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- Sydney Siwinski: Using Cultural Context to Award More Meaningful and Salient Remedies to Victims I. Introduction The Rome Statute mandates both categories of remedies available to the International Criminal Court (ICC) as well as, in many cases, the individuals to whom remedies can be awarded.1 However, the ICC’s interpretation of justice and law comes mostly if not entirely from Western legal... (more)
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- Maggie Sheerin: A New ICC Justice Reflecting Regional Remedies: Reparations, Reconciliation, and Reform I. Introduction This comment will look at the various ways that the International Criminal Court (ICC) could improve its functionality as a global system, by looking to the regional human rights systems and the ways that they have each pulled from their unique regional histories, to create systems that fit their regional needs and... (more)
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Comment on the Legal Traditions Question: “To what extent has the ICC under-represented non-Western laws, principles, rules, procedures, practices, or traditions in its legal structure and system?”
Using Cultural Context to Award More Meaningful and Salient Remedies to Victims
The Rome Statute mandates both categories of remedies available to the International Criminal Court (ICC) as well as, in many cases, the individuals to whom remedies can be awarded.1 However, the ICC’s interpretation of justice and law comes mostly if not entirely from Western legal systems including the United States and Western Europe.2 As a result, the ICC is criticized for its failure to incorporate non-Western law and legal tradition into the way it gives awards to victims and uses long-term prison sentences as the only method of retributive justice.3 Article 77 of the Rome Statute states the applicable penalties that may be imposed by the Court including imprisonment, fines, and the forfeiture of proceeds and other property and assets.4 Article 75 states the possible remedies that may be awarded to victims including, but not limited to, restitution, compensation, and rehabilitation.5 Finally, Article 79 gives the power, through the Trust Fund, to benefit victims and their families.6 Though the ICC is restricted to the mandate of the Rome Statute, there has still been criticism from non-Western states and States Parties regarding the disconnect between justice within the ICC and that of other non-Western cultural law.7
The most profound criticism has come from states that incorporate Shari’a law into their legal code. For these states, the Westernization of what is communicated as a global system of law for all seems like disregard for the validity of Shari’a law.8 This is not only taken as a lack of validity for states and their sovereign governments and laws, but for traditional cultural values.9 However, the gap between non-Western laws and penal systems and those of the ICC is not insurmountable. The process of colonization and decolonization in most if not all of the non-Western States Parties resulted in formal Penal Codes that tend to reflect Western laws.10 Though Shari’a law may not be formally incorporated into the process of prosecution and the legal doctrine of the ICC without a complete reform of the Rome Statute, there is opportunity to incorporate non-Western legal tradition into the way a process of restorative justice is approached. As Van Hoecke states, there is a need to look at “the background against which a legal system is functioning.”11
Section II of this comment examines the domestic penal codes and recent approaches to hybrid or non-retributive justice mechanisms of non-Western States Parties in the Middle East, Northern Africa, Sub-Saharan Africa, Asia, and South America, as well as the reception and public perceptions of both from within local communities. Section III highlights the important similarities and critical differences in the analysis. Finally, Section IV discusses some of the ways that the ICC can capitalize on the areas in which the Rome Statute gives the Court discretion to involve victims and communities to look at the cultural salience of particular remedies, arguing that the incorporation of non-retributive traditional justice mechanisms will improve the value of the Court to victims and begin to better reflect non-Western legal traditions as well as Western ideology.
II. Non-Western Regional Justice in Law and Culture
A. Middle East: Jordan
1. Domestic Laws
Jordan’s legal system, including its Penal Code, reflects both the Islamic and British influence on the culture and governance of the state in 1960 when the Penal Code was drafted.12 Though it was amended in 2011, it remains a conglomeration of both legal traditions. Though the state retains some Shari’a law, this law only applies to personal and family matters.13 Like many other states with Western influence on their legal traditions, penalties for the most severe felonies—those most comparable to or the same as those within the jurisdiction of the ICC—are derived from the secular Penal Code.14 Articles 118 through 122 address crimes and penalties for violations of international law, seemingly in accordance with international norms.15 These felonies and others including murder are heard by Jordan’s Major Felonies Court and Courts of Cassation.16 Article 14 of the Penal Code grants these courts the discretion to sentence penalties for the most severe offenses including life imprisonment, life imprisonment with hard labor, and even death.17 Unlike other felonies, war crimes are prosecuted separately, and are heard by distinct military courts.18 This highlights the level of severity and gravity of these crimes, as well as the way they are taken as such by Jordanian legislators.
