Introduction
Catastrophic violence seizes our imaginations. As observers and consumers of events taking place ‘elsewhere’, we try to picture what happened and to understand the effects of the violence. We make choices in interpreting events to create meaning from bloodshed. These choices implicate moral, political and legal considerations. Do we adopt the view of the combatants or victims? If we are the victims, are we innocent of wrongdoing and deserving of justice? Or are we complicit in creating conditions that permitted the atrocities to occur? These are questions that circulate in reporting and policy discussions of mass violence in armed conflict. In many conflicts, a consensus has now emerged among international observers that international criminal justice (ICJ) is a necessary response. The moral foundation of ICJ is based on the presumably unassailable premise that those responsible for atrocity crimes should be punished for their acts.
Demanding ICJ engages our imagination to these normative questions about who is responsible for the bloodshed through a particular understanding, or theory, of the innocent victim. Victims of mass atrocity crimes are invoked by the protagonists of ICJ as one of the primary moral justifications for this unique enterprise. Their suffering mobilises international politics and justice institutions to hold perpetrators accountable – to identify them, bring them to trial and punish those who are guilty. The theory of the victim constructed by ICJ and implemented most fully by the International Criminal Court (ICC) affords victims not only moral legitimacy but also legal rights. As figured by the field of ICJ, these ‘imagined’ victims demand accountability as the highest value pursued by justice institutions.
Corporeal victims of mass atrocity crimes – those who exist outside of the ICJ discourse – may also want to see perpetrators held accountable for their crimes; however, they may not place the highest priority on retributive justice. They often demand other forms of justice as well, including material reparations and other redress associated with restorative justice. The dichotomy of imagined victims and real victims, while imperfect, captures the distance between the way in which international justice discourse constructs victims and the ways in which corporeal victims relate to ICJ. Employing the ICJ discourse on victims, international courts and tribunals almost unfailingly satisfies imagined victims while just as consistently frustrating the real ones. It is in the process of becoming ‘real’ – with demands and desires that are distinct from the particular form of the international criminal trial – that the tensions between the imagined victim and the real victim surface. In making visible these frictions, a conflict in logics emerges: the logic of the victim theorised by ICJ that excludes the possibility of real victims with demands that diverge from the priorities of the international legal process.
Drawing on insights from critical theory and critical discourse analysis, this chapter contributes to critical reflection on transitional justice mechanisms, including the ICC, and aims to consider the political and social dimensions of ICJ.Footnote 1 In so doing, it advances two arguments. First, it argues that the theory of the victim generated by ICJ produces a particular discourse around or a particular understanding of victims. This imagined victim works to mask the legal subordination of victims by the judicial institutions that derive their legitimacy, in part, through their service to this same constituency. Second, it argues that the imagined victim supports the logics of ICJ, which limit and render suspect, if not invisible, the particular meanings and desires of real victims for justice. The chapter thus contributes to international discussions of the values of ICJ and the ability of the ICC to live up to its moral commitments.
Inclusion of victims into the court is a defining feature of the ICC, and international justice supporters celebrate this newfound status of victims as rights-holders as codifying a broader trend in international law.Footnote 2 Furthermore, envisioned as the leading edge in international justice, creators of the new court designed it to combine retributive justice (prosecuting offenders) and restorative justice (including victims in the legal process and authorising reparations) in a single institution. While a laudable goal, scholars have questioned the ability of the court to effectively ‘manage the expectations’ and experiences of these legal claimants. Critiques largely have emphasised the legal framework applicable to victims and the doctrinal tensions and implementation challenges that result.Footnote 3 Consequently, prescriptions favour legal reform and rest on the premise that ICJ, if properly adjusted, can realise its moral promises to victims of mass atrocity.
This chapter’s analysis is not as optimistic. The ICC seeks to satisfy multiple goals and constituencies. It aims to advance accountability, rule of law and reconciliation, and to serve the international community, national governments and civil society actors as well as victims. Yet, there are tensions among these goals and actors and limits to how well the institution may be able to resolve them. This chapter investigates how, in the case of victims, the root causes for the Court’s shortcomings may be found in the logics of ICJ. Although victims are entitled to limited participation in the trial and to seek reparations after a sentence is reached, the legal structure of the ICC prioritises retributive over restorative justice, punishment over reparations, and the conviction of perpetrators over the character of the charges they face. Looking at trial procedures, victims are framed as a consideration against which other rights and values are weighed. Thus the real victims are subordinated to the retributive justice aims of the ICC, and their desires are continually compromised despite their moral centrality to the integrated justice (retributive and restorative) mission of the Court. This account critically examines the ways in which the ICC discourse about victims facilitates this power dynamic.
