Introduction

The communities directly affected by crimes against humanity and war crimes are among the primary stakeholders of an institution like the International Criminal Court (ICC), tasked as it is with holding the perpetrators of such crimes accountable and providing redress to victims. As the experience of other international or internationalised criminal courts has shown, providing accurate information in a timely manner to the communities affected by these crimes not only is responsible practice, but also shapes perceptions of a court’s role, with implications for its broader legacy. In Bosnia and Herzegovina approximately a decade after the war in the country had ended, it was not uncommon for the first three or four topics on the evening news to all be related to war crimes, ranging from trials at the International Criminal Tribunal for the Former Yugoslavia (ICTY) to those before domestic courts, and from the discovery and exhumation of mass graves to exchanges and accusations between politicians related to war crimes.

‘Outreach’ has emerged in the last 15–20 years as both a concept and a set of practices that encompass interaction – related to but distinct from judicial activities – between an international court or tribunal (ICT) and local communities. While outreach is increasingly recognised as a necessary interface between an international court and local populations, it is still an underdeveloped (and frequently underfunded) area of operations. Indeed, outreach is not proscribed or defined in the statutes of any international criminal courts or tribunals, and has only recently been incorporated in the ICC’s Regulations of the Registry.

This chapter addresses outreach practices of the ICC comparatively, by contextualising its work in relation to a broader genealogy of outreach practices and challenges at other international criminal courts and tribunals, particularly the ICTY. It will endeavour to demonstrate that outreach is not the sole or even decisive factor affecting the perceived legitimacy of international criminal proceedings among concerned local communities, whose perception of an ICT may remain negative (particularly in the short term), despite extensive outreach activities.

Furthermore, I argue that policy-makers should not expect international courts and tribunals to produce transformative and restorative societal effects unless other crucial factors are present, including complementary transitional justice measures and domestic political commitment to justice goals. While a strong outreach programme is crucial for making the extrajudicial impact of international justice institutions possible, there may be various factors – both internal and external – limiting an international court’s impact that outreach cannot influence. Indeed, international courts and tribunals should be cautious with active involvement in socio-political processes because their legitimacy as judicial institutions – a primary condition for positive impact – depends on their perceived independence and impartiality.

Outreach as an interface between courts and local populations

Limitations of outreach

Any positive societal impact of the ICC or other international tribunals is arguably based on their contribution to actually holding perpetrators accountable for their crimes. Consequently, the results of investigations, prosecutions and trials are among the most important factors determining the effects of international justice interventions. Where those results fall short of their intended goals, they present a serious obstacle that is difficult to overcome. If the prosecution or the court does not carry out their judicial mandate to a high standard, no amount of outreach and explaining will put it right. Typical reasons for disappointment (particularly for victims) in this respect include full or partial acquittals, low sentences and protracted proceedings.Footnote ¹⁶ The first two of these are considered below in more detail.

Systemic obstacles

External obstacles

Challenges for outreach at the ICC

As has been discussed previously, the ICC’s outreach strategy and activities have in many ways drawn from the experiences of other courts and tribunals, and bear many similarities to the outreach programmes of the earlier tribunals. Fundraising for outreach activities, for instance, is a challenge that has been shared, to a varying extent, by all of these institutions. The ICTY, the ICTR and the Special Court for Sierra Leone (SCSL) all operated their outreach programmes with voluntary donations outside the regular budget of those institutions. Against this background, the inclusion of outreach in the main budget of the ICC, while still limited, was a major positive development.Footnote ⁴² Provision of budgeted funds for outreach arguably reflects states parties’ acceptance of the necessity and importance of outreach as a companion of investigative, prosecutorial and judicial activities.

That said, there have been persistent attempts by a number of states parties to reduce funding for outreach, under the pretext that it does not constitute a ‘core’ activity of the Court. Particularly during the tenth and eleventh sessions of the ASP in 2011–12, when a number of the largest budget-contributing states were pushing hard for a ‘zero nominal growth’ budget for the ICC, outreach came under a real threat of facing budget cuts. Much of these dynamics occurred in the informal talks in the lead-up to the assembly’s annual sessions and is therefore not visible in the official documents of the ASP meeting. The seriousness of the threat is, however, well reflected in the recommendations of the Coalition for the International Criminal Court, which noted ahead of the eleventh session that ‘a voluntary funding approach runs counter to lessons learned from previous international tribunals and courts’.Footnote ⁴³

While the number of situations subject to investigation and prosecution increased from four to eight between 2008 and 2014, funding for the Public Information and Documentation Section (which includes outreach) has only increased by 30 per cent during the same period.Footnote ⁴⁴ The ICC’s mandate, which is not geographically limited like that of other ICTs, poses additional challenges for outreach. To begin with, the ICC deals with multiple situation countries as opposed to a single situation country, as at the SCSL or ICTR, or one region with closely related situation countries, as at the ICTY. Even equality of coverage within the same country can be an issue for the ICC. As noted in the Court’s 2009 report,

New situations not only increase the number of local communities requiring the ICC’s attention, but also frequently create the need for the translation of various information materials into additional languages. Re-allocating existing human resources may be complicated, as the cultural expertise and language skills fitting one situation may not be suitable for another. The strategic approach to outreach activities also has to be tailored anew for each situation. An initial assessment of political, cultural, historical and sociological factors must be carried out at the outset of operations in a new situation, as well as a mapping of the media environment.

Finally, a number of the ICC’s situation countries remain in a state of armed conflict. As a result, the security situation is very difficult; indeed, in cases like Sudan, the Court has no access to the country whatsoever. To add to these challenges, the ICC’s physical distance from the situation countries is far greater than what was the case with both the ad hoc tribunals and the SCSL, which was, uniquely, located in Sierra Leone.

Reflections on methods for advancing the ICC’s extrajudicial effects

It has been noted that a ‘realistic understanding of the possibilities and limitations of international justice is a prerequisite to its success’Footnote ⁴⁶ and that raising expectations that subsequently cannot be met may lead to disappointment, frustration and apathy.Footnote ⁴⁷ Communication with the concerned societies and managing expectations is therefore crucial for the ability of ICTs to achieve their goals. The Strategic Plan of the ICC’s outreach programme is in line with these considerations, as it is fundamentally based on the principles of neutrality and independence. Further, it places emphasis on the provision of information, promoting understanding of the ICC’s mandate and its activities, as well as the ‘management of expectations’.Footnote ⁴⁸

As argued above, judicial results form the fundamental basis of an ICT’s legitimacy. In the words of a former ICC judge, ‘The [ICC] will be judged by our ability to dispense international criminal justice at the highest level – that means securing those accused of the world’s most egregious crimes before the court and delivering timely and fair justice.’Footnote ⁴⁹ Accordingly, the quality of investigations, prosecutions and trials should be any court’s primary preoccupation. Conversely, poor quality of judicial and prosecutorial activity would present a major obstacle for an ICT’s ability to achieve its goals.Footnote ⁵⁰ This is the ICC’s core challenge.

To that same end, however, it is vital that parent organisations provide international courts with the requisite resources and tools necessary for them to conduct their judicial mandate to a high standard. Furthermore, it is of critical importance that states respect their obligations to cooperate with investigations and prosecutions. The ICC’s principals regularly seek to highlight the importance of these issues when addressing the Court’s states parties, as well as the UN Security Council.

While acquittals are a natural phenomenon in any criminal jurisdiction, prosecutors should be particularly mindful of the negative societal impact that they are likely to carry and, accordingly, endeavour to pursue cases with overwhelming evidence establishing strong responsibility for grave crimes – in other words, cases with a high likelihood of a conviction and a substantial sentence. The new Strategic Plan of the ICC’s Office of the Prosecutor, publicised in October 2013, represents a step in this direction, as it puts increased emphasis on ensuring the trial-readiness of cases before charging suspects and states that one of the expected results of the amended strategy will be ‘an increased confirmation of charges and conviction rate’.Footnote ⁵¹

As this chapter has sought to illustrate, courts should also be equipped with a strong outreach programme from the outset to make their work fully accessible to local populations, as well as to promote a realistic understanding of their mandate. Outreach activities should be launched as early as possible for a variety of reasons, including trying to prevent inaccurate information from taking root. As the experience of the ICTY shows, the relatively late launch of the outreach programme left space for other stakeholders to steer the discourse freely and no doubt contributed to the negative views and prejudice towards the tribunal, much of which still endures. Outreach conducted by the prosecutor’s office on its own account – for instance, to explain decisions not to investigate certain crimes – could also be considered a method for promoting transparency and preventing the alienation of affected communities.Footnote ⁵²

Outreach programmes should also include a strong field presence with sufficiently senior staff at the helm of the country teams. In my experience, seniority of outreach staff based in the field is crucial to allow them to liaise effectively with local authorities, as well as international organisations present on the ground. Similarly, only assigning junior staff to field positions may create a perception that the court is not paying due attention to the needs of the local population.

Lastly, policy-makers should address transitional justice needs in a comprehensive manner; international courts should not be relied on to conduct transitional justice tasks other than those that are clearly within their mandate. ICC interventions should therefore be supported with accompanying mechanisms to foster transitional justice processes related to criminal accountability, notably constructive socio-political discourse on atrocity crimes, as well as access to and public acknowledgment of facts about past atrocities.Footnote ⁵³ Robust outreach programmes can support these processes to an extent, but they should not be relied on as the main avenue for advancing transitional objectives.

Conclusion

Outreach is an integral element of international criminal justice, and it is crucial for enabling an affected society at large to benefit from accountability efforts in a wider socio-political context.Footnote ⁵⁴ Fortunately, the ICC outreach programme seems to have avoided the pitfall of ‘overselling’ the Court’s mandate, having learned from the experiences of the ICTY and other ad hoc tribunals in this regard. The ICC’s programme has focused on providing neutral information about the Court’s activities through appropriate channels and facilitating dialogue between the Court and affected communities. Including references to outreach in the Regulations of the Registry of the ICC in 2013, as well as the adoption of guidelines governing the relations between the Court and intermediaries – including those assisting outreach – has further helped institutionalise and regulate outreach as an integral part of the Court’s operations.

However, outreach cannot produce positive societal effects in the absence of other fundamental preconditions. The quality and integrity of investigations, prosecutions and trials should remain a central concern for ICTs, as well as for those actors on whose support they rely in the conduct of their judicial mandate. A political climate conducive to positive change is another critical factor for the extrajudicial impact of a court like the ICC, and this should be an essential consideration for transitional justice policy-makers.

Ultimately, domestic actors are the ones who should ‘translate judicial findings of the tribunal into political facts’,Footnote ⁵⁵ not only for the sake of ‘local ownership’, but also because this is the most effective way to entrench social norms prohibiting mass violence. Outreach should actively assist local society in accessing the ICC’s work in a comprehensible and usable form, but it is the local stakeholders – civil society, politicians, the legal community, historians and the media – that can use that information for other extrajudicial purposes. If a court too actively tries to achieve effects such as reconciliation or satisfaction of victim communities, it risks undermining its own impartiality and integrity, which remain the cornerstones of its legitimacy.

Introduction

These words of the prosecutor of the International Criminal Court (ICC) resound with conviction. They describe the way that the rule of law, in this case the Rome Statute for the ICC, has become a proxy for the defence of victims. But not all agree and some, like a prominent grassroots Latin American group, have pushed back with the observation, ‘we ask for justice, you give us law’ as a way to critique the contemporary conflation of justice with law. Similarly, among one of the most colourful controversies at the ICC was the counter-claim by deputy president of Kenya, William Ruto, during his pre-trial hearing for crimes against humanity in which he attempted to broaden the bid for justice through the broadening of the terms of victimhood. In a conciliatory, reflexive and assertive tone he argued that there were two types of victims following Kenya’s post-election violence, and he was one of them. According to Ruto, there are ‘the post-election violence victims, whose lives and property were destroyed and deserve justice and truth; and another set of victims which I belong to, victims of a syndicate of falsehood and a conspiracy of lies choreographed by networks that are obviously against truth and justice’.Footnote ¹ Ultimately, he claimed, he was a victim of structural violence at the hands of the ICC.

