Transitional justice doused in restorative promises: new horizons or old quicksand? A critique of the restorative justice hype promoted by Colombia’s Special Jurisdiction for Peace

The handling of narcotics crimes in Indonesia remains a persistent legal and social challenge, especially in balancing punitive measures with rehabilitation efforts. This empirical legal research investigates the implementation of prosecution termination policies using a restorative justice approach in narcotics cases and analyzes their compatibility with the principles of Maqasid al-Shari‘ah. Field data were collected through in-depth interviews with 12 key informants, consisting of prosecutors, judges, police investigators, religious leaders, and former drug offenders who had undergone restorative justice proceedings. Additional data were obtained through direct observation of mediation sessions at the prosecutor’s office and the analysis of legal documents, including case files and institutional guidelines. The field findings reveal that the application of restorative justice is still limited and discretionary, often depending on the initiative of individual prosecutors and the willingness of victims or communities to engage in non-litigation settlement. While some prosecutors have successfully used this approach for first-time or non-distributor offenders, significant legal and structural constraints remain—such as the absence of detailed operational guidelines, lack of coordination between institutions, and limited public understanding of restorative mechanisms. Nevertheless, the study finds that the use of restorative justice aligns substantively with the goals of Maqasid al-Shari‘ah, particularly in protecting life (hifz al-nafs), intellect (hifz al-‘aql), and religion (hifz al-din), by prioritizing rehabilitation, mental health recovery, and spiritual reintegration over mere incarceration. Restorative practices, such as sulh (mediation) and community involvement, are also consistent with Islamic legal traditions emphasizing compassion, reconciliation, and prevention of greater harm (dar’ al-mafasid). The academic contribution of this study lies in offering a normative-empirical synthesis between Islamic legal principles and restorative justice practices, providing a conceptual and policy framework for the transformation of narcotics prosecution models in Indonesia. It emphasizes the importance of integrating maqāṣid-based reasoning into contemporary criminal justice reform to foster a more humane, rehabilitative, and socially responsive legal system.

Restorative Justice: Some Facts and History

On 24 November 2016, the Colombian government and FARC-EP signed a historic peace agreement, establishing the Comprehensive System for Truth, Justice, Reparation, and Non-Recurrence. Central to this system is the Special Jurisdiction for Peace (SJP), which combines restorative justice mechanisms with judicial oversight. This article analyses whether the special treatment measures under the SJP —such as special and alternative sanctions, amnesties, and pardons— comply with Colombia’s obligations under the American Convention on Human Rights and the International Covenant on Civil and Political Rights to investigate and punish serious human rights violations. It examines the proportionality and enforceability of these measures, highlighting their potential to conflict with international duties if not properly implemented. While the SJP’s approach may facilitate peace, it must ensure that the System’s sanctions align with the gravity of crimes committed. This study underscores the need for Colombia’s transitional justice framework to uphold victims’ rights while adhering to international standards. Received: 10 May 2024 Accepted: 31 March 2025 Articles in Press: 15 April 2025

This paper is concerned with why and how restorative justice works to alleviate the emotional effects of crime on victims. It posits a new explanation for the ‘aha’ moment; the turning point seen in some, though not all, restorative justice conferences where longstanding, negative emotions and beliefs that have persistently dogged a victim since the crime event, affecting their ability to enjoy the same everyday activities as in their pre-crime daily life, are seemingly eliminated. Focusing on victim experiences, an in-depth analysis of 20 cases collected as part of an empirical study into post-sentencing restorative justice practice after serious crime shows how a typical restorative process can mimic the conditions needed for ‘memory reconsolidation’, a powerful and adaptive neurobiological mechanism that rewrites emotional memories. The findings suggest that the process of memory reconsolidation is a unique tool in the restorative justice ‘black box’. While the use of restorative justice within Western criminal justice systems is routine for juvenile offenders following minor crimes, greater attention should be paid to victim-focused models in the aftermath of crime experienced traumatically; these include post-sentencing practices.