The first part of this chapter introduces concepts from critical theory and critical discourse analysis and uses them to examine how courts, prosecutors and prominent international non-governmental organisations (INGOs) collectively create an international discourse on victims of international crimes. The second part turns our attention to what are termed ‘real’ or ‘actual’ victimsFootnote 4 and considers their treatment by the ICC at three points during the trial of Thomas Lubanga, the first case to reach a sentence and a decision on reparations. Through an analysis of the responses of the Court to demands by actual victims, the hierarchy of the imagined victims and the real victims is exposed. Part three employs a critical analysis of the trial proceedings to identify the competing logics at work in the ICJ theory of victims and adjudication of international criminal law. Part four discusses some of the implications of the gap between the imagined and real victims. This state of affairs presents normative and prescriptive challenges, which this chapter highlights but the resolution of which lies beyond its scope. What is at stake by an instrumental use of victims? What is lost and what might be gained by abandoning our promise to do more than symbolic justice? Part five concludes.
The imagined victim
The ICJ movement has flourished since the fall of the Berlin Wall and is legitimated through the experiences of victims. The logic of this movement is that atrocity crimes – crimes against humanity, genocide and war crimes – are harms committed against individuals, but are of such gravity that these crimes are considered an affront to humanity and, therefore, the international legal order vindicates humanity through punishment of the perpetrators. For these most serious crimes, justice for victims is a universal concern and where justice is not available domestically then justice will be provided through international institutions.
This understanding of victims as deserving recipients of legal justice and morally entitled to accountability has become hardwired into the norms, institutions and discourse of international justice. ICJ has normalised this theory of the victim. Identifying some of the processes through which this occurs reveals how power is deployed to generate a hegemonic, imagined victim. This discourse constructs the victim not only as deserving of justice, but also as demanding accountability. This understanding of the victim suppresses or deprioritises other understandings of the victim as demanding, for example, compensation, political participation or non-retributive measures.
International criminal justice discourse of the victim
Critical discourse analysis, like critical theory, is concerned with exposing the ways that power, ideology and discourse operate in unexpected ways. Claire Moon’s theorisation of the role of discourse in reconciliation politics in South Africa is helpful here.Footnote 5 She argues that there is a dynamic relationship between discursive practices – meanings generated through institutions and individuals who inhabit them – and the subjects of these practices such that discursive practices are acts of interpretation.Footnote 6 These acts of interpretation shape or constitute the way we understand these subjects; subjects do not exist outside of, or independent from, acts of interpretation. Attention to the relationship between discursive practices and social practices reveals the way in which power operates to shape our conceptualisation of subjectivity, and therefore the possibilities for change. As described by critical discourse scholars,
[D]iscourse is socially constitutive as well as socially conditioned – it constitutes situations, objects of knowledge, and the social identities of and relationships between people and groups of people. It is constitutive both in the sense that it helps to sustain and reproduce the social status quo, and in the sense that it contributes to transforming it. Since discourse is so socially consequential, it gives rise to important issues of power.Footnote 7
Borrowing these insights, it is possible to study how victims are conceptualised and theorised in the ICJ discourse. This interpretation of the victim also tells us something about how these justice institutions understand victims should be treated. While a complete critical discourse analysis is beyond the scope of this chapter, legal texts, reports and policies by international courts and tribunals, speeches by their judges and prosecutors and statements by INGOs can serve to identify a common discourse about victims of atrocity crimes.
Victims are implicitly invoked in the Security Council resolutions leading to the establishment of UN-sponsored justice institutions that speak of the need to end impunity for atrocity crimes and to restore peace.Footnote 8 The principal leaders of international justice institutions invoke victims as a category of meaning that instantiates the positive value of international justice for victims, as well as for humanity more generally. Victims, by virtue of suffering the wrongful acts of perpetrators, become defined as a group that deserves justice. Justice is always a virtue, a value as well as a tangible product (a conviction after trial) that all societies strive to achieve. ICJ stands outside of and above the response of any nation state to violence. It is uniquely capable of speaking in universal terms. The founding legal statutes of its institutions vest the protagonists of international justice – the judges and prosecutors – with symbolic and legal authority to speak on behalf of international justice. Indictments and court orders represent the considered judgments of these international actors about the nature, consequences and therefore the meaning of the acts for which the accused stand trial. These protagonists are capable of telling us what needs to be done to fulfil these universal goals of justice. As a result, the way in which these actors talk about victims is freighted with meaning.
By aligning the work of ICJ with victims, victims become a focal point around which the values and forms of universal justice revolve. Victims become symbolic targets of the observers’ aspirations to righteousness. This merger between the values that victims represent and our aspirations to promote these values is potent. This allows the speaker to call upon our sense of moral urgency to respond to victims. The fusion between the imagined victims and the moral duty to punish perpetrators serves discursively to call upon international criminal law to do justice on behalf of each member of humanity as though the imagined injuries to the victim were our own.
