A Restorative Response to Victims in Proceedings before the International Criminal Court: Reality or Chimaera?

Alessandra Cuppini

doi:10.1163/15718123-bja10041

Abstract

Abstract The integration of the framework of victims’ participation into the legal proceeding of the International Criminal Court (icc) has been seen as a transformation of the icc process beyond narrow retribution to better accommodate restorative justice (rj) values and practices. However, there is little research into whether, or how the icc metes out rj. This article argues that rj principles brought within icc emphasise the growing importance that victims’ participation in proceedings plays in achieving justice for victims. It then examines how the icc process aligns to the key elements of rj practice, namely victim-offender meeting; offender’s acknowledgement of responsibility and apology; collaborative conflict-resolution approach; victims’ healing and reconciliation; symbolic reparation and material restitution. This article demonstrates that these elements, developed to address ordinary juvenile criminality, are not structured to operate in the particular context of the icc, characterised by grave harm caused to victims and communities by mass atrocity.

Highlights

Due to the growing recognition of the impact of mass crimes on victims and communities, victims’ right to, and need for, justice have become important considerations in international criminal justice
This article demonstrates that these elements, developed to address ordinary juvenile criminality, are not structured to operate in the particular context of the icc, characterised by grave harm caused to victims and communities by mass atrocity
The victim-offender meeting aims to encourage dialogue and negotiation via free access cuppini between victims and offenders, since the victim has the chance to explain to what extent the criminal conduct harmed her/him, while the offender has the opportunity to acknowledge the consequences of the harm s/he provoked, s/ he sympathises and sincerely apologises to the victim.[58]. This meeting leads to a collaborative conflict-resolution approach that lies at the heart of rj practice as it is concerned with negotiating the settlement of the case.[59]

Summary

Introduction

Due to the growing recognition of the impact of mass crimes on victims and communities, victims’ right to, and need for, justice have become important considerations in international criminal justice. The inclusiveness of victims’ constituency at the icc seems to be consistent with the restorative model of justice, since it seeks to connect international criminal justice to the process of social reconciliation typical of the rj paradigm.[39] In the aftermath of mass atrocities, victims must cope with their individual suffering, and participate in the process of social healing involving all those affected by the violence.[40] The recovery of victims is, intertwined to the restoration of the socio-political fabric, as reconciliation requires the healing of individuals, and of society as a whole.[41] In this view, the right of victims to actively participate in proceedings at the icc becomes an important factor in this healing process,[42] as well as an indispensable element if post-conflict justice processes are to be ‘capable of building the foundations for a strong transition through empowerment of those who were victimised during conflict.’[43]. In the following Court’s Revised Strategy in Relation to Victims (Revised Strategy), the icc emphasised the key role played by victims – as participants – before the Court and the importance of the Court’s restorative function.[48]

Understanding Restorative Practices

Problematic Positioning of Restorative Practices within the icc Process

Conclusion