Critical Legal Conference 2013

Re-reading human rights: the role of victims within international criminal jurisdiction

Stream Organiser: Paulo de Brito (Bristol, UK and Universidade Lusófona do Porto)

The traditional approach on victim’s right to reparation, upheld by the ILC (International Law Commission) in the Draft Statute of the ICC (International Criminal Court), was that it should be left to national jurisdictions and international judicial co-operation agreements. However, the Rome Statute of the ICC ended by creating the legal conditions for the most innovative reparation scheme ever conceived in the history of international criminal jurisdiction. While declaring in its preamble that putting an end to impunity for serious international crimes will “contribute to the prevention of such crimes”, the Rome Statute does not elaborate much on the purposes of sentencing. Nonetheless, in a court decision, the ICTFY (International Criminal Tribunal for the former Yugoslavia) clearly asserted that “A consideration of retribution as the only factor in sentencing is likely to be counter-productive and disruptive of the entire purpose of the Security Council, which is restoration and maintenance of peace in...the former Yugoslavia. Retributive punishment by itself does not bring justice” (Prosecutor v. Delalic et al. (Case No.IT-96-21-T), 16 November 1998, para. 1231). It is worth noting the insufficiency of a pure concept of retribution and the emergence of a restorative, victim-oriented approach to justice. Looking historically for notions of justice in the code of Hammurabi, the Summerian code of Ur-Nammu, the Roman law of the twelve tables, the medieval codes, we can see that restitution was prescribed for crimes against property. And the same happened in pre-colonial African societies. But when tribal structures gave way to state power, crime came to be seen solely in the light of a violation of the laws emanating from that power, devoid of any notion concerning the reparation of the harm done to the victims, nor at the same time, concerning much about restoring the status quo ante violated by the offender.

New critical patterns of thought towards justice appeared in modern times with the emergence of a restorative concept of justice.

The reparative focus of restorative justice also envisages the creation of a justice system that responds “in a way that repairs, rather than adds to, the harm resulting from crime. A simple example is a sentence of restitution rather than a fine or imprisonment (unless there are overriding considerations of public safety, for example)” (Johnstone and Van Ness 1992: 13). Within this restorative vision, “justice requires that we work to heal victims...and communities that have been injured by crime” (Ibid.,14-15). In light of this, we can understand the general principles of “restitution, compensation and rehabilitation” established in Article 75(1) of the Rome Statute, the creation of the Office of Public Counsel for Victims (OPCV) provided for by Regulation 81, and a number of procedures to ensure active participation of the victims before the Court (ICC). Whether a criminal justice system, and especially an international criminal jurisdiction, should be anchored on a restorative rather than retributive approach will here be open to debate.

Please send paper abstracts of 300 words to Paulo de Brito (paulodebrito@oninetspeed.pt) before the 15 June 2013 deadline.

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