Confronting the Complexity of Loss

parties and repairing the injuries caused by the dispute. Third, the criminal justice
process should facilitate active participation by victims, offenders, and their
communities in order to find solutions to the conflict. 126
These elements are clearly found in the preamble to the UN’s Basic Principles on the Use
of Restorative Justice Programmes in Criminal Matters, which states:
This approach provides an opportunity for victims to obtain reparation, feel safer
and seek closure; allows offenders to gain insight into the causes and effects of
their behaviour and to take responsibility in a meaningful way; and enables
communities to understand the underlying causes of crime, to promote
community well-being and to prevent crime. 127
Howard Zebr and Harry Mika attempt to provide a working definition of the concept by
highlighting three sequential elements: (1) crime is fundamentally a violation of
interpersonal relationships; (2) violations create obligations and liabilities; and (3)
restorative justice seeks to heal and put right the wrongs. 128 The victim is therefore at the
heart of restorative justice, making the approach fundamentally ‘victim centred’. The
victim’s restoration is presumed to be a multifaceted process, which could entail the need
to understand the causes of the crime, and the perpetrator’s motives. Restorative justice
projects accordingly prioritise restoring victims above other objectives, including
demonstrating leniency towards perpetrators. Tolerance, forgiveness and leniency
towards perpetrators—though possible components of a restorative process—remain
secondary to and contingent on the restoration of victims. In fact, there is no normative
inconsistency between restorative justice and the accountability of perpetrators. The
accountability of the perpetrators is often critical to a victim’s restoration. However, the
narrative on the so-called ‘Sri Lankan approach’ to restorative justice appears to prioritise
the facilitation of tolerance, forgiveness and leniency towards perpetrators rather than
victim restoration. It seeks to place secondary objectives at the helm of the process. The
narrative therefore appears to distort the fundamental objective of restorative justice.
The second normative concern relates to the inability of the so-called ‘Sri Lankan
approach’ to appreciate the interplay between so-called ‘restorative’ and ‘retributive’
elements of justice. The narrative appears to rule out prosecutions on the basis that they
fall outside the ambit of restorative justice. No consensus has been reached on whether
restorative justice programming ought to explicitly include the prosecution of offenders.
Yet scholars such as Kathleen Daly have produced empirical research that reveals strong
connections between retribution and restoration. 129 Detailed studies on restorative justice
126 B. Galaway & J. Hudson (eds.), Restorative Justice: International Perspectives (1996), at 2.
127 The United Nations Economic and Social Council, Basic Principles on the Use of Restorative Justice
Programmes in Criminal Matters, ECOSOC Resolution 2002/12. Also see T. Marshall, Restorative
Justice: An Overview, Home Office (United Kingdom) – Research, Development & Statistics Directorate
(1999). The author defines restorative justice as ‘a process whereby all the parties with a stake in a
particular offence come together to resolve collectively how to deal with the aftermath of the offence and
its implications for the future.’
128 Howard Zebr & Harry Mika, ‘Fundamental Concepts of Restorative Justice’ in Eugene McLaughlin &
Gordon Hughes (eds.), Restorative Justice: Critical Issues (2003), at 40.
129 Kathleen Daly, ‘Restorative justice: The real story’, [January 2002] 4.1 Punishment & Society 55-79.
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