’s young female voice navigates the reader through the complexities of human nature and societal conform such as morality and inequality.

Human morality is a prominent theme in To Kill a Mockingbird. Human morality is the predisposition to evaluate actions as morally good, bad or evil. Each person with their own ideas and different opinions. When Scout doesn’t understand her teacher’s actions and attitudes to her, Atticus provides an explanation to get along with other people, even if you don’t agree with them. “You never really understand a person until you consider things from his point of view … until you climb into his skin and walk around in it.” This is one of the most famous quotes from the novel. It‘s a metaphor for understanding people who have different opinions or a different outlook. To understand their perspective in order to gain empathy and ultimately acceptance, tolerance and compassion. Lee uses the juxtaposition of characters to provide comparison and contrast revealing social standing, inequity and morality such as the Finch’s educated home compared with the Radley’s stigmatised home and the Ewell’s uneducated and economically impoverished one.

Today, there are so many different opinions in the world as expressed through the internet where everyone has a voice. It can be difficult to get along with everyone and easy to take sides so it’s important to try to understand different views. Another aspect of human morality is injustice where innocent people can be destroyed by evil, “Remember, it’s a sin to kill a Mockingbird”. The Mockingbird is a symbol of innocence, as Miss Maudie explains “Mockingbirds don’t do one thing but make music for us to enjoy. They don’t eat up people’s gardens, don’t nest in corncribs, don’t do one thing but sing their hearts out for us.” Today, especially in the US, many people have been subjected to gun violence by disgruntled shooters taking innocent lives in churches, malls, fairs and streets. This year alone, over 297 mass shootings have taken place in America where 335 people have died and 1219 have been wounded. There are numerous examples of corrupt officials framing innocent people in order to secure convictions as shown in the ABC’s Insight program in August this year. Australia also faces a major moral dilemma in our treatment of refugees, who are portrayed as illegal terrorists trying to ‘jump the queue’. The recent public outcry due to the deportation of the Tamil family shows that when we are given the opportunity to understand the human face and the cost, we can be compassionate and supportive.

To Kill a Mockingbird is also a coming of age story, where Scout begins to reconcile the inequity of society and her place in it. Scout is a tomboy, who wears overalls and spends her time playing with her older brother Jem and their friend Dill. Jem accepts Scout as a playmate but also uses the term ‘girl’ as a put down when he is displeased with her “I swear, Scout, sometimes you act so much like a girl it’s mortifyin’”.

Scout is subjected to societal assumptions of female behaviour by many other characters in the novel. Scout does not fit the gender stereotype expected of young ladies; she is feisty, is known to get into fights and is high spirited. For example, Aunt Alexandra informs Scout, “I should be a ray of sunshine in my father’s lonely life… One had to behave like a sunbeam, that I was born good but had grown progressively worse every year”. This highlights the patriarchal expectation that women should be upbeat and positive for their husbands and fathers. Scout finds solace with Miss Maudie her neighbour, who helps Scout to better understand the world around her. Miss Maudie is a strong female character, unlike the other female characters in the book who gossip or are prejudice and judgemental, and portrays Miss Maudie as a person of strong moral character. In today’s society, gender stereotypes still play a significant role.

The term ‘girl’ is still used today in order to humiliate or shame people when they do not conform to societal norms. Women are often valued highly for their beauty reinforced by advertising, movies and television representation. The #MeToo movement gave an international voice to women and girls who have been subjected to male entitlement over their bodies and lives. The extent of the outpouring of stories has highlighted how the impact of ingrained gender stereotypes has shaped human behaviour. May studies have revealed that gender stereotypes have a considerable impact on the aspirations of both girls and boys, and while it is improving, girls are still less likely to enter male-dominated occupations.

In conclusion, To Kill a Mockingbird is a timeless story that displays and represents themes that are still relevant today. We still struggle with human morality and inequality which has been demonstrated by the universally adopted #MeToo movement that addresses our moral and societal attitudes to gender, ethical and moral judgements. As Australians, we are proud of our gun laws that protect our society but also are polarised by the politicisation of the refugee issues. To Kill a Mockingbird is a reminder for us all to exercise our moral duty to reserve judgement and prejudice in order to become a moral and equitable society.

Introduction to Restorative Justice

This essay will focus on the various advantages and disadvantages of using restorative justice principles to handle cases of low-level offenses. The principles, processes, methods, and challenges of restorative justice will be discussed and evaluated as well.