For example, successive presidents of the ICTY (International Criminal Tribunal for the Former Yugoslavia) invoke victims in the annual reports of the tribunal to the UN Security Council as a measure of the success of the institution; completed trials deliver justice to victims.Footnote 9 The annual reports of the Rwandan tribunal are replete with references to victims. Victims define the social meaning of the tribunal, ‘seeking justice for the victims continues to drive our commitment to the goal of ensuring that never again will such atrocities occur’.Footnote 10 Other tribunals, such as the Extraordinary Chambers in the Courts of Cambodia, the Special Court for Sierra Leone and the Special Tribunal for Lebanon, also justify their work as providing ‘justice to victims’.Footnote 11 The convergence and consistency of the discourse of the imagined victim is further illustrated by a recent joint statement issued by prosecutors of the UN-sponsored criminal tribunals describing the meaning of their work as ‘on behalf of the victims in the affected communities’.Footnote 12
Similarly, justice protagonists at the ICC – judges and prosecutors – speak of the pursuit of justice by the court in terms of its service to victims. In his 2011 address to the UN General Assembly, ICC president Judge Sang-Hyun Song called upon states to ‘redouble their efforts’ to execute the court’s arrest warrants because the failure to bring the indicted to justice was ‘deeply distressing for the victims’.Footnote 13 He went on to state that his meetings with victims left him ‘deeply moved’ and affected by their ‘cries for relief and justice’.Footnote 14 Luis Moreno-Ocampo, the first ICC prosecutor, frequently spoke of the centrality of victims to the work of international justice.Footnote 15 His successor, Fatou Bensouda, continues in the same vein. She explained that her role ‘is to investigate and prosecute those most responsible for the world’s gravest crimes, where no-one else is doing justice for the victims’.Footnote 16
A critical analysis of the international justice discourse of victims also highlights how institutional actors at the ICC use the imagined victim simultaneously to legitimate and to garner support for their institutional roles. For example, in recent years, the ICC Assembly of States Parties (ASP) has effectively cut the ICC budget by not allocating increased funding as the number of investigations and cases increase. The ICC president regularly appeals to the ASP for increased financial support in part by making the case that the Court deserves funding to fulfil its mandate to provide justice to victims.Footnote 17 Similarly, the Trust Fund for Victims (TFV), a non-judicial entity created under the ICC Statute with a dual mandate to provide assistance to victims and to implement Court-ordered reparations, frames appeals for support in terms of deserving victims and their centrality to the international justice.Footnote 18 Although a part of the formal apparatus of the ICC, the TFV relies on voluntary contributions, rather than annual funding from the ASP, to carry out its general assistance mandate. Victims are not so much invoked as they are vividly described in terms of their suffering. Shattered, broken victims are depicted as struggling to rebuild their lives, and, with the help of TFV, their hopes for recovery are brighter.Footnote 19 In short, victims are an instrumental funding appeal.
The indictment of notorious violators is vital, but indictments without trials leave international justice institutions impotent and potentially irrelevant. Judges and prosecutors at the ICC and other international criminal tribunals publicly hector states to cooperate with them by reminding states that victims are waiting for justice. For example, in addressing the UN Security Council, the ICC prosecutor reported on the lack of progress in cases, including those against Sudanese president Omar al-Bashir and other top officials, and argued for state action to effect arrests, by stating that, with the arrests, ‘the victims will receive a clear message: they are not ignored’.Footnote 20
The constructed meaning of the victim serves to legitimate the normative claims of ICJ as well as the claims of institutional actors for greater financial and political support to implement their mandates. To acknowledge this instrumental use of the imagined victim clarifies what might be characterised as a self-interested political use of the category by institutional actors as distinct from how these same actors invoke victims to do other kinds of conceptual work. For example, the ICJ discourse on victims suggests that judges, TFV representatives and prosecutors also employ an understanding of victims as morally deserving and rights-bearing subjects. To point out that international justice protagonists deploy the imagined victim in multiple ways acknowledges the dynamic quality of legal discourse and the ways in which those who invoke it do so to legitimate moral values, as well as institutional needs.
INGOs and the imagined victim as a challenge to international criminal justice discourse
The dynamic quality of ICJ discourse towards victims also draws attention to resistance or challenges to its construction of imagined victims. The ICC discourse on victims maintains its own form and subjectivity – victims are always the beneficiaries of international justice and the imagined victims are always served by it. However, because the category of the imagined victim is constructed by those who invoke it, its meaning is vulnerable to disruption.
