International Justice

CJ354 Endicott College

The ICC, Restorative Justice and Peace

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?


3 responses to “The ICC, Restorative Justice and Peace

  1. sarahcmorell October 31, 2012 at 7:11 pm

    Your points are extremely well taken – the relationship between retributive and restorative justice is integral to our understanding of the power of the ICC to make any lasting movement towards peace. As you’ve said, the attempts of the ICC to practice restorative justice in the court are mixed. However, is the ICC truly the best arena for this justice – on a much more personal level – to occur? The Trust Fund for Victims, established in 2002, carries out two main restorative justice missions on behalf of the ICC – first, to implement Court-ordered reparations, and second, to provide physical and psychosocial rehabilitation or material support to victims of crimes within in jurisdiction of the ICC. Rather than have the victims and witnesses participate in the process of the retributive justice of the indicted in the court itself (which is another potential trauma), separating the restorative justice aspect may be able to better serve the needs of those affected by the violence. Their most recent report details how the organization works with local communities, victims’ survivor groups, women’s associations, faith-based groups, village savings and loans associations, and international non-government organizations, in combined efforts to emphasize participation, sustainability, and transparent and targeted grants, and accessibility. While the inclusion of victims in the ICC process may be mixed, the TFV is doing an immense amount of good in the arena of restorative justice – not in the courtroom, but on the ground.

    • brandon459 November 1, 2012 at 11:39 am

      I agree with the post above, your points are very well taken, and this is, to say the least, a very interesting topic. I believe in the ICC’s mandate to create a court that aims to achieve retributive justice for those who have been victimized. Yes you’re correct, the Goetz article points out an effort to involve victims in the trial, however this has not been very effective. I would like to throw in an aspect that should garner attention. This concerns the ICC’s legitimacy. Since its establishment in Rome, this has been an area of weakness. The ICC has enough of a worry properly carrying out retributive justice. That should be its main focus.

      Once again, you’re correct in saying that the intensity of retributive justice undermines any pursuit of restorative justice, and for the time being that is their number one concern. A point can be made for maybe, restorative justice for those mid-level convicts. But, for the high-profile guys, restorative justice, in a sense, wasn’t even an option. The victims of their decisions felt no need to bring them back into society. As you said, I believe that should be the job of the domestic court because they are the best judge of how the victims are affected. To answer your last question, while full restorative justice might not trickle down, the fact that these people are being punished for their actions, I’m sure is a good first step.

  2. patrickwu November 3, 2012 at 1:18 pm

    I agree that there is a strong distinction between retributive justice and restorative justice. The ICC, however, pursues some of the highest-level mass crime perpetrators. The concepts of retributive justice and restorative justice tend to blur at this level–to many victims, the only way to restore peace to their lives is by bringing the criminals to justice.

    But the ICC does not only have a responsibility to take care of the current victims of any conflict. The ICC also has a responsibility to prevent future individuals from becoming victims of the same atrocities. This could justify Moreno-Ocampo’s decision to continue pursuing the top leadership of the LRA, even when the LRA was making attempts at peace with the Ugandan government. Moreno-Ocampo’s decision to not drop the arrest warrants against the top leadership of the LRA was made because he wanted to send out the message that the ICC would not tolerate impunity as a mode of restoration in society. As the Waddell reading points out, one of they key points in preamble of the ICC is the stated aim to end impunity. The endless pursuit of the ICC for some individuals may hurt current peace negotiations, but may build, later on, a stronger society that does not tolerate mass crimes and will not excuse individuals for their actions when they come out and apologize and ask for peace.