Retributive Justice is better than its Restorative versions
My final premise is based on looking at the retributive mechanisms that have been the hallmark of the completed trials at the permanent court and also at the ad hoc tribunals. During the years leading up to the Rome Statute, there was debate and discussion on the model to be followed at the ICC. In the past, the Court has seen itself as having the potential to create a conversation between the two models – retributive and restorative. This may be imagined by constructing the focus given to victims in the Statute. However, in the practice of the courts, there is a marked emphasis on retribution. Part of the rationale for this thinking by the chambers can be explained by the strong preference that victims in post-conflict societies have for retribution – and the optics that a prison sentence give to the political legitimacy of conventional courts. However, and this is at the heart of this premise, the ICC is NOT a conventional court. For it to pander to the political vagaries of states parties by not attempting to create a more restorative model of justice in its jurisprudence is not helping the legitimacy project either.
The restorative model is largely rooted in transitional justice and necessitates a deeper study of the post-conflict situation – it brings together a vital toolkit aimed at long-term stability for the affected states / communities and a way for them to overcome the violence of the conflict period through mechanisms such as a public apology. These tools from the transitional justice repertoire match and perhaps outshine the optics I mentioned earlier. But more importantly, they provide a possible alternative way to interpret victim participation at the ICC. Thus far, the court has devised its own meaning to the term – giving the victims standing, privacy and an opportunity to strengthen the narrative made by the OTP in their own cause. While this is largely based on the EU victim participation model and does serve an important role at the ICC, it also weakens the restorative justice possibilities that are to be found in the Rome Statute. An expansive reading of victim participation and the role of witnesses would allow the court to reach out to the communities involved in a trial by including elements of restorative justice (thus enriching and revitalising its legitimacy?).