Making Criminal Trials Work in Transitional Settings: Combining Retributive and Restorative Justice to Overcome the Justice versus Peace Dilemma

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Author(s): Jeremy Julian Sarkin and Inês Pereira Lopes

To cite this article: Sarkin, J. J., & Lopes, I. P. (2023). “Making Criminal Trials Work in Transitional Settings: Combining Retributive and Restorative Justice to Overcome the Justice versus Peace Dilemma”, Internet Journal of Restorative Justice. ISSN (online): 2056-2985

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Abstract

Transitional justice, aimed at assisting societies in responding to legacies of systematic or mass human rights violations, is tasked with the arduous endeavour of simultaneously delivering justice for the crimes committed and achieving long-lasting peace. The success of transitional processes in accomplishing this task, however, has been constrained by the practical difficulties of delivering criminal justice within transitional settings. This, paired with the insufficient and often harmful role that criminal trials, rooted in a conventional, retributive conception of justice, have played in transitions, has often hindered the chances of peace. Consequently, transitional societies have systematically been faced with the impossible choice between sacrificing peace to comply with the mandates of international criminal justice or settling for impunity to ensue in the name of peace. This makes up what is commonly referred to as the ‘justice versus peace’ dilemma. With the intent of overcoming this dilemma, restorative justice, as an approach to justice in which the goals of justice and peace go hand in hand, has been increasingly proposed and allegedly applied within the field of transitional justice. However, the way in which restorative justice has been understood within transitional settings thus far is limited by a conceptual overlap that has reduced it to a mere alternative and partial form of justice, juxtaposed against retributive justice. This has hindered the harnessing of its true potential to contribute to overcoming the justice versus peace dilemma of transitional justice. This article aims to contribute towards overcoming the justice versus peace dilemma of transitional settings. Thus, this article makes a case for a mixed approach to international criminal justice in transitional settings. By reconceptualising the concept of justice and acknowledging restorative justice’s true potential for transitions, the proposed mixed approach combines both retributive and restorative proceedings and sanctions. Through this approach, criminal trials may finally be able to ensure justice for the atrocities committed, all the while contributing to the chances of peace.

Keywords: Restorative Justice; Retributive Justice; Transitional Justice; Peace Versus Justice; International Criminal Justice

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