Retributive and Restorative Justice: Where does International Criminal Law stand today?

Introduction

In October 1946, as the Nuremberg trials against the major war criminals of World War II came to an end, Victor Bernstein, special correspondent of the New York newspaper PM, commented the verdict against Rudolf Hess, Hermann Göring and 22 other accused with the following words: “From now on, an instigator of war will not only be branded in the history books, but he will be punished while he can still suffer personally and be convicted as a common criminal”.^[1] What Bernstein describes is, in a nutshell, the idea of retribution: An individual who broke the law must be punished (‘just deserts’). In classical retributive terms, punishment is understood as a fair balance for the wrong of the offence. It is a traditional approach to criminal justice that focusses on the offence committed and, in that sense, is backward-looking. While retributive justice is largely recognized as a purpose of punishment in both domestic and international criminal law (ICL), other justice approaches have come to the forefront in more recent years. One of them, often portrayed in dichotomic terms vis-à-vis the idea of retribution, is restorative justice. It is based on the belief that justice is best achieved through participation and dialogue. A restorative justice approach requires focusing not only on the crime committed, but also on the harm experienced by the victims. Its ultimate aim is to restore the human relations that have been affected by the offence in order to overcome the violent past in a meaningful way. In that sense, restorative justice is understood to be forward-looking. When looking at these two very different approaches to justice, the question arises if they are mutually exclusive or if they could even be combined. What could a justice response beyond retribution look like? And where does ICL stand in this regard today?       

Retributive justice and the origins of international criminal law

In large parts of the Western world, the idea of punishment is deeply rooted in retributive justice. A retributive approach to punishment responds to the commission of a specific offence for the sake of justice. It has strong philosophical (Kantian) underpinnings and is based on an understanding that the state should repay the guilt of the offender and redress any imbalance created in the public order.^[2] Importantly, beyond the idea of revenge, retributive justice is to be understood as the determination not to leave the committed crimes unpunished.^[3] As such, it meets the public demand for accountability and against impunit^y.[4]

While ICL has strong roots in traditional criminal law and its underlying principles, it also differs from domestic criminal law and hence must develop its own approach to justice. After all, unlike domestic criminal justice systems, ICL is designed to respond to grave human rights violations and severe threats to international peace and security.^[5] Numerous goals have been advanced to justify the creation of international criminal tribunals. Amongst the classical ones are deterrence, rehabilitation and also, importantly, retribution.^[6] The Nuremberg trials, though not expressly stating the purposes sought, were seemingly based on the idea of retributive justice. The same holds true for the Eichmann trial before the Jerusalem District Court, in which Adolf Eichmann, the perhaps most important bureaucrat in implementing the “Final Solution” in the context of the German Holocaust, was found guilty in 1961 with retribution as a ‘major factor’ for punishment.^[7] While ICL has clearly evolved since the trials following World War II, the subsequently established international criminal tribunals have largely built on its legacy – particularly in terms of the underlying model of justice. The two ad-hoc Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), which were created in the 1990s and have contributed significantly to the further development of ICL, were largely built on the idea of retribution as a main purpose of punishment.^[8] The International Criminal Court (ICC), established in 2002, followed this approach and has repeatedly stressed in its case law that retribution is amongst the ‘primary objectives of punishment’.^[9] Equally, the more recent Kosovo Specialist Chambers (KSC) largely follow the ICTY in their understanding of the purposes of punishment.^[10]

Against this background, it is fair to say that the idea of retribution finds strong support not only in domestic criminal law but is also deeply rooted in ICL.^[11] And yet, while retribution continues to be an important cornerstone in (international) criminal law, an increasing focus on and even shift towards other punitive purposes can be observed. This will be shown in the following.

Moving towards restorative justice

Beyond the classical goals of criminal justice, broader goals have increasingly moved to the forefront of ICL discussions, for example, changing the culture of impunity, creating a historical record of atrocities, providing satisfaction to the victims, or promoting a process of reconciliation.^[12] There is a growing demand to focus not only on the offence, but also on the social context and to recognize the harm experienced by the victims, thus giving them a voice and even ownership in the criminal justice process.^[13] It is therefore no surprise that the idea of restorative justice has become central to contemporary ICL discussions.