A clear example of this process arises from INGOs that use imagined victims as a tool to hold the institutions of the ICC accountable in particular ways. INGOs participate in the construction of and, to some extent, share the vocabulary of ICC protagonists with regard to the imagined victim. As captured by Human Rights Watch (HRW), ‘Victims and affected communities are first among the court’s many constituencies.’Footnote 21 HRW and other INGOs have urged the ICC to respond to their demands for reform that are framed as in the interests of victims. However, unlike the ICC-generated narrative, the INGO construction of the victim does not always assume that justice as implemented by the ICC is synonymous with the justice that victims seek and deserve. An examination of the public statements of INGO leaders in response to the Lubanga judgment illustrates how INGO advocates juxtapose the imagined victims as stakeholders – a constituency to which the court must answer – rather than as beneficiaries of the Court’s justice.
In March 2012, the ICC Trial Chamber found Thomas Lubanga Dyilo, leader of the rebel group Patriotic Force for the Liberation of the Congo (FPLC), guilty of enlisting and conscripting child soldiers into his forces. The Lubanga case took eight years from when the Office of the Prosecutor (OTP) opened the investigation until the Court entered its judgment. Disappointing to many victims and their advocates, the prosecution brought a narrow set of charges regarding child soldiers and refused entreaties to include charges for sexual violence perpetrated by FPLC combatants. In response to the verdict, INGOs explicitly criticised as troubling the fact that the conviction did not reflect the full range of crimes that victims suffered and urged the Court to proactively address this gap by conducting outreach to victims and affected communities.Footnote 22 One prominent INGO suggested that the ICC overlooked the victims in favour of technical aspects of justice administration to its detriment, ‘It is when the quality of proceedings becomes the story over the vindication of victims’ rights that serious concerns arise.’Footnote 23 By contrast, ICC prosecutor Luis Moreno-Ocampo claimed that the judgment served victims and justice, ‘An international court investigated the suffering of some of the most vulnerable members of humanity – children in war zones … The court provided a fair trial to the suspect and convicted him. It is a victory for humanity.’Footnote 24
Victims, as imagined by these INGOs, are the abstracted personification of those to whom ICJ should answer; they are held up as a mirror to the ICC. In so doing, INGOs draw attention to ways in which international justice does not satisfy the demands of idealised victims. INGOs are not, in a legal sense, representing victims or their interests. These are organisations that are no more accountable to victims than the judges or prosecutors they criticise. Yet, by virtue of their status as independent organisations dedicated to promoting human rights and justice, they are able to claim the moral legitimacy to evaluate ICJ – to whom it should be accountable and the metrics by which it should be judged.
This example indicates a few important aspects of what the INGO discourse on victims reveals about the broader discourse of ICJ at the ICC. First, the manner in which INGOs invoke victims to challenge the legitimacy of the ICC points to the ways in which the subjectivity of victims is contested. INGOs inject the perspective of a victim that views justice differently from that which the ICC generates and celebrates; this victim is not satisfied with a verdict of the Court but names what is missing from the judgment – justice for sexual violence – and asserts a competing claim for what justice means and includes. Second, the ability of INGOs to contest the ICC’s imagined victim is circumscribed by international criminal law. The law forecloses certain measures that victims might consider as justice – summary execution, performative atonement – so that the demands of the imagined victim never exceed the Court’s mandate. Further, the ICC produces the authoritative, imagined victim through its judgments and statements; it is the Court, not INGOs, that is authorised by law to declare that justice has been done. Thus, the imagined victim of the ICC always legitimates the justice delivered by the Court and works to generate a hegemonic understanding of victims, even as counter-narratives of victims imagined by other stakeholders continue to circulate.
In sum, the major protagonists in ICJ – the judges, prosecutors and INGOs – claim the privilege of evoking and imagining victims. One might agree with the ways in which victims are imagined, just as one might think that atrocity crimes should be punished and perpetrators be sentenced. It is true that some real victims may share these beliefs and perspectives, but it is also true that others may not. The point is that those who invoke victims (including victim organisations) also construct them for particular purposes. It is the ‘victim as imagined’ that is able to carry a moral charge in arguments about what ICJ is and what values it serves.
Victims in the International Criminal Court
In its strategy statement, the ICC prides itself on its ‘recognition of victims as actors within the international justice scheme greater than any previous international criminal tribunal’.Footnote 25 The Court formally combines retributive and restorative justice models. Prosecuting individuals responsible for atrocity crimes satisfies punitive goals, and restorative justice is promoted through victim participation in proceedings, as well as the reparations scheme. The OTP similarly celebrates that ‘victims are actors of international justice rather than its passive subjects. Their participation is a statutory right, not a privilege bestowed on a case-by-case basis.’Footnote 26 The ICC justifies its inclusive approach on instrumental grounds – participation is good for victims because it improves the quality of their experience of justice and participation is good for justice as victims improve the work of the Court.Footnote 27 When one examines how the ICC regime established and implemented this statutory regime of the rights of victims, the abstracted, imagined victim gives way to the actual victim. What does one learn about what victims want once they enter criminal proceedings and how do their preferences differ from what the Court and prosecutors imagined them to be?
