The ICC, Restorative Justice and Peace
October 31, 2012
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The International Criminal Court was established as an institution for the pursuit of perpetrators of human rights, war crimes and genocide. The very nature of the crimes the court aims to decide make it into an institution of retributive justice. In the nascent days if the court, after his cooperative approach gleaned few advances, Luis Moreno-Ocampo decided to aggressively pursue Ahmad Harun and Ali Kushayb. His goal? To arrest and try them, to punish their actions to such an extent that would deter future violations of human rights. This is not only his goal as the independent prosecutor, but the goal for the ICC as an institution. The very nature of the ICC is disposed toward retributive justice. In fact, Moreno-Ocampo grew concerned when his pursuit disrupted peace negotiations, but what role does the pursuit of retributive justice play in the attainment of peace?
One important aspect to keep in mind about justice is the difference between retributive and restorative justice. While retributive justice regulates proportionate response to crime proven through legitimate evidence, so that punishment is justly imposed and considered as morally correct and fully deserved, restorative justice is concerned not so much with retribution and punishment as with making the victim whole and bringing the perpetrator back into society. This approach frequently brings an offender and a victim together; it teaches the offender to understand the pains of the victim and his or her role in inflicting them.
However, it is also notable to mention that the ICC’s mandate creates a court that aims to achieve retributive justice for those who have been victimized. While the Goetz article mentioned the strong efforts to use victims at trials in order to make the court an institution of restorative justice as well, those efforts seem to have little support. Firstly, the process to use victims in trials is riddled with red tape and bureaucratic procedures that impede the victims’ ability to share their memories and explain the ways in which their rights and liberties were violated. And—even though these attempts to “restore” the victims through the achievement of justice are commendable, will restorative justice bring peace? Furthermore, it seems that bringing victims into the courtroom may violate another part of the ICC’s mandate–that there must be a presumption of innocence. How does the ICC integrate these victims while preserving the rights of the accused? It seems that the ICC is an institution distinctly mandated for retributive justice, and this fervor for punishment of criminals disrupts the peace negotiation and order-renewing process in war-torn countries. Furthermore, the degree of intensity regarding the pursuit of retributive justice undermines the ability of the ICC to attempt restorative justice. Or is restorative justice purely the responsibility of the domestic level courts? This idea would further fragment the courts, with the ICC breaking the perpetrators and detaining them, distancing them from the individuals they have harmed. How is restorative justice to trickle down to the victims, who are thousands of miles from the Hague and have little access to tools of information and awareness despite voluntary efforts from supportive nations?