Historical Context and Definitions

In the 1970s, restorative justice was first practiced as a form of intervention or settlement among offenders and their victims. Restorative justice has several definitions, alongside dissimilar opinions about which practices are suitably linked to the movement. Besides that, the meaning of the developing system progresses, as new discoveries are made day by day. The term ‘restorative’ is defined by Collins Dictionary as “something that gives you strength after feeling despondent”. According to the Cambridge Dictionary, ‘justice’ gives the meaning of “being ethically fair” and “the system of laws by for people to be judged”. American criminologist Howard Zehr (2002) states that restorative justice is a form of movement that is a substitute of criminal justice. This informal justice method is a whole process of a meeting or more than one meeting, with all the stake parties involved in a crime, mutually settling the dealings of the outcome of the crime carried out, and its imminent inferences. According to Daly (2016), restorative justice is used in non-criminal justice complications, more commonly in schools, allied to child protection, and others.

Low-Level Offenses and Their Treatment

Low-level offenses are also known as minor offenses. This includes vandalism, student-on-student fights in schools, verbal abuse, other forms of bullying in schools, minor assaults, disturbing the peace, drug possession, petty theft, and traffic violation such as speeding, and driving under the influence (DUI). Although, the classification of level of offense can vary in extent and in different countries, even states. More commonly, these low-level offenses are carried out by students who are still in school. Conventionally, minor offences that were committed by younger offenders are dealt with alongside restorative justice. For instance, the youth justice holds the conferences together with the aim of restoring, in the United Kingdom.

Challenges in Implementing Restorative Justice

One of the biggest challenges in restorative justice is when it comes to subjects of different groups of minorities, ages, and genders. Unfortunately, all these diverse categories are still complications that are considered to be obstinate today. As an instance, the existing racial bias in restorative justice can adversely affect the whole purpose of holding a meeting in the first place. Justice in the modern world requires equal treatment for all. As Hudson (2006) states, the affairs between criminal offenses and broader inequalities in society, and different forms of oppression has to be improved, as there is an inarguably lack of attention in the said relationships. On the other hand, there is now a major feminist engagement in the restorative justice system. According to Wormer (2009), the movement is a victim-centred approach, expressly linking to the marginalized populace, including women.

Processes and Principles of Restorative Justice

There are several fundamental processes in order to carry out a restorative justice meeting. To start off the system of restoring justice, there needs to be the means of how it will be conducted. Cited by Wachtel (2013), the variety includes affective statements, affective questions, small impromptu groups, large groups, and formal conferences. Affective statements and questions are more informal, while large groups and formal conferences are more formal. Other than that, when it comes to women’s victimization, methods of holding community reparations, community mediations, sentencing circles, healing circles, and victim-offender conferences, are commonly used. According to Zehr (2002), guiding questions are a very important focus. Questions asked should be on the lines of “Who has been hurt or affected by what you did?”, “What are their needs?”, and “What do you think you need to do to make things right?”.

There are different sorts of principles and practices of restorative justice. The vast majority of crime survivors’ pain goes unhealed. So, the most targeted principle of the system is that justice ought to heal as well as settle everyone and anyone who were impacted by an offence carried out, including the victims, offenders, and communities. In fact, the principles of restorative justice in or out of school are quite similar. For instance, the offender has to take responsibility and accountability for his own actions and the harm it has caused on others. Reyenke (2011) states that one of the most vital values is that the needs of both the offender and victim, plus the community as a whole, have to be addressed, acknowledged, and met. Without a doubt, once someone commits a crime against an individual, there is no extent of compensation that could undo the hurt and damages that has ensued. Nonetheless, the system of restorative justice stresses on accountability and making amends, thus urges wrongdoers to take responsibility for all the mischiefs caused. Van Ness and Strong (2010) state that amends can be made by the offender via apologizing to start off, improving their behaviours, compensating, and being generous and kind. Rather than putting vengeance on the line, restorative justice focuses on establishing the assets of perseverance. The system is concerned about needs and roles, and not punishments.

Advantages of Restorative Justice

With all forms of the justice system, restorative justice has its own advantages and effectiveness. To begin with, it benefits not just the victim and offender, but the community, too. First and foremost, restorative justice leads to victim satisfaction. Based on Daly (2016), all who are at stake in the meeting have their own opportunity to be heard and understood. As an example, the act of verbal abuse may have a way greater and harsher impact than it seems. By addressing and redressing the wrongs, asking and answering questions, and mutually acknowledging needs, both the victim and offender are expressing themselves, and will definitely avoid turning the case into a cessation.