Some people received Ruto’s remarks with affirmation and appreciation of his plight. To others, his claims to victimhood were laughable and defiled the very nature of suffering. The executive director of the NGO-led Coalition for the International Criminal Court responded to Ruto’s invocation of victimhood by insisting, ‘States should not be distracted by the efforts of certain leaders to portray themselves as victims when the Court guarantees fair trial rights. The Assembly should stay focused on strengthening the Court’s work and impact so that the actual victims of ICC crimes receive redress.’Footnote ² A year earlier, the then deputy prosecutor Bensouda had responded to a similar sentiment in which members of the African elite claimed an impartial ICC had victimised them:

The language Bensouda uses in these statements reflects a juridifiedFootnote ⁴ notion of justice in which agents of the court equate justice with the exercise of law, with moral responsibility as its motivation. In this case, the narrative construction of justice-as-law invokes the mission of protecting victims against powerful perpetrators who have abused their impunity for too long.

The ICC’s legal mission presumes that, in order to protect victims, justice must be understood as the objective manifestation of law. Bensouda’s remarks also privilege those victimised according to popular definitions of suffering. For her, victims of ‘brutal and unimaginable crimes’ represent a category of persons whom the law must protect. This sacred space of victimhood must not be open to expansion. But Ruto’s statement, validity aside, offers a way of rethinking how the notion of the victim in Kenya’s post-election context has become popularised to refer specifically to those subjected to violent attacks, economic loss or psychological harm. While ideas of structural, political and economic violence once had a place in progressive politics, today Ruto’s remarks are a reminder of the narrowing of definitional spaces within which judicial processes are playing out. This delimitation of who is a ‘victim’ and what constitutes ‘victimhood’ came of age with the popularisation of a recently emergent victim-protection discourse.

The popular presumption today is that to utter the words ‘victims want justice’ is to assume that ‘victims want adjudication’ to address their grievances. This played out at a February 2014 status conference in the ICC case against Uhuru Kenyatta, now president of Kenya, whose charges were subsequently dropped in late 2014. Fergal Gaynor, the victims’ case representative, told the following story about the victims he represents:

Gaynor concluded with the following:

Here Gaynor attempts to connect the notion of true reconciliation with justice – fundamentally achieved through legal measures – and uncovering the truth of violence through juridical deliberations. This conception of justice, he argues, will produce the conditions for an elevated nation. This reduces ‘justice’ to ‘law’ as the precondition for reconciliation. Underlying this veneer of ‘justice-as-law’ is the narrowing of a particular language of justice, what I call ‘legal encapsulation’, that erases political and economic realities of violence and judicialises them.Footnote ⁶ This is especially the case where poverty has contributed to vulnerabilities related to violence, such as Kenya, the Democratic Republic of the Congo (DRC) and the Central African Republic (CAR), all countries where the ICC has intervened.Footnote ⁷

The form of sentimentality that we see in Gaynor’s and Bensouda’s rhetoric has its roots in the humanitarian ethos of ‘giving’, ‘holding accountable’, ‘protecting’ and ‘saving’, but it is tied to a profound form of judicialisation that was developed to build institutions, safeguard property and protect foreign investments. As the practice of justice has become aligned with both adjudicatory processes and humanitarian giving, it has propelled the support of state intervention, military action, economic assistance and health aid.Footnote ⁸ Through this development, both the individualisation of criminal responsibility – meaning holding a figurehead like William Ruto responsible for mass crimes under his watch and possibly at his behest – and defence of a certain category of victim – the focus of this chapter – have become central to justice discourses in the contemporary period.

However, like many victims, Kiamu, a Kenyan victim of post-election violence, questioned the ability of the ICC to work on behalf of victims:

Here we see not only a strong conviction about the limits of culpability in domestic and international criminal law, but also a critique concerning the inability of international law to adequately protect victims.Footnote ⁹

In an attempt to understand how a particular narrative encapsulation of justice-as-law has gained influence in the definition and protection of victims, this chapter explores the judicialisation of politics in the late twentieth century to early twenty-first century. I detail the narrowing of a particular type of ‘victim’ subjectivity that has become increasingly aligned with the rise of the rule of law in order to demonstrate that a certain epistemology of victimhood has formed at the juncture of a new economic and political order: contemporary neoliberalism and the rise of ‘good governance’ indicators. By evaluating the impact of the World Bank structural adjustment policies of the 1990s and the institutionalisation of new strategies focused on liberalisation and privatisation, I examine how the rule of law has merged with a contemporary development theory focused on stabilising markets and argue that the post-Cold War political reorganisation of sovereignty, democracy and various neoliberal forms of economic expansionism is central to contemporary notions of justice, with the defence of the victim via liberal legality at its base. This construction represents a particular alliance between economics, politics and the law and reflects the link between justice and markets in post-Cold War processes of neoliberal globalisation. Through the use of statistical indicators to predict various outcomes ranging from state stability, state fragility and the probability of violence, such measures helped to propel new rule-of-law discourses around the protection of the victim through the encapsulation of the language of justice. As the justice discourse progressed as part of the rule of law directives, ‘the victim’ was invoked not only as the subject to be saved by new judicial mechanisms, but also as the basis for the moral responsibility to protect.

Today, victims are popularly defined as those we have a responsibility to protect, justice is narrowly tailored in relation to legal processes, and law has increasingly become the domain for vetting socio-political issues. Both the figure of the victim and that of the perpetrator are central to the merger of humanitarianism with foreign-policy-making and international law mechanisms. The language of individualism rose in significance, while the focus on the individual criminal responsibility of commanders became central. The individual victim was, in turn, reduced to someone who suffered physical violence against his/her individual body, not structural forms of victimhood caused by the very conditions of economic or political disenfranchisement at the heart of the new justice discourse.

The discourses at the heart of this situation reflect a new international order in which the desire to manage violence and the need to mobilise extra state support for the defence of particular victims became part of a critical narrative triangulation – victims, justice and the law – deployed through the language of the law. Ultimately, this chapter seeks to show how the rule-of-law discourse of justice and individual criminal responsibility have actually narrowed the category of victim. This narrowing has resulted in a substantive disjuncture in which the new conception of victimhood is being propelled by various judicially driven institutions for victims – such as the Victim’s Trust Fund – that, on one hand, claim to work on behalf of victims, but on the other hand are unable to provide victims with the basic necessities for addressing their suffering. By rethinking the unproblematised notion of the victim, the goal is to map a particular genealogy of victimhood through which to make sense of the contemporary alliance between the category of the victim and the workings of contemporary justice discourses.

Neoliberalism, the Washington Consensus and the rule of law

By the 1960s, as increasing numbers of African states had begun to gain independence and negotiate new terms for their independent states, a new trend had emerged in the West in which the market economy became the basis for state governance. So even as new African independent states attempted to establish social market principles carried over from earlier imperial governments, a new mechanism for economic reform involving the deregulation and the reduction of state influence, the elimination of price controls and the diminishing of trade barriers promoted the concept of market freedom. This new theory of neoliberal reform had consequences in African contexts.

Following African independence, the end of the Cold War period signalled a victory for democracy and neoliberal capitalism. To promote economic liberalisation, open markets and free trade, a particular type of liberal economic organisation arose to advocate for deregulation, privatisation and the enhancement of private-sector development. In 1981 the World Bank published what became known as the ‘Berg Report’ (named after its author) on Sub-Saharan Africa. Amongst the key recommendations were market-oriented policies and reductions in government expenditures. These recommendations were soon reflected in World Bank and International Monetary Fund (IMF) lending practices; loans were granted in exchange for commitments to neoliberal, market-stimulating reforms, such as structural adjustment policies.

In 1989, English economist John Williamson coined the term ‘Washington Consensus’ to refer to a strongly market-based approach to development. It highlights ten relatively specific economic policy prescriptions considered central to the ‘standard’ reforms for the economic and political crises in the South promoted by the IMF, the US Treasury Department and the World Bank. The prescriptions encompassed policies in such areas as macroeconomic stabilisation, economic opening with respect to both trade and investment and the expansion of market forces within the domestic economy. Themes such as ‘stabilise, privatise, and liberalise’ became the mantra of a generation of technocrats who came of age travelling to meet with political leaders in southern countries to offer economic development advice.Footnote ¹⁰ The advice of many of these technocrats inspired a wave of reforms in Latin America and Sub-Saharan Africa that fundamentally transformed the policy landscape in these regions towards privatisation, deregulation and trade liberalisation.Footnote ¹¹

However, the market-oriented reforms proved to be ill-suited to deal with public-health emergencies, poverty and social inequality.Footnote ¹² This resulted in cycles of underdevelopment in which the most attractive avenues for profit were those involving extractive industries such as oil, mining or plantation agriculture, which often involved violent and exploitative labour conditions. Newly independent African states and poorly functioning state institutions were increasingly incorporated into the international economy as they negotiated terms of extraction and compensation with former colonial powers. International organisations helping to facilitate transitional governments and corporations hoping to sustain extraction agreements negotiated with former military governments. But these extractive activities unfolded in contexts in which the armies and police were underpaid, educational and health institutions were dismally underfunded and courts and electoral politics were driven by economic opportunism.

Violence emerged as a response to social unrest and perceptions of inequality, with 12 civil wars in the last 25 years contributing to untold numbers of deaths, rapes and destruction on the African continent. Post-independence states attempted to control their capital cities and rural regions through takeovers and the autocratic suppression of opposition movements and democratic constitutionalism. This was enabled by successive military coups such as those in Nigeria, where ten successive coups ensued after the discovery of oil in 1966.Footnote ¹³

The race for political control in Africa has led to the unfolding of electoral violence, and in some cases the development of rebel groups or ethnic patronage networks vying for political influence and/or the control of various extraction industries. The recent histories of the DRC, Somalia, Liberia, Nigeria, Kenya, Uganda, Sierra Leone and Congo-Brazzaville all followed this trajectory. Each country has various elite networks, international companies, rebel groups and governments deeply embattled in controlling resource extraction and political decision-making. This has led to a postcolonial condition in which political settlements and new and effective economic strategies are desperately needed. But, as noted above, neoliberal policies failed to result in economic development. Rather, social scientists have documented the extent to which they have actually exacerbated inequality in the Global South.Footnote ¹⁴

In evaluating the failures of the ‘stabilise, privatise, and liberalise’ dictates, the World Bank turned its focus towards institutions. What resulted was the merger of a mainstream development theory with the rule of law. Technocrats recognised that economic growth also required the institutional transformation of property rights, legal institutions and the judiciary. The World Bank became central to the new rule-of-law discourse in which ‘good governance’ and the consolidation of democracy, human rights, reduction of corruption and secure economic growth became part of the new policy strategies.Footnote ¹⁵ A range of scholars described the merger as the manifestation of a transformation from a focus on efficient markets as the path to growth and prosperity, to the new orthodoxy of good governance.Footnote ¹⁶

Thus, good governance through legal predictability and property-rights protections became part of the 2004 World Bank rule-of-law definition as outlined in the unveiling of its twenty-first-century development policies.Footnote ¹⁷ The assumption was that if neoliberal policies had failed, it was because of the absence of a secure institutional environment, not the policies themselves. The law and various legal institutions were considered central to this new discourse. What was being signalled was that the rule of law required transparent legislation, fair laws, predictable enforcement and accountable governments to maintain order, promote private-sector growth, fight poverty and have legitimacy.Footnote ¹⁸ Ultimately, ensuring predictable market conditions was key. The challenge was to measure governance and commitment through the development of predictive indicators.

The World Bank developed a Worldwide Governance Indicators ranking system in which it categorised countries in relation to six aspects of good governance: voice and accountability, political stability and violence, government effectiveness, rule of law, regulatory quality, and control of corruption.Footnote ¹⁹ These indicators were used by foreign-aid donor agencies to allocate funding according to various predictions of compliance.Footnote ²⁰ As Sally Merry and others have described, ‘An indicator is a named, rank-ordered representation of past or projected performance by different units that uses numerical data to simplify a more complex social phenomenon, drawing on scientific expertise and methodology. The representation is capable of being used to compare particular units of analysis (such as countries or persons), and to evaluate their performance by reference to one or more standards.’Footnote ²¹ The indicators are said to produce systems of knowledge in which various phenomena are measured and ranked, while particular claims are made according to legal, moral and scientific measures.Footnote ²²

Indicators have thus become part of the new democracy of the twenty-first century. They reflect the development of measures of compliance as well as predictions of volatility, risk and economic viability. The shift to the rule of law and the support for its principles became part of the way that the notion of international justice was operationalised by the UN Security Council in the establishment of various ad hoc tribunals and, subsequently, the ICC. Accordingly, the World Justice Project Rule of Law Index is said to measure how the rule of law is experienced in daily life in a cross section of households. Based on data collected from over 100,000 households and 2,400 expert surveys in 99 countries worldwide, it highlights 47 indicators that are said to index the following themes: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement and civil and criminal justice.Footnote ²³ It also produces data for analysing various challenges, regional strengths and best and worst practices.