Though Jordan effectively implemented a moratorium on carrying out the death penalty in 2006, executions resumed in 2014 and were supported by a vast majority of the population.19 When surveyed in late 2014 by the Centre for Strategic Studies based in Amman, Jordan, 81% of people surveyed responded that they support capital punishment.20 Not only is it believed that capital punishment is a deterrent for similar offenses in Jordan, Abuqudairi suggests that it also prevents tha’r revenge killings by the family members of victims.21
Human rights activists have suggested that the reason for such substantial support for capital punishment was first, that there was insufficient understanding of human rights, and second, that courts lacked sufficient alternatives that satisfied victims.22 In Jordan, a life sentence is only twenty years, rather than the lifetime of a prisoner as it might suggest.23 Dissatisfaction with this remedy has resulted in rioting and anger among citizens, and suggests a norm or preference for more severe retributive justice in response to the most heinous crimes.24
2. Traditional Justice in Jordan
Jordan has a fairly Westernized formal legal system, but it operates alongside a traditional tribal system of punitive justice as well.25 In traditional culture, the family is the center of civil society, and as Jain describes, “an injury to one is an injury to all.”26 Thus, a system of collective responsibility and punishment is integral to tribal law.27 Tribal law is far more informal and varies regionally, but has several commonalities.28 The most important of these is the speed at which tribal law moves, more effectively preventing revenge killings of family members for the wrongs committed by another.29 Formal courts and prosecution do not align with this collective mentality: prosecution of one offender does not prevent these revenge offenses.30 When surveyed, only 12% of Jordanians believed that the formal court system alone should resolve conflicts involving the most egregious offenses, like murder.31 Instead, people prefer to rely on either only tribal law or a combination of the two.32 They are not only more accessible, but understandable to the community.33 Right now, the two systems operate alongside each other, rather than in congruence. It is critical, however, when looking at Jordan’s justice mechanisms to understand traditional approaches as well.
One of the primary approaches is a punitive practice called jalwa, which requires the perpetrator and family to leave the tribe or community.34 Traditional values include honor, respect for tribal leaders, and avoiding shame—making this expulsion particularly effective in its cultural context.35 This traditional approach lends itself to being labeled as retributive, but has also been reported to promote peace and reduce related killings. A traditional approach that aligns with the values of people affected by the crime such as this one tends to garner favor, supporting the idea that familiar remedies are more effective in giving victims the sense that justice has been served.
B. Northern Africa: Tunisia
1. Domestic Laws
Tunisia’s criminal justice system is based on the French model, which again can be attributed to its colonial influences prior to independence.36 Like Jordan, Shari’a law does not have an effect on the penal system, though it is culturally relevant and ingrained in the lives, families, and sense of justice of many Tunisians.37 The Tunisian Penal Code still assigns the strictest penalties to crimes including murder, rape, terrorism, and national security crimes.38 In fact, military courts in Tunisia preside over crimes that threaten national security, regardless of who is responsible for the commission of the crime.39 However, the judicial system is highly criticized as politicized, easily and substantially influenced by politics, and not independent.40
As of 2007, Tunisia was a supporter in the movement toward abolishing capital punishment until 2020, when a series of brutal rapes and murders led to a social media campaign calling for the reinstatement of the death penalty as punishment for the most brutal acts.41 However, with broad public support from Tunisians and the Tunisian Penal Code, Tunisian President Kais Saied endorsed, but has not yet enacted, a reinstatement of the death penalty.42 International human rights organizations have criticized the statement, but many Tunisians still believe the option to impose harsh retributive punishment for the most severe wrongs is appropriate.43
2. Restorative Justice in Tunisia
Following the 2011 Arab Spring revolution in Tunisia, a process of transitional justice began with adjudication in Tunisia’s Specialized Criminal Chambers.44 The goal of the process was that of most restorative justice mechanisms: accountability, apology, and reparations.45 First, a truth and dignity commission began accepting submissions on acts of aggression from victims in 2014, and by 2016 it had received more than 30,000 submissions.46 This speaks to the value for victims in both justice being served and truth being told to recover from conflict.47 Trials of the ten people indicted by the Specialized Criminal Chambers began in 2018, and those indicted were charged with violent suppression of the revolution and citizens involved or related to those involved.48 However, even now a single verdict has not been reached.49 This reflects the recurrent difficulty of Tunisian courts to render impartial decisions that serve the interests of justice.
Some scholars including Kazemi have looked at the potential value of incorporating more cultural traditions into transitional justice mechanisms in Tunisia, like traditions and values in Islam.50 The theory is that incorporating local norms, values, and discourse will make the process more viable and progress more lasting.51 There is perhaps value in culture and local communities being further incorporated into transitional justice, as the majority of people surveyed in Tunisia who were awarded reparations post-revolution were not satisfied.52 When asked what people want, 37% said they simply sought acknowledgment of the wrongs committed, 29% wanted more compensation, and 28% want an admission of wrongdoing.53 Community-based reparations and efforts at truth and reconciliation are likely to be impactful to Tunisian victims of crimes of aggression, even with a fairly high percentage of approval for retributive justice, and will especially be powerful if they are culturally-attuned to the people.
