The International Criminal Court and Victim Well-being: A Restorative Approach?

Together with the Trust Fund for Victims (TFV), the Latvian Presidency of the Council of the European Union and the Embassy of Latvia, The Hague Institute for Global Justice hosted a seminar on the “Psychological Rehabilitation of Victims.” Members of the Board of Directors of the TFV are currently gathering in their 12th Annual Meeting to discuss issues surrounding the TFV, including its reparations mandate. Undeniably, reparations provide victims of mass atrocities with the recognition and financial support they may require following trauma.

Another resonating theme throughout the seminar was the role of victims in criminal proceedings, suggesting that not only the outcome –reparations or punishment of the offender – are important to victims, but also how their participation plays a beneficial role. Thirty years have passed since the milestone achievement for victims, theU.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which establishes a need to allow victims to present their views and concerns at all stages of criminal proceedings.

At the international level, the Rome Statute mirrors this right for victims. Victim participation is furthermore echoed in victimological literature and empirical research assessing domestic criminal justice and more recently emerging within the international criminal law discourse. More specifically, debates have appeared regarding the psychological effects that victims of mass rape, torture and other atrocities may undergo through their participation in court proceedings.

In 2012, former President of the ICC, Sang-Hyun Song stated, the “ICC is about much more than just punishing the perpetrators. The Rome Statute and the ICC bring retributive and restorative justice together with the prevention of future crimes.” Indeed, victim harm is addressed in the reparations that are provided and through programs implemented by the Trust Fund for Victims, such as those that help with physical (e.g., prosthetics) and psychological rehabilitation, medical referrals, financial assistance for vulnerable victims and peace and reconciliation activities. Furthermore, opportunities for victim participation exist that allow for victims’ voices to be heard. But what other goals of restorative justice exist and how do they relate to the well-being of victims? And to what extent can the ICC play a role in achieving such goals?

One issue that arose during the seminar was the psychological state of victims while waiting to testify in The Hague. Many victims report experiencing headaches, anxiety, problems sleeping and other psychosomatic symptoms. Such a finding is largely in line with research that supports the notion that testifying can lead to hampered psychological well-being, particularly for vulnerable victims. Often this is a result of potentially degrading cross-examination or having to relive the trauma. Most speakers emphasized the role of the court in protecting the well-being of victims, including their psychological health.

The extent to which criminal proceedings may be therapeutic has previously been investigated. Such healing effects also result from restorative justice procedures. While the two have diverse goals and follow different, and to an extent contradictory, processes, a restorative approach in criminal proceedings (rather than solely the outcome) may be considered.

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First, however, a brief distinction should be made between process-oriented and outcome-oriented definitions of restorative justice. While the latter refers to those actions that repair the harm of the victim, the former further requires values such as consensual participation, mutual respect, dialogue, and non-coerciveness. Restorative justice more generally emphasizes the offender experiencing repentance and reintegration, taking responsibility, and allowing for a (communicative) platform to lead to feelings of empowerment for the victim. While such goals and principles would suggest that traditional justice approaches are more appropriate – and indeed many victims of mass atrocities assert such a desire – criminal procedures may provide an element of restoration or therapeutic benefits.

But, as has been noted, criminal justice is not the ideal medium for restorative justice. That does not mean, however, that we should not ask how criminal justice can help those victims who are asked to testify can lead to a healing or empowering experience. When victims meet their offenders, whether this is through direct or indirect contact, a one way ‘dialogue’ (e.g., testimony) or simply being in the same room in a more passive role, victimsmay feel empowered. They see the offender is ‘smaller’ than expected, or less scary. Having the perpetrator hear about the harm that was suffered by the victim may provide more satisfaction than solely telling the Court. The victim may also hear from the offender why certain actions were taken (e.g., training as a child soldier). Furthermore, being able to witness the offender take responsibility (where it occurs) may also impact psychological well-being.

If it is true that restorative components of the ICC can also be therapeutic, it is important to gauge under which conditions this may hold true. First, if we ask whether the ICC may be restorative – in more than its reparations mandate – we must consider individual differences among victims. Second, each case differs and may also impact how ‘restorative’ procedures can be. With regard to individual differences, victims differ on their level of vulnerability, and the extent to which they would like to express themselves towards the offender or the Court.

This could be due to their gender, age, religious beliefs or a number of other factors, but also may be related to what they have experienced, namely how much harm they suffered. For this reason, risk-assessments, such as the vulnerability assessments carried out within the Victims and Witnesses Unit of the ICC, are one means of dealing with differences among individuals. These risk-assessments could consider the extent to which (indirect) contact with the offender may be beneficial.

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Concerning the characteristics surrounding the case, numerous factors will again play a role in the extent to which a procedure can be restorative or therapeutic. Consider the most recent case facing the ICC, Dominic Ongwen, a former child soldier who became one of the LRA leaders, committing countless atrocities and causing enormous levels of harm to innocent civilians. Currently Ongwen faces charges of war crimes and crimes against humanity. But his voluntary surrender and his defense of being a victim (as a child soldier) could play a role in an eventual admission of guilt.

Of course this is a legal argument that will not be addressed here, but it should be noted that Article 65 of the Rome Statute does provide for an opportunity for the admission of guilt and a request by the prosecutor to provide additional evidence, ‘in the interest of justice, in particular the interests of the victim.’ Subsequently, a victim may be able to testify while facing an offender who admitted some type of responsibility. Though Ongwen did refer to a desire to ‘follow the right path and listen to the calling of the ICC’, he has not alluded to his own responsibility and this could be problematic in admitting guilt when the time comes.

The seminar highlighted the need for greater attention to victim participation in criminal proceedings. As Dr. Vaira Vike-Freiberga, the former President of Latvia, expressed, victims need our compassion and our help to reintegrate into society and we must continue to consider what we can do to empower victims and restore human dignity. The restoration that may be provided through victim participation can be viewed as a way to protect those particular victim-witnesses, but it is unlikely that it will reach the larger population. For this reason, continued work of the Trust Fund for Victims is vital in achieving the goals of victims’ psychological rehabilitation.

The author would like to thank Dr. Vaira Vike-Freiberga, Ms. An Michels, Ms. Kristin Kalla and Mr. Curt Goering for the insights provided during the seminar. Also thanks for Dr. Aaron Matta for the feedback.

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