restorative justice and the un - beth06_mccold

8/3/2019 Restorative Justice and the UN - Beth06_mccold

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Restorative Justice& the United Nations

Paul McCold, Ph.D.Professor, IIRP Graduate SchoolChair, Alliance of NGOs on

Crime Prevention & Criminal Justice (NY)


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Restorative justice

is a paradigm,not a program.


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Restorative Justice & the UN

1) Domestic criminal justice

2) Trans-national justice3) Transitional justice

4) International justice


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Alliance of NGOs on

Crime Prevention & Criminal Justice

The Alliance was formed in 1972 as acoalition of major NGOs having

consultative status with the UnitedNations and dedicated to crimeprevention and criminal justiceimprovements. The Alliancesponsored ancillary sessions at UN

Crime Congresses beginning in 1975.www.cpcjalliance.org

ECOSOC NGOs


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Alliance of NGOs on


The Ninth Congress, conducted in Cairoin 1995, included several sessions onthe theme of crime victims andrestorative justice. While interest inthe topic was strong, presentationsduring Ancillary Meetings had littleeffect on the debate during theCommittee and Plenary Sessions of the Congress itself. As a result, a

group of NGOs participating in theAlliance on Crime Prevention andCriminal Justice (NY) decided to forma Working Party on RestorativeJustice.

ECOSOC NGOs


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Alliance of NGOs on


It is our belief that the UnitedNations has a unique opportunityto help shape a new model forcriminal justice and crimeprevention, one which will serve torestore peace in communities andsocieties throughout the world.

Working Party on Restorative Justice

(1998).www.cpcjalliance.org

ECOSOC NGOs


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Working Party on Restorative JusticeAlliance of NGOs on Crime Prevention & Criminal Justice

The purpose of the Working Party was to stimulate sufficientinternational awareness and interest in restorative justice tomake it an item of discussion at the Tenth Crime Congress tobe held in 2000 in the Committee and Plenary Sessions of theCongress itself, not simply in the ancillary meetings.

Worked under two charters approved by the Alliance.

The first had as its objective making restorative justice adiscussion topic at the Tenth Crime Congress.

The second, adopted after the first had been realized, was topromote UN adoption of basic principles on the use ofrestorative justice.

ECOSOC NGOs


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1) Overview of current literature on Restorative Justice.

Paul McCold, Restorative Justice: Annotated Bibliography (Monsey,NY: Criminal Justice Press, 1997).

A comprehensive annotated bibliography of articles andresearch concerning use of restorative justiceworldwide. The 500+ entries in the bibliography havebeen since put online and are regularly updated as asearchable database on restorative justice. It nowcontains 7,000+ entries.www.restorativejustice.org/research .

Working Party on Restorative JusticeAlliance of NGOs on Crime Prevention & Criminal JusticeECOSOC NGOs


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2) Develop a working definition of Restorative Justice.McCold, P. (1997, May). Restorative justice: Variations on a theme. Paper presented at the

1st International Conference on Restorative Justice for Juveniles, Leuven, Belgium.

Used a Delphi process to try to established a concensus defintion among scholars.When successive interations of the process failed to produce a consensus,the WP adopted the definition submitted by Tony Marshall , of the BritishHome Office.


the Marshall definitionRestorative justice is a process whereby all the pa rt ies

with a stake in a particular offence come together t oresolve collectively how to deal with the aftermath of theoffence and its implications for the future.

(Tony F. Marshall, 1996)


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3) Review nomenclature and decide on the mostappropriate title.

McCold, P. (1998). Restorative justice handbook. UN Alliance of NGOs on Criminal Justice and Crime Prevention (New York),Working Party on Restorative Justice. CorrectionsCompendium, 23 (12), 1-4; 20-28.

Proposed a working definition (Marshall) and fundamental

principles of restorative justice, descriptions of typicalrestorative programs, a lexicon of terminology commonly usedin discussions about restorative justice, and a shortbibliography.



