Guest Post: International Criminal Justice and Reconciliation: Beyond the Retributive vs. Restorative Divide (Part 2 of 2)

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies.This two-part post is based on a talk given at the seminar on Reconciliation v. Accountability: Balancing Interests of Peace and Justice, organized by the Centre for International Law Research and Policy on 29 May 2015 at the Peace Palace. Part 1 can be found here.]

2. International Criminal Justice and Reconciliation: Improving Connections

It is easy to criticize international criminal justice for its shortcomings. A hard question is: How can the connection between international criminal justice be improved?

Existing studies have expressed doubts to what extent international criminal trials have promoted a ‘thicker’ conception of individual, inter-group or inter-societal reconciliation, at least in the short or medium term. International trials have limited the space for denial of atrocities and created a public space and reference point to confront history, which is one pre-requisite for societal transformation. In past years, international courts have sought to address their limitations through greater investment in restorative features (i.e., victim participation, compensatory justice), complementarity strategies, and education and outreach (e.g., legacy). But improvements might start with a closer look at retributive practices and procedures.

2.1.Reconciliatory potential of retributive justice

There is, first of all, a need to reduce practices that undermine the reconciliatory potential of retributive justice.

(I) Judicial Management

One of the most basic lessons is that  criminal courts and tribunals need to complete trials and produce a judicial outcome, in order to have a transformative effect. In existing practice, criticism has focused on the divisive nature of acquittals or dissents. Such judgments may indeed confirm existing societal tensions. But they are not necessarily detrimental to longer-term processes of reconciliation. They represent a legitimate outcome and contribute to the process of truth-finding. More critical are flaws in the justice process as such, i.e., unfinished or derailed proceedings. At the international level, there are number of critical examples over the past decade, including Milošević, Lubanga, or most recently Kenyatta. In a national context, the Rios Montt trial was affected by dilatory tactics and intimidation. Such examples undermine the demonstration effect of justice, and the faith in law and institutions that is necessary for meaningful engagement with the ‘other’.

The prospect of the trial to contribute to reconciliation depends on its acceptance and perception as a common forum. Each trial necessarily involves a certain degree of theatre and drama. International trials can easily turn into show trials, and struggle to confront ideology fueled criminality. These challenges need to be addressed. Judicial proceedings need to provide space to challenge pre-determined attitudes and biases or the heroization of agents, in order to maintain their perception as shared fora. This requires active, and sometimes better judicial management of proceedings, deeper engagement with conflicting visions of history and causes of criminality, and space to highlight and challenge contradictions in ideology-tainted discourse.

(ii) Plea agreements

From a reconciliatory perspective, it seems tempting to encourage plea agreements in proceedings. But this inclination is deceptive. In the early ICTY practice, guilty pleas were used as a means of reconciling punishment with acknowledgment of wrong or apology. Experience has shown that such admissions of guilt cannot be taken at face value. For instance, Mrs Plavsic’s guilty plea in 2003 was initially heralded as a significant move towards the advancement of reconciliation. After sentencing, she retracted her guilty plea and expression of remorse. This experience highlights the fragility of negotiated justice.  If an apology is offered in return for sentence leniency, it might not necessarily benefit reconciliation, and call it into question the genuineness of remorse.

In the ICC context, risks of bargaining are curtailed by greater judicial power, and structural attention to the interests of victims (Art. 65 (4) ICC Statute) But at the Court, similar concerns have arisen in the context of the apology of Katanga. Katanga’s remorse was offered after the sentencing judgment, and before the decision on appeal. It caused resentment among victims, since it was perceived as a tradeoff for the discontinuance of the appeal.

2.2. Justice Approaches

International criminal justice may contribute to break divides, if it makes best use of the constructive tension between retributive and restorative approaches.

(i) Constituency and locality  

A fundamental element is the approach towards constituency and locality. Justice, and in particular, justice in the Hague, must be a two- way street. International proceedings are not merely abstract processes, geared at the interests of the parties or fictive community interests; they require a close nexus  context, and the interests of affected communities and victims. It is this inclusiveness, which connects international criminal justice to processes of reconciliation. In current practice, interaction with the ‘domestic’ or ‘local’ is often characterized by outsourcing, transfer of cases or one-directional communication (e.g., ‘outreach’). The conditions of this relationship, and its transformation over time (e.g., after closure of cases) require further structural attention. Holding local hearings (e.g., Ntaganda) may facilitate visibility and access to victims, and foster the perception that ‘justice is seen to be done’. But it is not in itself sufficient to facilitate a structural dialogue locally.