By confronting the offender, the victims will feel more empowered and can slowly start the healing and restoring process. Cited by Wilson, et al. (2017), victims who express themselves emphasizes on their own process of recovery. They should voice their story, and the impacts of the situation. By doing so, the victims’ desire to hold vengeance against the wrongdoers will be reduced (Van Ness & Strong, 2010). To describe, minor assaults would commonly lead the victims to a state of vulnerability. To end that quality, the victims should not feel weak and helpless, instead, feel stronger and claim their justices.

Following, the offender is given the opportunity to apologize, and show genuine remorse of the wrongdoings committed. Victims can feel the remorse of the offender; thus, are willing to absolve them for the crime they have committed. Van Ness & Strong (1997) state that once the offenders are forgiven, it will be considered how they could compensate, vis-à-vis non-discriminatory treatments and other rehabilitation means. For instance, illegally vandalising someone’s property would irritate and burden the owner. If a youngster vandalizes, and does not have the money to repair the damage, he could start by sincerely apologizing for the cause.

Restorative justice contributes to the reduction of crime rates. Regardless of high or low offenses, evidence shows that the system prevented the acts of reoffending (McAlinden, 2008). A significant evidence is of the evaluation made in West Yorkshire by the Home Office. There is a minor but methodically imperative drop in the rates of reoffending found in the assessment of restorative justice schemes (Vennard & Hedderman, 1998). Irrespective of the level of offense committed, it could potentially, work with the proper and suitable process.

Drawbacks and Concerns

On the contrary, there are drawbacks and challenges in the still-evolving restorative justice system. One of the main concerns is that the whole restoration process might be seen as a means that is ‘too light’. When restorative justice is explained for the first time to an individual, it may seem very casual and not at all like a legitimized law. Instead, it is a form of informal justice (Muncie & Wilson, 2004). Undoubtedly, the initial responses from victims and the community after a crime is committed, would be to punish the offender. So, when the form of restoration is mentioned, it can be perceived as wrongdoers dodging incarceration by merely apologizing. Some offenders may play pretend and act remorseful in front of all stakes in the meeting, to convince that the harm they have done has been resolved. In other words, as Daly (2016) states, the system could be manipulated by the offenders. For example, when an individual violates the traffic rules by speeding or driving under the influence (DUI). Here, they may be forgiven, but their act could have led to worse problems such as car crashes. In this case, there should be more stern treatment towards the offenders.

The next disadvantage is in the perspective of the victims. Victims may be overwhelmed with different emotions and feelings towards the confrontation of the offender. Before the agreement of meeting to take place, victims may not be ready to confront the situation. To explicate, they may feel anger, fear, distress, anxiety, vulnerability, and in need of sense of security, or even pressured (Morris & Maxwell, 2001). As mentioned previously, victims should never feel powerless. So, they should feel secured and ready, before a meeting is planned and agreed-to.

Furthermore, the fear of revictimization, also known as secondary victimization. Without a doubt, the community norms that are involved should never blame the victim. Take bullying in schools as an example. If the bully does not have actual remorse towards the victim, he could continue un-tolerated behaviours toward other students in future days. This drawback is not limited to minor offenses. For major offenses, it will inevitably lead to a worse scenario, as the revictimization could trigger more wicked crimes to be committed by the same offender, possibly increasing the number of victims and increasing the degree of harm to be made in the community.

Lastly, the duties of the ones involved in the meeting of restorative justice. This may include the mediator, and stake individuals. If the organizers were trained improperly, it could lead to poorer disputes. They have the most important duty, as they ought to make the victim and offender feel calmer and more contented. Questions should be asked and answered equally and mutually. There should be no bias in the consultation.

Conclusion: Evaluating Restorative Justice

All in all, restorative justice system is in short, a meeting where parties involved could potentially find healing. Restorative justice practices work with a broad range of crimes. In this essay, low-level crimes were discussed. It can come in various powerful forms such as sentencing and healing circles, small or large groups, and formal and informal conferences.

I believe that there will always be pros and cons no matter what, because it is still an evolving system today. As listed, discussed and evaluated, this form of informal justice has many different good and bad aspects respectively. Restorative justice could satisfy victims, or overwhelm them with different emotions before, during, or after the confrontation with the offender. Moreover, the system can either make them feel more empowered, or make victims in-risk of revictimization. While it could give second chances to offenders, it could also be seen as a light-handling treatment to the community. Last but not least, restorative justice has been proven to reduce reoffending rates. Nonetheless, it cannot be achieved with poor facilitators in the conference. To quote Zehr (2002), “restorative justice concentrates on needs, before declaring sentences.”.