The Rome Statute affords victims certain rights to participate in the proceedings. They may communicate to the prosecutor about alleged offences, they may participate in the judicial proceedings, they may provide evidence to the Court as a victim-witness and they may request reparations. Yet, these rights are qualified. While victims may present their ‘views and concerns’ to the ICC,Footnote 28 judges have discretion as to when during proceedings victims may provide input, and the Statute stipulates that the judges control the manner in which victims offer their views, so that their participation does not infringe on the fair trial rights of the accused.Footnote 29 The legal framework for participation reflects competing views and tensions about the relationship of victims to ICJ. Advocates for a victim-centred or humanitarian approach pressed for the inclusion of victims’ rights in the drafting of the Rome Statute.Footnote 30 Arguments for victim participation drew on human rights principles regarding victims’ rights to truth and justice,Footnote 31 both elements of the imagined victim. Others adopted a utilitarian approach that viewed victim participation more sceptically, as a threat to judicial efficiency and as a detraction from the Court’s central goal of convicting perpetrators – presaging fears that real victims are impediments to justice.
To some extent, these competing perspectives reflect different legal traditions. In the common law legal tradition, the interests of victims, as the injured parties, are represented by the prosecutor who has the sole responsibility to vindicate the crime as a breach of community norms; victims seeking money damages from a defendant generally must file a separate, private action, to do so. In the civil law tradition, the public law action of the state prosecutor and the private law action of victims to seek reparation for the harm caused by a wrongdoer may be joined in a single proceeding. While the ICC framework contains elements of each tradition within the victim participation provisions, as well as more generally,Footnote 32 the Statute and Rules of Evidence and Procedure are the result of political negotiations among state representatives. The resulting regulatory regime owes perhaps as much to the process of negotiations as to a principled effort to integrate common law and civil law legal traditions. Commentators have noted that the inclusion of participation rights for victims was contentious and NGO advocates played an important role in securing victims’ rights in the new Court.Footnote 33
Nevertheless, victims and their advocates have rushed to test the limits of victim participation, and the Lubanga case offers some examples of this dynamic interaction between the imagined and actual victim at the ICC. Victims of Lubanga’s forces sought to assert their rights to participate throughout the proceedings. Three junctures in particular – the adjudication of victims’ requests to participate in investigations, the adjudication of standards for victim participation in judicial proceedings and the Court’s ruling on reparations principles – illuminate this dynamic struggle between the imagined and actual victim.
Victims and investigations
Under the Rome Statute, the OTP is charged with investigating crimes within the jurisdiction of the Court. The question of the nature and extent to which victims may influence this process arose in the OTP investigation of the conflict in the Democratic Republic of Congo (DRC). A group of six victims filed applications with the Pre-Trial Chamber to participate in the investigation. The prosecutor objected to the applications, arguing that victims did not have the right under the Statute to participate in proceedings before a suspect is named.Footnote 34 In other words, the role of victims – those with direct knowledge of the events under scrutiny – legally lies outside the decision-making process concerning which charges to pursue.Footnote 35 The prosecutor saw victims as antagonists to the administration of justice. The Pre-Trial Chamber ruled against the prosecution, holding that the Statute afforded victims the right to participate and that considerations of efficiency and due process should be taken into account on a case-by-case basis.Footnote 36 The Pre-Trial Chamber drew on human rights principles and jurisprudence in its reasoning, placing the ICC legal framework in the context of international trends expanding the rights of victims.Footnote 37
Despite grounding its decision in the international legal framework of victims as rights-holders – the imagined victim – the ICC limited the extent of their participatory rights. The judges ruled that victims would not have access to the investigation files or be able to attend closed sessions; what ‘participation’ of victims in the investigation meant was that they would be notified of proceedings and could have access to the public documents.Footnote 38 In other words, victims had no greater access to information in the possession of the OTP than the general public. The Court, while formally siding with victims, in fact offered a hollow victory. Its decision did nothing to give effect to what victims purportedly wanted: the ability to influence the direction of the investigation and the decision of the prosecutor regarding which crimes to charge. At the conclusion of the investigation, the prosecutor did not refer charges for crimes of sexual violence as advocated by many victims’ groups, but rather focused on crimes related to Lubanga’s conscription and use of child soldiers, prompting a furious and public response from victims and NGO advocates.Footnote 39 The Court has subsequently ruled in several cases, and on appeal, that the charges against defendants define the limits in which victims have standing to participate in judicial proceedings. Therefore, only victims of the criminal conduct relating to Lubanga’s recruitment and use of child soldiers could participate, and only the experiences related to those charges would be relevant to the Court.