(ii) Challenging‘friend/enemy’ clusters

Many trials suffer from the reproduction of binaries, and are perceived as obstacles to reconciliation, if they remain entrenched in ‘friend/enemy’ clusters, or associate crime or victimhood across pre-configured collective identities (e.g., ethnic lines). International criminal justice may reduce these frictions, if it pays attention to rights and wrongs of  all sides of the conflict, as mandated by the principle of objectivity (Art. 54 ICC Statute). A positive contribution to reconciliation also requires better engagement with dilemmas of selectivity, and justification of choices (e.g., selection of situations, cases, defendants). Typically, most attention is focused on action. But from a perspective of reconciliation, inaction requires equal attention. It is, in particular, important to communicate that inaction does not entail an endorsement of violations.

(iii) Contradictorial v. adversarial proceedings

International criminal courts have experimented with different types of procedures. Experiences suggest that inquisitorial features may be more closely aligned with rationales of reconciliation. Accusatorial models tend to treat parties to proceedings as adversaries. This structure consolidates binaries, and produces clear winners and losers. This methodology fuels a certain hostility, and stands in tension to a more exploratory mode of inquiry. As noted by Albin Eser, this contradiction could be mitigated, if procedures were construed as ‘contradictorial’, rather than ‘adversarial’, i.e. focused on ‘elucidating the truth by way of  contradiction, including confrontation’ and ‘(controversial) dialogue’ in ‘a spirit of cooperation’, rather than hostile contest. Steps like these would facilitate empathy and potential re-humanization of perpetrators and victims. One of the implicit purposes of these trials is to give back to the victims some of the humanity that they have lost.

(iv) Fact-finding

A last procedural point relates to fact-finding and quality of evidence. Existing practice continues to rely heavily on oral testimony. Testimonial evidence is fragile and limited by epistemic challenges, since it linked to assessments of trustworthiness. This is shown by many examples, internationally and nationally. Some of these vulnerabilities might be limited by creative uses of information technology, and better translation of ‘big data’ into analysis or evidence. International courts and tribunals (e.g., ICC, STL) serve as important pioneers in this field.

2.3. Treatments of Actors

Finally, prospects of reconciliation are closely linked to the experiences of parties and participants in the justice process. Individuals share and digest experiences through narratives. Criminal proceedings may contribute to this process, if parties and participants have the impression that they are listened to.

Some of the most direct transformative effects may occur through the experience of testimony, i.e., the contact and exposure of witnesses or victims to a professional justice environment. Existing practice provides positive and negative examples. Existing experiences might be improved through greater care for witnesses before and after testimony, and better management of victim participation in proceedings, including information, representation  and processes of inclusion and exclusion. Greater caution is required in the use and labeling of victims. Judicial proceedings tend to produce imageries (e.g., vulnerability) and abstract categorizations of victimhood that may have disempowering effects on victims.

One innovative development at the international level is the ICC’s approach towards reparation. It combines retributive and restorative features. It establishes a direct form of  accountability of the convicted person towards victims, which differs from classical models of victim-offender mediation. Accountability is grounded in the obligation to repair harm, but linked to the punitive dimensions of ICC justice (e.g., conviction, sentence). Jurisprudence has made it clear that establishment of accountability towards victims through reparation proceedings is an asset per se that can provide a greater sense of justice to victims, even in cases where the defendant is indigent. Examples like these illustrate some of the strengths and possibilities of international criminal justice.

 3. Not a conclusion

In the future, as in the past, it will remain difficult to demonstrate empirically whether and how international criminal justice contributes positively to reconciliation. This debate is likely to continue. It might be interesting to turn the question around: Would one be better off without international criminal justice? If the question is framed in the negative, the ‘benefit of the doubt’ might gain greater weight.

At least three insights can be drawn now. First, reconciliation is not, and should not necessarily be treated as a primary goal of international criminal justice. The criminal trial is at best one intermediate factor in such a process. Second, the contribution to reconciliation cannot be assessed exclusively through the lens of restorative justice. Some important impulses result from the positive tension between retributive and restorative justice. Third, some of the strengths of international criminal justice lie in its expressivist features and, its ability to serve as experiment for national experiences. These experiences require further translation and/or transformation in a national or local context, rather than mere replication.