Restorative justice is a rather novel justice approach that emerged in the late 1970s in domestic criminal justice systems.^[14] Although there is no uniform practice of restorative justice, probably the most widely known definition is the one developed by Tony F. Marshall. Accordingly: “Restorative justice is a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future”.^[15] While the exact contours of restorative justice vary across different definitions, three elements can be identified to lie at its heart: encounter, reparation and transformation.^[16] With that, restorative justice offers a more holistic and forward-looking approach to justice that seeks to surpass the limitations of conventional criminal justice responses.^[17] Importantly, restorative justice is largely shaped by voluntariness as it only works when all parties involved – both victims and offenders – are willing to enter into a dialogue. At the domestic level, restorative justice emerged primarily to address small-scale criminality in situations of peace, where it is used, for example, in the form of victim-offender mediation. At the international level, in contrast, restorative justice has been particularly applied in cases of severe crimes and large-scale human rights abuses, for instance, in the context of Truth and Reconciliation Commissions.^[18]

The reason for the move towards restorative justice is that traditional approaches to ICL often leave those involved in criminal trial with a sense of disappointment: victims tend to be frustrated by the often static and formalistic criminal justice process, which does not give them the voice they had hoped for; perpetrators (if proven guilty) are likely to remain in prison for years without meaningful rehabilitation programs; and the needs of the affected communities that have endured the violence remain unaddressed. In the end, everybody is left to deal with the consequences of violent acts on their own. The question that almost inevitably comes to mind is: Does such an approach to criminal law serve best the interest of justice? Restorative justice, in turn, seems to offer a more promising response on how criminalized wrong can be dealt with.

In light of the above, the question arises which justice model contemporary international criminal tribunals opt for. This question is particularly pressing since traditional (retributive) criminal justice responses are often portrayed in a way that is contrary or even irreconcilable with restorative justice approaches.

The International Criminal Court: Taking up the trend

The ICC is the only permanent international criminal tribunal and widely considered a benchmark of ICL. Importantly, the ICC is also the first international criminal tribunal to incorporate certain restorative justice elements within its statutory framework.^[19] In particular, the ICC has included victims’ participatory rights in its proceedings to an unprecedented degree. Victims have the right to participate in their own right, they may present their views and concerns, and make opening and closing statements.^[20] With that, for the first time, the statute of an international tribunal recognized victims as potential direct addressees of international criminal justice.^[21] In addition, victims’ needs are considered at the level of sentencing.^[22] Finally, victims are also given an important role in the reparation proceedings following a conviction.^[23]

Especially the ICC’s reparations regime is largely shaped by a restorative justice approach. For example, in the Al Mahdi case, reparations were ordered for the cultural and moral harm suffered by the local community in Timbuktu.^[24] In the Ongwen case, the Court awarded reparations to nearly 50,000 victims of crimes against humanity and war crimes – including symbolic cash payments, medical, psychological and socio-economic rehabilitation programs, as well as community commemoration and other symbolic activities.^[25] Importantly, the different forms of reparations were developed based on the views of the victims. The Trust Fund for Victims^[26] supports the reparations phase with an implementation plan that has a participatory mechanism at its center to ensure the close involvement of the community of victims.^[27]

By introducing these victim-centered features, the ICC pioneered when compared to previous international tribunals. It has therefore set an important precedent which expands the international criminal justice regime known until its creation. Importantly, it also set a trend which was taken up (to varying degrees) by later established international(ized) tribunals, such as the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Tribunal for Lebanon (STL), the (already mentioned) KSC or the Cour Pénale Spéciale de la République Centrafricaine (CPC).^[28] It is therefore fair to say that victim participation has become an integral part of contemporary ICL and that reparations for victims have equally become an important feature.^[29]