In addition to serving as a measure for various state conditions and a predictor of a range of outcomes, including state stability, state fragility and the probability of violence, an important part of the new rule-of-law discourse was the development of a space for victims to be “protected” and encapsulated by the new provisions. As the discourse progressed, the figure of the victim was invoked as the subject to be saved by new judicial mechanisms, and as the basis for the moral responsibility to protect. Significantly, the moral register became critically relevant for African states following the Rwandan genocide, the long history of anti-apartheid struggle in South Africa, and Liberia and Sierra Leone’s civil wars in which international intervention was late and marginal. And in that regard, African states signed on to the Rome Statute regime with the expectation that judicial mechanisms would ensure that the international community would never again just stand by and watch such violence on the African continent.

Yet, a more incipient reality was at play that connected the moral impetus for rule-of-law interventions with a pragmatic, expressive one: the new rule-of-law indexes mattered in post-colonial Africa because they ultimately played a critical role in the renewal of IMF and World Bank loans, as well as in ensuring the ongoing support of international donors.Footnote ²⁴ With the combined expressive and instrumental impetus behind Africa’s participation in the Rome Statute system as well as the adoption of a range of other international treaties, African states inserted themselves and mobilised to build new institutions. These new institutions wed traditional approaches to domestic state action with the expansion of human rights and international criminal law that shifted the focus from states and state protection to the protection of persons and peoples.Footnote ²⁵ With the shift to individuals, the idea of the ‘victim’ to be protected emerged. This shift was accompanied by a new judicial discourse that expanded beyond that which was used with victims from African states. It was based on a parallel humanitarian regime guided by the law of warFootnote ²⁶ that incorporated dimensions of democratisation and political and social transformations.

These changes in legal and moral discourses were propelled by the pressures of laissez faire globalisation and affected the ways that state sovereignty and state borders were being reconfigured. They also had implications for the way that domestic laws were being reformulated through the incorporation of international treaties, and national laws reworked with the introduction of bilateral agreements and new regional conventions and formations.

Alongside the earlier forms of economic neoliberal reconfigurations, pro-democracy developments, and World Bank-driven policy reformulations came the adoption of new humanitarian principles such as those embedded in various UN resolutions and international treaties. These shifts included the ICC Rome Statute, which reconfigured the reach of law and located the individual at the centre of foreign affairs. This figure of the individual was articulated through a discourse surrounding both the high-level ‘perpetrator’, criminally responsible for mass atrocities, and the ‘victim’ to be saved from the perpetrator’s violence. Both figures – the perpetrator and the victim – were central to the merger of humanitarianism with foreign-policy-making and international law mechanisms. However, with the focus on the individual criminal responsibility of commanders, the space of the victim was reduced to someone who suffered physical violence against his/her individual body, not the larger structural forms of victimhood caused by conditions of economic or political marginalisation. With this focus on the individual victim to be protected from mass violence against an individual perpetrator, those at risk of what was seen as the worst forms of violence were entitled to legal protection through a new emergent discourse concerning the ‘responsibility to protect’.

Protecting (certain) victims: a core responsibility of the ‘international community’

In September 1999 in The Hague, on the centennial of the first International Peace Conference, Kofi Annan, the then secretary-general of the United Nations, delivered a critical speech in which he challenged states to address ‘two equally compelling interests’Footnote ²⁷ at once. Entitled ‘The Effectiveness of the International Rule of Law in Maintaining International Peace and Security’, Annan called for the production of an effective response to human rights abuses. The other interest was concerned with the development of a mechanism through which states could act with universal legitimacy.Footnote ²⁸ From this challenge, the Canadian government established the International Commission on Intervention and State Sovereignty (ICISS).

ICISS was set up to reconcile the relationship between state sovereignty and the responsibility of the international community ‘to act in the face of mass violations of humanitarian norms’.Footnote ²⁹ From this task, it published a final report in December 2001 entitled ‘The Responsibility to Protect’,Footnote ³⁰ which served as a critical doctrine for the development of the key principles of legality related to the protection of victims. The notion of the Responsibility to Protect (R2P or RtoP) emerged thereafter as a moral and political norm promoting the protection of life regardless of state citizenship or national identity. This notion led to the production of the terms for the expansion of global executive actionFootnote ³¹ in which the developing rule-of-law project led to the further institutionalisation of core principles that obligate persons in positions of power to act in particular ways.

In 2001, following the failure of the international community to act to prevent or stop the Rwandan genocide, the African Union (AU) reinforced the idea that the international community had a responsibility to protect its population in crisis situations.Footnote ³² Article 4 of the AU’s constitutive Act asserts ‘The right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity’. Some four years later, the UN General Assembly produced a declaration clarifying the ‘Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’. This declaration articulated a universal set of guidelines for victims. By 2005, the AU had adopted the Ezulwini Consensus, which provided African states with an African regional tool to address mass atrocities.

The foundational pillars of RtoP involve the idea that a state has a responsibility to protect its population from gross human rights violations. These include crimes against humanity, war crimes, genocide and ethnic cleansing. The second component involves the assumption that the international community has a responsibility to assist states in fulfilling that primary responsibility to protect its population. And finally, if a state fails to protect its citizens from the four crimes of concern, and if it has failed to maintain peaceful measures, the international community has a responsibility to intervene using the most effective and appropriate means, ranging from coercive measures to economic sanctions, with military intervention as a last resort.Footnote ³³

The RtoP discourse is not simply a moral architecture of the contemporary period. The notion of an obligation to protect the victim was driven by a force of law deployed across sovereign borders with expanded jurisdictional reach. This expansion of activity reflected a fundamental shift from the regulated affairs of the state to the expansion of global governance mechanisms known to operate from the north to the south, particularly in Africa and Latin America. These regions reflect the continuity of economic dependencies, and hence the need to manage political compliance with legal protections. The establishment of new ad hoc tribunals, international treaties, decrees and charters promoted the legal frameworks that made this possible. And the notion of the ‘individual to be protected’ joined with new international humanitarian and judicial mechanisms that provided the vocabulary for popularising these radically new and fundamentally transformative formations.Footnote ³⁴ Key to the development of these mechanisms was a deeply retributive justice system to punish the guilty, but with minimal restorative possibilities for the victims.

As we enter the second decade of this century, the plight of victims in post-violence conflict situations remains within the realm of retributive-justice approaches, such as criminal tribunals. International discourses about the victim began playing a critical role in establishing a profoundly astute justice discourse. But the formation of judicial mechanisms to protect victims was only part of the story. In shifting from development priorities to judicial measures, the popular definition of justice became narrower and far more restrictive and, with it, who counts as a ‘victim’ deserving of that justice.

Retributive and restorative justice in the world of tribunals

At both the Nuremberg and Tokyo tribunals, and the ad hoc tribunals for the former Yugoslavia and Rwanda, the interests of victims were to a large extent overlooked; their role was generally restricted to that of witnesses. However, as a result of the shift of the new governance architecture there has been a growing movement, supported by a range of non-governmental organisations as well as some states, to recognise the role of international justice in providing not only retributive justice but also restorative justice, by permitting victims to participate in proceedings and receive reparations for the harm they have suffered.

In 1985, the UN General Assembly first adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (the Victims’ Declaration), which revolutionised the ordinary usage of the term ‘victim’. This declaration has been the ‘cornerstone’ of legal rights for victims under international law. It established victims’ rights in the criminal justice process, including the right to access justice, to be treated with basic respect and dignity, to protection and assistance and to reparation. The restorative dimension came further into play in 1991, when a compensation system for victims of a war was created. And in the aftermath of the Gulf War, the Security Council set up a commission to deal with the requests originated by the occupation of Kuwait and to decide on the compensation.

The Victims’ Declaration, alongside these developments, laid the foundation for the negotiations on how victim was to be defined in the ICC texts during the Preparatory Committee discussions, leading to the signing of the Rome Statute in 1998. Interestingly, after extensive debates on whether or not legal entities could also be included in the definition of the term ‘victim’, a compromise was reached in the Rules of Procedure and Evidence, which establishes that victims may include organisations or institutions.Footnote ³⁵ Despite this, the definition popularised by the ICC represents the consolidation of the notions of victims, justice and law.

After this period, international criminal law heralded a discourse driven by the Rome Statute’s preambular conviction that ‘all peoples are united by common bonds’ that could be shattered at any time through violence, and that millions of children, women and men have been ‘victims of unimaginable atrocities that deeply shock the conscience of humanity’.Footnote ³⁶ During the negotiations on the Statute, emphasis was placed on ensuring that the core values of the Court – to promote greater peace and security through accountability for crimes, as well as the rights and the dignity of the victims – were to be respected.Footnote ³⁷ This issue was crucial, given the clear recognition by states that the ICC should not only be retributive, but also restorative.

In keeping with the rule of law momentum, the Rome Statute provides for the possibility of granting reparations to victims. In the negotiations that led to the formation of the Rome Statute for the ICC, two principal institutions were conceptualised: the International Criminal Court and the Trust Fund for Victims (TFV). The TFV was established in September 2002 by the Assembly of States Parties and complements the reparations functions of the Court. Its mission involves providing the advocacy and mechanisms for mobilising physical, material or psychological resources for individuals victimised by violence. It is administered by the registry but is independent from the ICC and is supervised by a board of directors. Articles 75 and 79 of the Rome Statute lay the foundation for this restorative, victim-centred element.Footnote ³⁸

The Trust Fund, funded through Court-ordered forfeitures and fines as well as voluntary contributions by states parties, has a two-pronged mandate. The first aspect of the mandate is the provision of general assistance to victims or communities of victims in ICC-situation countries. The second aspect involves the management and implementation of reparations to victims. Furthermore, in a novel phenomenon in international criminal proceedings, Article 68 (3) of the Rome Statute grants that victims of crimes under the jurisdiction of the Court may also make their views and concerns heard during a trial. Accordingly, the Office of Public Counsel for Victims was established in 2005. Since its inception, the office had, as of July 2010, represented approximately 2,000 victims and submitted approximately 300 submissions in the various proceedings before the Court. The office has also assisted 30 external legal representatives in all situations and cases, and provided close to 600 legal advisors to them.

The Victims’ Rights Working Group was also created in 1997 under the auspices of the NGO Coalition for the International Criminal Court in order to work with various victims’ representatives to help them participate in the proceedings or to inform them of judicial developments as they relate to their case. The Victims Participation and Reparations Section (VPRS) of the ICC’s Registry conducts regular assessments and evaluations of its work, and sees itself as committed to a reflective learning process as its staff implement the Court’s mandate in situation countries. The mission is communicated in a prevailing discourse of defending victims and ending impunity through the rule of law. The centrality of victims at the centre of the Trust Fund’s work is enabled through the mobilisation of ICC judicial proceedings. It is an example of the way that the law is actually a by-product of a changing world of neoliberal governance and the resulting forms of executive governance in the Global South, and Africa in particular.

Despite the initial revolutionary presumptions about the formation of the Trust Fund, various stakeholders on the ground have been rigorously debating whether international criminal trials should be subordinated to other justice-producing mechanisms available on the African continent. The arguments are broad, and concern the viability of the ICC and its ability to achieve justice, especially if driven by retributive motivations. The reality is that, in addition to the essentially punitive institution of the ICC, the drafters of the Rome Statute and a significant civil society lobby sought to include elements of restorative justice, focused on social repair and reconciliation.Footnote ³⁹ Yet various victims of violence, once enthusiastic about ICC adjudication, are now ambivalent about the work of the Court and its ability to achieve the type of justice that victims imagine.Footnote ⁴⁰ Two of the larger questions are how to define those on whose behalf the Court works, and has the Court been able to deliver on the many expectations of justice for victims?Footnote ⁴¹

As a discourse, the provision of victim inclusion as a key component of international trials has become one of the key organising principles underlying the definition for international criminal justice. Though much has been achieved, the limitations and tensions of the system in practice have also become apparent. Allowing for the participation of victims of extreme forms of physical, sexual and psychological violence through the structure of the proceedings in the trials and for reparations through the Trust Fund were heralded as significant achievements, yet victims’ applications to participate in a trial have at times been so voluminous that the VPRS data-management and registration systems have struggled to cope with these realities. And though the Court’s promise has been articulated in the name of victims, the reality is that many victims complain of the lack of proportionality between its institutional force and its ability to produce substantive and tangible reparative justice for those in need.