INTRODUCTION

Post-conflict transitional societies are often faced with the difficult task of transitional justice. This issue is a result of the need to balance the demands for justice and social cohesion. This delicate balance is situated within two notions of justice, retributive and restorative justice. Retributive justice refers ‘to the repair of justice through the unilateral imposition of punishment’. This approach to criminal justice is most prevalent in Western societies. Restorative justice, on the other hand, is “a process whereby all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future”. Restorative justice is informed by a deliberative and collective process to bring all sections of society together and tap into “opportunities of norm clarification”. Drawing on these two notions of justice, this essay analyzes two post-genocide justice processes, Gacaca community courts and the International Criminal Tribunal for Rwanda (ICTR), examines their successes and failures, and recommends how to ensure justice for all and promote peacebuilding.

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

The ICTR was established through the United Nations Security Council (UNSC) Resolution 955. Resolution 995, among others, tasked the Tribunal to put on trial perpetrators and accomplices of the genocide [and] ‘other systematic, a widespread and flagrant violation of international humanitarian law”. After operating for at least two decades (1994-2014), the ICTR indicted over successfully convicted sixty-one (61) out of at least ninety (90) accused persons, and fourteen (14) persons discharged on acquittal.

The ICTR made modest progress and encountered some difficulties. The formation of the ICTR was a belated yet important step by the UN on global governance. This ideais critical in light of the UN’s failure to halt the genocide. The conviction of some high profile individuals by the ICTR was a bold statement that individuals can be held accountable for crimes against humanity. However, the ICTR was beset with some challenges. The location of the ICTR outside Rwanda, specifically in Arusha, Tanzania made a significant number of Rwandans detached from the processes. The unwillingness by the ICTR to hold leaders of the Tutsi-led Rwandan Patriotic Front (RPF) was perceived as an attempt to foist “collective guilt” on Hutus. This is buttressed by the fact that the ICTR failed to act decisively on a 1994 UNSC Commission of Experts report that concluded that the RPF had “perpetuated serious breaches of international humanitarian law and crimes against humanity”. The snail pace trials, inexperienced staff, delayed trials and judgment, an estimated expenditure of the USA $ 2 billion spent on the ICTR, according to critics, was not worth it because the ICTR ‘failed genocide victims and survivors’.

GACACA COURTS: INSTITUTIONAL FRAMEWORK AND OBJECTIVES.

Gacaca translates as “justice on the grass or dialogue justice”, and based on the objective of “mass justice for mass atrocity”. Other stated objectives of Gacaca include ‘to ensure speedy delivery of justice to achieve truth, justice, and reconciliation’. Pivoted on a community-based approach to justice delivery and inaugurated in 2005, Gacaca is considered ‘one of the most ambitious transitional justice projects the world has ever seen’. The formation of Gacaca in 2005 was informed by several factors. These include thousands of pending cases , congested prisons, weak legal infrastructure without trained and experienced lawyers and judges—significant number lost their lives in the genocide. In the immediate aftermath of the genocide, conventional courts in Rwanda lacked “safeguards against abusive prosecutions heightened the risk of unfair trials”. The above challenges were catalyzed by a fervor among Rwandans for ownership and participation in post-genocide justice delivery. These culminated in the formation of Gacaca.

Historically, Gacaca played a pivotal role in pre-colonial Rwanda with less emphasis on punitive measures. The post-genocide Gacaca best fits a mixture of restorative and retributive justice. which operated from 2005-2012, had jurisdiction over three categories of crimes stated in Article 2 of the Organic Law No. 16/2004 of 19.06. 2004 that gave rise to Gacaca. Category 1 entails the primary instigators, planners, and individuals in leadership positions at the time of the genocide, Category 2 comprises perpetrators or conspirators of accomplices, and Category 3 focuses on crimes against property. Article 51 of the Organic Law tasked Gacaca to prosecute and put to trial ‘perpetrators of the crime of Genocide and other crimes against humanity committed between October 1, 1990, to December 31, 1994’. For purposes of adjudication, Gacaca was constituted by a General Assembly and judges elected by and from communities entrusted with the responsibility to dispense justice. Gacaca permitted “victim-offender mediation….a confrontation that makes offenders face up to the reality of the harm they cause”.

