Achieving Restorative Justice?

by Liz White


Congolese warlord Thomas Lubanga, second right, awaits his sentence in the courtroom of the International Criminal Court (ICC) in The Hague, Netherlands, Tuesday, July 10, 2012. Judges at the ICC are handing down their first-ever sentence on Tuesday, following the conviction of Lubanga in May for conscripting child soldiers. The sentencing is considered a milestone since it is the first to be issued by the permanent court in The Hague, and because it is expected to set a war crimes law precedent in awarding damages for victims. (AP Photo/Jerry Lampen, Pool)

The International Criminal Court (ICC) has established an unprecedented role for victim participation. The Court, rightfully so, has been applauded for its commitment to a “victim-oriented” Court. While the core purpose of the Court is investigating, prosecuting and punishing those most responsible for international crimes, justice for victims remains a guiding priority of the Court. This turn from simple retributive to restorative justice represents a welcome shift to encompass all the positive roles that international criminal justice can have. However, the complexity of victim engagement has resulted in policies that leave victims’ voices largely still absent from the Court’s proceedings.

For the first time in the history of international criminal justice, the ICC allows victims to participate in the proceedings of the Court, through submitting communications to the Office of the Prosecutor; sharing their views in court through opening and closing statements, represented by a lawyer; receiving notification of proceedings related to their personal interests applying for reparations; and examining evidence. Further, the legal representative for victims can question witnesses. Victims can also apply for reparations through the Trust Fund for Victims. Monetary reparations have only been awarded once, in 2017, where 297 victims of an attack in the Democratic Republic of the Congo received $250 per person, as well as a collective sum for the community, given through housing, income generating activities, education, and psychological support. The highly innovative nature of involving victims in the Court’s proceedings has resulted in a number of shortcomings.

To date, over 12,000 individuals have applied for victim status, 5,000 of which have been successful. However, behind these vast numbers is an arduous application progress. The complex process has served as a barrier for the participation of many eligible applicants. Originally, the application was a 17-page long document, which was later shortened to 7 pages. While the application is available in English and French, linguistic barriers are commonplace for many victims who are not sufficiently capable in either of those languages to complete the application form. Additionally, the explanation booklet for the application process also is only available in English and French, which is potentially even more problematic, as the process is relatively complex, and a lack of understanding of the process is an impediment to beginning it. As a result, the aforementioned numbers are likely only portions of those who should be able to take advantage of the resources the Court offers. Furthermore, it often takes a significant amount of time, usually around two years, for victims to receive a decision on their status. This extended period of time without any resolution is both discouraging to those victims who have begun the process and a barrier to other victims considering an application for victim status.

Members of the Darfurian community demonstrate outside the International Criminal Court, or ICC, right, in The Hague, Netherlands, Wednesday March 4, 2009. The International Criminal Court will announce Wednesday whether it will issue an arrest warrant for Sudanese President Omar al-Bashir on charges of masterminding genocide in Darfur _ amid fears it could provoke a violent backlash. The chief prosecutor, Luis Moreno Ocampo, says dozens of witnesses will testify that al-Bashir controlled a genocidal campaign aimed at wiping out three ethnic African tribes in the vast nation south of Egypt. (AP Photo/Peter Dejong)

The Court currently defines a victim as, “any natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court,” and is further narrowed to those directly or indirectly affected by the crimes of a perpetrator of a case before the Court. Given the financial and jurisdictional constraints of the Court’s work, the limitation to victims involved in crimes within the Court’s jurisdiction is unsurprising, but leaves a large number of victims without the opportunity to benefit from the Court. There are a number of conflicts worldwide that are outside of the limited jurisdiction of the Court, or are in the jurisdiction of the Court but have not been opened yet, whose victims, as a result, do not have a means to receive restorative justice. These victims having access to restorative justice can also increase retributive justice by allowing victims to refer crimes to the Court, or another judicial body.

Going forward, the Court can take a number of steps to address these concerns. First, they can place greater emphasis on engagement with victims. Certainly the Court is constrained here by their limited finances and the large number of potential victims with whom they should engage, but even basic steps would have an impact. These steps could include more regular updates for individuals who have applied for victim status and translation of relevant forms and documents to local languages. Further, taking advantage of the possibility of in situ proceedings, or local proceedings, offer increased opportunities for victims to participate in cases before the Court. With increased engagement for victims with the Court, it is crucial to remain to provide the appropriate psychological support and security protections to ensure that victims feel both supported in their engagement, in order to increase the number of victims hoping to engage with the Court. These improvements all involve significant financial constraints on the Court. However, given the unique role that the Court plays in restorative justice, States Parties and NGOs should provide additional financial support for the Court in order to increase the opportunities for victims to benefit. The Court’s focus on sufficiently vetting victims is entirely appropriate, and helps ensure that the right individuals receive the benefits of this status. However, these administrative barriers should not overwhelm the Court’s victim-oriented approach.