2.1. Introduction: the need for a restorative aim and delineated parameters for victim participation at the ICC – a clinical comparison
The previous chapter demonstrates that there is an apparent disconnect between the Court’s formal recognition, at a theoretical level, of a restorative rationale for its victim participation endeavour and its application in practice. This disconnect is due, it is suggested, to the Court’s failure to consider what restorative justice means within the specific context, including what that would look like in terms of the practical aim and focus of its victim-centred activities.
A brief comparison of the differing approaches between clinical and legal disciplines in their pursuit and evaluation of victims’ engagement with therapeutic and judicial
mechanisms respectively highlights in stark terms the current shortfall in the legal context.
Notably, therapeutic work with survivors of international crimes entails the pursuit of a clear, specific and widely-understood aim which in turn serves as the direct and targeted focus of all victim engagement: the rehabilitation of the victim.314 Rehabilitation itself has clear and recognised parameters in the particular context, enabling specific therapeutic work that is aimed at the achievement of those various constituent elements.315 Moreover, the existence of parameters allows clinicians to monitor the progress and success of therapeutic activities, as well as to organise and target limited resources accordingly. Clinicians therefore know exactly what it is they are trying to achieve for the victims they work with, the particular components of that broader goal, and how, in practice, they can pursue that goal.
314 The meaning of rehabilitation in the specific clinical context of survivors of international crimes
is explored in detail in Ellie Smith, Nimisha Patel and Leanne MacMillan, ‘A Remedy for Torture Survivors in International Law: Interpreting Rehabilitation’ (December 2010) Medical Foundation for the Care of Victims of Torture,12 – 13. The interpretation has since been accepted and incorporated into General Comment 3 of the UN Committee Against Torture, Implementation of article 14 by States parties (19 November 2012) U.N. Doc. CAT/C/GC/3.
315 Various clinical tools are available, and the choice of which to use may depend upon the form
and nature of psychological services offered by a clinical provider. The issue is explored
substantively, and the advantages and disadvantages of various instruments discussed, in James M. Jaranson and José Quiroga, ‘Evaluating the services of torture rehabilitation programmes: History and recommendations’ (2011) Vo. 21 No. 2 Torture 98.
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By contrast, the pursuit of a restorative goal for victims engaging with international criminal justice mechanisms is in its relative infancy. While the clinical concept of rehabilitation is clearly defined and widely accepted, the notion of restorative justice in the context of international criminal law, including in relation to the Court’s victim participation endeavour, remains an under-developed, vague concept lacking both a specific overarching aim and delineated parameters. As a relatively intangible goal, it is difficult to pursue, and the absence of identified parameters means that monitoring is problematic.316 Moreover, there is, at present, no assessment tool by which the Court’s progress in the pursuit of its restorative endeavour can be evaluated.
In the absence of a specific restorative goal and associated assessment framework, legal approaches to both the pursuit and evaluation of victims’ participation experiences are, at present, ill-equipped for the quest for, or the achievement, monitoring and assessment of any specific restorative element within the international criminal justice context,
indicating a significant gap both in knowledge and practice.
The development and clear articulation of the specific theoretical aims of the Court’s restorative endeavour would not only maximise the potential of participating victims to achieve effective and meaningful participation, but would also serve as a focal-point for victim-centred action within the Court, leading in turn to the development of consistent Court practices and the efficient, targeted use of resources.317 In this chapter, the author identifies, develops and describes an appropriate aim for the pursuit of restorative justice through the victim participation endeavour of the International Criminal Court. In the following chapter, a detailed framework for the assessment of the Court’s progress in respect of its restorative mandate is identified, thereby addressing current gaps in both knowledge and practice.
316 Notably, studies conducted by legal experts in to victims’ experiences of engaging with
international criminal justice tribunals, including those mechanisms which provide an enhanced participative and potentially restorative role for victims, do not adopt a restorative framework for the purpose of their assessment. In addition to the ICC, victim-focussed measures providing for a greater, restorative role for victims in proceedings are included in the case of the Extraordinary Chambers in the Courts of Cambodia, Rule 23(1), ECCC Internal Rules (Rev 9)(16 January 2015), and the Special Tribunal for Lebanon, Statute of the Special Tribunal for Lebanon, UNSC Res 1757 (30 May 2007) S/RES/1757(2007), Annex, Article 17. The legal assessment of victims’ experiences in relation to international criminal justice tribunals is explored further below, at para 2.3.2.(iii)(b).
317 Specific, hypothetical examples of possible targeted, victim-focussed measures are given in the
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In Part I of this chapter, an appropriate overarching aim is identified. Part I begins with a brief examination of the nature of any restorative goal, and in particular, the psychological component incorporated within it. It goes on to acknowledge and explore challenges to the consideration and identification of a restorative aim for the ICC and/or assessment of the restorative endeavour posed by current approaches to the evaluation of psychological impacts in victims engaging with international transitional justice mechanisms. The chapter then examines the potential psychological goals of restorative action within the specific context of the ICC. Part II of this chapter includes a consideration of how an appropriate psychological concept, as a goal of restorative action at the ICC, might be rendered applicable and operational within the legal forum. It concludes with an examination of specific parameters of that goal for the practical pursuit of restoratively beneficial action at the Court.
Notably, the application of restorative elements at the ICC is novel in the context of international criminal justice mechanisms, and as a result, there is no specific guidance within the international criminal law field on an appropriate overarching restorative goal for application and pursuit in the specific context. Reference is therefore made on this issue to identified overarching restorative aims within traditional international restorative justice mechanisms with a view to assessing the extent to which they are appropriate for application and pursuit in the Court. Recourse to international restorative justice literature and practice is particularly apposite in this regard since, like the victim-focused measures of the ICC, mechanisms are intended to be responsive to the restorative needs of victims of international crimes, perpetrated on a wide scale. Victims appearing before restorative mechanisms are therefore likely to have suffered comparable harm and have similar restorative needs to victims seeking to participate in proceedings before the Court. In light of the psychological component in this research, recourse is also had to psychological literature involving victims of international crimes and their experiences of engaging with international transitional justice mechanisms to the extent it is able to inform and develop legal theory and fill gaps in current legal practice.
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