From a retributive justice perspective, Gacaca punishment ranged from imprisonment to death penalty. Category 1 offenses elicited the severest punishment. The death penalty was originally part of Article 72 (1) of the Organic Law until it was abolished in 2007 through an amendment. Gacaca did not provide for amnesty, but permitted confessions for lenient sentences for categories 2 and 3 offenses. The permissibility of confessions allowed a certain degree of restorative component for purposes of reconciliation. This is because confessions provide a context for “apology and forgiveness aimed at the reintegration of perpetrators”. Also, community ownership and participation through Gacaca authenticates the view that ‘crime has its origins in social relationships and communities’. Due to its emphasis community participation in national efforts, ‘Gacaca justice system was praised for incorporate[ing] elements of a very different, restorative approach to issues of justice and wrongdoing into policy”, and for introducing “reintegrative shaming”, a distinctive departure from “punitive, procedural, Western-style justice”.

Max Rettig offers a mixed assessment of Gacaca: “[It ] . . . brought more people to trial than the ICTR, transnational trails, and the ordinary Rwandan courts combined, Gacaca exposes and perhaps deepens conflict and resentment, and ethnic disunity. Lies, half-truths, and silence have limited Gacaca’s contribution to truth, justice, and reconciliation”. For Jennie Burnet, “Gacaca . . . delivered justice for some, and established at least a partial truth, but it has . . . deepened the cleavages between Hutu and Tutsi”. The question that originates from Burnet’s assessment and which is relevant to assessing Gacaca is: Whose version of the truth was to be established?

ASSESSING GACACA: ‘TRUTH’? WHOSE VERSION OF THE TRUTH?

Reconciliation is pivoted on the idea that “Truth leads to justice, and justice leads to reconciliation. Social healing is advanced through uncovering past wrongs, introducing closure and moving on to consolidated peace…. where truth heals and restorative and retributive justice meets”. This implies a symbiotic relationship between the following variables: truth, justice, and reconciliation. However, establishing the ‘truth’ in the context of genocide is an arduous task. It requires the collection of evidence, contextual interpretation, meaning construction and interactions between perpetrators and victims to arrive at a compelling conclusion.

Truth discovery is a daunting milestone in transitional justice. In the case of Rwanda, testimonies by some witnesses were motivated by “revenge, fear and hatred,” and evidence gathering was tainted by subjective ‘remembering’ and “identities constructed in the [genocide].” This assessment of Gacaca was corroborated by findings from Burnet’s ethnographic study:

In some communities, genocide survivors and others organized themselves to fabricate testimonies and evidence against certain people. In some cases, they appeared to be motivated by the desire for reprisal or revenge. They feel as if they know certain people were involved [in the genocide] and they want to make sure they are found guilty. They fabricated cases . . .

Besides, some accused persons “might have confessed to less severe crimes than the ones they committed, while others may have confessed to crimes they did not commit” to benefit from lenient sentences. Discovering the truth, therefore, was hinged on who is telling the story.

GACACA: WITHER DUE PROCESS?

A justice system must possess certain characteristics to ensure that due process is adhered to. These include the right to remain silent, access to legal counsel, fair and speedy trial, among others. a related issue raised was respect for due process. Some scholars are of the view that Gacaca lacked due process safeguards. Some judges did have any legal experience nor the training to adjudicate complex cases including genocide. The selection of judges was significantly influenced by the national government under the guise of a community-led approach. In that regard, judges and other officials of the court were perceived as appendages of the national government.

The government reportedly applied force to compel members of communities to compulsorily attend Gacaca sessions to meet the quorum required to start trials, and defendants had to defend themselves without legal representation. Amidst threats and intimidation and minimal or no protection from the state, some witnesses were worried about their safety as “they must face creators of their scars” in Gacaca. As is the case with transitional societies such as Rwanda, some witnesses would have been discouraged from providing compelling evidence at trials due to fear and victimization. Consequently, the outcome of some cases may not be a fair reflection of reality. As a result, the verdict of some Gacaca cases was a double-edged sword: some communities were largely satisfied; others [such as] survivors, prisoners, and their families were frustrated’.

VICTORS’ JUSTICE?

Before the advent of Gacaca, the disproportionate number of Hutus found guilty by the ICTR had already fueled a perception that the kind of justice being pursued was not even-handed. Before the work of the Tribunal, Hutus had been portrayed as ‘perpetrators’ and Tutsi as ‘victims’ of the genocide. This characterization, however, fueled a sense of victors’ justice. As a result, the exclusion of crimes committed by the RPA from the jurisdiction of the Gacaca deepened perception of victors’ justice. The context is that the Tutsi-dominated RPA has metamorphosed into the current ruling, also committed heinous crimes before, during and after the genocide including the killing of an estimated 6,000 people in 1997, three years after the genocide. As mentioned already, the Organic Law that led to the establishment of Gacaca had as its scope of work crimes committed between October 1, 1990, to December 31, 1994.