C. Sub-Saharan Africa: Uganda
1. Domestic Laws
The dichotomy between Uganda’s Penal Code and traditional justice mechanisms is perhaps the most complicated of any of the states being analyzed in this comment. Uganda’s Penal Code is a direct product of its colonization, a Western model has been implemented in the Ugandan government, and purports to punish crimes including treason, terrorism, rape, and murder.54 Because their Penal Code does not address war crimes, crimes against humanity, crimes of aggression, or genocide directly, this comment examines the crimes treated as most severe by the Penal Code. The most severe criminal offenses in Uganda are typically penalized with capital punishment or a life sentence.55 Though mandatory capital punishment was found to be unconstitutional in Susan Kigula v. Attorney General, many citizens found the twenty year life sentence to be inadequate.56 It was after Stephen Tigo v. Uganda redefined a life sentence to mean “the natural life term of a convict” that a reduction in the use of capital punishment began to occur.57 Regardless, surveys of the public suggest that 53% of the Ugandan population support capital punishment.58
Courts in Uganda do not tend to apply traditional justice mechanisms in their sentencing decisions, instead keeping systems of Western justice and traditional justice separate from one another.59 The Western-influenced court system in Uganda has been criticized as unfair and unjust, as police can make arrests prior to investigation, can be bribed for release, can torture for admissible admissions, and trials are typically remanded for up to a year.60 This seems to be the clearest example of strong dissonance between civil society and the domestic legal system among the states analyzed in this comment. Gabagambi quotes Ugandan scholar Simon Robins, who said that the continuation of inherited laws from the English legal system is irrational because they are irrational to the people.61
2. Restorative Justice in Uganda
Based on traditional values and justice mechanisms passed down through generations of small ethnic groups in Uganda, many communities prefer to restore than to punish.62 Rather than derive a sense of justice being served through imprisonment, there is a cultural emphasis on rebuilding communities and restoration following conflict.63 When people can participate effectively and engage in a process that reflects the traditional components of conflict resolution and justice including arbitration, social teaching, reconciliation, and compensation for wrongdoing, justice is more impactful.64 When a person is imprisoned, they cannot be part of the process of reconciliation—and as a result, victims from traditional communities may feel dissatisfied by justice regardless of whether time and effort has been spent. The fact of the matter is that a huge chasm exists between courts, prosecutions, and Western remedies, and traditional restorative justice ceremonies.
Gabagambi describes a series of these ceremonies, all of which take place among traditional ethnic groups in Uganda:
These traditional justice mechanisms are reportedly far more common and accepted across Sub-Saharan African traditional societies than many Western-imposed remedies—even those which are intended to be restorative.66 This is one of the regions in which community and victim participation are most critical to the efficacy and perceived positive impact of remedies awarded by other foreign courts like the ICC, due to the cultural gap in remedies and punishments.
D. Southeast Asia: Cambodia
1. Domestic Laws
The Cambodian Penal Code is clearly Western-influenced in its structure as well as in its categorization and designation of crimes and penalties. Unlike the previous penal codes this comment analyzes, Book 2 of the Cambodian Penal Code specifically elucidates the definitions and associated penalties for crime against persons, which includes genocide, war crimes, and crimes against humanity.67 Article 183 pertains to genocide, its definition, and the associated penalty of life imprisonment.68 Article 188 addresses crimes against humanity, which is also penalized with life imprisonment.69 Article 193 rules on war crimes, and similar to Article 8 of the Rome Statute, sets forth a long list of acts that qualify as war crimes.70 The penalty, again, is life imprisonment.71 Even the participation in preparation or facilitation of these acts carries specific sentences of twenty to thirty years imprisonment.72 Cambodia’s Penal Code seems to recognize that these crimes are even more severe than acts like murder, and as such the penalties are more severe.
However, some criticism of the Cambodian justice system echoes those of the other States Parties in this analysis. The actual sentences handed down by courts to perpetrators of atrocities—like torture and murder—do not reflect the crimes committed.73 In the trial of Cambodian police who were ultimately convicted for torture and murder in detention, officers were only given four to seven year sentences.74 Victims did not have the opportunity to speak at trial, and the public opinion was that justice was not served.75
2. Restorative Justice in Cambodia
After Cambodia’s 1975–1979 genocide, several efforts at restorative justice were made, some more successful and meaningful than others. The first attempt at a transitional tribunal in 1979 ultimately failed, and was considered by the people to be an “illegitimate show trial”.76 After nearly twenty years, the government of Cambodia solicited help from the United Nations to establish a tribunal for retributive transitional justice on a domestic level.77 The Extraordinary Chambers in the Courts of Cambodia (ECCC) began addressing the complaints of “any person who has suffered from physical, psychological, or material harm as a direct consequence of the crimes” committed during the genocide.78 Though the ECCC does offer the opportunity for victims to seek truth and justice, ensure remembrance, and prevent future acts of genocide, it is not perfect either.79 Many of the victims, at this point, are no longer alive to benefit from reparations or truth telling and apology.80 Regardless, there has been substantial support for trials and accountability.81
Ultimately, after eleven years of proceedings in the ECCC, three senior leaders considered to be most responsible were convicted of genocide in addition to the conviction for crimes against humanity they had already received, adding validity and gravity to the atrocities committed.82 A question tends to arise: was it worth the $300 million that could have been applied to other forms of restorative justice? As Mydans states:
Though people want to see former leaders who committed grave atrocities suffer, reconciliation and the healing of trauma is also ingrained in Cambodian traditional values.84
Dicklitch and Malik address more traditional concepts of justice, including yuttethor, which include the traditional moral practices of mutual understanding and agreement.85 Part of Khmer society in Cambodia includes this conception of justice, and the idea of dharma, that part of justice is rebalancing the wrong that has been done.86 Despite years of effort, people in Cambodia are somewhat unimpressed by the ECCC, and as Dicklitch and Malik quote, “justice must not only be done, it must be seen to be done.”87 Distant and opaque procedures followed by unfamiliar legal procedures do not always produce that result.