Victims and participation in proceedings
The discrepancy between the desires of some victims of the conflict in the DRC to see justice for crimes of sexual violence and the decision by the prosecutor to focus on the use of child soldiers led to repeated efforts by victims to have their views taken into account by the Court. Victims participating in the Lubanga trial requested that the Court re-characterise the legal charges against Lubanga to include sexual slavery.Footnote 40 The Trial Chamber agreed with the victims, but the Appeals Chamber unanimously reversed that decision, ruling that the Trial Chamber had committed a legal error by effectively circumventing the charging documents in order to admit new facts after the charges had been confirmed.Footnote 41 In the end, the Court sided with the prosecutor and legally subordinated victims to the vision of justice that the OTP decided to pursue.
Victims and reparations
Following its judgment against Lubanga, the Trial Chamber issued its decision on the principles and procedures to be applied to reparations in the case.Footnote 42 Unlike the guilt phase of the trial, victims are parties, not ‘participants’, in these proceedings. During the reparations phase, the Court determines the harm for which the convicted perpetrator is responsible and the measures to address these wrongs. Reparations encompass a variety of interventions, such as compensation, physical and psychological rehabilitation and other measures to repair the social consequences of atrocity crimes. The Lubanga decision on reparations principles was another jurisprudential first, and the Trial Chamber considered a number of issues regarding the principles that should guide the Court, as well as the procedures that will apply in implementing its reparations order. This analysis focuses on the Court’s decision as to whether reparations should be awarded on an individual or collective basis, as this debate illustrates tensions between the imagined and the actual victim.Footnote 43
What did actual victims want reparations to be and do? Two groups of victim participants filed separate submissions on reparations. Each group favoured individual reparations to the participants and advocated that awards should take into account the particular needs of individual victims for economic and psychological assistance.Footnote 44 The victim participants acknowledged that child soldiers had different experiences, had suffered a range of harms and had received different types of assistance post-conflict, all of which the Court should take into account. Their submissions emphasised that variability in benefits might be based on categories of experience (child soldiers who had been raped, those infected with HIV, those injured), the length of time spent as a child soldier and their level of education, among other factors.Footnote 45
Collective reparations are not defined in the Rome Statute or Court regulations but, as explained by the TFV, collective reparations may include measures that are provided to groups. Some measures may be exclusive, like providing health care to members of a specific group (former child soldiers), or may be provided to a group on a non-exclusive basis, such as schools.Footnote 46 Collective reparations, however, should ‘address the harm the victims suffered on an individual and collective basis’.Footnote 47 Victim participants supported collective reparations in addition to individual reparations. They stressed that collective reparations were needed to reduce the stigma of former child soldiers in their communities, if measures could be issued in a manner that would avoid inadvertently ‘benefiting’ this group and potentially encouraging other youth to enlist in the future.Footnote 48
While acknowledging that the ICC framework permitted the award of individual, as well as collective reparations,Footnote 49 the Trial Chamber exclusively adopted the community-based approach put forward by the TFV. The judges agreed that in light of the limited TFV funds from voluntary contributions, a community-based approach emphasising collective awards would have ‘greater utility’ and reduce the administrative costs associated with individual awards.Footnote 50 Under this plan the TFV would conduct outreach and consultation with victims and communities from which child soldiers were recruited to develop reparations proposals for Court approval.Footnote 51 Victims might still receive individual benefits, but only if this was included in the community proposal and approved by the ICC.Footnote 52
The imagined victim worked again here to justify abstracted, collective forms of repair and obscured the particular and disparate preferences of individual victims for reparative justice. In adjudicating a reparations framework, the Court could not rely on the trope of an imagined victim who desired simply that the guilty be punished. Rather, it had to deliberate among competing claims and visions of adequate repair being advanced both by victims who participated in the proceedings and by entities, like the TFV, vested with power to speak on their behalf. The Court accepted that collective reparations promising large-scale change were the priority: promoting reconciliation, decreasing the stigma of former child soldiers and working to change cultural attitudes that support the practice of child soldiers.Footnote 53 The victim participants were a fraction of all those who consider themselves victims of the conflict and they may or may not hold views representative of the collective. Adopting an exclusively community-based reparations framework may result in providing greater benefit to a greater number of victims. It also avoided the Court having to decide among competing claims and being seen as making political choices about which victims to favour. This argument does not seek to deny these legitimate justifications for the decision. The point is that, by ignoring the victim participants in the proceedings, the Court imagined victims only in a reductive, collective form that elided their individualism. Once again, the imagined victim – one who will participate in a community deliberation that was assumed capable of promoting social change – was satisfied by the Court’s utilitarian approach.