Review of research on victims' experiences in restorative justice: Implications for youth justice

ABSTRACTThe practice and popularity of restorative justice (RJ) in education has been growing in recent years. RJ can be understood in dramatically different ways by those implementing it. For some, RJ is about creating an environment of and for student engagement that challenges traditional systems of discipline and facilitates learning. For others, RJ is simply another tool for solidifying compliance and meting out punishment, albeit in a kinder, gentler way. This comparative case study focused on the use of RJ in one school in Scotland and one in Canada, exploring the intersection between educator intentions and student experiences. I determined that the key element is not the implementation of RJ, but the school’s predominant relational objectives. In a school where relational objectives are of social control, RJ is utilized to strengthen that control. Where the relational objectives are of social engagement, RJ is utilized to strengthen that engagement. RJ in schools is a window into what is most fundamental to students: relationships. The study argues that RJ, by itself, does not guarantee certain qualities of relationship, but it does allow us to examine those qualities and ask questions of how school relationships are used to engage and/or control students.

This paper reports the findings of an empirical research project, exploring ongoing attempts to mainstream restorative justice within two English police forces and examining how the police understood and used restorative justice in practice. The findings suggest that two institutional priorities – to satisfy victims and manage the demand on the police’s time – strongly influenced the interpretation and practice of restorative justice. This created tensions as police officers who facilitated restorative justice processes used their discretion to determine, on a case-by-case basis, how best to balance these institutional goals with the restorative goal of stakeholder empowerment. These findings illustrate how the police can implement abstract concepts in a selective, discretionary manner, and enhances the limited empirical literature that explains how existing priorities and embedded ways of working within criminal justice agencies, shape their understanding and use of restorative justice in practice. Such knowledge is crucial, if we are to help maximise the benefits and minimise the risks of restorative justice and restorative policing. The article also introduces the concept of ‘managed empowerment’ to help explain how the tensions between restorative and institutional goals manifested themselves.

This paper looks at the traditionally retributive paradigm that is used in Western educational systems to control misbehaviour, issues of injustice, and violence in schools. The paper first talks about the ineffectiveness of this paradigm in creating communities of care and safer schools. The paper then offers that restorative justice (RJ) practices are more effective at creating communities of care and making schools safer. In fact, many schools in North America have been recognizing this and thus implementing RJ practices. The paper looks in depth as to what RJ is and how it is relevant to and works within the school context. This is done to show that RJ changes how individuals view harm. The traditional retributive paradigm views harm as an act of injustice against the state/law, whereas RJ views harm as harm against human beings. This means that RJ fosters understanding, accountability, empathy, connection, and learning positive reconciliation skills that can both be reactive and preventive ways to address harm in schools. Through all these things RJ looks to address the root causes of harm and attend to unmet needs that result from a specific harmful action.
 These findings are important in the paper as they provide an understanding as to why RJ is then relevant in schools. The paper goes on to argue that RJ is relevant in schools because schools are tasked with socializing children, provide behaviour management, and are currently places where violence frequently occurs. These three factors are extremely important in shaping how individuals and communities operate. Because of this, RJ is argued to be necessary and relevant in order to ensure positive and constructive measures. Next, the paper looks at what circles are and how using circles as an RJ practice in schools can create constructive dialogue that leads to understanding that can reduce incidents of harm and injustice and help to develop communities of care. A study by Ortega, Lyubansky, Nettles, & Espelage (2016) is presented to support these findings.
 Furthermore, the paper presents how circles could realistically and effectively be implemented in schools according to Braithwaite (2001). Circles need to be implemented on a school wide level, accessible to everyone, and with the hope that they become an everyday practice for individuals to use to resolve issues of harm and injustice. The paper concludes by reiterating that using circles as an RJ practice creates broader participation in schools and fosters a collective value and stake in what happens within a school. This is done through the intentional dialogue of circles, which is proven to foster community, understanding, and needs being met. Ultimately, this makes schools operate in a more responsible way where individuals look out for how their actions are affecting those around them, ultimately making them more conscious citizens and the school a safer place.