E. Latin and South America: Colombia
1. Domestic Laws
The Colombian Penal Code is the most formalistic of the documents reviewed in this analysis, and includes a distinct chapter for provisions on each type of offense with details including relevant definitions, elements of offenses, and ranges for sentencing. Unlike the previous states analyzed, the terms for imprisonment of severe crimes like insurrection, rape, or homicide are relatively brief.88 Colombia only recently imposed life sentences in a constitutional reform that extended the definition of “life” from sixty years to natural life, and only for those found guilty of rape or child murder.89 Though the Colombian government considered the death penalty as well in these same reforms, it has not yet been enacted, as Article II of the 1991 Constitution provides for the right to life.90 The courts in Colombia have been criticized as well: though crimes seem to be heavily penalized, those who are charged rarely serve the sentences stipulated by law.91
Colombia has a special court, the Special Jurisdiction for Peace (JEP), which has the power to charge Colombians with offenses including war crimes, that are beyond the purview of the ordinary courts.92 In the wake of the 2016 agreement that concluded more than fifty years of conflict between the Colombian government and a rebel group, the FARC, the JEP was established to charge individuals on both sides of the conflict for war crimes, in alignment with international standards.93 The action taken in this respect reflects both commitment to genuine retributive justice and these peace accords, and demonstrates the role penalties and imprisonment plays in Colombia’s own restorative justice process.
2. Restorative Justice in Colombia
As referenced above, the JEP, peace agreement, and other related efforts extend further than simply charging those most responsible with war crimes. Efforts to demobilize, award amnesty or lighter sentences to former participants willing to tell the truth and for those who did not violate human rights, reintegration programs, and restitution to victims and communities have accompanied the process of restoring and transitioning to a state of peace.94 Many Colombians and experts believe that the combination of reparations, retribution, and restoration of the rights of victims will be the key to transitioning past a conflict that has lasted a lifetime for most Colombians.95 Though some Colombians are doubtful of restorative justice mechanisms, arguing that former members of the FARC will never tell the truth, a more restorative approach to justice is tailored to those who do admit to wrongdoing.96 In some ways, this suggests that part of the progress made by these restorative justice efforts will be the creation of a common history and narrative about the crimes and atrocities that occurred within the country over decades of conflict. These justice mechanisms are still fairly new, but have been successful enough for the ICC’s Office of the Prosecutor to conclude its seventeen-year preliminary investigation into the conflict in Colombia.97
III. Non-Western Legal and Cultural Distinctions and Similarities to the ICC
A. Concurrence With Western Legal Culture and the ICC
All of the States Parties analyzed in this comment have experienced colonial Western influence that permanently, or at least for the time being, impacted the development of their legal system domestically. They place the same emphasis on the most severe crimes, including murder, rape, and terrorism, and several have special laws and courts to address the types of offenses that are elucidated in Articles 6, 7, 8, and 9 of the Rome Statute.98 It is relevant to note that these States Parties, at least in law, recognize the gravity of these crimes in a manner that reflects the mandate of the ICC. Several States Parties, including Uganda, Jordan, and Cambodia, have engaged the ICC or other international arbiters of human rights and justice to facilitate the process of transitional justice within their own state, or the state of their neighbors.99
Tunisia serves as a supportive voice for the mission of the ICC in Northern Africa, and was the first in the region to sign the Rome Statute.100 Uganda, though sometimes a voice of doubt regarding the ICC and the manner in which it seems to focus on Africa, has also called upon the Court to prosecute members of the Lord’s Resistance Army (LRA). 36% of Ugandans who are aware of the ICC and its role believe they had a positive impact in Uganda, and contributed to the remission of the LRA101 Though different in traditional values, these States Parties have sufficient similarity to the ICC to see the value in the Court’s prosecutorial capacity when used appropriately.