ICC judge Christine van den Wyngaert has described the lengthy and cumbersome process of victim registration at the ICC.Footnote ⁴² She concluded that the ‘number of victims is becoming overwhelming … The Court may soon reach the point where this individual case-by-case approach becomes unsustainable. It may well have to consider replacing individual applications with collective applications.’Footnote ⁴³ ICC Judges have, since the start of trials, been grappling with a way to balance considerations of restorative justice for victims with expeditious and fair retributive justice. Indeed, a ruling by the judges of Trial Chamber V has led to the overhauling of victims’ participation and representation in the case against Uhuru Kenyatta, and is an example of the need for rethinking the Court’s restorative mandate.Footnote ⁴⁴

The very nature of the retributively driven judicial proceedings may at times deliver undesirable or incomprehensible results where victims are concerned. Due to a re-characterisation of charges, or a change in the temporal scope of cases, it is possible that from one day to the next, victims may find themselves ineligible for participation or even reparations. Despite this, ICC organs working with victims or the legal representatives of victims must deal with the challenges of communicating changing judicial decisions over who is selected as ‘victim’ and/or whose changing status has caused new forms of exclusion.

These competing demands continue to highlight the challenges as they relate to maintaining the equilibrium between the restorative mandate and the retributive, criminal justice mandate of the ICC. In this light, the following section demonstrates how, in Kenya, the DRC and CAR, the basis for justice for victims has remained in the judicial realm. Sara Kendall and Sarah Nouwen have called this juridified victimhood, in which justice exists with legality at its core.Footnote ⁴⁵ The chapter concludes by demonstrating how retributive justice has come to form the contemporary answer to various sites in which violence against individual victims came to be understood as the basis for defining victimhood. Through that definition, a new form of international judicialisation has been developed to build institutions dedicated to ensuring the protection of victims. However, this individualised focus has left mundane forms of structural suffering unattended.

The delimited space of victimhood

A front-line worker uttered the above words as he reflected on Sierra Leone’s post-violence plight and anticipated the challenges of Kenya’s post-election violence victims. Shortly after he shared his reflections, Kenya became an ICC situation country in 2012. Kenya is by far one of the most polarised countries as far as ICC activity is concerned. Today the cases are beset with controversies and complexities in which a portion of the population seems opposed to the Court’s engagement, while the other part supports it.

According to the Kenyan Truth, Justice and Reconciliation Commission, the 2007 presidential elections were ‘conducted in a volatile environment in which violence had been normalized and ethnic relations had become poisoned’.Footnote ⁴⁶ The groundwork had been laid for the eruption of violence such as delayed election results, reports of electoral vote rigging and ethnic incitements which ultimately led to a two-month period of violence, leaving more than one thousand dead, hundreds of thousands displaced, and large amounts of property destroyed.

Both the Party of National Unity led by sitting president Mwai Kibaki and the Orange Democratic Movement led by Raila Odinga claimed victory.Footnote ⁴⁷ Violence was seen in all but two regions of Kenya, with a heavy concentration in pro-Odinga areas, the slums of Nairobi, the Rift Valley (Eldoret), Nyanza (Kisumu) and the Coast Province (Mombasa).Footnote ⁴⁸ Patterns of violence included rioting, excessive use of force by members of the police and the security forces, the burning and looting of property, sexual violence and (ethnically motivated) murder.Footnote ⁴⁹ In November 2009, the ICC prosecutor requested authorisation from Pre-Trial Chamber II to open an investigation, submitting that there were reasonable grounds to believe that crimes against humanity had been committed, ‘in particular crimes of murder, rape and other forms of sexual violence, deportation or forcible transfer of population and other inhumane acts’.Footnote ⁵⁰ The Pre-Trial Chamber granted the prosecutor’s request to open an investigation on 31 March 2010.

In the Kenyan situation, at the time of writing, 233 victims had been authorised to participate in the case against Uhuru Kenyatta, which has since been dropped, with a further 327 included in the Ruto and Sang case.Footnote ⁵¹ Common legal representatives Fergal Gaynor and William Nderitu represented these groups of victims, respectively. The Kenya situation raises compelling questions with regard to victim participation and levels of support for the ICC. Reports of witness and victim intimidation in Kenya abound. On 5 June 2013, a letter began circulating in which ninety-three victims sought to withdraw from the ICC process, claiming they had lost faith in it, that they were no longer convinced that it would be beneficial to their interests and that they could not identify with the manner their interests had been represented in Court.Footnote ⁵²

When we interviewed one of the human rights workers for victims in Kenya we asked her if she thought that the ICC had done a good job with victims. She responded,

The above comment points to the ongoing decline of enthusiasm over the ICC process. Not only has the narrowing of the indictments led to the dropping of those eligible to be ‘case victims’, but the Trust Fund has yet to begin to implement projects in Kenya under its general assistance mandate. This has caused controversy and disappointment among victims and non-victims alike who are concerned with the absence of an ICC presence in the delivery of what they see as justice.

Juridified victimhood, juridification of justice – concluding thoughts

Over the past five years we have seen a spectacular growth of justice-related research, advocacy and funding to address the enormous gaps between the needs of post-violence victims and the provisions to meet them. Understanding how a domain of retributive justice meets the judicial and psycho-social-political and economic needs and expectations of various groups of victims is part of the challenge.Footnote ⁸³ Much of the scholarship on transitional justice – as a pragmatic and scholarly mechanism to deal with political transitions for societies needing to address past human rights abuses – has focused on the importance of implementing particular measures for addressing such abuses. These have ranged from criminal prosecutions to reparations programs, truth commissions and various kinds of institutional reforms concerned with democratic governance and rebuilding social trust, which are seen as necessary for repairing the social fabric of post-war-torn society.Footnote ⁸⁴

This literature has long been dominated by perceived dichotomies, such as that of peace versus justice, or retributive justice versus restorative justice. The debate, however, is now shifting towards an acceptance that it is not useful to ascribe either/or dichotomies to a rich, complex and, at times, seemingly contradictory reality.Footnote ⁸⁵ Recent scholarship has instead sought to make the case that retribution and restoration are not mutually exclusive.Footnote ⁸⁶ International courts and tribunals are not necessarily incapable of meeting the needs of victims, though there can at times be a vast difference between what victims need, expect or feel they are entitled to, and what the rigid framework of litigation can offer.Footnote ⁸⁷ Recent scholarship has also suggested that it may not be the outcome of a particular judicial intervention that matters, be it punishment for the perpetrator or reparations for the victims, but rather the process and structures of power that determine what acts constitute victimhood, and how to reconcile the challenges around how victims are included and excluded. How are their views represented?Footnote ⁸⁸ How are their needs met, and on what terms, based on what principles?

Today, a growing number of scholars have begun re-conceptualising the terms of justice through a broadening of the terms of victimhood by which justice may be innovatively articulated.Footnote ⁸⁹ Some have pointed to ways in which the ICC could actually include more tangible restorative-justice approaches, while others have shown that South Africa’s Truth and Reconciliation Commission, though often seen as a model of restorative justice, included elements of retributive justice as well.Footnote ⁹⁰ Such examples highlight the reality that the juridification of justice in the defence of victims is only one of many starting points for making sense of the contemporary order.

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.

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.

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.

Introduction

There is an enduring tension in the distribution of international criminal reparations. On the one hand, awards for reparations are at heart a form of recognition that entails including certain people and excluding others. On the other hand, this is very hard to do in contexts of mass atrocity with a system limited to individual criminal responsibility. With its reparations award in The Prosecutor v. Thomas Lubanga Dyilo (Lubanga), Trial Chamber I of the International Criminal Court (ICC) acknowledged this tightrope and attempted to walk it through principles of flexibility and inclusivity.Footnote ¹ These principles alone, however, are not sufficient, as was underlined by the Appeals Chamber’s judgment of March 2015.Footnote ² The provision of international criminal reparations is an inherently political act through which the ICC will necessarily become a player in local power relations. In this chapter, I seek to unpack one key dimension of these relations – the ‘politics of recognition’ – and offer strategies to navigate them.

Unlike the politics of distribution, which entail struggles over the allocation of goods, recognition entails interpreting, representing and rendering visible (and invisible) categories of people.Footnote ³ Reparations involve both, which makes them an authoritative form of recognition in international criminal justice, and an especially political process. My argument in this chapter is as follows: compared to assistance or development or humanitarian aid, reparations are particularly marked by the politics of recognition, which manifest themselves on the ground in affected communities in at least two ways. One was partly acknowledged in the Trial Chamber’s reparations decision: the risk of subjecting already vulnerable groups to forms of interpretation that are foreign or even hostile. This is particularly dangerous for reparations to victims of grave crimes, for whom the stigma attached to a crime can be as harmful as the original act itself, or even more harmful.Footnote ⁴ Second, there is a risk that the reparations process will be captured by elites and subsumed to local power struggles as communities contest the right to legitimately claim particular identities and characterisations of the conflict. While the way an award is designed can help ameliorate these tensions, I focus here on the importance of project implementation and the process through which an award’s ultimate beneficiaries are targeted. The targeting process, I argue, is integral to how victims and affected communities experience the reparations process and therefore deserves careful consideration by the ICC.

To illustrate, this chapter draws on experiences from some of international criminal justice’s neighbouring fields – development, assistance and reconstruction – and on personal research conducted in the Ituri region of the eastern Democratic Republic of the Congo (DRC), where the Lubanga reparations will be distributed. This research suggests that the politics of recognition demands more than combining individual and collective reparations, as the Trial Chamber proposed, and more than field-based expertise, which it believes will enable the ICC’s Trust Fund for Victims (Trust Fund or TFV) to successfully manage the process.Footnote ⁵ Rather, these politics demand one or both of the following: (1) a participatory approach to defining the criteria by which reparations will be distributed and identifying those who will benefit – what practitioners call ‘targeting’; and/or (2) close involvement by the Trial Chamber throughout the targeting process.Footnote ⁶ The Appeals Chamber’s judgment, which scaled back several of the Trial Chamber’s attempts at flexibility and inclusivity, underscores the importance of such strategies,

Targeting is among the most powerful mechanisms through which the individuals and communities to whom goods are distributed (and not distributed) experience the meaning attached to them. This is particularly important for reparations because they are at heart a symbolic good. Targeting should therefore not be relegated to a seemingly apolitical, technical phase of project ‘implementation’. Yet, by relinquishing to the Trust Fund its authority over these details, Trial Chamber I (as well as subsequent chambers) risks diminishing the potential significance of reparations and increasing the risk that the process may be captured by local politics. This not only risks causing further injury to communities and individuals harmed by grave crimes, but it also risks compromising the ICC’s legitimacy. At the same time, I propose, the politics of recognition can also be leveraged to repair grave harms, a claim to which I return in the chapter’s conclusion.

This argument is divided into five sections. The first explains why the politics of recognition matters for reparations in general, and for international criminal reparations in particular. The second briefly reviews the Ituri conflict and the Trial and Appeals Chambers’ reparations decisions in Lubanga, including their approach to targeting and the potential role given to the TFV. The third section draws on the experiences of international criminal justice’s neighbouring fields – development, assistance and reconstruction – to reflect on the risks that reparations pose to vulnerable groups and communities if targeting is not handled carefully. In the fourth section I use my personal research in the DRC to analyse what these risks could mean for Ituri specifically. The fifth and concluding section proposes a potential resolution, drawing on promising work in the area of community-driven reconstruction and arguing for a targeting process that is closely linked to the judicial process.

My research in Ituri involved several trips to the region, the last of which spanned eight months in 2013.Footnote ⁷ This was a significant time for Ituri, ten years after Luis Moreno-Ocampo first announced his interest in the region and his intention to begin investigations there.Footnote ⁸ My arrival followed Lubanga’s guilty verdict and the subsequent reparations decision; the acquittal of one of his alleged enemies, Mathew Ngudjolo; and the arrest and transfer to The Hague of Lubanga’s alleged partner in Ituri, Bosco Ntaganda.Footnote ⁹ In collaboration with the Ituri-based NGO, Réseau Haki na Amani, we interviewed a broad selection of Ituri’s traditional leadership, including village and regional chiefs (chefs des villages, chefs des collectivités); ‘notables’, who are considered representatives of the different ethnic groups; and leaders from civil society groups, including the directors of non-governmental peace, justice and development organisations. In total, we spoke to 182 individuals in fifty-five interviews across three of Ituri’s five territories: Djugu (where the capital Bunia is located), Irumu and Mahagi. These interviews involved the two main ethnic groups in Ituri – the Hema and Lendu – as well as the Bira, Alur and others.Footnote ¹⁰ We also conducted a randomised, representative survey of Djugu and Irumu on attitudes about possibilities for truth and reconciliation in Ituri.

