The ICC: A (continued) Space for Restorative Justice Exploration

At the EFRJ 2022 conference in Sassari, ‘Justice beyond borders: Restorative connections through space and language,’ I was given the opportunity to present on a topic I have been exploring and focusing on throughout my university studies: the conceptualisation of restorative justice in the context of international criminal proceedings. At the time of the conference, I was in the last semester of my master’s studies in public international law and in the process of finalising my thesis ‘A meaningful approach to victim’s participation: conceptualising restorative justice for International Criminal Proceedings through International Human Rights Law.’

Fortuitously, Sassari became the perfect meeting place where I connected with the thinkers who inspired my research and writing. I joined with participants from all walks of life, a multidisciplinary multigenerational crowd, interconnecting and reinforcing our resolve in restorative approaches to harm. Furthermore, the conference nurtured and helped me refine complex topics which I had been contemplating in the confines of a university student life. Highlights included the visit to Tempio Pausania Cittá Riparativa and meeting the detainees from the high security prison of Nuchis, as well as meeting Antony Pemberton, one of the authors of the article which my presentation was based on, through to spending convivial moments with the volunteers of the University of Sassari, and fellow young researchers such as PhD candidate Laura Schmidt.

As a general premise, I believe that restorative justice embodies an important set of standards for how the objectives of more meaningful and inclusive victims’ participation can be achieved within the retributive limitations of international criminal courts and tribunals. The International Criminal Court (ICC) has served as a core example in my research. It was an honour sharing the conference session with Dr Pietro Sullo, who was also presenting on the ICC, and thus sharing a mutual interest in how restorative justice comes into play in our world’s first permanent and independent international criminal court. For me, the ICC’s inclusion of victims provides a fruitful area for exploration. In 2012, the ICC’s President, Judge Sang-Hyun Song, proclaimed before the World Parliamentary Conference on Human Rights that the Rome Statute ‘bring[s] retributive and restorative justice together’ (International Criminal Court, 2012b). Up until 2016, the ICC’s official website stated that victims’ participation represented a ‘balance’ between retributive and restorative justice (Garbett, 2017, pp. 198--9). More generally, allowing victims to participate has been understood as the Rome Statute drafters’ desire to establish a mechanism not entirely focused on retributivism (Moffett, 2014, p. 49). Yet, what does, or rather can, restorative justice mean in this context?

The purpose of this article is simply to share my insights on this topic in light of my conference presentation and audience interactions. In particular, it will focus on my exploration of narrative ownership as a sociological framework that can be used to conceptualise restorative justice for the ICC. As will be discussed further, this is an attempt to look beyond restorative justice-based practices commonly applied in domestic criminal justice settings.

As the conference theme reveals, restorative justice connections can exist in different spaces. How can restorative justice connections exist when victims participate at the ICC? This is a complex question to answer. At the discretion of the Court, accredited victims have multiple participatory opportunities and in different forms. Yet, there is one form of victim participation that particularly intrigues me: the ability for victims to present their views and concerns directly to the Chamber in their own voices. In essence, this is the space I decided to focus on for the conference. Based on the practice of the Court, this form of participation is particularly limited. For example, in the Lubanga case, the Trial Chamber asserted that ‘the personal appearance of a large number of victims could affect the expeditiousness and fairness of the proceedings,’ (International Criminal Court, 2008, para. 116). Especially when there are a large number of accredited victims, there is a need to ensure that the views and concerns of victims are not repetitive (Safferling and Petrossian, 2021, pp. 194--195). Thus, in providing such a space and opportunity, the Court inherently exemplifies a conscious belief in the value of victim’s individual voice amongst many others in the justice process. Simultaneously, it also reflects the desire of the victim to accept the opportunity and contribute their voice.

The transcripts of these hearings uploaded on the ICC website allow me to get to know this space more intimately. For example, at the beginning of all hearings, presenting victims are told by the Judge to ‘give as much narrative as possible’ and court staff are encouraged to allow this (see, for example, International Criminal Court, 2017, p. 3). From here, the victim would describe those experiences forming part of the events of the case in full detail and in their own words. The purpose of these hearings is to discern the harm of the victims, mainly for determining the gravity of the offence and the forms of reparation that may be granted in the event of a conviction. The transcripts reveal four main individuals who interact: the presenting victim, the judge, the defence counsel and the legal representative of the victim. Their interactions, reactions, questions and decisions are all recorded. Interestingly however, the transcripts reveal that the accused is also able to be present in the courtroom.

During the discussion at the end of my presentation session, an audience member stated that the qualitative level of victim participation often associated with (domestic) restorative justice practices is just not realistic for the ICC. Another audience member remarked that a more appropriate and perhaps fruitful area to explore would be the Trust Fund for Victims (TFV) of the ICC, whereby victims have more active participatory opportunities, rather than those as part of the court itself.