Though in Cambodia several officials had been charged with crimes against humanity in 2014, the ECCC’s trials and genocide verdict affirmed that the crimes within the Rome Statute are among the most heinous, and should be met with severe punishment including imprisonment.102 In fact, this 2018 verdict was the first time a tribunal had given a guilty verdict on genocide charges after the Cambodian Genocide.103 Colombia is somewhat unique in its transitional justice process in that it was the subject to a seventeen-year long preliminary investigation by the Office of the Prosecutor.104 However, the JEP satisfied complementarity to such an extent that the ICC closed the preliminary investigation, simply emphasizing further the shared values between the Colombian peace process and the mandate of the Court.105
All of these States Parties believe, at least to an extent, in the value of retributive justice. This is demonstrable in their Penal Codes, the reception to justice and justice being served among citizens, traditional forms of retribution, and the manner in which the States Parties attempt to provide justice in the form of both retribution and restitution. Similar to the remedies afforded by the Rome Statute in Articles 75, 77, and 79, which give the ICC the power to award both prison sentences up to a life term as well as a number of forms of restitution for victims.106
Many of these States Parties have also grappled with a question that commonly arises before the ICC: how to award restitution that best serves victims when there are hundreds of thousands, or even millions, of victims. Some of the approaches including community building, provision of health care for people who have been disabled, and new memorials, history, and textbooks for students reflect the efforts made by the ICC’s Trust Fund.107 Very apparently, there is substantial positive overlap between the ICC’s definition of justice and that of the Non-Western States Parties.
B. Critical Differences
There are also some important distinctions between non-Western legal systems and traditions and the approach taken by the ICC when sentencing war criminals and awarding reparations. Even domestically there is a gap between traditional justice still used today within communities and formal judicial systems.108 First and foremost, many States Parties do still use capital punishment as a penalty for the most severe offenses.109 Under Article 21(3) of the Rome Statute, the Court does not have the discretion to award any penalty that conflicts with human rights, including the right to life.110 Thus, this is a difference that the Court cannot overcome. However, even these States Parties have been discouraged and urged not to use or resume use of the death penalty.111 The other differences between traditional justice mechanisms and the ICC speak more to culture and tradition.
States Parties including Uganda, Cambodia, and Jordan have cultural traditions and values ingrained in their history and in their communities, some of which provide a more salient sense of justice than that of prison sentences dealt by unfamiliar and distant courts.112 People often need or want to participate in obtaining their own justice, and to rebuild a sense of community and wholeness with the wrongdoer. This has been integrated into many of the approaches being taken in the Colombian peace process now as well.113 Reintegration is part of rebuilding traditional communities, and often this is precluded by imprisonment. However, the ICC has obligations under Rome Statute Article 77 regarding the sentencing of perpetrators, and they lack the discretion to leave a decision regarding punishment to a single affected community, especially when many different and distinctive ethnic groups have been affected, all with their own process of serving justice.114
There are some gaps and differences between the ICC and traditional justice mechanisms that are precluded by the Rome Statute as of now, and without reform to the Court’s mandate itself, cannot be bridged. However, the Prosecutor has more flexibility than it sometimes seems, especially with regard to who is prosecuted, when, how victims are involved in the process, and how communities and individuals are awarded restitution.115 This is where potential lies for the ICC to take additional steps to incorporate non-Western legal values and traditions. As Ferstein points out, Article 75(1) is not an exhaustive list, and the traditions of other legal cultures can be incorporated into the types of remedies awarded.116
IV. Implications of Similarities and Differences for the ICC and the Office of the Prosecutor
A. When the ICC Prosecutes and Who
The case of Cambodia’s transitional justice process presented an interesting consideration for international and domestic court systems prosecuting grave offenses: timing. Cambodia’s first attempt at a process of transitional justice took place immediately after the genocide ended, and was largely regarded as a failure.117 However, the next did not begin to take effect until nearly thirty years later, and has also been criticized for coming too late.118 The ICC has been criticized for their timing and sensitivity to how an indictment will impact an ongoing conflict as well. The Rules of Procedure and Evidence allow the Court to consult with and involve experts in its processes, and herein lies an opportunity for the ICC to better incorporate the cultural considerations and traditions into their existing institutional structure.119 Demonstrating the involvement and applying the knowledge of experts in both local affairs and culture has the potential not only to bolster the impact of the justice served, but to be more effective and minimize negative externalities related to the action taken.120 Incorporating valuable cultural insight into the timing of a prosecution can have the demonstrative effect of greater regard for other cultural opinions and legal procedures.
In domestic transitional justice mechanisms of the States Parties analyzed, courts often prosecute those considered most responsible to maximize the utility of the tribunals and demonstrate justice being done. The ICC attempts to do the same, but sometimes falls short and prosecutes individuals still high ranking and guilty of atrocities, though not necessarily the individuals who would be most responsible. It is true that in some cases, like that of Dominic Ongwen, a child soldier turned LRA commander in Uganda, the ICC prosecutes at the request of the local government itself.121 However, with regard to the Prosecutor’s decisions regarding who to prosecute, some criticism has arisen. Some international observers and scholars are skeptical that the Court is prosecuting who they should be—and this is another point at which the Court should turn to non-Western legal values to inform their decision, and should do so on a case-by-case basis. The ICC has the ability to work with victims and community leaders to identify those actors whose indictment would best reflect justice being served in the respective culture, and make the time and energy spent more valuable to those who have actually been affected by the conflict at issue.
B. Remedies Available Under the Rome Statute
An important takeaway from the previous analysis of States Parties is that different remedies have different value depending on the culture. As Starr states, the prevailing attitude is the more remedies, the better.122 However, Quinn makes the important point that finding a precise combination of culturally-tailored approaches for a particular case is far more effective.123 The ICC can learn from this with regard to the manner in which they use Article 75 and Article 79 to award restitution to victims.