My observations in this chapter draw mostly on our qualitative data. While these data are not representative of all Iturians, they serve to illustrate and elaborate on Ituri’s contemporary political climate. Finally, this chapter also draws on policy reports, case studies and evaluations from international organisations and agencies. These are useful to illustrate the practical challenges to implementing reparations, particularly around issues of targeting and the stigmatisation of victims.

Reparations and the politics of recognition

According to the ICC’s registrar, ‘victims have indicated they want to be recognized’.Footnote ¹¹ To that end, I seek to unpack the discretion, idiosyncrasies, assumptions, politics and power dynamics that make certain forms of victimisation recognisable and others less so. These issues are not unique to reparations. Development initiatives, humanitarian assistance and reconstruction projects all entail particular methods of targeting through which they define, measure and act upon the world, often obscuring the politics behind them.Footnote ¹² Simply analogising ICC reparations to the politics of development assistance and humanitarian aid, however, misses what is ‘legal’ about the Court and Court-ordered reparations. Where the politics of development, assistance and reconstruction might tend more towards struggles over distribution, Court-ordered reparations distinguish themselves through the very act of recognition – a ‘technology of truth’ through which the truth is identified, measured, represented and, ultimately, objectified.Footnote ¹³ This makes ICC reparations political not in the sense of interest groups politics, but through their introduction of such a technology into the social relations and power struggles of the places where the Court intervenes – in other words, into the politics of recognition.

For the ICC, whose Trust Fund is already distributing goods to victims in Ituri under the label of ‘assistance’, distinguishing reparations from assistance is particularly important. This section analyses the similarities between reparations and development and reflects on how international criminal reparations are entangled in such politics.

The Ituri war and The Prosecutor v. Thomas Lubanga Dyilo

In its reparations decision, the Trial Chamber embraced reparations as a path to include those who were not recognised during the trial process, due to the idiosyncrasies of the OTP’s case strategy and/or the limits of international criminal law. The chamber’s proposed solutions call for flexibility and a combination of collective and individual awards. These are a good start, but more is needed to realise the Court’s restorative potential. Measures of inclusivity can still rely on top-down targeting strategies and can still ignore, rather than manage, the politics of recognition. The Appeals Chamber’s judgment also scaled back several of the Trial Chamber’s attempts at inclusivity, underscoring that reparations cannot necessarily be used to fill in the gaps left by the trial process. Rather, a more participatory approach to targeting and/or closer involvement by the chamber will help.

The recognition of vulnerable groups

There is much that the ICC can learn about the politics of recognition, both from the experiences of neighbouring fields and from first-hand research in the contexts where Court-ordered reparations will be distributed. The next two sections draw on these to unpack two key dimensions of these politics: the subjection of vulnerable populations to forms of recognition that are foreign or hostile and local power struggles over claims to certain forms of identity and characterisations of violence.

To the first point, the Trial Chamber in Lubanga recognised the risk of stigma and discrimination for vulnerable groups. Such risk is well established in academic and policy literature on two groups to whom the ICC will likely be distributing reparations, if not in Lubanga then likely in other trials: child soldiers, or children associated with armed forces, and victims of sexual and/or gender-based violence (SGBV). But the risk of discrimination also runs deeper. Here, I draw on case studies from a variety of countries and contexts to show that while the ‘best practices’ and ‘lessons learned’ around stigma are important, they do not necessarily capture the political nature of representation that underlies stigmatisation. What is at stake in the recognition of certain forms of victimisation is the right to legitimately name and objectify particular categories of identity. For those who belong to the more vulnerable of these groups, sometimes not recognising them, or letting them define the terms of their recognition, is best.

Whose war? Representations of war in Ituri

The second dimension of the politics of recognition that will influence the provision of reparations is the identity and power struggles rooted in how conflicts, and their victims, are socially represented. Iturian politics are complicated.Footnote ⁵⁵ I do not attempt to exhaustively review these struggles here, but rather seek to present two examples that illustrate the complex political terrain on which the ICC’s reparations process will play out. First, the OTP has focused not only on a limited time frame and set of crimes, but also on a limited number of locations, which has in turn encouraged inter-village competition over ‘legitimate’ claims to victimisation. Second, the prosecutor’s characterisation of the conflict as an essentially ethnic war has excluded other explanations, inspiring local leaders on both sides to reject the ICC’s framing.

At the outset, some general context is warranted. Even though Ituri is considered among the more pacified regions of north-eastern DRC, especially when compared to the Kivus to the south, it is still very much marked by lingering tensions.Footnote ⁵⁶ In interviews, leaders referred often to the district as a ‘ticking time-bomb’, repeatedly returning to the same issues: severe poverty and hunger, entrenched land conflict, ethnic mistrust, rumours and political manipulation, conflicts over natural resources, thousands of hidden weapons and tens of thousands of former young combatants who are now in their twenties with no education and bleak job prospects. ‘The war is not over!’ was a common refrain across our interviews. To many observers, peace is only held together by Ituri’s patchwork of NGOs, UN agencies, and the United Nations’ peacekeeping mission in the Congo, known as MONUSCO.Footnote ⁵⁷

Furthermore, while scholars have now studied the Ituri war and recorded its history, Iturians themselves remain relatively unaware about the war’s events and origins.Footnote ⁵⁸ People know it began with historic grievances over land between the Hema and Lendu in Djugu territory, for example, but they cannot explain how these grievances turned into years of bloodshed that pitted neighbour against neighbour. Many suspect the conflict was partly due to outside manipulation. Many also suspect that at least some of their neighbours benefitted from the war. The schools in Ituri, however, do not teach this history, relying on a curriculum designed in Kinshasa that teaches children about the independence leader Patrice Lumumba, but not their own war.Footnote ⁵⁹ Instead, we were told, children learn ethnic hatred from their parents. Aside from a few small NGOs, Ituri lacks the sort of public space that is needed to engage in dialogue about this history. This gap is filled by rumours, suspicion and lies.

Many community leaders thus felt the region needed its own small-scale truth and reconciliation process – something more locally run than the DRC’s failed 2003 attempt at a national Truth and Reconciliation Commission following the Inter-Congolese Dialogue.Footnote ⁶⁰ Unlike the international community, which overwhelmingly expressed scepticism and fear over Ituri’s ‘internal time bomb’, these leaders generally felt that public dialogue about the war could help. Our survey data from Irumu and Djugu indicate the general population feels similarly. Over 80 per cent of local respondents said it was either ‘important’ or ‘very important’ that the history of the war be made public. An equal number responded that if there were an opportunity to speak publicly about the war, they would share their story.Footnote ⁶¹ These data inform my analysis of the quotes shared below. In sharing them, I suggest that Iturians generally want recognition for their suffering, but not necessarily according to the categories that have informed the ICC’s judicial proceedings and, it follows, reparations. Here, though, categories refer not to vulnerable people – for whom, as noted, recognition can bring harm – but to geographies, for example, via community leaders from towns devastated by the war where the OTP has paid relatively little attention.

Conclusion: unlocking restorative justice in international criminal law

Reparations are a potentially restorative tool of transitional justice, but the restricted framing imposed by a system of individual criminal responsibility harbours a fundamental tension. In my view, though, the ICC’s reparations regime still offers restorative potential. As a first and crucial step, the Court has acknowledged some of the resulting gaps and indicated that reparations and assistance could be used to bridge them, although not as easily as the Trial Chamber originally envisaged. The OTP’s plan to begin realising more expansive investigations, notwithstanding its perennial resource and time limitations, could indicate similar acknowledgement.Footnote ⁷¹ Indeed, the Ituri trials were particularly limited in scope – Lubanga in terms of the charges and Katanga and Ngudjolo in terms of their geography.

Second, notwithstanding the Appeals Chamber’s judgment, the Trial Chamber in Lubanga at least recognised the importance of inclusion, embracing the idea of collective reparations and an expanded class of beneficiaries, in addition to the category of victims. Such inclusive measures could do much to ameliorate the distributive tensions that any reparations reward will cause. At the same time, the Appeals Chamber’s judgment suggests that attempts at inclusivity will always be limited, and that the distinction between reparations and ‘assistance’ could be increasingly eroded, especially in the absence of sustained involvement by the ICC itself.

The Court, then, should play a sustained role in the reparations process, from the reparations decision to the targeting of awards. Those on the receiving end of the ICC’s technologies of truth, particularly its reparations regime, will not simply accept reparations at face value but will challenge, adapt and incorporate them. This gives the ICC significant potential to play a restorative role in these processes, but it must embrace this potential. It can do so through two ways in particular: first, the Court could adopt a participatory and consultative approach to the entire reparations process, drawing on the experience of community-driven reconstruction; second, the chambers could play a more active role in beneficiary identification and verification, helping to guide the meaning that recipients and their communities will attach to reparations.

International criminal reparations can look to the experience of community-driven development and reconstruction – particularly in lessons drawn from working with CAAF and SGBV victims – which utilise participatory approaches to targeting by incorporating local definitions of need and deprivation into programme design.Footnote ⁷² Proponents cite a number of potential advantages to this approach: lower costs, more community accountability, better information about and adaptation to realities on the ground, harnessing and strengthening of social capital as a positive external effect, more programme legitimacy and the empowerment of disadvantaged groups. Community-driven reconstruction thus holds particular promise. These projects ‘support the democratic selection of local community councils, including measures on the representation of women, youth or other disadvantaged groups’, and then provide them with grants to implement local priorities.Footnote ⁷³ Indeed, communities receiving this type of support have reported less social tension and greater acceptance of vulnerable groups as a result.Footnote ⁷⁴ Moreover, marginalised groups, including women and CAAF, have been found to be better informed, more actively involved in reconstruction activities and more likely to trust their community representatives when compared to control communities.Footnote ⁷⁵

Such projects, however, demand specific forms of expertise that neither the ICC nor the TFV is likely to have. The experts that Trial Chamber I discussed in the Lubanga reparations decision could thus include those who do possess such experience.Footnote ⁷⁶ Indeed, ‘community-based’ or ‘community-driven’ approaches entail significant risks. In one such example from South Sudan, for instance, ‘relief committees and other community representatives put on a show for [the donor] which gave the appearance of targeting. In reality, “targeted” women were chosen to carry food to a site where it was then redistributed by local chiefs.’Footnote ⁷⁷ Close monitoring and oversight by organisations with specific experience in this area are essential to avoid such scenarios.

Regardless of whether the ICC utilises such an approach, trial chambers should involve themselves more closely in overseeing the entire reparations process. This chapter has argued that much of the meaning attached to a reparations award will be communicated through its targeting strategy. In practice, the dichotomy between ‘design’ and ‘implementation’ is thus false; rather, the former depends upon the latter.Footnote ⁷⁸ In an ideal world, Trial Chamber I, or even a separately constituted reparations chamber, could hold hearings to oversee this ‘implementation’ phase, which will be fundamental to the very design of the award itself.

Whether or not such hearings are feasible, the chamber should stay involved to provide an authoritative forum through which Iturians can engage in debate over the categories and representations that make reparations symbolically powerful. Without the involvement of the ICC in such a role, the danger is that either the politics of recognition will overwhelm the reparations process or the process itself will become little more than long-delayed assistance, stripped of the meaning that makes reparations powerful beyond their material value.Footnote ⁷⁹

Ultimately, international criminal law can transform social relations and identities through official designations of ‘truth’. Through reparations, categories of crime and victimisation in the courtroom become social categories of people on the ground. This is part of what makes them symbolically powerful. But it also entails great risk. For vulnerable groups, the need for reparative justice can stem more from the social exclusion resulting from crimes than from the crimes themselves. In post-conflict settings like Ituri, the truths determined in a courtroom in The Hague, manifested through reparations, can interact with existing power relations in ways that antagonise social cohesion and promote competition.