Colombian law recognizes that traditional Indigenous and Black authorities can exercise legal jurisdiction and apply their laws and traditions in their ancestral territories. Despite this legal recognition, the legal system does not operate in a way that genuinely guarantees legal pluralism. In practice, higher courts repeatedly overturn or dismiss decisions by indigenous legal authorities.
 As a result of the 2016 Peace Agreement between the Colombian Government and the former guerilla of the Revolutionary Armed Forces of Colombia – The People’s Army (“FARC-EP” in Spanish), a transitional justice tribunal was established: the Special Jurisdiction for Peace (“SJP” or “the Special Jurisdiction”). The Special Jurisdiction’s main task is to investigate and try the most serious crimes committed during the armed conflict, a conflict that has disproportionately impacted racialized communities. The SJP, unlike other tribunals in Colombia, has sought to adapt its work to meet the reality of legal pluralism by: 1) negotiating protocols for inter-jurisdictional interaction between the SJP and ethnic authorities, 2) consulting with Indigenous and Black communities on the adoption of some legal instruments, and 3) having a dialogue between equals with ethnic authorities when potential jurisdictional conflicts arise. This paper seeks to analyze this interaction and how it has allowed the Special Jurisdiction, as transitional justice mechanism, to work in close cooperation with Indigenous and Black communities in Colombia. As will be discussed throughout this paper, through the lens of the legal pluralism framework, such interaction has strengthened the legitimacy and recognition of Indigenous and Black communities’ legal authorities as parallel legal orders that can operate side-by-side with the State judicial system. This, in turn, has created an important precedent that can be emulated by other court jurisdictions in Colombia and elsewhere.

The use of restorative justice in cases of domestic abuse is highly controversial. While little is known about how restorative approaches are used by the police, recent research shows they are used on a widespread basis to respond to domestic abuse throughout England and Wales (Westmarland et al, 2018). This study delves deeper, to look at 62 cases within one police force. Qualitative police data extracted from force systems were analysed to discover in what type of domestic abuse incidents restorative approaches are used, and what type of approaches are used. We argue that while the language of restorative justice was used, the spirit of restorative justice was often missing. In some cases, the police seem to be using the language of restorative justice to respond to cases they do not think would benefit from further criminal justice intervention (a ‘new NFA’ (No Further Action)). We conclude that further differentiation between different forms of domestic abuse and different forms of restorative approach is needed to enable a more informed conversation. Further, it is essential that the domestic abuse sector work more closely with restorative justice communities in order to more safely and more appropriately consider the challenges and opportunities that restorative approaches may offer.

Constitutionalism in transitional societies entail a range of issues, including how to address past human rights violations, amend repressive laws and reform State institutions. A traditional constitutional approach which departs from the specific needs of a transitional society can portend either positive or negative implications on a society’s long-term recovery from conflict and authoritarian rule. This chapter undertakes a comparative analysis of constitutional advice in two transitional societies: Ghana and Colombia. It analyses the scope and effects of constitutional advice in these contexts and examines how their different approaches have impacted their modern polities and shaped their transitional processes. In the case of Ghana, the 1992 Constitution’s adoption occurred after a constitution-making process that was primarily dominated by the then ruling government of the Provisional National Defence Council. While an amnesty was granted for members of the past military regimes, the Constitution did not provide for the establishment of other transitional justice mechanisms. For its part, the adoption of the 1991 Colombian Constitution implied a progressive shift towards human rights safeguards, and provided a framework for the attempted and ongoing transitional justice processes. The Legal Framework for Peace (2012), recognising a new criminal prosecutorial model, and the 2016 Peace Agreement with FARC, leading to the creation of an integral system of transitional justice comprised of institutions such as the Special Jurisdiction for Peace, were granted constitutional status as constitutional amendments. The chapter argues that coordination of transitional justice mechanisms with constitutional advice-giving in both the Colombian and Ghanaian contexts would have shaped their constitutional norms and transitional justice mechanisms to achieve their perceived goals.KeywordsColombiaConstitutional AdviceConstitution-MakingGhanaJudicial ReviewTransitional Justice