Rule 97(2) of the Rules of Procedure and Evidence for the ICC also gives the Court the opportunity to engage experts in developing appropriate remedies for victims and affected communities through the Trust Fund.124 The War Crimes Research Office suggests that the Court should use this as a means to reach out to both victims and scholars from the affected communities, giving a more active and potentially less traumatizing voice in the restorative justice process to affected people.125 With the insight of victims, reparations can be tailored in a way that meets the needs of affected communities more efficiently, and incorporates traditional values and non-Western legal modalities that also align with the Rome Statute. The ICC cannot prosecute every bad actor, but they can play a role in facilitating traditional restorative justice mechanisms like those detailed in Section II as part of the reparation process, and even facilitate reconciliation with lower-ranking bad actors as well.
Affected communities are the best resource for the ICC: victims in all States Parties analyzed express that they want a voice, and the feeling that their dignity has been restored.126 Engaging with these actors will increase the value of remedies awarded by distributing them in a way that makes sense to people meant to benefit from it. The ICC will struggle less with the issue of limited resources and drawing a line with regard to who is a victim by working with the relevant communities to maximize the utility of the remedies awarded in a culturally-aware manner. Finally, the ICC can become a truly international institution by incorporating restorative justice approaches from cultures beyond the West.
The ICC has the opportunity to take a multi-faceted approach to incorporating non-Western legal traditions into its work. First, taking the time to consider cultural and political considerations with regard to the timing of indictments will reflect better incorporation of non-Western concerns and values, as well as reflect a deference for traditional mechanisms on a local level. Better informing the decision of who to prosecute by working with victims and state governments may also work to satisfy States Parties that their voice and opinion is relevant, and increase the utility of a single indictment. Victims also benefit from a carefully calculated combination of approaches to justice that best matches their traditional values, even if not an exact parallel. Some of these remedies include giving victims a voice and a role in bringing about justice, establishing a common truth about atrocities that occurred, rebuilding communities, reintegrating former bad actors into traditional societies, therapy, medical care, education, traditional ceremonies, and even, in many cases, retribution and punishment. Articles 75 and 79 of the Rome Statute are especially important in bringing about this change.127 Though it specifies a list of remedies available to the Court, the available remedies are not limited to that list alone. The Court has grappled time and time again with awarding appropriate remedies, using resources as effectively as possible, and satisfying victims with a sense that justice has been served. Bringing in victims and local leaders as experts gives the Court the opportunity to satisfy more than one of these aims, and serves as a form of justice in and of itself. With culturally sensitive and tailored approaches to the implementation of various remedies to victims and communities, the ICC can start incorporating non-Western legal traditions into a victim-centered approach now.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
How the Court Works, ICC, available online (last visited Jul. 2, 2022). ↩
Mark Van Hoecke & Werner Krawietz, Western and Non-Western Legal Cultures, in Rechttheorie 197, 203 (Werner Krawietz ed., 2002), paywall. ↩
Shahrzad Fouladvand, Complementarity and Cultural Sensitivity: Decision-Making by the International Criminal Court Prosecutor in the Darfur Situation, 14 Int’l Crim. L. Rev. 1028, 1045 (Oct. 2014), paywall, doi, earlier version available online. ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 77, available online. ↩
Id. Art. 75. ↩
Id. Art. 79. ↩
Fouladvand, supra note 3, at 1049. ↩
Siraj Khan, Arab and Islamic States’ Practice: The Sharí’ah Clause and Its Effects on the Implementation of the Rome Statute of the International Criminal Court, in Islam and International Criminal Law and Justice, 2 Nuremberg Acad. S. 145 (Tallyn Gray ed., Nov. 16, 2018), available online, archived. ↩
Id. at 152. ↩
Van Hoecke, supra note 2, at 201. ↩
Id. at 216. ↩
Jordanian Legal System, U.S. Embassy in Jordan, available online (last visited Jul. 2, 2022). ↩
Hashemite Kingdom of Jordan, The Penal Code for the Year 1960 (English Translation, Nov. 24, 2011) [hereinafter Jordanian Penal Code], available online.