Given these complexities, some might argue that international criminal reparations should perhaps be left entirely to non-legal agencies, with more relevant resources and experience. Indeed, scholars have warned that ‘many involved with international justice have lost sight of its goals in favour of developing and maintaining an international system of criminal law over and above what might be the needs and desires of the victims of abuse’.Footnote ⁸⁰ In my view, relegating reparations to an entirely non-legal body also sells the ICC short and overlooks the fact that it is already involved in the distribution of recognition, which is rooted in its power to issue definitions of crime, responsibility and victimisation. Reparations are one form of this power, and the targeting strategies used to distribute them are its manifestation on the ground. By focusing on these strategies, and carefully managing them, the Court can more fully embrace its restorative potential.

Introduction

International criminal law has been historically concerned with individual accountability, informed by a punitive conception of justice designed to hold perpetrators accountable for crimes. As a sub-field within the broader discipline of public international law, with its focus on the agency of states, international criminal law’s emphasis on the individual has been interpreted as indexing a shift from a paradigm of state sovereignty to human security, in terms of both accountability (of perpetrators) and rights (of victims).Footnote ¹ This shift has been furthered by an emerging recognition of the figure of the victim, with links to the broader conflict-affected communities to which individual victims belong. In the case of the permanent International Criminal Court (ICC), the moral call to alleviate suffering is translated into participatory rights for individual victims before the Court, as well as the mandate of its affiliated Trust Fund for Victims to provide medical and livelihood assistance to conflict-affected communities. As an ICC guidebook explains, ‘victims at the ICC enjoy rights that have never before been incorporated in the mandate of an international criminal court’.Footnote ²

Yet the Court’s claim to alleviate suffering brings its work into a relationship with other humanitarian discourses and practices outside of international law. How might this inclusion of relief to conflict-affected communities be related to shifts in governance and development beyond the juridical field, as with development aid and the provision of medical assistance? Can a body of law that has been traditionally oriented towards accountability through punishment – ‘ending impunity’ – be recast as a site of restorative justice, and with what expressive and material effects?

This chapter locates the restorative work of the ICC against the backdrop of humanitarianism: the transformation of moral sentiment into material practices that seek to reduce suffering.Footnote ³ Such a reading draws upon critiques of humanitarianism from beyond the legal field, including anthropology, history and political theory, which seek to diagnose its theoretical and material effects. International criminal law’s restorative turn harbours common sentiments that link it to broader forms of humanitarian government, which anthropologist Didier Fassin defines as ‘the set of procedures established and actions conducted in order to manage, regulate, and support the existence of human beings’.Footnote ⁴ The ICC’s practices of victim participation and aid provision operate as forms of what can be termed ‘legal humanitarianism’, which seeks to alleviate conflict-affected suffering and assert rights claims through international criminal law. Legal humanitarianism routes its governance objectives through humanitarian logics, yet it is limited by the framework of law, which provides jurisdictional constraints that other humanitarian forms do not encounter to the same degree.

The chapter seeks to illustrate the limits of routing restorative justice practices through a historically punitive legal field. These limits – and the injustices they produce – are not necessarily a product of the ICC as an institution, but are rather a by-product of trying to bend a retributive field to suit restorative aims. Asking a field oriented around judgment and punishment to provide recognition and redress to conflict-affected communities leads to a form of justice that might be better described as liminal rather than transitional, unintentionally producing exclusions, deferrals and marginalisations that have been largely neglected in the literature on the ICC’s restorative mandate. In this sense legal humanitarianism operates as a form of governance, mobilising ICC states parties and in-country donor states, non-governmental and community-based organisations and the Court itself in projects of classifying and categorising conflict-affected populations through legal logics.

The chapter first takes up the contested figure of the human in international law, which carries resonances in contemporary legal humanitarianism. It then locates international criminal law’s ‘restorative turn’ in relation to the broader rise of human rights discourse towards the end of the twentieth century. Reading legal humanitarianism in relation to other critiques of humanitarian practice, the following section brings international criminal law’s restorative turn into dialogue with historical and anthropological literature. Moving from a theoretical consideration of legal humanitarianism, the two sections that follow draw upon empirical material, both from official ICC literature and from observations of Court practice, to consider the Court’s victim participation regime and the ICC Trust Fund’s assistance mandate. The chapter concludes by considering the implications of reading international criminal law’s restorative turn as a novel form of post-conflict governance, and what the risks and limitations may be of routing restorative justice through a retributive legal frame.

Between triumph and scepticism

Despite more than half a century separating them from our ‘humanitarian present’,Footnote ⁵ two claims mark competing poles in contemporary debates about the role of international law in securing the figure of the human. On one side of the spectrum, the Nuremberg Military Tribunal declared that ‘[h]umanity can assert itself by law’, already suggesting the foundational role that will be ascribed to post-World War II trials by contemporary proponents of international criminal tribunals.Footnote ⁶ Here the tribunal conflates its own agency in prosecuting those suspected of international crimes with another actor, ‘humanity’, which can now ‘assert itself by law’ and enforce its own (inherent) human rights. On the other side, Hannah Arendt’s well-known account of the vulnerability of refugees and stateless people continues to inform sceptics who question the viability of human rights claims in a world where rights are still largely civil and political creatures, existing between a state and its citizens rather than inherent to humanity itself.Footnote ⁷

Half a century later, scholarship on international criminal law and human rights continues to inhabit a spectrum between these poles of triumph and scepticism, moving between a ‘utopian’ cosmopolitan vision of law and an ‘apologist’ deference to state sovereignty.Footnote ⁸ The main points of contention have remained more or less the same, focusing on the extent to which human rights can be protected at the international level through prosecuting international crimes. What has changed is a developing claim that different sub-fields of international law, such as human rights law and international humanitarian law, are growing closer together at a normative level and in legal practice.Footnote ⁹ This normative convergence is explained in different ways, though increasingly the ideal of ‘human security’ and related references to humanity or humanitarianism have appeared within the discourse of international criminal law.Footnote ¹⁰ In its landmark jurisdictional decision in Tadic, for example, the International Criminal Tribunal for the Former Yugoslavia (ICTY) claimed that the dichotomy between interstate and intrastate conflicts was being broken down in international law, and ‘the State-sovereignty-oriented approach … has been gradually supplanted by a human-being-oriented approach’.Footnote ¹¹ Distinctions between conflict and peacetime and between international and internal conflicts have been unsettled by an international criminal law jurisprudence that at times overtly references humanity both as its beneficiary and as its ground.

Expressions of humanitarian sentiment in the discourse of international criminal law have become commonplace. They are threaded throughout official ICC statements as well as in commentary from civil society organisations and diplomats who promote the ICC’s work. Even representatives from the United States, a state not party to the ICC, have linked humanitarianism with state security in expressing support for international criminal legal institutions.Footnote ¹² Others have pressed farther, contending that this traditionally retributive field works to alleviate the suffering of conflict-affected populations. A representative from a European state’s claim to the president of the ICC’s Assembly of States Parties offers a telling example of how criminal justice’s traditional concerns with accountability and deterrence have become bound up with the more abstract aims of human security and social repair:

This claim from a state representative reflects a common sentiment expressed by other states supporting what is referred to as the ICC’s ‘restorative mandate’.Footnote ¹⁴ In this account of the Court’s work, victims are ‘uplifted’ through a belief in the form of justice that the ICC dispenses, which is seen to be both reparative and deterrent. Court proponents frequently describe accountability, deterrence and reparation as forming a constellation of objectives that are thought to be attainable through the field of international criminal law.

In addition to linking the field to human and state security, tribunal observers and officials have claimed that international criminal law institutions can lessen the suffering brought about through mass conflict. The language of bearing witness has been supplemented with claims about ‘giving voice’, rehabilitating and repairing the harms done to victims of international crimes through criminal processes. These claims suggest that the field has turned towards restorative forms of justice to supplement its objectives of holding individual perpetrators of grave crimes to account.

International criminal law’s ‘restorative turn’

Understanding the contemporary interest in restorative justice and the figure of the victim in international criminal law entails placing it in the broader historical context of this retributive legal field. Proponents of what is now called international criminal law draw a line back to the post-World War II military tribunals constituted by the allied powers at Nuremberg and Tokyo.Footnote ¹⁵ The field of international criminal law expanded in the period following the Cold War, contributing to the ‘tribunalisation’ of conflict.Footnote ¹⁶ As critics have noted, however, privileging criminal accountability comes at the expense of alternate political values, such as inclusion and membership.Footnote ¹⁷ Negotiated political settlements would permit perpetrators to become part of a new regime, whereas the logic of international criminal law entails casting perpetrators as criminals and excluding them from the future formation of a polity. The field privileges punishment over reconciliation, producing what Sarah Nouwen and Wouter Werner have referred to as a kind of Schmittian distinction between ‘friends’ and ‘enemies’ of the ‘international community’.Footnote ¹⁸

It would seem that such a focus on the figure of the criminal in need of punishment cuts against more transitional objectives of reconciliation and repair, as accountability begins from a premise of isolating individuals and attributing blame rather than reconciling communities. In this sense the restorative turn, emerging through the Rome Statute negotiations of the mid-1990s, harbours more of a humanitarian objective than an alignment with the aims of transitional justice. As the reach of international criminal law has extended, the field has become increasingly bound up with humanitarian logics and a focus on the figure of the victim in need of care. In her contribution to this volume, anthropologist Kamari Clarke explains that the UN General Assembly’s 1985 ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ provided a foundation for Rome Statute negotiations concerning victims’ participatory and reparative rights at the ICC. When the Security Council invoked ‘the responsibility to protect’ in its resolution referring the Libyan conflict to the ICC, the growing relationship between humanitarian discourse and criminal accountability was made explicit.Footnote ¹⁹

As restorative aims become formalised, international criminal law is now regarded as a site of humanitarian practice as well as a means of accountability and deterrence. Recent scholarship has argued that different bodies of law have become more consolidated around a notion of ‘humanity’ as a legal subject – a subject that, in the words of the Nuremberg Military Tribunal, ‘is able to assert itself by law’. David Luban points out the plurality of meanings now attributed to the work of international criminal law:

The ICC has gone the farthest among hybrid and international courts and tribunals in institutionalising restorative objectives. It has adopted statutory provisions establishing participatory and reparatory rights for victims of international crimes, thus formalising the presence of humanitarian objectives in this retributive legal frame.Footnote ²¹

Court proponents invoke conflict-affected communities and what Kamari Clarke calls ‘the specter of the victim’ as normative justifications for their work.Footnote ²² ICC prosecutor Fatou Bensouda has claimed that ‘the sole raison d’être of the Court’s activities … is the victims and the justice they deserve’,Footnote ²³ suggesting that the telos of the ICC’s work is oriented towards restorative rather than retributive purposes. Meanwhile, the ICC’s president has stated that ‘the Rome Statute and the ICC bring retributive and restorative justice together with the prevention of future crimes’.Footnote ²⁴

Within international law there have been some efforts to account for a more sanguine reading of the rise of the figure of the human. For example, Ruti Teitel has argued that there is a legal conception of humanity at play in the overlapping spaces between the law of war, human rights law and international criminal law. Building upon the ICTY appellate chamber’s assertions in the Tadic decision, Teitel claims that ‘[t]he normative foundations of the international legal order have shifted from an emphasis on state security – that is, security as defined by borders, statehood, territory, and so on – to a focus on human security: the security of persons and peoples’.Footnote ²⁵ Elaborating upon what she terms a nascent ‘humanity law’, Teitel’s work offers an extended argument about the growing commonalities between these legal fields since World War II.Footnote ²⁶ The ICC features in this account as a vehicle through which international criminal law is brought into a closer relationship with conflict management, forging connections between punishment and international security.Footnote ²⁷ This account of the ICC does not take up other humanitarian aspects of its work, however, such as the role of victim participants and the Court’s Trust Fund, but instead claims a growing convergence between different bodies of law. Read through the ‘humanity law’ frame, victim redress amounts to holding individual perpetrators criminally accountable for human rights violations and violations of international humanitarian law. Punishment itself is seen as a form of redress.

In international criminal law more specifically, dominant interpretations of including restorative justice regard it as a progressive legal development – a shift to incorporating victims’ needs within a field that has historically relegated them to its margins. Much like progressive histories of the field itself, this interpretation presumes a kind of humanitarian teleology, where these practices are taken as signs that international criminal law is becoming more responsive to conflict-affected communities. In this account, victims have been traditionally excluded from international criminal trials, with the ICC offering something of a paradigm shift in the recognition of victims’ rights and the inclusion of restorative justice.Footnote ²⁸ As some observers have argued, the involvement of victims ‘not only is a “right” but also appears indispensable if post-conflict justice processes are to be restorative and capable of building the foundations for a strong transition through empowerment of those who were victimized during conflict’.Footnote ²⁹

Rather than reading the emergence of these practices as they relate to the field’s development, I contend that the ICC’s restorative dimension should be interpreted within a wider frame, in relation to the rise of humanitarian discourse across a range of different fields of knowledge and sites of engagement. The discourse of restorative justice before the ICC stretches beyond the framework of positive law. Claims about hearing the voices of victims, restoring lost dignity and reconciling populations in the wake of conflict through the vehicle of international criminal law exceed the terms available through the very law that supposedly sustains these objectives.