Domestic violence (DV) is sometimes called a hidden crime because in many cases victims do not report the offence to the police. DV includes child abuse, intimate partner violence and elder abuse and comes in many forms, such as physical, sexual, emotional or financial abuse. Using restorative justice (RJ) methods in cases of DV is a highly controversial topic.4 However, in many countries around the world restorative practices are used in these cases with appropriate safeguarding in place. The aim of this article is to explore the different types of RJ methods and the different types of DV cases where these methods might be used with the potential benefits and challenges being discussed. Relevant articles and case studies were analysed to present previously conducted research on the topic of DV and RJ. The available literature shows that certain RJ practices are appropriate in certain types of DV cases but they need to be evaluated on an individual basis as these types of cases are very complex and need to be screened thoroughly before any kind of intervention. However, in addressing the concerns surrounding the use of RJ in DV cases, it is vital to listen to the victims themselves, by first giving them a voice. In conclusion, professionals working with victims and offenders of DV cases need to work more closely with others who work in RJ in order to make the process safer and to utilise the potential benefits of the process.

A distinctively Anabaptist-Mennonite (A-M) approach to intimate partner violence (IPV) is presented, based on the ideals of nonviolent peacemaking, forgiveness, and reconciliation. These same ideals undergirded the first formal restorative justice (RJ) practice and continue to guide the restorative vision. The use of RJ practices as a response to IPV is controversial, as is the role of forgiveness and the related constructs of repentance and reconciliation in IPV intervention. The tension between A-M belief and practice, RJ, and IPV is explored. A parallel is drawn between RJ practices and conjoint clinical interventions for IPV. Proponents of RJ practices and conjoint interventions are united by the goal of improving the effectiveness of treatment for IPV, for both offenders and victims. RJ practices and conjoint interventions appear to be useful adjunctive approaches for some narrowly defined instances of IPV. When grounded in careful evidence-based assessment, and when used in coordination with traditional clinical and criminal justice approaches, a more comprehensive and effective treatment approach to alleviating IPV seems possible.

This article examines the restorative approach adopted within Colombia’s transitional justice framework, focusing on the Special Jurisdiction for Peace (JEP) and its response to enforced disappearances reported by the Movement of Victims of State Crimes (MOVICE) and other human rights organizations. Drawing on a critical analysis of the adoption of the precautionary measures ordered by the Section on Absence of Recognition of Truth and Responsibility for Acts and Conduct (SAR) of the JEP in the case of La Escombrera, the article explores how restorative justice principles were incorporated into judicial proceedings, participatory practices and reparative orders aimed at safeguarding suspected burial sites containing the remains of the disappeared. The active involvement of victims and their organizations has been central to this process, as their persistent advocacy has led to the implementation of precautionary measures and the recognition of their rights, in particular the guarantee of the right to search. The analysis reveals how these measures prompted a comprehensive state response, following decades of inefficient and inadequate responses from the state. However, the article also highlights ongoing challenges, such as limited resources, institutional resistance and difficulties in coordinating institutions, as well as issues with the participation and inclusion of victims. It concludes that although the JEP’s restorative approach is a significant development, meaningful progress is driven by the continued engagement and leadership of victims. Sustained political will and institutional commitment are essential to supporting this long-term process and ensuring that the victims’ rights remain at the centre of Colombia’s search for justice.

The article describes the main results of a European project on restorative justice (RJ) called Freedom Wings (FW) and presents a new model to promote RJ in Southern Europe, which was developed from FW findings. The principal mission of the FW project is to disseminate best practices of RJ within a transnational network and to promote community participation in conflict prevention and resolution, in order to support individual and social well-being. This paper presents the main findings of multiagency and professional focus groups exploring restorative approaches and community justice. Observation of experts’ social representation of RJ helped the authors to understand the operation of the justice systems in each country and the attitudes of senior officials towards implementing restorative practices in a way that actively involves the community. The analysis shows the necessity of a cultural change in order to switch from a form of RJ managed by the judicial system to one led by the community. The EU project enabled the research team to theorize a model for promoting a relational and restorative community.