Conflict Management Workshop: Restorative vs.

Retributive Justice in the case of Victor Alves Report by Denise Noblet 31 October 2002

Introduction

A Conflict Management Workshop conducted at the University of Queensland in October 2002 explored the issue of restorative versus retributive justice in the context of the case of Victor Alves, a Timorese who had killed a pro-Indonesian leader. Alves violation was one of many in East Timors struggle for independence. Alves subsequent confession, detention and hearing occurred in the midst of East Timors (ongoing) transition from an INTERFETadministered justice system (International Force East Timor) to the establishment of civilian judicial authority.

At the conclusion of the Workshop, participants were asked to report on the advantages and disadvantages of restorative and retributive justice. The writer acknowledges that the points covered in this report barely skim the surface of research and analysis into both models of justice. Due to word limit constraints, this report is limited to ideas raised in the Workshop. First, restorative and retributive justice are discussed in general terms. Then brief consideration is given to which model would be more appropriate for the case of Victor Alves.

Restorative Versus Retributive Justice

Retributive Justice

Howard Zehrs Model of Comparison of Justice Systems (retrieved from the Internet) provides clear distinctions between restorative and retributive justice. The two models are vastly different in the way they frame crime and the emphasis they give to both victim and offender.

Retributive justice defines crime as the violation of rules and identifies the State as the victim. The crime and the severity of the crime are weighted above all else, including the motive and age of the perpetrator (Van Wormer 2001: 32). Under this principle, the offender has a debt to pay to an abstract society and must pay by punishment. This assigns both offender and victim a passive role in the justice system and allows for little, if any, restitution for the victim.

Retributive justice has been criticised on a number of counts. Katherine Van Wormer (2001: 32) argues that the process can reward offenders if they deny their guilt and hire a good lawyer one with the ability to demolish a witness, often the victim. Lode Walgrave (2001:

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27) contests that retribution is an inadequate means of confirming and internalising dominant, positive social norms since punishment has a stigmatising influence on the offender. Furthermore, voluntarily inflicting harm on others is ethically wrong, even if such harm is inflicted in the name of justice. Emilio Viano (2000: 132) points out that retributive justice has not produced satisfactory results for (US) society, citing increasing levels of incarceration and fear of crime. Viano also notes the escalating costs and delays typically associated with retributive justice, not least the expense of maintaining prisons (2000: 137).

One of the benefits of retributive justice expressed in the Workshop was its potential to maintain consistent outcomes through sentencing guidelines. However such guidelines wee criticised for failing to take into account the offenders circumstances, motive and other mitigating factors.

Restorative Justice

Restorative justice defines crime as the violation of people and relationships, and acknowledges the offenders debt to the victim (Zehr: www). The focus is on repentance and reparation, with the offender required to pay their debt by making things right. At the heart of this principle is the idea that offenders are often redeemable and can be reintegrated into the community (Van Wormer 2001: 33). Offender, victim and community are active participants in justice.

Some Workshop participants argued that victims would not choose reconciliation over retribution. Instead, they would seek to return the pain they had suffered by calling for the offender to rot in jail or hang. The literature on restorative justice contests that retribution does not meet the victims needs. While it may bring a sense of satisfaction, it cannot empower the victim in the way that mediation and restitution can (Van Wormer 2001: 33). Feedback from victims supports this position; Lode Walgrave (2001) has found that victims who have been through a mediation process are more satisfied with their opportunities to vent their emotions and with the attention given to their injuries. They are also more satisfied with the outcomes of mediation. Walgrave asserts that the dynamics of the mediation experience have proven to be even more important to crime victims than the resulting material compensation (2001: 28).

The Workshop participants noted that in nations shattered by prolonged conflict, restorative justice can be applied in the form of a Truth and Reconciliation Commission. Such a commission would be mandated to investigate human rights abuses and violence, and bring the offenders together with the victim(s) and the community to initiate healing and reconciliation. There are concerns over using Truth Commissions. Stephen Hooper (2001:

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www) argues that unlike courts, the commissions have only limited ability to compel the attendance at the hearings and where there have been long delays between the time of the events and the establishment of the commission, there must be some doubts about the efficacy of the process. Hooper also questions the wisdom of truth telling for crimes that may have been committed up to twenty-five years before, especially in a time of transition. It may only serve to revive painful memories that the people have spent years coping with (Hooper 2001: www). Workshop participants shared these concerns, noting that a Truth and Reconciliation Commission can only operate if all parties are willing to be involved in the process.

A complementary arrangement?