The described trend shows that beyond a pure retributive justice approach, certain restorative justice elements are by now implemented and recognized in ICL. International criminal justice responses today do not only aim for the accountability and punishment of perpetrators in a strict sense, but also for enhanced ownership on the victims’ side.^[30] Yet, even if contemporary ICL and particularly the legal framework of the ICC put a greater emphasis on restorative justice elements than its predecessors (namely the trials post-WWII, the ICTY and the ICTR), the primary purpose to punish individuals is still rooted in retributive justice. The ICC has continuously interpreted the Preamble of the ICC Statute, which stipulates the determination ‘to put an end to impunity’, to be primarily establishing retribution.^[31] Thus, the ICC’s justice model, while incorporating some retributive justice elements, namely victim participation and reparations, remains retributive in nature. Restorative justice features are adopted only as long as they align with the primary and overriding idea of a traditional approach to punishment.^[32] The same holds true for the other contemporary tribunals mentioned above. It is therefore fair to say that although there has been a significant move towards restorative justice, ICL is still deeply rooted in and shaped by a justice approach that is based on retribution.

While ICL is primarily associated with tribunals at the supranational level, ideally, following the idea of complementarity, crimes should be prosecuted and adjudicated where they were committed, i.e., in and by the territorial States.^[33] This is especially true since domestic legal systems are often best prepared to understand local customs and are more accessible for victims when compared to the often geographically removed international criminal tribunals. Therefore, beyond international institutions, the application of ICL at the domestic level is equally important when trying to better understand contemporary developments in this field of law.^[34] One interesting (and often overlooked) domestic criminal justice institution which might offer valuable insights on how restorative justice may be implemented in a different way is the Colombian Special Jurisdiction for Peace, which we will now turn to.

Colombia’s Special Jurisdiction for Peace: Combining restorative and retributive justice

The Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP) was established following a Peace Agreement in 2016 which marked the official end of more than 50 years of internal armed conflict between the Colombian Government and the Revolutionary Armed Forces of Colombia – People’s Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP).^[35] The JEP’s objectives are to bring to justice those who participated directly or indirectly in the internal armed conflict and to protect the rights of the victims. Since the JEP forms part of a larger transitional justice process, a guiding paradigm of this jurisdiction is the idea of forward-looking justice which aims to put an end to the conflict.^[36]

The JEP’s aspired justice model follows a unique approach to criminal justice that combines restorative and retributive justice in an unprecedented way. The underlying idea of the JEP’s justice model is to enhance a dialogue between victims, perpetrators and the broader affected communities. This includes the establishment of the truth as well as the design of sanctions and reparations. Following the so-called dialogic process, victims and perpetrators are encouraged to enter a moderated dialogue with the objective to understand why a person engaged in the violent acts in question in the first place, to encourage that person to tell the truth and to create a space for both sides to listen and to engage in a meaningful, respectful dialogue.^[37] While participation and reparations are restorative elements that are not foreign to other contemporary criminal tribunals, as seen above, the idea of genuine dialogue which is deeply anchored in the JEP’s legal framework is new.

The dialogic process is implemented on various levels before the JEP.^[38] One example is the design of the criminal procedure: There are two different procedural tracks. While the first resembles an admission of responsibility/guilt procedure, the second provides for a regular adversarial criminal trial. The first procedural track, designed to promote truth-telling, is given primacy in the sense that those appearing before the JEP are encouraged to enter this restorative (non-adversarial) procedure. Only if they refuse to acknowledge their responsibility and tell the truth, they enter the second (subsidiary) track which consists in a retributive procedure.^[39] In cases of serious and evident lack of commitment with the JEP and, in particular, with the rights of the victims to know the truth, those appearing before the JEP may be excluded as a measure of last resort and their cases transferred to the ordinary jurisdiction.^[40] Another example of the dialogic process is the JEP’s sanctions regime. Those perpetrators who confess, tell the truth, and participate in activities aimed at reparation and non-repetition receive mitigated sanctions whose enforcement will normally take place outside the ordinary prison system.^[41] While sanctions under this framework might still entail the deprivation of liberty (i.e. a sanction of a retributive nature), such measures are a last resort if the main objective of restorative justice has not been achieved.^[42]

