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Sequencing the administration of justice to enable the pursuit of peace: Can the ICC play a role in complementing restorative justice?

June 6, 2010

In both instances retributive and restorative justice have a central concern with preventing the impunity of perpetrators who have committed atrocities. Retributive justice however has a more direct impact on the condition of the perpetrators, because it summarily imposes a punitive sentence which is evident for all to witness. The impact of restorative justice is more elusive, as victims and perpetrators are often engaged in a series of face-to-face interactions designed to achieve the objectives highlighted above.

The fact that the outcome of restorative justice processes are generally less dramatic than those of retributive justice means that their efficacy is generally more suspect and unquantifiable to external observers. However, we should not lose sight of the fact that both forms of justice address the issue of impunity. Impunity in this context is understood as the condition in which there has been no redress or reckoning of the past atrocities and injustices committed by a perpetrator.

Retributive justice prevents the immediate impunity of the perpetrator of crime through punishment and serves as a warning for those who may be inclined to commit atrocities in the future. Restorative justice also addresses impunity by compelling the perpetrator to undergo a revelatory and confessional process of transformation, which means that he or she has not ‘got away’ with the crimes that they committed but rather atones for them.

….Sequencing in transitional justice requires the deliberate operationalisation of a coordinated retributive or restorative justice process in order to ensure that stability, and ultimately peace, is achieved in a given country-context. In the international justice fora, at least two camps have emerged: those that adopt a fundamentalist approach to prosecution; and those that advocate for a more gradual approach predicated on giving time for peacebuilding and reconciliation to take root.

Prosecutorial justice is not a misguided school of thought and its intentions are noble in so far as they attempt to ensure that those who bear the greatest responsibility for war crimes, crimes against humanity and genocide are summarily brought to book. However, prosecutorial fundamentalism, like all other fundamentalisms, can be blighted and become subsumed by a narrow, legalistic desire to bring the accused to justice at all costs, including the undermining of the prospects for peace.

A more nuanced approach would suggest that there is a time and a place for prosecution and, in the context of a civil war, it may not always be immediately after the cessation of hostilities between the belligerent parties. At this point the tension within the country tends to be uncharacteristically high and any initiative to prosecute individuals and leaders is often seen as an attempt to deliberately continue the ‘war by other means’ by targeting the main protagonists. Effectively what is called for in these situations is a period of time in which the belligerents can pursue the promotion of peace. In such a situation the efforts to promote peace – including its restorative justice dimension – would have to be given precedence to the administration of punitive justice. This is with a view to laying the foundations for the stability of the society.

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