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Council of Europe

In 1995 the Council of Europe appointed an Expert Committee toevaluate and assess the use of mediation in criminal proceedingswithin Europe.

Between 1996 and 1999 the Committee met to review reports fromcountries with experience in mediation of criminal matters, and toconsider what if any recommendations to make.

The appendix of the report defines mediation and offers 34principles for Member States of the Council of Europe to considerwhen using mediation in penal matters.

The Committee of Ministers adopted the recommendation inSeptember 1999.


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United Nations Commission on

Crime Prevention & Criminal JusticeThe 40-member UN Commission on Crime Prevention and Criminal Justice

formulates international policies and recommends activities in the field ofcrime control.

The Commission offers nations a forum for exchanging information and tosettle on ways to fight crime on a global level. It also provides substantivedirection for the periodic UN Congresses on the Prevention of Crime and theTreatment of Offenders.

international action to combat national and transnational crime, includingorganized crime, economic crime and money laundering;

promoting the role of criminal law in protecting the environment; crime prevention in urban areas, including juvenile crime and violence; and improving the efficiency and fairness of criminal justice administration

systems.


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In April 1997, the Commission on Crime Prevention andCriminal Justice adopted a provisional agenda for that

2000 Crime Congress. Item four on the agenda was "Offenders and victims:

accountability and fairness in the justice process."

It was understood that this topic opened the door todiscussion of restorative justice as well as issues relatedto the rights and roles of victims in criminal justice.


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Revised its charter.

The first had as its objective making restorative justice a

discussion topic at the Tenth Crime Congress.

The second, adopted after the first had been realized, was topromote UN adoption of basic principles on the useof restorative justice .



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On behalf of the Working Party, Dan Van Ness of PrisonFellowship International collected standards and norms aboutrestorative justice, treatment of victims and mediation anddrafted a set of basic principles on the use of restorative

justice . These were circulated for comment and revision at aseries of restorative justice conferences and among UNmember states.



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International Scientific and

Professional Advisory CouncilIn 1999, ISPAC released An Overview of Restorative Justice

Programmes and Issues that concluded that guidelines andstandards are desperately needed because of three

dangers.1) that programs that are initially restorative in outlook recreate

the courtroom process and, in turn, undermine rather thancultivate restoration.

2) that the legal basis for initiating the process can get lost.

3) that the etiological factors producing crime - poverty, racism,cultural/social values, individualism will not be addressed asthey are uncovered in the process.

Friday, P. (1999). United Nations Overview of Restorative Justice . Working group of Resource CommitteeNo. 1, Victims, Report on restorative justice issues. International Scientific and Professional AdvisoryCouncil (ISPAC) of the United Nations Crime Prevention and Criminal Justice Programme.


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Crime Prevention & Criminal Justice In April 2000, at the Commission on Crime Prevention and

Criminal Justice meeting, the governments of Canada and

Italy introduced a resolution proposing development ofbasic principles on the use of restorative justice . Thirty-eight other countries joined as cosponsors and

the resolution was approved unanimously and referred to

the Economic and Social Council.

Van Ness, D. (2003). Proposed basic principles on the use of restorative justice: Recognising the aims andlimits of restorative justice In A. von Hirsch, et. al., (Eds.), Restorative justice and criminal justice:Competing or reconcilable paradigms? (pp. 157-176) Oxford: Hart Publishing.


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In July 2000, ECOSOC resolution entitled Basic principleson the use of restorative justice programmes in criminal

matters requested the Secretary-General to seek comments from

Member States and relevant intergovernmental and non-governmental organizations, as well as institutes of the

United Nations Crime Prevention and Criminal JusticeProgramme network, restorative justice programmes incriminal matters, including the advisability of developinga new instrument for that purpose.

United NationsEconomic and Social Council

(ECOSOC)


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Group of Experts on Restorative Justice meeting inOttawa from 29 October to 1 November 2001.

Report of the Secretary-General on restorative justice [E/CN.15/2002/5 and Corr.1.]