At this point, I realised that the objectives of my presentation were not clear enough, because in fact, when basing restorative justice on procedural rights exclusively, I agree with these propositions. Indeed, the procedural priorities of the ICC stemming from its retributive mandate (the rights of the accused, a right to fair trial and the expeditiousness of proceedings etc.) have proven effectively to disprove the Court as a restorative justice mechanism in itself. A simple example is the fact that victims and perpetrators are effectively hindered from meeting, discussing and determining the outcome of the justice process themselves attributed to the opportunities in domestic restorative justice practices, such as mediation and conferencing (Moffett, 2014, pp. 89--90; Vasiliev, 2014, p. 677). The Court has expressed the view that the accused should not be forced to address large volumes of victims’ views and concerns since that would go beyond the case of the prosecution, (see, for example, International Criminal Court, 2012a, para. 14). Overall, it is consistently recognised that the likely large number of accredited victims presents significant practical challenges for ‘participation’ in the theoretical and domestic restorative justice sense to materialise in international criminal proceedings (see, for example, Garbett, 2017, p. 213). From here, the term ‘victim-orientated’ mechanism is considered more appropriate when focusing exclusively on procedural elements at the ICC (Vasiliev, 2014, p. 677). Thus, to conceptualise restorative justice for the ICC, I see the need to go beyond devising ideal restorative justice-based practices and procedural norms that could be applicable to its current legal framework. What about looking at language?

In light of this space, I saw the EFRJ conference as an opportunity to also explore a concept I had come across during my thesis research: narrative ownership. In particular, the findings of Pemberton et al. (2018) ‘Stories as property: Narrative ownership as a key concept in victims’ experiences with criminal justice’ provided an interesting lens for how I could approach the interactions within these hearings from a restorative justice perspective. Based on the findings of victimological literature, the authors suggest that (domestic) criminal justice systems impose certain abstract pressures on the narratives victims attempt to construct in the aftermath of their victimisation. For example, the authors describe the way courts prioritise ‘reporting the facts’ whilst viewing personal (emotional) narratives or the need to provide ‘justification[s] of the crimes’ as representing forms of pressure on victims’ narratives (pp. 407–8). In doing so, the courts perpetuate and disproportionately value the perpetrator’s perspective of the events concerned. This is despite the authors’ assertion that the victims’ perspective reflects the experience of ‘actual victims’ (p. 407).

Their findings draw on the observations of Nils Christie in his 1977 journal article ‘Conflicts as property’ acknowledged as becoming ‘axiomatic’ with restorative justice theory and ideals (Suzuki and Wood, 2017, p. 450). Christie’s article frankly depicts the reality of how courts and the role of lawyers involved require victims’ narratives to be ‘pick[ed] out,’ dissected and ultimately appropriated based on their relevance and admissibility (p. 4). These observations reminded me of a particularly exceptional feature of the victim hearing space. In these hearings, the views and concerns presented by the victims are not classified as official evidence. This is even asserted by the defence counsel in the transcripts stating that victims’ words are ‘not under oath’ (International Criminal Court, 2017, p. 31--32). Looking back at the words of Christie, I wondered how this space could be conceived from the perspective of restorative justice. It seemed that there was a value for victims’ narratives undisturbed by rules of evidence. Would looking through the lens of narrative ownership and pressures demonstrate ways for victims to have a more ‘restorative justice’ experience?

From the perspective of narrative ownership, I noted that the main focus of inquiry within the hearings became the directions, comments and questions put forth to the victim by the court staff. One audience member (and former judge) at my presentation session remarked that these would not be conceived as theoretically harmful to narratives of victims in any way; they are just doing their job. It was subsequently debated by the rest of the audience members whether some form of procedural review or staff training should be conducted to reduce any ‘unnecessary’ narrative pressures. From my end, I also noticed that forms of narrative pressure seemed to make the court staff’s roles and use of language overly technical at times. However, at its core, I see how narrative ownership promotes the relational opportunities within the victim hearing space. This follows scholarly calls for the ICC to adopt more ‘flexible’ approaches to its victim participation processes to meet victims’ social engagement needs which, at the same time, do not corrupt its judicial functions or retributive mandate (see, for example, Cody, 2020). Hence, the fact that victims’ views and concerns in the hearings are not classified as official evidence provides potential for further inquiry.

The conference organisers in Sassari provided not only a venue for discourse, but also the opportunity for me to witness restorative justice in action by way of a visit to Tempio Pausania and prison of Nuchis. Here, I was gifted with a stone representing the restorative collaboration and work of the detainees, the young people, and artists with a message ‘Portandoli con te in giro per il mondo, contribuirai a tessere un legame con Tempio e con le storie di chi le ha create’ — taking it with you around the world, you will help to weave a bond with Tempio and with the stories of those who created them. The stone will help me build the strong foundations of my work and apply the values they emanate. I am grateful to the organising committee of the conference, especially Emmanuela Biffi, who encouraged my participation as a young student and researcher. Overall, the purpose of my research was to continue exploring the ICC’s intention in referring to restorative justice when describing its victims’ participation scheme. For all international judicial bodies that involve victims, continuing to explore its application amid retributive frameworks and procedural priorities has its place.

Catherine Gregoire is a Research Intern at the T.M.C. Asser Instiuut. 

Header photo: The International Criminal Court in the Hague, from the Wikimedia Commons. 

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Published on 16 November 2022.