The scope of Gacaca’s jurisdictional timelines had two implications: First, Hutu perpetrators of genocide were likely to be targeted as they were in control of government machinery at the time of the genocide. Second, Tutsis who committed heinous acts post-1994 were more likely to escape the clutches of punishment as Gacaca prosecutorial powers did not reach crimes committed after December 31, 1994. This was indicative that to a certain extent, the institutional and operational framework of Gacaca was targeted at Tutsis. It also reinforces the view that the “kind of trial a man gets depends on his ethnic group”, a situation that defeats the essence of equal justice. From a gender perspective, Gacaca judges were accused of being lenient with women accused of participating in the genocide. This was partly attributed to the stereotype that war is a ‘predominantly male activity’. Consequently, “male witnesses, investigators, prosecutors and judges are so infected by gender stereotypes that they either cannot perceive women as criminals or feel protective towards them’. This has the unintended consequence of providing an impunity safety net for female perpetrators to escape justice. More crucially, this also signals that the process of reintegration should be broadened to also include female combatants in post-conflict societies including Rwanda.

CONCLUSIONS AND RECOMMENDATION

Without a doubt, delivery justice in the genocide that led to the loss of at least 800, 000 lives cannot be underestimated. Admittedly, the ICTR and Gacaca have contributed to delivering justice. As explained above, perceptions of bias and victors’ justice mean sections of Rwandans believed Gacaca and ICTR caused “more harm than good”. From a case count perspective, the Government of Rwanda estimates that a total of 1, 958,634 cases were adjudicated, a case count that was “exceptionally greater than any to those of any justice system that investigated and tried genocide cases either in Rwanda or elsewhere…”. This represents a reinforcement of criticism of the comparatively fewer cases adjudicated by the ICTR and a vindication of Gacaca—at least from the government perspective. I take a cautiously optimistic view because Gacaca provided Rwandans a mechanism to own and participate in the process of justice delivery. Criticisms of Gacaca are cannot be discounted as it was a novelty and challenges were expected. However, some of the criticisms have been fueled by comparisons with Western-style adversarial judicial proceedings. Also, it seems the quest to deliver justice has placed overbearing emphasis on legal processes with little or no emphasis on how survivors and victims are coping post-Gacaca and ICTR.

I assess that the legacy of transitional justice in the context of the ICTR and Gacaca, is that of fragile peace, and remnants resentment and simmering tensions. These grievances can lead to conditions that triggered the genocide. The economic gains achieved by the Paul Kagame-led government should not mask the dysfunctions of exclusionary politics, stifling of free speech and delayed payment of compensation to victims and survivors of the genocide. To enable positive peace and social healing, I recommend the strengthening of institutions to enable people to seek redress and vent their frustrations. It important that the political space is opened to allow for alternative voices in governance and economic opportunities for survivors and victims. It is good that female representation in the Rwanda legislature is almost at parity with males. This should translate into policies that affect the economic livelihoods of Rwanda women. Also, the government cooperates with the international community to prosecute perpetrators, particularly Tutsis who engaged in revenge killings because crimes against humanity have no statute of limitations. Restorative justice requires a balanced approach in which “a single objective is not allowed to dominate the others”. A balanced should entail political freedoms, economic transformation, payment of compensation and continuous pursuit of justice to deepen national unit, reconciliation, and peacebuilding.

Restorative justice, just the name of this approach to conflict resolution brings notes of spring summer and healing in the mind. We often don’t feel satisfied or like the justice that has been served in the dealings of the court, police and legal system at large. Like there is missing variables, a disconnect. We have repeat offenses and victims which still have troubled souls after the verdict. The benefits of restorative justice when used in conflict resolution will be the topic of this piece.

So what is restorative justice? From my reading it is a system of justice in which all parties affected, the victim and perpetrator collaterally influenced parties dialog and come to a just conclusion. From the convenient resource RestorativeJustice.org I got this piece of enlightening context, “Restorative justice views crime as more than breaking the law – it also causes harm to people, relationships, and the community. So a just response must address those harms as well as the wrongdoing.”

The community as we learn from social psych and behavioral science in general is more than just laws, legality, illegality and rigid structure. You have the nuances of local culture, emotional context, and family dynamics. A serious crime can change the whole vibe and temperature of a community, so dealing with the situation as “wholistically” as possible is desirable. So in this restorative mode of operation it is considered best for all significantly affected parties to meet and discuss the consequences, punishment and solutions. Though not always accepted, with the open free participation of all parties, when there is cooperation there can be unexpected transformation!

