![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
ABSTRACT
Until recently, the International Criminal Court (ICC) described its legal practices as offering a balance between retributive and restorative justice. It was held that restorative justice was progressed through its framework of victim participation in legal proceedings. However, there is little research into how, or whether, the Court metes out restorative justice. This article first considers the key pillars of restorative justice as ‘encounter’, ‘amends’ and ‘reintegration’, and the form of victim participation within these practices. It then examines how the ICC aligns to the direct participation of victims prioritised by restorative justice, and shows that victims do not hold such participatory possibilities. Instead, legal professionals take on direct participation in dialogue and decision-making processes. Using Bourdieu’s framing of the juridical field, the article identifies key reasons for the absence of direct victim participation and argues that the ICC primarily functions as a retributive approach to the resolution of conflict.
Notes
1 Assembly of States Parties, International Criminal Court, Report of the Court on the Implementation in 2013 of the Revised Strategy in Relation to Victims. ICC-ASP/12/41, 11 October 2013, para. 28 (hereafter: Assembly of States Parties, ICC-ASP/12/41).
2 A previous version of the ICC’s official website held that victim participation and reparations represented a ‘balance between retributive and restorative justice’. A new version of the website went live on 8 May 2016 without this statement.
3 President Judge Silvia Fernandez de Gurmendo, ‘International Criminal Court Today: Challenges and Opportunities’. Keynote speech given at the seminar ‘International Criminal Court – the Past, the Present and the Future’, Helsinki, Finland, 9 June 2016. https://www.icc-cpi.int/itemsDocuments/1600609-Helsinki-keynote-speech-ICC-President-Fernandez.pdf (accessed 20 December 2016).
4 See the dissenting opinion of Judge Eboe-Osuji: The Prosecutor v. Uhuru Muigai Kenyatta. ICC-01/09-02/11. Dissenting Opinion of Judge Eboe-Osuji, 26 November 2013, para. 61. https://www.icc-cpi.int/RelatedRecords/CR2013_09980.PDF (accessed 21 December 2016).
5 Herman von Hebel, Registrar, ‘Remarks to the 15th session of the Assembly of State Parties’, The Hague, 21 November 2016, page 11. https://asp.icc-cpi.int/iccdocs/asp_docs/ASP15/ASP15-Opening-Statement-Registrar-ENG.pdf (accessed 21 December 2016).
6 Assembly of States Parties, ICC-ASP/12/41, paras 2, 28.
7 ‘Victims before the ICC’, International Criminal Court Newsletter, No. 2, October 2004, page 7. https://www.icc-cpi.int/NR/rdonlyres/4E898258-B75B-4757-9AFD-47A3674ADBA5/278481/ICCNL2200410_En.pdf (accessed 21 December 2016).
8 See, for example, discussion by Findlay and Henham (Citation2011); Hoyle and Ullrich (Citation2014); Kendall (Citation2015); Pena and Carayon (Citation2013). Such commentaries often argue that the ICC presents itself as meting out restorative justice, but are critical of such a contention.
9 In her analysis of the ‘restorative mandate’ of the ICC, Kendall notes that representatives of Sweden and Finland have interpreted the ICC’s work as restorative for victims (Citation2015: 356).
10 Miers points out that Marshall’s definition of restorative justice has long been accepted in the United Kingdom by the Home Office and Youth Justice Board (Citation2012: 486).
11 For critique of Marshall’s definition see Braithwaite (Citation2002a: 11).
12 Emphasis original.
13 See Foley (Citation2014: 78–79) for discussion of the difficulty of identifying a particular ‘community affected’. The degree to which community involvement is integrated into restorative programmes is variable. For example, Hoyle argues that ‘only those restorative measures established with the explicit aim of responding to crimes against a community, such as truth and reconciliation processes, regularly achieve meaningful community integration in the process (Citation2010: 18).
14 It should be noted that ‘amends’ was termed ‘reparation’ in the earlier work by Van Ness and Heetderks Strong (Citation1997).
15 Although it is the subject of debate, some scholars argue that restorative justice processes can be ‘healing’ or cathartic for victims (see Van Camp & Wemmers, Citation2013).
16 ICC, Rome Statute, Article 68(3). For description of the criteria for persons (or institutions or organisations) to participate as victims see: Situation in the Central African Republic in the Case of The Prosecutor v. Jean-Pierre Bemba Gombo. ICC-01/05-01/08. Judgment pursuant to Article 74 of the Statute, 21 March 2016, para. 20 (hereafter: Bemba, Judgment).
17 Bemba, Judgment, para. 24.
18 Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Thomas Lubanga Dyilo. ICC-01/04-01/06. Decision on Victims’ Participation, 18 January 2008, para. 113 (hereafter: Lubanga, Decision on Victims’ Participation).
19 Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Thomas Lubanga Dyilo. ICC-01/04-01/06. Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 21 (hereafter: Lubanga, Judgment). The evidence of these three victims was deemed to contain ‘internal inconsistencies which undermine their credibility’ and the permission granted to them to participate was withdrawn (paras 499–502).
20 Bemba, Judgment, para. 24.
21 Bemba, Judgment, para. 23.
22 Bemba, Judgment, paras 23–24.
23 Bemba, Judgment, paras 23–24.
24 Bemba, Judgment, para. 25.
25 Bourdieu’s conception of ‘texts’ encompasses ‘not only the written record (in the law, for example, legislation, judicial decisions, briefs, and commentary), but also the structured behaviors and customary procedures characteristic of the field’ (Terdiman, Citation1987: 809).
26 Lubanga, Decision on Victims’ Participation, para. 106.
27 Lubanga, Decision on Victims’ Participation, para. 106.
28 An exception to this would arise in the case of an admission of guilt by an accused. See Article 65 of the Rome Statute.
29 In accordance with Rule 90(6), a legal representative must hold those qualifications of a defence counsel, namely ‘established competence in international or criminal law procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in similar capacity, in criminal proceedings’ (Rule 22(1)).
30 Bemba, Judgment, para. 18.
31 Lubanga, Decision on Victims’ Participation, para. 116.
32 Situation in the Democratic Republic of the Congo. ICC-01/04-01/06-T-101-ENG ET WT, Transcript of Status Conference, 12 January 2009, page 43. https://www.icc-cpi.int/Transcripts/CR2009_00129.PDF (accessed 23 June 2016) (hereafter: Situation in the DRC, Transcript of Status Conference).
33 Emphasis original.
34 Situation in the DRC, Transcript of Status Conference, p. 43.
35 Bemba, Judgment, para. 19.
36 Lubanga, Decision on Victims’ Participation, para. 115.