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Toolkit on Diversion and Alternatives to Detention



Conflict Resolution and Victim/Survivor Impact

• Introduction
• 1. Positive community development and peace-building - beyond reducing recidivism
• 2. Conflict resolution: the restorative justice ‘balance’
• 3. Impact on victims/survivors
• Summary
In addition to the reasons given in section C1 about public safety and recidivism, there are other important aspects why diversion and alternatives are better for society than detaining children in conflict with the law. This section is in 3 parts: Part 1 outlines the broader, philosophical base for positive community development and peace-building; Part 2 re-caps the benefits of a restorative justice approach in restoring harmony and balance in society; Part 3 compiles evidence of the positive impact of restorative justice programmes on victims/survivors of crime.
1. Positive community development and peace-building - beyond reducing recidivism
The ‘peaceful, law-abiding society’ which the criminal justice system aspires to attain (see Section C1) is a noble yet complex goal and it requires a greater effort than ‘merely’ preventing crime or reducing recidivism – although this is clearly a huge step forward in itself. The 1948 Universal Declaration on Human Rights reminds us that: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” (Article 1 – emphasis added).

Societal and community harmony requires efforts to proactively foster tolerance, respect, understanding, compassion, empathy, trust, forgiveness and responsibility. This is obviously not just the job of the criminal justice system but is a goal which should be shared by all those involved in child-rearing, education, social welfare, social policy, media, employment, religion and the arts. However, the criminal justice system plays a key role in contributing to these collective efforts, especially as it comes to the forefront at times when social relations are particularly strained – i.e. through the commission of offences which de-stabilise the bonds of trust and understanding mentioned above.
It is therefore important to capitalise on all of the benefits that can be offered through a well-managed child rights-based approach (and restorative justice approach where possible and appropriate) to diversion and alternatives beyond the narrow (albeit worthy!) goal of reducing recidivism.

2. Conflict resolution: the restorative justice ‘balance’
According to the Tokyo Rules (UN Standard Minimum Rules for Non-custodial Measures), “When implementing the Rules, Member States shall endeavour to ensure a proper balance between the rights of individual offenders, the rights of victims, and the concern of society for public safety and crime prevention” (Rule 1.4). The Beijing Rules (UN Standard Minimum Rules for the Administration of Juvenile Justice) also state that “The reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of the society” (Rule 17.1(a)).[1]

For more information on restorative justice refer to the earlier section of this toolkit on Restorative justice - definition & discussion. The three-way balance between offender, victim/survivor and society can best be seen in the diagram contained in the ‘Learn more about restorative justice’ document linked to this previous section. However, this balance does not just involve considering each of these three elements in isolation – i.e. making sure the rights of the offender, the rights of the victim/survivor and the interests of society are addressed. Restorative justice focuses on the links between the three elements. It tries to ‘restore’ damaged relationships to the way they were before a crime was committed – to ‘make things right as much as possible.’ It promotes solutions to repair damage, reconcile parties involved, restore community harmony and reassure those involved. The ultimate aim of restorative justice is healing. It can even go so far as to improve these three-way relationships, leading to a better understanding and sense of responsibility between offender, victim/survivor and society.

It is this proactive relationship building which contributes positively to community harmony above and beyond the narrow focus of reducing recidivism. The impact of this conflict resolution as part of overall community development efforts should not be underestimated and attempts should be made to capitalise on such opportunities provided through diversion and alternatives programmes where possible and appropriate.
In practice this usually occurs through some form of facilitated mediation (also known as 'conferencing' or 'dialogue') which is often a component of diversion and alternatives programmes, for example victim-offender mediation, family group (community) conferencing, sentencing circles etc., all of which are considered in more detail in the toolkit section on ‘Examples of restorative justice.’

As stated throughout this toolkit, a restorative justice approach is not always necessary, possible or appropriate in the implementation of diversion and alternatives (for example when a simple warning is sufficient or when one of the parties, having been fully informed about the process, is not willing to participate in a restorative justice intervention). Discretion is therefore required on a case by case basis, although such discretion should be exercised in the light of a good understanding of the principles and functioning of restorative justice.[2] It must also be reiterated here that restorative justice approaches must respect children's rights and legal safeguards: traditional restorative processes which aim primarily at 'restoring harmony' in the community at the expense of discarding legal guarantees and child rights are not acceptable (e.g. a victim/survivor of rape being forced to marry her abuser, or a perpetrator of incest being returned to his/her family without any measures being taken to safeguard the children at risk within that family).

3. Impact on victims/survivors
In offences which involve a victim/survivor (theft, fraud, violence against persons or property etc.), their rights have traditionally been sidelined in ‘retributive’ and ‘rehabilitative’ justice process. In restorative justice, on the other hand, they take a much more prominent position, making up a third of the three-way balance / triangle. Although it is a highly sensitive area which needs careful handling and clear safeguards in place, victim-offender mediation – a key component of many diversion and alternatives programmes – has been shown to have a positive impact on both victims/survivors and offenders and can, in turn, contribute positively to social harmony more generally.

A large percentage of victims/survivors of crimes committed by under-18s are themselves under the age of 18. This requires particularly sensitive handling during restorative justice proceses.

A summary has been prepared for this toolkit compiling the results of various studies, evaluations and meta-analyses which show the impact of programmes around the world specifically on victims/survivors.

Download ‘Compilation of evidence showing positive victim/survivor impact’ 
If they capitalise on all the potential benefits available through child rights-based approaches, and restorative justice approaches where possible and appropriate, diversion and alternatives programmes (and therefore the criminal justice system more broadly) can contribute positively to collective community and government efforts towards achieving societal harmony and peace-building. This is addition to the benefits which can be achieved specifically in relation to public safety and reduced recidivism. It can be achieved through participatory mediation-type programmes which seek to increase mutual understanding amongst the three stakeholder groups (offender, victim/survivor and society). Victims/survivors of crime are given a more central position in such processes compared to retributive or rehabilitative justice systems. In this way, diversion and alternatives programmes which adopt a child rights-based, restorative justice approach can yield even greater benefits to society. This is especially true in comparison with detention of children in conflict with the law which often serves only to further isolate offenders from society and increase fear, intolerance, misunderstanding and conflict.
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1. The commentary to Beijing Rule 17.1 highlights the philosophical debates involved in trying to balance such considerations, but – due to the particular developmental needs of children in conflict with the law as highlighted in toolkit section A2 – essentially comes down in favour of the rights of the child in conflict with the law: “The main difficulty in formulating guidelines for the adjudication of young persons stems from the fact that there are unresolved conflicts of a philosophical nature, such as the following: (a) Rehabilitation versus just dessert; (b) Assistance versus repression and punishment; (c) Reaction according to the singular merits of an individual case versus reaction according to the protection of society in general; (d) General deterrence versus individual incapacitation. The conflict between these approaches is more pronounced in juvenile cases than in adult cases. With the variety of causes and reactions characterizing juvenile cases, these alternatives become intricately interwoven. […] Rule 17.1(b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and the future of the young person.”
2. For example, a decision not to use a restorative justice approach should not be based on a potentially misguided assumption that this would be a 'soft option' for the offender, or that the victim/survivor's family wants the offender to 'go to prison'.

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