(The Jordanian Penal Code was amended in 2011 in a manner that does not change this analysis). ↩
Jordanian Legal System, supra note 12. ↩
Jordanian Penal Code, supra note 14, at Art. 14. ↩
Jordanian Legal System, supra note 12. ↩
Areej Abuqudairi, Why Did Jordan Resume the Death Penalty?, Al Jazeera, Dec. 28, 2014, available online. ↩
Jordanian Legal System, supra note 12, at 3; id. ↩
Abuqudairi, supra note 19. ↩
Riya Jain, The Opportunity for Legal Pluralism in Jordan, YRIS (Jan. 2021), available online. ↩
Human Rights Watch, The Administration of Justice in Tunisia: Torture, Trumped-Up Charges, and a Tainted Trial (Mar. 1, 2000) [hereinafter HRW Legacy Report], available online, archived. ↩
See Mohamed Elewa Badar, Islamic Law (Shari’a) and the Jurisdiction of the International Criminal Court, 24 Leiden J. Int’l L. 411 (Jun. 2011), available online, archived, doi. ↩
See United States Department of State, 2007 Country Reports on Human Rights Practices: Tunisia (Mar. 11, 2008) [hereinafter Tunisia Human Rights Report], available online; HRW Legacy Report, supra note 36. ↩
Tunisia Human Rights Report, supra note 38. ↩
Id. at 4; HRW Legacy Report, supra note 36. ↩
Simon Speakman Cordall, Tunisia President Calls for Return of Death Penalty Following Brutal Killing, The Guardian, Oct. 1, 2020, available online. ↩
Id.; Heinous Crime in Tunis Triggers Hot Debate Over the Death Penalty, The Arab Weekly, Sep. 29, 2020, available online. ↩
Amnesty International, Tunisia: Struggle for Justice and Reparation Continues for Victims 10 Years After the Revolution (Jan. 14, 2021) [hereinafter Tunisia: Struggle for Justice], available online. ↩
Elham Kazemi, Transitional Justice in Tunisia: Any Role for Islam?, E-Int’l Rel. (Oct. 19, 2018), available online, archived. ↩
Tunisia, ICTJ, available online (last visited Jul. 2, 2022). ↩
Tunisia: Struggle for Justice, supra note 44. ↩
See e.g. Kazemi, supra note 45. ↩
Id. at 2. ↩
Id. at 3. ↩
See e.g. Uganda, Penal Code Act 1950 [hereinafter Ugandan Penal Code], available online (last visited Jul. 2, 2022). ↩
Parliamentarians for Global Action, Situation of the Death Penalty in Uganda: Impact of the Death Penalty, Relevant National and International Legal Frameworks 3 (Oct. 7, 2015) [hereinafter Death Penalty in Uganda], available online. ↩
Id. at 4. ↩
Id. at 5. ↩
Id. at 6. ↩
Human Rights Watch, The June 29 Agreement on Accountability and Reconciliation and the Need for Adequate Penalties for the Most Serious Crimes § IV (Jul. 2007), available online. ↩
Brooke J. Oppenheimer, From Arrest to Release: The Inside Story of Uganda’s Penal System, 16 Ind. Int’l & Comp. L. Rev. 117, 122 (2005), available online. ↩
Julena Jumbe Gabagambi, Update: Comparative Analysis of Restorative Justice Practices in Africa, Hauser Global L. Sch Prog. § 1 (Sep. 2020), available online. ↩
Id. at § 3.4. ↩
Joanna R. Quinn, Social Reconstruction in Uganda: The Role of Customary Mechanisms in Transitional Justice, 8 Hum. Rts. Rev. 389, 398 (Jul. 2007), available online. ↩
Gabagambi, supra note 61, § 3.4. ↩
Samuel O. Manteaw, John Mensah Sarbah and African Value Systems in Legal Education, 27 UG L.J. 58 (2014), paywall. ↩
Kingdom of Cambodia, General Provisions for the Implementation of Criminal Law (translated Jun. 29, 2011) [hereinafter Cambodian Criminal Law], available online. ↩
Id. at 38. ↩
Id. at 40; Rome Statute, supra note 4, at Art. 8. ↩
Id. at 41. ↩
Id. at 36–41. ↩
Victims Demand Tougher Punishment for Cambodian Police Convicted of Torture, Murder in Detention, RFA, Jan. 21, 2021, available online. ↩
Emily Gleeson, Transitional Justice in Cambodia—Too Little Too Late?, E-Int’l Rel. 2 (Mar. 22, 2016), available online, archived. ↩
Id. at 3. ↩
Victims Participation, ECCC, available online (last visited Jul. 2, 2022). ↩
Sun Narin, No Justice Without Remembering, D+C (Mar. 4, 2017), available online. ↩
Renee Jeffery, Taking Transitional Justice to Cambodia’s Youth, The Interpreter (Mar. 26, 2019), available online. ↩
Seth Mydans, 11 Years, $300 Million, and 3 Convictions. Was the Khmer Tribunal Worth It?, N.Y. Times, Apr. 10, 2017, available online; Khmer Rouge Leaders Found Guilty of Cambodia Genocide, BBC News, Nov. 16, 2018 [hereinafter Khmer Rouge Guilty], available online. ↩
Seth Mydans, Khmer Rouge Leader Appears in Court to Appeal Genocide Conviction, N.Y. Times, Aug. 17, 2021, available online. ↩
Virorth Doung & Sophal Ear, Transitional Justice Dilemma: The Case of Cambodia, 7 Peace and Conflict R. 1, 9 (2010), available online. ↩