The persuasive power of individual victims was negligible by comparison; the submissions of victim participants were not cited in the operative sections of the ruling. How is it that the ICC, which congratulated itself on the pride of place it gives to victims, so neatly has avoided any direct response to them? The Court eschewed a principle of individual awards and outsourced its authority to implement individual benefits. Given how tightly the OTP and the Court guarded their prerogatives to determine retributive justice, the willingness of the judges to divest themselves of power to consider the needs of real victim participants suggests, once again, that the power of imagined victims outstrips their own.
Conflicting logics of international criminal justice
The contrast between the ways in which ICJ protagonists such as judges, prosecutors and INGOs invoke victims and the treatment of claims by actual victims who seek to participate in ICC proceedings is striking. Given that ICJ discourse presents victims as requiring justice, and calls on states and citizens to support the ICC to fulfil this moral promise, it may be surprising that real victims have so little power in an institution celebrated as giving them agency and voice. The clash may be explained, in part, by a clash in logics: the logic of the imagined victim and the logic of international criminal law. These two orderings have fundamentally different relations to victims, even as the same actors are protagonists in each system. The contradiction revealed between the imagined and actual victims thus is embedded in the ICJ project.
The imagined victim invoked by the ICC’s president, its prosecutor and INGO representatives justifies the moral and legal mandate of the Court to hold perpetrators responsible for their crimes. Yet, the logic of the narrative of the imagined victim also contains an unspoken but limiting moral commitment to victims: the idea that punishment is a measure for the victims. For the imagined victim invoked by the Court, the conviction of the perpetrator completes the moral promise of ICJ. The bad actor is called out as a villain on the world stage. The perpetrators did not evade justice; they received their just desserts. The moral and legal tasks thus are seen to be complete.
To some extent, this normative assessment may reflect the desires of real victims. Available survey data of victims of atrocity crimes in multiple conflicts indicate that victims believed it was important to hold accountable those who committed crimes.Footnote 54 For example, in one study of the DRC, when asked what should happen to those who committed war crimes, 69 per cent of victims surveyed said perpetrators should be punished.Footnote 55 The idea that those who attack civilians, force communities to flee and whose acts disrupt the social fabric of communities should be made to answer for their crimes may be a powerful and common sentiment. However, the survey data also indicated that, while accountability may be held in high regard as a principle or ideal goal, it appears to occupy a lesser priority than measures designed to improve the immediate, material concerns of victims. When researchers asked respondents to list what were their priorities for the government, justice measures were mentioned by only a small fraction of victims. In eastern DRC, only 1 per cent of respondents felt that the government should direct immediate attention to accountability and justice.Footnote 56 Respondents overwhelmingly cited the need for improvements to economic and social welfare conditions – job creation, education, health care and peace – as top priorities. Retributive justice was never strongly expressed as a priority among victims.
These data may not be inconsistent. The moral and material demands of victims are linked: the harms victims suffered and for which they seek justice are directly related to their ability to re-establish stability. Victims may believe that they deserve more than seeing those accountable punished; they deserve material measures that will address their personal losses. These are not inconsistent demands, but rather dual aspirations for how a society will respond to violence. The behaviour and views of actual victim participants in Lubanga are consistent with these data: those victims who joined the proceedings wanted to see the defendant held responsible for his crimes and they wanted individual, material redress for the harms they suffered.
While victims may see retributive and restorative justice as inextricably linked, the ICC does not, despite the lip service it pays to victims. The reparations regime is additive, not essential, to justice defined as punishment of perpetrators. The TFV is financed by voluntary contributions rather than from the core budget of the Court. The organs of the Court define reparations as a separate moral and legal category, belonging to the domain of restorative justice, distinct from its retributive justice mandate. The institutional design features of the ICC reflect the legal values ascribed to victims by its creators.
Justice thus becomes synonymous with retributive justice. The logic of international criminal law, an adaptation of municipal criminal law, vests a prosecutor and a court with the responsibility of administrating justice. The victims may have a discretionary right to participate, as they do at the ICC, but the prosecutor has responsibility for seeing that justice is delivered. Imagined and actual victims are instrumental to securing justice – defined as a ‘conviction’ – and the judges and prosecutor use them as such. For actual victims to assert otherwise invites the ICC – its judges, prosecutor and TFV – to instantiate their subordinated status anew, as it did throughout the legal proceedings in Lubanga. The moment that victims become parties is in the reparations phase. Yet, here too, victims find their needs are contingent and redefined by a different logic: the logic of scale.