From the Victim Support website I learned that many victims feel more at peace after engaging in restorative justice approach, helping them to move forward in life after bad experiences. Of course all parties must agree, a trained facilitator needs to determine the situations safety and proper circumstances in which to move forward with the conference as it is often called. “Restorative justice gives you, the victim, a chance to ask the offender questions and have your say, or tell them how their criminal behaviour has affected you.” This opportunity to air out how you were affected and really express your hurt to the source of your misfortune, I would think, is more emotionally helpful to both sides than other methods. It brings a personal human element so that if there is any humanity present and if we hopefully aren’t dealing with a psychopath or sociopath, there can be sincere willing compensation by the perpetrator. Another good point for the victim is stated, “All communication between the victim and offender is carefully mediated by an RJ facilitator who will make sure the process is safe and in your interests as the victim.” If it isn’t safe it won’t be face to face.

One of the important aims through discussion is to get the criminal or perpetrator to see their wrong, understand how their actions affected the community negatively and take responsibility. From lesson 6 on the same site we get some benefits of this practice to the criminal. “It substantially reduces repeat offending for some offenders, although not all, It reduces repeat offending more than prison for adults and at least as well as prison for youths…” So this radically different approach seems to resonate with better long term behavior modification. This human personal communicatory angle also causes the victim to be less likely to seek violent or unlawful revenge. Empathy and helping both sides see as close to the whole picture as possible seems to be an important objective of this approach. Reaching past stereotypes, labels and trigger fast rectionary judgement to see the situation for what it really is. The legal element is only the tip of the iceberg.

Restorative Justice can be described through normative values, which describe the world as we posit it should be, then operational values, which direct how we accomplish the first. What are our normative values what do we strive for. Well most cultures especially in the western context strive for social peace, with freedom of movement and expression. Peace is more than the lack of corrosive conflict, we want harmony, communality and security. Like a living system we want the community when disrupted by discord, also the social disease of harming others selfishly, to bring back balance and cooperation in the community, healing. Total resolution in a protective setting is desired. Lets talk about the normative value respect,

“All people are treated as worthy of consideration, recognition, care and attention simply because they are people. The operational values that encourage respect are inclusion and empowerment. The parties are invited to directly shape and engage in restorative processes and are equipped to effectively influence and participate in the response to the offence.”

All sides deserve the gift of basic respect to say a word even if they are guilty criminals. Sometimes fully realising the situation gives context to the punishment and even helps both parties see a bigger picture. Solidarity comes from the open discussion and community involvement. It could even come about that a community can be more loving, connected and have a stronger bond after assessing a serious issue and eliminating the cancerous variables. Collaboration and making amends are powerful normative values that lead to active responsibility. What is desired is a change to want the community to do it’s best from the internal motivation.

In closing Restorative Justice is a topic that I have thought about in many contexts but only now has been framed in official vernacular. It is good for both victims, defendants and the surrounding families and community. This is due to the value based approach. With more than legal variable taken into affect the parties are more satisfied over all. I hope to see this form of justice make its way to more legal and disciplinary systems. A healthy community is an extended family and should resolves problems as such!

There are many reasons and answers on the punishment for crime as it have changed over the past 20 years more than restorative. The attitudes to crime and deviance have influenced this change. The easiest way to explain this is that back it was common in the ancient times up to until a couple decades ago, offenders would have their hands cut off for stealing or body parts would have been removed as a way of punishment unlike modern times. For example, there would be physical punishments which today’s modern times, people would call it cruelty. These sentences of punishments were more common in the past rather than today’s modern times. Offenders would have been punished with whippings or putting them in stocks which kept a person’s head and hands immobilized for a long period of time as well as public humiliation. Punishments was almost like living in hell to the point is risked people’s lives in so many levels as many would die from capital punishment.

In the modern world, offenders are punished without physical torture unlike the ancient times up until a few decades ago by either imprisoning people for a set period of time depending on the level crime they have committed, or by execution if the crime is serious enough. Another key difference worthy of mentioning is that in today’s modern times, there are very strict guidelines for which punishments fit which crimes. For example, certain crimes can carry punishments of ‘no less than’ a certain amount of days or years in prison and ‘no more than’ a certain amount of time. In older times, it was often up to whomever was in charge of handing out punishment to decide and dictate what would happen to the offenders. Judges were allowed to say, for example, ‘Cut off his fingers for stealing’ or ‘let him go’ and it was up to their judgement.