Susan Dicklitch & Aditi Malik, Justice, Human Rights, and Reconciliation in Post-Conflict Cambodia, 11 Hum. Rts. Rev. 515, 519 (Jan. 9, 2010), paywall, doi. ↩
Id. at 522. ↩
See Republic of Colombia, Poder Público—Rama Legislativa, Ley 599 de 2000 por la cual se expide el Código Penal (Jul. 24, 2000) (Colom.) [hereinafter Criminal Code of Colombia], available online. ↩
Colombia Imposes Life Sentence for Rape, Child Murder, AFP, Jul. 23, 2020, available online. ↩
Graciela Rodriguez-Ferrand, Colombia: Constitutional Reforms Proposed to Increase Punishment for Violent and Sexual Crimes Against Minors, Global Legal Monitor (Nov. 12, 2019), available online. ↩
Arlen Guarín, Carlos Medina & Jorge Andres Tamayo, The Effects of Punishment of Crime in Colombia on Deterrence, Incapacitation, and Human Capital Formation, IADB (Jul. 2013) (Working Paper Series 7), available online. ↩
Julie Turkewitz, Colombia Seeks Justice for War Atrocities Via New Court, N.Y. Times, Mar. 6, 2021, available online. ↩
Paula Torres, Yaneth Gina & Sergio Jaramillo, Transitional Justice and DDR: The Case of Colombia, ICTJ 2 (Jun. 2009), available online. ↩
Fabio Andrés Díaz Pabón, Transitional Justice and the “Colombian Peace Process”, in Truth, Justice and Reconciliation in Colombia 5 (Fabio Andrés Díaz Pabón ed., May 11, 2018), available online. ↩
Turkewitz, supra note 92. ↩
Genevieve Bates & Kelebogile Zvobgo, The ICC Doesn’t Look So Interventionist After All, Foreign Pol., Dec. 8, 2021, available online. ↩
See generally Jordanian Penal Code, supra note 14; Jordanian Legal System supra note 12; Tunisia Human Rights Report, supra note 38; Ugandan Penal Code, supra note 54; Cambodian Criminal Law, supra note 67; Criminal Code of Colombia, supra note 88; Rome Statute, supra note 4, at Arts. 6, 7, 8, 9. ↩
Mark Kersten, Between Disdain and Dependency—Uganda’s Controversial Place in the ICC–Africa Relationship, Just. in Conflict (Mar. 29, 2017), available online; Craig Etcheson, The Challenges of Transitional Justice in Cambodia, MEI (Jan. 3, 2014), available online. ↩
Tunisia and the Rome Statute, PGA, available online (last visited Jul. 2, 2022). ↩
Uganda: Knowledge and Perception of the ICC, Harv. Humanitarian Init., available online (last visited Feb. 26, 2022). ↩
Khmer Rouge Guilty, supra note 82. ↩
Luis Jaime Acosta, ICC Closes Preliminary War Crimes Examination into Colombia After 17 Years, Reuters, Oct. 28, 2021, available online. ↩
Bates & Zvobgo, supra note 97. ↩
Rome Statute, supra note 4, at Arts. 75, 77, 79. ↩
See, e.g., Etcheson, supra note 99; Quinn, supra note 64; Díaz Pabón, supra note 95. ↩
Jain, supra note 25. ↩
See generally Jordanian Penal Code, supra note 14; Jordanian Legal System, supra note 12; Ugandan Penal Code, supra note 54; Cambodian Criminal Law, supra note 67. ↩
Rome Statute, supra note 4, at Art. 21(3). ↩
Amnesty International, Tunisia—Reform of Repressive Laws and Practices Lagging 5 (May 2017), available online; Khetam Malkani, Majority of Jordanians Support Capital Punishment—Poll, The Jordan Times, Dec. 23, 2014, available online; Death Penalty in Uganda, supra note 55, at 1. ↩
Gabagambi, supra note 61, at 3.4; Dicklitch & Malik, supra note 85, at 522; Jain, supra note 25. ↩
Turkewitz, supra note 92. ↩
Rome Statute, supra note 4, at Art. 77. ↩
Carla Ferstman, Reparations Should Be About Promoting Victims’ Dignity and Agency: The ICC Should Avoid Paternalistic or Bureaucratic Approaches to Determining Victims’ Needs and Wants, ICC Forum (Feb. 6, 2012), available online. ↩
Fouladvand, supra note 3, at 1043; Manteaw, supra note 66, at 66; Ferstman, supra note 115. ↩
Gleeson, supra note 76, at 2. ↩
Doung & Ear, supra note 84. ↩
International Criminal Court, Rules of Procedure and Evidence, ICC-ASP /1/3, R. 97(2) (2013) [hereinafter 2013 RPE], available online, archived. ↩
Susana SáCouto & Katherine A. Cleary, WCRO, The Case-Based Reparations Scheme at the ICC (Jun. 2010), available online. ↩
Kersten, supra note 99. ↩
Sonja B. Starr, Rethinking “Effective Remedies”: Remedial Deterrence in International Courts, 83 N.Y.U. L. Rev. 693, 707 (May 21, 2008), available online. ↩
Quinn, supra note 64, at 394. ↩
2013 RPE, supra note 119. ↩
SáCouto & Cleary, supra note 120, at 20. ↩
Thomas M. Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J. Int’l L. 279, 282 (Aug. 20, 2011), available online. ↩
Rome Statute, supra note 4, at Arts. 75, 79. ↩