Under the ICC’s approach, individual victims will have to persuade their communities that they deserve individual benefits. It is possible that these victims may receive a benefit from collective reparations, or that their preferences as expressed to the Court were shaped by their legal representatives and are not authentic; in other words, the ‘interests of victims’ may, in fact, be served by collective reparations. Nevertheless, the logics of scale work against the ICC adopting an individualised process that seeks to respond to the interests of individual victims. The chamber was persuaded that individual awards were both infeasible and impracticable in Lubanga. Yet, it also had convicted an individual of crimes involving thousands of victims. This suggests that ICJ is able to master complexity if given enough time and resources. While there are important differences between adjudicating individual criminal liability and thousands of damages claims, the ease with which the Court disposed of the possibility of individual awards implies a cost–benefit calculus that privileges retributive justice. Though costly, retribution serves unnumbered imagined victims; by contrast, individual reparations awards require a degree of precision and resources that are greater than the Court can afford.
Such material considerations generally lie outside the normative judgments that criminal courts are required to make. Here, the imagined victim obscures the juridical switch from normative to distributive concerns. Individual reparations were not morally required by the (retributive) justice that the ICC claims imagined victims deserve. The Court thus could dismiss the request of victim participants – and by extension the requests of any victim for individual awards – without violating its moral promise to imagined victims. As of this writing, the reparations decision is being appealed and how reparations are ultimately implemented remains to be seen.
Yet the real victims, the ones who stand outside the international justice discourse, cannot be satisfied even as the discourse of ICJ legitimates itself as serving their interests. The scale of the crimes defeats their aspirations for a richer understanding of justice that could include both retributive and restorative dimensions in equal measure. The Lubanga case suggests that ICJ may be a process of continual diminishment with regard to real victims. The scale of the crimes is what makes them subjects of concern to the ICC and what activates the moral attention of a world audience. Yet the administration of justice requires the prosecutor to narrow the legal response to a scale that can be managed. What begins as a call for justice for all victims winds up as retributive justice for select crimes. Furthermore, to manage its inability to provide individual awards of reparations to all victims of the select crimes, the Court eliminates individual reparations altogether. Individual victims are subsumed as a category within their communities.
Whether or not one believes that victims should be treated as a single category for purposes of restorative justice measures, the logic of scale upon which this treatment is based is not explicit in the ICJ discourse. Mass violence generates populations of victims who believe that retributive justice and compensation are important priorities. The ICC framework promises to respond to both, but the logics of scale overwhelm the institutional capacity to deliver fully on either. Not all crimes will be prosecuted and not all victims will be eligible for reparations. Yet, the ICC continues to rely on the imagined victim to do important political work to support and legitimate ICJ, including soliciting the support of actual victims. This gap between what the discourse promises and what the Court delivers has reputational costs. Therefore it is important to appreciate how the conflict between the logic of retributive justice and the logic of scale threatens the moral legitimacy of the ICJ enterprise.
Conclusion
Victims of atrocity crimes are central to the project of ICJ. They provide the moral urgency to mobilise political will and resources to punish perpetrators and provide redress to victims. The ICC has been celebrated as the first permanent international criminal tribunal that embodies the trends in international law to affirm victims as agents of the global campaign against impunity of atrocity crimes. In the discourse of ICJ, victims of mass violence are abstracted and constructed with particular characteristics. This imagined victim always demands retributive justice and therefore is always satisfied by a conviction, regardless of what real victims believe the most blameworthy conduct is or who is responsible for it. In contrast to the embrace of the imagined victim, the way in which the ICC judges, the OTP and TFV treated victims in Lubanga highlights the instrumental use of actual victims in international criminal law. Actual victims have limited rights and power to influence justice; they are recipients of retributive justice as defined and secured by the ICC. The scale of mass crimes means that criminal charges will be selective and that reparations will only ever be partial, and therefore unlikely to meet the expectations of victims of the violence for redress.
This analysis suggests that the contradiction between the promise to victims of ICJ and what the field is capable of delivering is generated by the politics of law. The ICC relies on a legitimating discourse that places victims as deserving beneficiaries of justice, even though as a legal institution it cannot deliver justice to all victims. The gap between the discourse of the imagined victim and the administration of international justice in turn generates dashed expectations. To narrow this gap means promising less at the risk of losing support from communities on the ground as well as among states and the public or providing more to actual victims at the risk of bogging down legal proceedings, jeopardising due process rights of defendants and becoming unaffordable to the states parties and donors that finance the Court. This chapter does not offer a prescriptive solution. Rather, it calls for sustained attention to this clash of logics and the gap between the imagined victim and the actual victim. Victims are indeed central to justice efforts for atrocity crimes but because some victims support some forms of justice does not mean that all victims support ICJ. How the ICC defines justice and its beneficiaries is critical to its success; if the Court makes the promise of justice, it must be capable of fulfilling it.
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