The Victims’ Court and the Promise of Restorative Justice

[cross-posted at www.postconflictjustice.com]

By Sergey Vasiliev –

  • Pernicious fallacy of the ICC’s ‘restorative mandate’

The ICC’s legal framework is progressive in that it offers victims a ‘full menu’ of entitlements previously unseen in international criminal justice, including participation, legal representation, reparations, protection, and assistance. The ICC is proudly positioned as the ‘victims’ court’ by its officials, by the organs of the Assembly of States Parties, and by individual states. Statements to the effect that the rights of victims are the ‘cornerstone of the Statute’ are cliché in the ICC’s public communications, outreach, and jurisprudence, as well as in the ASP reports and resolutions (e.g. 2013 and draft 2014). Commentators and victim rights groups make a step further in assigning to the Court the so-called ‘restorative mandate’. The notion is elastic and not uniformly understood, but among others it may imply that, next to serving traditional functions, the criminal process must be geared to the restorative objective.

Victims occupy a center stage in the Rome Statute system: they are the main beneficiaries of the Court’s existence and the primary constituency from which it sources legitimacy and moral authority. The increased emphasis on victims is a symptom of the ‘guilt complex’ the ICC inherited from its predecessors. The UN ad hoc tribunals could do little to provide redress for the victims in their jurisdiction. Clearly, that sentiment secured the initial impetus for empowering victims at the ICC, but a decade into the Court’s operations it is a hindrance to careful expectation-management and effective engagement of victim constituency by the ICC. The ‘victim’s court’ rhetoric is misconceived. It steals attention from other ‘cornerstones’ of the Statute, in particular a fair trial for the accused, and overstates the extent to which a retributive, albeit victim-friendly, criminal justice process can really live up to that label. But it is only a light hyperbole next to the putative ‘restorative justice’ function. This claim is a product of a perennial confusion about the concept (which is at times wrongly equated with ‘reparative’ and ‘transitional’ justice). Moreover, its applied function is to be an advocacy device that can be deployed to vindicate the victories won on behalf of victims at Rome and to keep skeptics, pragmatists, and other foes at bay.

The attribution to the Court of a restorative mandate is a fallacy that is far from innocuous. The ‘restorative fixation’ is a false promise that generates unrealistic expectations on the receiving end. Not only has it affected the initial, unusually long-drawn-out phase of the ICC operations from which it is still emerging, but it also continues to obscure the criteria by which the effectiveness of the Court and its victim participation scheme are being judged by scholars, NGOs, and other monitors. Finally, it is unhelpful in the continuing quest for viable judicial and administrative solutions that could provide basis for the major reform of the ICC victim participation scheme in 2015, announced a few days ago and including the possible amendments of the Court’s legal framework.

  • ‘Restorative justice’ through criminal process?

The Rome Statute system as a whole may pursue ‘restorative justice’ insofar it consists not only of the Court but also of the ASP and the ICC’s ‘restorative add-on’ – the Trust Fund for Victims (TFV). The closest the ‘Court qua court’ comes to a restorative function is ordering reparations for victims upon conviction (Article 75(2) ICC St). Even if the mandate to deliver ‘restorative justice’ as part of the process preceding that stage could be inferred from the Statute (which it cannot), the question is still whether and how this ideal can be grafted, even theoretically, onto the retributive paradigm of justice. It is this paradigm that the Court’s processes, however amenable they may be to victims, are grounded on. Of course, incidental ‘restorative’ effects gauged by the degree of victim satisfaction with the Court’s processes cannot be ruled out, although these remain to be measured and confirmed empirically. Even if they are confirmed, can we posit on that basis that the ICC discharges no less than a ‘mandate’ to restore individual victims or communities, without making a major leap of faith? It is implausible that, of all criminal jurisdictions known, it is namely the ICC that is uniquely capable of building a bridge between the two incompatible concepts of justice and walk over it without sacrificing some of their core principles.

A detailed analysis of the ICC victim participation practice under Article 68(3) and of the evolution of judicial approaches over the past few years (see here) rather shows that the idea of achieving ‘restorative justice’ through ICC’s criminal process is untenable. The core priorities of the criminal court and the daunting reality of mass requests for participation, ever-growing caseload, and financial constraints, led the ICC to backtrack from restorative ambitions, at least until the reparations stage. First, the system for victims to apply for participation has been a major bottleneck and a subject of recurrent concern for the ASP due to significant and irremediable delays in processing victim applications. In search for workable solutions, the Chambers have experimented with several options—e.g. the partly collective approach (Gbagbo pre-trial), simplified approach (Ntaganda pre-trial), and the two-tiered approach (Kenya cases)—which have since been under review pending the completion of the full cycle of proceedings. Leaving aside its inconsistency with rule 89(1) and other issues, real or perceived, the pragmatic Kenya tactic seems most promising. It enables the Court to circumvent the judicial review of individual requests altogether, except where victims wish to participate in person rather than solely through a common legal representative (CLR). This is a real ‘pressure valve’ in the high-pressure system: the experience has shown that the prevalent majority of victims do not wish to present views and concerns in person or to give evidence. …Until they change their mind, at which point the problem—not solved but avoided—will boomerang back.

Second, the stronger emphasis on CLR and a move away from the ‘free choice’ principle (rule 90(1)) is a clear trend across ICC cases, in addition to the growing role in representing victims reserved for the OPCV. While the reduction in the number of legal representatives of victims (LRVs) present in court can make participation more streamlined, ultimately the collectivization emasculates the ‘legal representation’ concept of its traditional meaning. The client–attorney relationship is not what the LRV–victims relationship is about.