Report of the Group of Experts on RestorativeJustice [E/CN.15/2002/5/Add.1]

Group of Experts on

Restorative Justice


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The Expert Group agreed that the purpose of basic principles was to

assist Member States of the UN to adopt and standardize restorative justice initiatives in their justice systems, but not to make thesemandatory or prescriptive. Further, since theories of restorative

justice continue to evolve, the Expert Group avoided using prescriptiveor narrow definitions that might impede further development.

Group of Experts on

Restorative Justice


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1. "Restorative justice programme " means any programme that uses restorativeprocesses and seeks to achieve restorative outcomes.

2. "Restorative process " means any process in which the victim and the offender, and,where appropriate, any other individuals or community members affected by a crime,

participate together actively in the resolution of matters arising from the crime,generally with the help of a facilitator. Restorative processes may include mediation,conciliation, conferencing and sentencing circles.

3. "Restorative outcome " means an agreement reached as a result of a restorativeprocess. Restorative outcomes include responses and programmes such as reparation,

restitution and community service, aimed at meeting the individual and collective needsand responsibilities of the parties and achieving the reintegration of the victim andthe offender.



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Member States should consider the formulation of national strategies and policies aimed atthe development of restorative justice and at the promotion of a culture favourable to theuse of restorative justice among law enforcement, judicial and social authorities, as well aslocal communities.

1. Takes note of the basic principles on the use of restorative justice programmes incriminal matters2. Encourages Member States to draw on the basic principles on the use of restorative

justice programmes in criminal matters in the development and operation of restorative justice programmes;3. Requests the Secretary-General to ensure the widest possible dissemination of the basic

principles on the use of restorative justice programmes in criminal matters among MemberStates, the institutes of the United Nations Crime Prevention and Criminal JusticeProgramme network and other international, regional and non-governmental organizations;4. Calls upon Member States that have adopted restorative justice practices to makeinformation about those practices available to other States upon request;



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Criminal Justice Reform UnitCriminal justice reform is at the heart of the mandate of the United Nations.

Successive UN Crime Congresses, the First UN Congress on thePrevention of Crime and the Treatment of Offenders being held inGeneva in 1955, have explored ways in which criminal justice systems canoperate both more effectively and more humanely. The most recent

Crime Congresses, held in Vienna in 2000 and in Bangkok in 2005, havecontinued to strengthen the role of the United Nations in the area ofcriminal justice reform. The Vienna Declaration and its Plans of Action,in particular, highlighted the importance of the issue of criminal justicereform. The Commission on Crime Prevention and Criminal Justice has insuccessive sessions continued to underscore the importance of effectiveglobal responses in the area of criminal justice reform. The mandate toassist States in building fair and effective criminal justice systems arealso contained in resolutions by the main policy-making organs of theUnited Nations: the General Assembly and the Economic and SocialCouncil.


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CJRU works on the implementation and the operationalization of the United NationsStandards and Norms in Crime Prevention and Criminal Justice. These include:

Code of Conduct for Law Enforcement Officials (GA Resolution 34/169), United Nations Rules for the Protection of Juveniles Deprived of their Liberty (GA

resolution 45/113), Basic Principles on the Independence of the Judiciary (ECOSOC Resolution 1989/60),

United Nations Standard Minimum Rules for the Administration of Juvenile Justice(GA resolution 40/33),

United Nations Standard Minimum Rules for the Treatment of Prisoners (ECOSOCresolution 1984/47),

United Nations Standard Minimum Rules for Non-Custodial Measures (GA resolution45/110),

Basic Principles of Justice for Victims of Crime and Abuse of Power (ECOSOC1989/57)

Guidelines on justice in matters involving child victims and witnesses of crime Basic principles on the use of restorative justice programmes in criminal matters

(ECOSOC resolution 2002/12)

Criminal Justice Reform Unit


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Criminal Justice Reform Unit

The Unit oversees project development and provides substantivesupport for project implementation in the general area of

justice reform, including: juvenile justice; penal reform; restorative justice ; alternatives to imprisonment; victim support; and monitoring and civilian oversight of criminal justice

performance.