In light of the above, one can say that restorative justice lies at the very heart of Colombia’s criminal justice response in dealing with the atrocities committed during the civil war. The JEP offers an innovative and rich ‘formula’ and shows that it is possible to create a model that pursues accountability of international crimes beyond the traditional forms of retributive justice, without giving rise to impunity.^[43] Importantly, the JEP goes a step further than the ICC and the other international(ized) tribunals seen above, by giving primacy to restorative justice. It reconciles the interests of a transitional justice process (revealing the truth, guaranteeing the centrality of the victims in the administration of justice, and contributing to the construction of a lasting peace) with the aspiration of accountability for those most responsible for serious crimes.^[44] It is therefore no surprise that the JEP has become a reference for contemporary studies on restorative justice.^[45] This is all the more true as some have already called the ICC to implement a truly ‘mixed-method approach’ which gives more room to restorative justice elements.^[46]

Hence, beyond the particularities of the specific Colombian post-conflict process, it is worth exploring what the JEP’s justice model may offer to advance contemporary discussions on the scope and nature of ICL. In addition, the JEP’s model could well serve as an example and show how a domestic tribunal can offer valuable insights as to the question which justice model is best suited to respond to mass violence. While criminal justice responses at the domestic level are often influenced and inspired by ICL (a widely discussed top-down effect^[47]), the opposite (bottom-up effect) is rarely analyzed. This is unfortunate, not just because it does not correspond to the increasing decentralization of ICL in the 21^st century,^[48] but also because transitional criminal justice models, like the Colombian one, might add significantly to contemporary ICL discussions.

Concluding remarks

ICL has grown into a flourishing and diverse field of law. While the first international criminal tribunals were based on a narrow understanding of criminal law that was largely limited to traditional goals of criminal justice and in particular retribution, contemporary international criminal tribunals have started to include restorative justice elements as well. While retributive justice responses strictly limit criminal justice to focus on the individual act and the accused, restorative avenues go a step further and ask for the harm caused. The former reminds us that criminal justice is primarily about the individual who committed a crime and the punishment s/he should receive; the latter promises to better address and redress the harm caused and to ensure a more victim-centered approach. Today, while retributive justice elements are still deemed important in order to counter impunity, restorative justice elements are an integral and indispensable part of contemporary ICL. The ICC has taken a pioneering role in this regard, especially concerning victim participation and reparation.

And yet, while the idea of restorative justice has increasingly gained importance in contemporary ICL, it only plays a limited role before international criminal tribunals. They uphold an overall retributive justice approach to international criminal justice, especially when it comes to the design of criminal procedures which are adversarial in nature, and the design of sanctions. In that sense, the Colombian JEP is an interesting example. It goes a step further than contemporary international criminal tribunals, putting the idea of restorative justice at its very center.  

Post-conflict settings (like the Colombian one) often serve as a catalyst for change. This also holds true for questions of restorative and retributive justice: While criminal prosecutions and accountability for grave crimes and severe human rights abuses are called for, post-conflict societies also aim for sustainable peace. Since traditional means of retributive justice alone are unlikely to overcome the societal divisions that undermine peace and security, the quest to achieve sustainable peace has opened the door to explore restorative justice responses.^[49] It is the particular need of criminal justice responses in post-conflict settings that has brought innovative models favoring restorative justice into ICL discussions, while, as the Colombian case shows, not limiting such demands to alternative mechanisms outside criminal justice responses (i.e. truth commissions).

While the development in contemporary ICL described above is to be welcomed and further exploration of possible mixed restorative and retributive justice approaches is needed, a word of caution is warranted. The output and impact of international criminal justice should not be overemphasized. History shows that expectations towards the international criminal justice system are seldomly met. Therefore, modesty, not overstatement and unrealistic aspirations, is the wise choice of the day, not least to avoid a further enlargement of the deep rifts between declaration and achievement.^[50]