Restorative justice in the humanitarian continuum

The ICC’s framework of restorative justice can be related to what has been described above as ‘humanitarian government’Footnote ³⁰ and elsewhere as ‘humanitarian compassion’Footnote ³¹ that may be deployed through various ‘regimes of care’.Footnote ³² These terms have been used to refer to a diverse set of practices, including pardons from truth commissions and the provision of medical assistance to asylum seekers, but these disparate practices share underlying commonalities with the restorative turn in international criminal law. Adequately grasping the stakes of the restorative turn and its relation to humanitarianism thus requires taking up scholarship that has addressed its historical emergence and its manifestation in other fields, such as humanitarian assistance to conflict-affected populations and the provision of medical care to refugees. The restorative turn can be seen as another site where humanitarian sentiment assumes institutional and material forms. This wider optic helps to illustrate some of humanitarianism’s presumptions and unintended consequences, providing a way of viewing restorative justice in international law as part of a constellation of activities – what we might think of as a humanitarian continuum.Footnote ³³

Humanitarianism can be understood as the manifestation of compassionate or moralising sentiments as political forces that appear through practices, such as the provision of medical care to conflict-affected communities. These practices produce effects among populations that are perceived as vulnerable, whether due to their exposure to armed conflict, poverty or repressive governments. Humanitarian sentiments appear explicitly at the nexus of legal and policy discourse through doctrines authorising the use of armed force, such as ‘humanitarian intervention’ and the ‘responsibility to protect’, which permit military intervention where a state is seen to be manifestly failing to protect its population.Footnote ³⁴ These justifications for intervention are a more extreme consequence of routing humanitarian logics through international law, but legal humanitarianism also assumes more subtle forms, such as regimes of care directed at conflict-affected populations. At all points on the continuum, from military intervention to care provision, humanitarianism operates as a form of governance: evaluating, deciding and implementing its objectives, and producing divisions between selected and ‘untreated’ populations.

The historical rise of humanitarianism predates the post-Cold War expansion of international criminal law. Some accounts have located its emergence in the late eighteenth and early nineteenth centuries, when what was previously taken as private acts of compassion emerged into the public realm, animated by Enlightenment notions of progress and the idea that the human condition could be taken as an object of improvement.Footnote ³⁵ As Michael Barnett writes, ‘[w]hat distinguishes humanitarianism from previous acts of compassion is that it is organized and part of governance, connects the immanent to the transcendent, and is directed at those in other lands.’Footnote ³⁶

Humanitarianism is torn between the desire to universalise on the one hand and the attention to particular circumstance on the other. For example, reports of the ICC’s Trust Fund emphasise the importance of context in its work at the same time as they portray an abstract ‘African victim’. The reports proclaim a kind of emancipation through the Trust Fund’s regime of care – restoring dignity, acquiring knowledge about rights – while also requiring individuals to accept and submit themselves to the Trust Fund’s logic for targeting individuals and conflict-affected communities, as Peter Dixon’s contribution to this volume illustrates in greater detail.

While there is much emphasis on the emancipatory potential in Court discourse and in the language of its proponents, international criminal law’s restorative turn has hardly been considered as a form of governance in the scholarship of international criminal law. Most work on the inclusion of victims and conflict-affected communities in ICC jurisprudence and practice regard it as falling somewhere along a spectrum of efficacy, ranging from a welcome development for the field through extending victims’ rights on one end, to generating policy problems and fair trial rights concerns on the other.Footnote ³⁷ Understanding the ways in which it governs individual survivors of mass violence as well as the conflict-affected populations to which they belong calls for a broader contextual view, locating its rootedness in liberal forms.

Our humanitarian present is marked by a liberal form of humanitarianism that closely meshes with the discourse of human rights.Footnote ³⁸ Barnett argues that contemporary humanitarianism is a ‘liberal humanitarianism’ that began in the wake of the Cold War, characterised by efforts to protect vulnerable populations and to prevent conflict through extending democratic governance. The post-Cold War ascendance of international criminal law can then be located in relation to its contemporary form of liberal humanitarianism, both of which developed against the backdrop of a particular human rights discourse that emerged during the Cold War period.Footnote ³⁹ As Kamari Clarke’s contribution to this volume elaborates, the field expanded in conjunction with a liberal understanding of legality, accompanied by ‘rule of law’ and ‘good governance’ initiatives. International criminal law’s restorative turn sits within a broader field of humanitarian activity, with links to concrete practices of intervention, such as the ‘responsibility to protect’ and development agendas of donor states.

This broader humanitarian continuum has also been subject to critique. Alex de Waal’s work on the paradoxes of humanitarianism illustrates how ‘the impulse to ameliorate suffering leads humanitarian workers into the unwelcome situation of acting cruelly. While professional standards are increasing, thereby reducing suffering, some cruelties are intrinsic to the humanitarian predicament – hence the humanitarians’ tragedy.’Footnote ⁴⁰ De Waal elaborates that the ‘tragedy’ results from irreconcilable goals and the constraints brought by the conditions in which humanitarianism is carried out; cruelty is inevitably tied to decision-making in the face of suffering, where some lives will be saved and others will be lost. Sarah Nouwen picks up this point specifically in relation to the field of international criminal law when she argues that it also harbours a certain cruelty: it overstates its own ability to bring about an end to conflict; it operates according to logics of selection that belie its presumed political neutrality; and it necessarily privileges accountability over negotiated settlement, an aim that may itself beget further violence.Footnote ⁴¹

As the following sections illustrate, the gap between the rhetorical promise and material practice of international criminal law as a form of restorative justice produces new divisions: between court-recognised victims and general (unrecognised) victims of a conflict, and between beneficiaries of ICC ‘targeting’ and those whose suffering falls outside selected categories of assistance. By extension, such divisions may form the basis for new forms of grievance when they are mapped across conflict-affect communities.

Victim participation as legal humanitarianism

The most apparent forms of legal humanitarianism at the ICC appear in the Court’s efforts to engage with victims. Here the link between international criminal law and human rights law is made explicitly, as some commentators have claimed that the appearance of victims’ rights in the ICC statute shows a ‘complementarity between international criminal law and international human rights law’.Footnote ⁴² The restorative mandate of the ICC’s work, considered in the following section, provides another location for an emergent legal humanitarianism. Here recognition by and inclusion within the legal process is presented as a form of empowerment – indeed, as a right – as well as a humanitarian practice of alleviating suffering. As one ICC representative suggested publicly, victim participation can be regarded a form of reparation or redress.Footnote ⁴³

Yet the field of potential beneficiaries of the ICC’s restorative work is circumscribed from the moment the Court intervenes in a situation country. When the prosecutor determines what crimes to investigate and what arrest warrants to issue, there are effects at the level of jurisdictional criteria and evidentiary assessments. For the Court’s restorative mandate, or what some official ICC documents have termed ‘its mandate regarding victims’,Footnote ⁴⁴ this manifests as restrictions on who qualifies as a court-recognised victim for purposes of participation. This leads to a form of ‘juridified victimhood’ – namely, the use of legal criteria to determine an individual’s status as a victim.Footnote ⁴⁵ Victimhood in this sense becomes an identity that is regulated through jurisdictional standards, such as time and place and the subject matter of crimes. When charges are dropped, as was the case against Uhuru Kenyatta in the Kenyan situation, this has broader implications for victim participation: former ‘case victims’ are then regarded as ‘situation victims’, with fewer participatory rights. From the standpoint of conflict-affected communities, the use of legal categories to determine one’s qualification as a victim may seem arbitrary at best, and quite possibly as manifesting an institutional indifference to suffering.

Some critical scholarship has noted the shortcomings of the Court’s victim participation regime.Footnote ⁴⁶ Others have welcomed victim participation in principle, offering suggestions for greater inclusion.Footnote ⁴⁷ To be sure, there could be ways of modifying the ICC’s practices within its existing legal frameworks that may assist it in achieving greater recognition of those who have suffered the effects of the crimes it seeks to prosecute. However, what I contend here is that the Court’s very point of departure – its work within legal and jurisdictional categories – produces institutional limitations to the recognition that it might grant. The way in which victim participation is enacted in practice illustrates some of these shortcomings, which are not only matters of policy but also inherent to the juridical form.

Implementing the Rome Statute’s victim participation provisions has involved a considerable amount of reflexivity among actors, who have adjusted and re-adjusted their practices in relation to resource constraints and other challenges that they have faced sur le terrain. In order to be granted status as victim participants, conflict-affected individuals must first be informed of the possibility that they may seek recognition before the Court. This assumes a number of prior interventions: interaction with the Court’s outreach section, for example, as well as contact with members of the ICC’s Victim Participation and Reparations Section (VPRS) or their ‘intermediary’ partners.Footnote ⁴⁸ It is only through these channels that the conflict-affected individual will come into contact with the participation forms that will enable his or her claim to the participatory rights to be adjudicated before the Court. As the head of VPRS has noted, ‘[a] major challenge is how to inform victims about the ICC in general as well as about their own possible role as participants’, and ‘how to process potentially large numbers of application forms from victims’.Footnote ⁴⁹ Judges in the Kenyan situation instituted an alternative model for attaining recognition as a victim participant, which they claimed they made ‘for practical reasons’;Footnote ⁵⁰ however, as the majority of situations to date require the adjudication of individual victim participation forms, most individuals receive (or are denied) recognition by the ICC through the process described here.

Victim participation forms must be filled out in such a way that the individual is able to establish a nexus between the harms she or he has suffered and the charged crimes.Footnote ⁵¹ Forms work as ‘actants’ in the sense that they produce effects;Footnote ⁵² through the very act of filling in a form, conflict-affected individuals are brought into a state of waiting. The Court’s Rules of Procedure and Evidence requires that applications must be submitted to the prosecution and the defence before a judicial determination is made, and sometimes the relevant chamber can take years to provide applicants with a response. The VPRS section has publicly explained that ‘[v]arying types of application form and application process [sic] have been adopted by different Chambers. Responding to these is, in the short term, having an impact on the workload of the section as it involves designing different forms and processes and modifying the reporting system and database each time.’Footnote ⁵³ As one experienced commentator who worked extensively with VPRS has noted, ‘the application process has been long and cumbersome for all parties involved, including victims’.Footnote ⁵⁴ Backlogs are widely reported by Court staff, and are even noted in official Court documents.Footnote ⁵⁵ These backlogs can have chilling effects on the efforts by potential participants to exercise their participatory rights under the Rome Statute. For example, the inability to process and adjudicate forms before significant events on the judicial calendar has resulted in hundreds of individuals not receiving a determination from the Court before the confirmation of charges hearing in the Mbarushimana case in 2011.Footnote ⁵⁶

In the Ugandan situation, over eight years after arrest warrants were issued as of the time of writing, Court-recognised victims have not been able to actively exercise their participatory rights apart from at a confirmation of charges hearing in 2008. Many applicants for participant status have not heard back about their applications after years of waiting. In December 2013, field office staff members undertook a ‘mission’ to northern Uganda for several weeks to engage with conflict-affected communities. Before the trip, an outreach officer described this as a ‘commemoration ceremony’ in northern Uganda for all individuals who had applied for victim participant status or had communicated with the Court. The term was later abandoned, as some judges purportedly did not think the language of ‘commemoration’ was appropriate. Another staff member who had participated in the meetings said that they were intended to ‘celebrate [the victims’] resilience in this process’, but that the purpose of the meeting was primarily directed toward clarifying the Court’s ‘maintenance strategy’ as it decreased its field presence in Uganda rather than towards commemorating victims.Footnote ⁵⁷ Meanwhile, intermediaries were discouraged from submitting more participation forms although the Court was technically still required to accept new participant applications. There was a general impression that the Court was at capacity, unable to take on more potential victim participants in the Ugandan situation in light of the other contexts where it had intervened.