Third, on the substance of victim participation, the review of jurisprudence across cases indicates that the Chambers have been increasingly restrictive when interpreting and applying Article 68(3). At the same time, they were more liberal about modes of participation that do not interfere with, and are apt to contribute to, the core criminal process functions, most notably the ascertainment of the truth. One example is the Court’s consistent approach (since 2008) to allow LRVs, upon leave and subject to certain requirements, an opportunity to lead and challenge the admissibility of evidence relevant to the verdict at trial, even absent a strong and clear statutory basis. Again, this reflects nothing but a pragmatic motive of a criminal court that seeks to enhance its truth-finding capacity, which happens to be aligned with a personal interest of victims to have certain evidence heard.

These developments are an evident tribute to judicial pragmatism; so much for restorative justice. The submission of victims’ personal interests to the criminal court functions debunks the myth that the ICC’s criminal justice arm has anything to do with that ideal. The Chambers’ experimental solutions—which are subject of review process within the Court’s Working Group on Lessons Learnt, the Study Group on Governance, and the Bureau on Victims of the ASP—already hint to the most likely directions for the imminent overhaul of the system. They signal that the current trends towards simplified and streamlined process and collective approach— endorsed by the ASP in 2012 but without a strategic view, considering its apparent change of heart one year after—will continue in the foreseeable future. The Court is finally ready to let go of the ‘complex’ of restorative justice. Hard as it may be to part with the dream of a restorative court, it is a top priority for the ICC, in consultation with States Parties and other stakeholders, to work out the solutions that are both sustainable and ensure meaningful and effective victim participation. This eureka moment is long overdue: in the years to come, the effectiveness and legitimacy of the ICC will, among other things, depend heavily on the success of the reforms that are now in the making.

  • Effects of ICC interventions on victim redress (elsewhere)

For different reasons, neither the ICC qua criminal court nor the TFV as its restorative extension have the capacity of delivering (restorative) justice for most victims in the situations in which the ICC intervenes. The Court’s clientele is but a few per case; the TFV’s budget is plainly inadequate to cover the costs of ‘restoration’ and reparations across all situations and cases. Therefore, the question arises what other fora are available and what effects, if any, will the Court’s intervention have on enhancing the victims’ chances of obtaining redress elsewhere. While other, complementary avenues may be considered on the international plane (TRCs and mass claims processes), the point of departure is, of course, that the bulk of responsibility and work in this respect falls to states parties. States must ensure that victims of international crimes have access to the full gamut of remedies that are to be provided to them under international law, so that they can be restored, compensated, satisfied, and rehabilitated at the domestic level.

While the ICC legal framework does not add obligations of states regarding victim redress, over and above their existing obligations, the Rome Statute system can be expected to induce and catalyze local developments and reforms aimed at improving the existing mechanisms. Notably, the ASP resolutions of 2012 and 2013 and the draft 2014 resolution call upon states where crimes under the ICC jurisdiction have been committed, to adopt and implement ‘victims-related provisions’ as appropriate (‘according to their respective contexts and needs’), consistent with soft-law instruments, including but not limited to the 1985 UNGA Victims Declaration and the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation.

This is not a call on States Parties to parrot the ICC’s victim participation model. Instead, states are to give effect to pre-existing ‘obligations’: providing effective remedies and ensuring that their law-enforcement and criminal justice systems are responsive to victims’ needs and provide them with adequate services. It remains to be seen what actual effects this ‘victim-orientated complementarity’ (see Luke Moffett’s recent work) will have on the will and ability of states to provide sufficient remedies and avenues for obtaining redress. An impact study covering states parties and other jurisdictions in which the ICC has engaged would be needed to fill in this gap.

Given the continuing uncertainties with the ICC’s participation model, it is neither optimal nor safe for states to venture wide-scale reforms and copy its provisions (which may still be an unintended effect of its interventions). Instead, states are advised to follow the ASP’s prudent recommendation: adhere to their respective procedural traditions, use their intrinsic potential (possibly with reference to practice in other domestic jurisdictions), and enhance the capacity of existing mechanisms. It can be hypothesized (for want of credible empirical data) that the fact of the ICC’s intervention alone is in and of itself likely to trigger positive changes in the domestic legal and political landscape as far as victims’ situation is concerned. The ICC action, when accompanied by an effective and balanced outreach, could attract attention to the plight of victims, shape attitudes to, and raise awareness of, their legitimate interests and rights, and, hopefully, inspire and catalyze progressive shifts domestically.

What can be expected of the ICC in this regard is to serve as a ‘role model’. It could be an example showing that, in principle, organizing criminal process that is impeccably fair towards the defendant and caters for the victims’ judicially recognizable interests is not impossible in mass atrocity cases. The ICC will hardly ever be—nor should it ever pretend to be—a blueprint of how national jurisdictions must go about doing procedural, reparative, and restorative justice for the victims (although, of course, specific lessons can be learnt). Conversely, the ICC’s failure as regards this minimalist ‘role model’ function might have congealing effects on the domestic developments. If even the ‘victims’ court’ is unable to keep its act together, who would be surprised if states, especially those emerging from a conflict and having limited capacities and infrastructure, might feel dissuaded from taking meaningful steps in delivering the ‘justice for the victims’: “The Hague did not manage, how could we?”