The Workshop participants considered whether either model of justice could be employed exclusively, or if both models were required. It was agreed that both restorative and retributive justice had a place in the judicial system, not least because restorative justice could not apply when public safety was at risk (Walgrave 2001: 29). In any event, it has been argued the two principles have important characteristics in common: each seeks to express community condemnation in order to protect public safety and deter or dissuade the specific offender and others from similar behaviour in the future (Carns, Hotchkin and Andrews 2002: 56).

In the context of East Timor, the Workshop participants agreed that an independent committee representative of all ethnic groups (and possibly victims) should determine which principle to apply on a case-by-case basis.

Applying Justice in the Case of Victor Alves

Background

Suzannah Linton (2001) provides a comprehensive account of the case of Victor Alves (Melbourne University Law Review, Vol 25: 140-143). Alves confessed to killing a proIndonesian leader, Antonio Miguel Pacheco, on 22 September 1999 and was arrested by INTERFET on 12 December 1999. On 28 April 2000, Alves lawyers filed an application challenging his continued detention, alleging that he had been unlawfully detained. The hearing went to court on 11 May 2000 before Judge Rui Perreira dos Santos. Linton notes that this was the first hearing in the District Court of Dili in the transitional period, and the first time an East Timorese judge, prosecutor and defence counsel had acted in an East Timorese court. The judge found that Alves had been unlawfully detained and ordered his release.

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The Workshop participants suggested alternative outcomes using restorative or retributive principles. Two factors were significant in the decision-making process: Alves status as a local hero for his actions, and Alves membership of FALINTIL, the armed wing of the Fetilin, which is the main Timorese resistance party, a founding member of the National Council of East Timorese Resistance, and until recently commanded by Xanana Gusamo (Linton 2001: 140).

Ron Claassen (1996) notes that after crime occurs, there is a danger that the community, victim(s), and/or offender emerge from the response further alienated, more damaged, disrespected, disempowered, feeling less safe and less cooperative with society (quoted by Ruth-Heffelbower: www). When the offender is a local hero, as in the case of Victor Alves, and can be seen to have acted as an agent for his people, the danger is more acute. The Workshop participants felt that imprisoning Alves had the potential to alienate his community and destabilise the peace-building process. Those who advocated restorative justice argued that when a nation is in transition, reconciliation must be at the heart of all activities, especially justice, to ensure long term stability and prevent conflict from reoccurring.

Advocates for retributive justice countered that Alves must be punished, echoing UNTAETs alleged fear that the release of Alves would open the floodgates, resulting in the release of many other detainees including militia members. This, too, had the potential to destabilise the situation. It was suggested that Alves be sentenced to house arrest to keep his community on side. This idea was rejected on the basis that it would alienate the victims, and may further elevate Alves hero status.

Conclusion

There are no easy answers to the case of Victor Alves. Both restorative and retributive justice have the potential to alienate the victims and segments of the community. However, restorative justice does seem to be the better option in a time of transition and instability; for as Viano (2000: 134) notes, restorative justice not only looks at a past violation, it is deeply concerned with building a better society now and in the future.

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References

Carns, Teresa W., Michael G. Hotchkin and Elaine M. Andrews. 2002. Therapeutic Justice in Alaskas Courts. Alaska Law Review v19 i1 p1(55). Hooper, Stephen. Should East Timor Establish a Truth and Reconciliation Commission? [http://www.massey.ac.nz/~wtie/Work/should_east_timor.htm] Retrieved 30 October 2000. Linton, Suzannah. 2001. Rising from the Ashes: the Creation of a Viable Criminal Justice System in East Timor. Melbourne University Law Review vol 25 p123. Ruth-Heffelbower, Duane. Indonesia: Restorative Justice for Healing a Divided Society. [http://www.fresno.edu/pacs/docs/indorj/pdf] Retrieved 30 October 2002. Van Wormer, Katherine. 2001. Restoring Justice (Law and Justice). USA Today (Magazine). V130 i2678 p32(3). Viano, Emilio C. 2000. Restorative Justice for Victims Offenders: A Return to American Traditions. Corrections Today v62 i4 p132. Walgrave, Lode. 2001. Restorative Justice or Penal Law: Duet or Duel? Judicial Explorations (Justiteile Verkenningen) 27 (3). Zehr, Howard. 1990. Model of Comparison of Justice Systems. [http://www.networksplus.net.tcpj/vomp/rest_vs_retr.htm] Retrieved 30 October 2002. (See also http://www.ojp.usdoj.gov/nij/rest-just/ch1/ch1_umb/tsid001.htm)

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