The purpose of punitive justice is to punish criminal offenders for their inappropriate conduct. As a result, there are consequences for all actions and most are not as pleasant because it takes away a person’s freedom. Criminal offenders are taken to jail to revaluate themselves and their wrong doings. This then allows them to develop and to ponder on the things they have committed. When a person is in jail, they are surrounded with other prisoners. The good thing about punning individuals is that it protects society and it helps maintaining social norms and values that have been created in order for society to function and so by removing offenders, it will only assist society collectively. Another strength is that normalised violence and aggression is a means of problem solving as it screams for attention. This is also a strength as it brings awareness on what needs to be taken into consideration by the ruling class.

Punishment must be dealt with immediately because delayed punishment will only give the chance and opportunity for the offender to find something to else defend themselves with. Stern 1989 stated that offenders are often depressed and suffer with deprivation. This is because offender’s freedom has been taken away from them and as a result, they suffer with psychological and emotional issues and so in prison, they allow TV’s as it helps ease their depression. A limitation on individual who are in prison is that they have extream emotional and psychological problems. In addition to this, privileges of prisons are different from each prison. Another strength is that in the UK if a prisoner follows the rules whilst being in jail, they can earn privileges such as seeing their families and friends and spending money every week. They have rights such as being protected from bullies and harm.

Restorative is an alternative way to punishment to manage behaviour which benefits and reconstruct society. It is a system of criminal justice which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large. Instead of people going to jail, they are doing alternative things and they are being monitored in every move that they take. This means that there are alternatives to jail itself. This was not the case a decade and in the ancient times. This is beneficial because although the individual may not like to serve and help communities for better causes, it will make them think and ponder on their actions and so restorative justice is very beneficial. This is known as restorative punishment because it positively progresses both to the offender and society. Gref (2001) argued that rather being separated from society and shielded from the aftermath of their criminal acts, criminals needed to be exposed to the cost of their crimes in a meaningful way that helps them reintegrate into mainstream social relationships. An example of what restorative justice looks like is that if an individual is dealing with drugs, you will not be sent to jail for having addictions. Instead you will go into a course with a therapy to help them stop their drug uses by giving them medications to prevent from doing drugs again. Those people will be on course and they’ll come back to improve on themselves and so it is restorative justice. This tells us that restorative justice has great advantages to society as its aim is to bring awareness and clarity to their previous behaviours.

Most studies suggested that social factors that influenced the attitudes to crime was caused due to social and economic environments. Sociologists believe that family places a deep effect in the life of a person. Not only their needs but it transfers cultural values which socialize and train them in survival patterns. However, family situations vary from person to person as all individuals may not be able to live in normal functional family. Lowell Carr stated that there are six characteristics of a normal functional family, Structural completeness, Economic security, Cultural conformity, Moral conformity, Physical and psychological normality and Functional adequacy. Yet, it is impossible to find a nuclear family home with all these characteristics, but then it does not mean that there are no ‘normal’ homes in society. What’s fundamental here is the level of the presence of these characteristics in an individual’s life for their overall survival and growth.

Many working class people commit Freud or criminal activities as a result of the exploitation from the upper class individuals to express their feelings towards them and again getting the attention of the upper class is needed in order for society to grow and function and so addressing issues that are happening in beneficial as it brings new laws and policies into force in order to protect people’s rights and in exchange it also protects the created norms and values. Another factor of victimisation in the UK is the location a person may live such as poorer areas with a lot of working-class people. Age is another factor as the younger people aged in their teens and early 20s are most likely to be victimised. Another factor is gender because most people that are affected to victim proneness are women and poor people because it is said that this is not an ideal world and society is more structural and so men (pritriarchy) and poorer people are most likely to me powerless most likely to be victimised.

Victimisation is socially constructed by the news. The media is good at sending wrong messages with emotive language to make the population believe in what they are saying, and the decisions are with us as to if we are buying in to it. Most of the issues that are happening in social media are hidden and so the media only projects what they want you to believe. This shows that the media is run by upper class individuals (bourgeoisie) and they are exploiting information that needs to be addresses and because the have the power to control, this is socially constructed. There is also a hidden agenda in that specific field.

In addition to this, fear of crime is a direct product of the misinformation provided in the media which makes many groups feeling at risk of being victimised. The higher the crime rate they have given the wrong information given to the population. The people that are in jail are automatically labelled as thugs. So the media is not only fuelling society with junk and misinterpretation. As a result, society has become more unfriendly and more people are worried of people made to feel worried.