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UN Commission on Crime

April 2006E/CN.15/2006/3United Nations Economic and Social CouncilCommission on Crime Prevention and Criminal Justice

Fifteenth session, Vienna, 24-28 April 2006Item 3 of the provisional agendaWork of the United Nations Office on Drugs and CrimeThe rule of law and development: strengthening the rule of law and the

reform of criminal justice institutions, including in post-conflictreconstruction


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UN Handbook on RJ

A. Providing Member States with technical tools and manuals 1. Criminal justice reform (c) Handbook on restorative justice

36. Drawing on the Basic principles on the use of restorative justiceprogrammes in criminal matters (ECOSOC resolution 2002/12, annex) andwith an international focus on restorative processes, a handbook on restorative

justice has been developed. It offers an overview of key considerations in theimplementation of participatory responses to crime based on a restorative

justice approach. It focuses on a range of participatory measures, inspired byrestorative justice values, that are flexible in their adaptation to criminal justicesystems and that complement them while taking into account varying legal,social and cultural circumstances. The handbook covers definitions of keyconcepts, a summary of the main types of intervention, legislation, rules andguidelines for practitioners, and programme operation, monitoring andevaluation. It is meant as a guide for policymakers, legislators andpractitioners as well as international organizations and non-governmentalorganizations.


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Handbook on

http://www.unodc.org/unodc/en/criminal_justice_tools.html

RestorativeJustice

On the use and application of the Declaration of Basic principles on the use of restorative justice programmes in criminal matters


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Where next?Restorative Justice & the UN

1) Domestic criminal justice

2) Trans-national justice

3) Transitional justice4) International justice


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International Criminal Court

The International Criminal Court was established by the Rome Statute ofthe International Criminal Court, so called because it was adopted in Rome,Italy on 17 July 1998 by the United Nations Diplomatic Conference ofPlenipotentiaries on the Establishment of an International Criminal Court .

The Rome Statute is an international treaty, binding only on those Stateswhich formally express their consent to be bound by its provisions. TheseStates then become Parties to the Statute.

The Rome Statute entered into force on 1 July 2002, once 60 States hadbecome Parties. Today, 100 States have become Parties to the Statute.


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International Criminal Court

The International Criminal Court (ICC) is an independent, permanent courtthat tries persons accused of the most serious crimes of internationalconcern, namely genocide, crimes against humanity and war crimes. The ICC

is based on a treaty, joined by 100 countries.

The ICC is a court of last resort. It will not act if a case is investigated orprosecuted by a national judicial system unless the national proceedings arenot genuine, for example if formal proceedings were undertaken solely to

shield a person from criminal responsibility. In addition, the ICC only triesthose accused of the gravest crimes.


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Article 33 of the UN Charter

1. The parties to any dispute, the continuance of which islikely to endanger the maintenance of international peaceand security, shall, first of all, seek a solution bynegotiation, enquiry, mediation, conciliation, arbitration,

judicial settlement, resort to regional agencies orarrangements, or other peaceful means of their ownchoice.

2. The Security Council shall, when it deems necessary, callupon the parties to settle their dispute by such means.


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Restorative Justice & the United Nations


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U N P e a c e b ui l d i ng C o mmi ssi o n

U N E c o n o m i c a n d S o c i a l C o u n

c i l

I nt e r na t io na l Sc ie nt if ic a nd P r o f e ssio na l Ad v iso r y C o unc il

C o u n c i l o f E u r o p e

Alliance of NGOs on Crime Prevention & Criminal Justice

UN Commission on Crime Prevention & Criminal Justice

UN Congress on Crime Prevention & Criminal Justice

U N O f f i c e o f D r ug s

& C r i m e

U n i t e d Na t i o n s G e n e

ra l A s s e m b l y

U N C r imina l J ust ic e Re f o r m U nit

W o r k i ng Pa r t y o n R es t o ra t

i v e J us t i c e

E ur o p e a n U ni o n

restorative justice and the un - beth06_mccold

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