In conversations over the past several years, members of civil society organisations have noted the frustrations of conflict-affected communities who had been hearing the same messages since the Court had started working in Uganda – the promise of participatory rights, assistance and reparation that were always over the horizon and rarely materialising in practice. Meanwhile, in the Kenyan context, changes to the system of victim participation have resulted in the creation of a two-tiered system of Court-recognised victims: those entitled to participate, as in other situations, and those whose details are noted in a ‘register’ maintained by the Court, which operates rather like a closed archive. Inaccessible to relief agencies and to the Court’s affiliated Trust Fund, the register contains identifying details of individuals as well as information about their suffering. Common legal representatives for victims have access to information from registered victims and may use this as a basis for identifying potential victim participants; the information gathered about individuals who are not candidates for participation form part of a mass of information to be used by legal representatives in making general claims regarding victims’ interests and concerns. Ultimately, however, the language used by the decision renders even this information potentially irrelevant; in specifying that ‘all victims, regardless of whether they have registered or not, will be represented through common legal representation’Footnote ⁵⁸ while the case is at trial, the decision at least discursively collapses the distinction between registered and non-registered victims. While individuated guilt remains at the centre of international criminal law, it would seem that individuated suffering – a premise of legal humanitarianism – is more tenuous than it may appear in claims made through ICC documents.

Official texts reveal the tensions in translating the ambitions of legal humanitarianism into practice. For example, the ICC’s 2012 ‘revised strategy in relation to victims’ maintains that it incorporates a ‘rights based perspective’ that ‘reconfirms and empowers the victim as a vital actor in the justice process rather than a passive recipient of services and magnanimity’.Footnote ⁵⁹ The text contains an extensive annex listing the ‘rights and prerogatives’ of victims at various stages of the Court process, enumerated under a heading entitled ‘right or possibilities’. The list of nearly 100 items reinforces the difficulty of carrying out the ‘strategic objective’ of communicating ‘rights as victims in relation to the elements of the ICC system and at all steps of the judicial process’.Footnote ⁶⁰ Furthermore, given the Court’s shifting jurisprudence on precisely these rights and prerogatives/possibilities, how can the ICC ensure that the individual victim remains a vital actor rather than a passive recipient of legal recognition and assistance?

Such observations are not meant to diminish the extensive efforts by some members of Court staff to produce a system in line with this rights-based perspective, nor the efforts by non-governmental organisations and ICC ‘intermediaries’ to improve the system through Court channels or through informal attempts to compensate for formal shortcomings. The overarching issue is more systemic, in the sense that the legal field itself is bound by restrictions that undergird its efforts to engage in humanitarian practices. This is more evident with the Court’s most overt attempts to engage in legal humanitarianism through the work of its Trust Fund.

Producing productive subjects: the ICC Trust Fund’s assistance mandate

Even more than victim participation, which is largely articulated as a matter of rights grounded in the Rome Statute, the ICC’s Trust Fund serves as an exemplary instance of legal humanitarianism, providing selective assistance to conflict-affected individuals and populations that fall broadly within the Court’s jurisdiction. The Trust Fund is not technically located within the ICC’s institutional structure; rather, the ICC and TFV are regarded as ‘complementary institutions’.Footnote ⁶¹ The Trust Fund claims its institutional mission is ‘to support programs, which address the harm resulting from the crimes under the jurisdiction of the ICC by assisting victims to return to a dignified and contributory life within their communities’, with an overarching goal ‘to relieve the suffering of victims’.Footnote ⁶² This relief is carried out through two distinct mandates: first, through implementing reparations awards (not considered here, but taken up in Peter Dixon’s contribution to this volume); and second, ‘to provide victims and their families in situations under Court jurisdiction with physical rehabilitation, psychological rehabilitation, and/or material support’.Footnote ⁶³

Taken together, the contributions from Kamari Clarke, Laurel Fletcher and Peter Dixon in this volume cover significant aspects of the Trust Fund’s work in practice, including the kinds of programmes it supports in select ICC situation countries as well as the politics of ‘targeting’ beneficiaries. They illustrate the risks of re-inscribing categories of identity by privileging certain communities over others, a concern that was also voiced by non-governmental organisations working in the Democratic Republic of Congo, whose representatives claimed that among the local population the Court was seen to be favouring certain communities.Footnote ⁶⁴ Building upon the observations from previous chapters, this section seeks to show how the provision of assistance to conflict-affected communities, as a form of legal humanitarianism, is constrained by juridical logics that limit its work. If the Trust Fund is ‘like a donor’,Footnote ⁶⁵ in the words of one of its representatives, what kind of donor might it be? Reading the Trust Fund’s work in relation to critical literature on the provision of humanitarian assistance reveals the ways in which legal humanitarianism works to govern conflict-affected populations.

Anthropologists studying the practices of humanitarianism have shown how efforts to alleviate suffering are bound up with relations of power and interest. Didier Fassin’s scholarship provides a grounded account of the work of the humanitarian organisation Médecins sans Frontières (MSF), illustrating the unintended consequences of decisions to prioritise certain forms of assistance over others (the provision of food over medical treatment, for example) and valuing certain lives over others (those of the humanitarian care providers over the populations they are treating). Fassin points to a paradox that he claims is embedded within humanitarianism:

Fassin’s critique of humanitarianism begins from noting its point of departure within a framework of inequality. Those who carry out the work of humanitarianism are structurally separated from those who are thought to benefit from this work, a fact that is most starkly illustrated when the lives of humanitarian aid providers are prioritised over those they treat when situations relapse into conflict. This has been the case at the ICC, as when staff members have ceased implementing Trust Fund assistance in the Central African Republic at various points due to security concerns. In Kenya the Trust Fund’s presence has been deferred for years, with prospects of a preliminary ‘assessment mission’ discussed as early as 2011 and slated for early 2012,Footnote ⁶⁷ whereas a 2014 programme progress report asserted that ‘an assessment mission to Kenya is planned for 2015 depending on security protocols and travel guidelines’.Footnote ⁶⁸ A representative of the Trust Fund explained that the delay was first due to jurisdictional issues and then continued due to security concerns, noting that Kenya has become a very dangerous environment for human rights defenders.Footnote ⁶⁹ Meanwhile, domestic civil society partners have continued to work in support of the ICC’s presence in Kenya, with one member of a leading non-governmental organisation remarking that ‘everybody’s life in the Court becomes more precious than is ordinarily the case’.Footnote ⁷⁰

In addition to privileging some lives over others, humanitarian actors further inscribe the division between themselves as agentic subjects and the suffering populations whom they seek to treat through making the very assessments that are necessary for targeting beneficiaries. By classifying and categorising populations based upon treatment priorities, humanitarianism produces hierarchies and inequalities that belie its egalitarian ambitions, as the work of Alex de Waal and Didier Fassin has shown. Fassin claims that rather than a product of individual decision-making (‘dysfunction’ or ‘misbehavior’), this contradiction between humanitarianism’s ‘noble goals’ and its work in practice is instead an ‘aporia’, an impasse or doubt, intrinsic to humanitarian governance. Relatedly, Ilana Feldman and Miriam Ticktin have argued that ‘humanitarian organizations often find themselves in the business of governing – managing, servicing – the populations they seek to aid’.Footnote ⁷¹

Much like humanitarian aid provision, the restorative turn in international criminal law also harbours a contradiction between its ambitious goals of redressing wrongs on a broad scale and its relatively limited manifestations at the level of practice. To be sure, some issues arise from limitations that appear as products of institutional practice, particularly among large multi-sited institutions like the ICC, with field offices maintaining reporting relationships with The Hague, where most policy decisions are taken. As Trust Fund representatives have pointed out, the process of selecting proposals for recipients of funding is ‘bureaucratic’ and time-consuming.Footnote ⁷² For example, the Trust Fund’s activities in the Democratic Republic of Congo does not have a physical rehabilitation mandate because it was not originally requested from the chamber; to attempt to add one would take considerable time.Footnote ⁷³ However, what Fassin notes regarding the work of MSF holds for the ICC as well: rather than merely a product of bureaucratic dysfunction or staff decisions within the Court, the contradiction between legal humanitarianism’s ambitious goals and limited practices is intrinsic, arising from a more fundamental tension between international criminal law and restorative conceptions of justice. Just as the universalist sentiment undergirding humanitarian assistance – to aid all those who suffer – runs up against practical constraints, producing hierarchies and exclusions along the way, the restorative sentiment at play in the ‘victims’ mandate’ of the ICC meets the juridical constraints of a field that is fundamentally designed to classify and categorise.

In international criminal law, such acts of classification and categorisation typically entail affixing criminal labels to forms of behaviour and locating individuals within hierarchies of command. Juridical classification ascribes modes of liability, differentiates forms of crime and determines what subjects, acts and periods of time fall within the scope of an institution’s jurisdiction. The form of governance performed here entails sorting and differentiation, distinguishing which deeds amount to ‘crimes of greatest concern to the international community’ and which bodies will appear before the law. When directed at the level of the population, however, these categories perform additional forms of governance. Borrowing from Michel Foucault, we can conceptualise such governance as a kind of ‘biopower’, intervening at the collective level (here, among conflict-affected populations) to promote life and health.Footnote ⁷⁴ Unlike other theorisations of ‘biopower’ that would regard it as a repressive form of power, such as the sovereign power to suspend the law,Footnote ⁷⁵ Foucault regarded biopower as productive power, in the sense that it was oriented towards producing greater vitality in the populations towards which it was directed.Footnote ⁷⁶ Eighteenth- and nineteenth-century forms included developing biopolitical strategies for intervening to improve birth rates and control epidemics; we might regard twentieth- and twenty-first-century humanitarian practices that seek to alleviate suffering through providing medical care and livelihood support as contemporary forms. Generally biopower sought to ‘produce and regulate ways of maximizing the capacities of both the population and the individual as the target of power’;Footnote ⁷⁷ similarly, according to the official Trust Fund narrative, the purpose of physical rehabilitation is ‘to address the care and rehabilitation of those victims who have suffered physical injury, in order to recover and resume their roles as productive and contributing members of their societies’.Footnote ⁷⁸

Through reading Trust Fund interventions in this light, as forms of governance, we can see the ways in which legal humanitarianism seeks to support and manage the lives of those who fall within its jurisdiction. A telling example is the case of Mary, a pseudonym used to designate a woman from northern Uganda, whose narrative is recounted in a Trust Fund annual report. According to the report, Mary ‘became actively involved in economically-productive activities’ following Trust Fund-supported counselling.Footnote ⁷⁹ Here the Trust Fund’s embeddedness in a liberal conception of subjectivity – the norm of the productive, self-reliant subject – reveals the broader backdrop of ‘liberal humanitarianism’, in Barnett’s words, in which Trust Fund interventions transpire. This focus on economic productivity is coupled with an emphasis on psychic well-being: ‘[e]ngaging herself in defence of her own rights has strengthened her sense of purpose and happiness and has been an important part of her remarkable recovery’.Footnote ⁸⁰ All Trust Fund interventions include a ‘psychosocial’ dimension, such as counselling, in addition to medical or livelihood support.Footnote ⁸¹ In this way the Trust Fund draws upon therapeutic discourse, casting suffering as trauma and thereby extending the reach of psychological responses to material harm.

Finally, as Peter Dixon’s chapter recounts, the Trust Fund operates through practices of ‘targeting’ that direct care towards particular individuals and communities. In the case of the Trust Fund’s medical interventions, a representative explained that the Trust Fund tries to address individuals who have injuries that are ‘emblematic of the conflict’, such as burn victims and amputees in the context of northern Uganda.Footnote ⁸² A Gulu-based observer of the Trust Fund’s work noted that the Trust Fund was known for supporting reconstructive surgery and prosthetics, but was not well known for treating other conflict-related conditions.Footnote ⁸³ Here conflict-related suffering is placed on a spectrum of what can be regarded as most ‘emblematic’, and treatment priorities are determined in relation to that spectrum. As a second Trust Fund staff member observed, ‘we are not a humanitarian body’;Footnote ⁸⁴ legal humanitarianism faces the constraints of the juridical form. Even the Trust Fund, whose work is not restricted by the need to establish a nexus to charged crimes, still regards its interventions as responding to harms rather than to needs.

Conclusion: beyond humanitarian governance

In Discipline and Punish, Michel Foucault argued that ‘[t]oday, criminal justice functions and justifies itself only by this perpetual reference to something other than itself, by this unceasing reinscription in non-juridical systems’.Footnote ⁸⁶ In the case of international criminal law, this ‘something other’ appears increasingly as the figure of the victim, the object of legal humanitarianism. It would seem that the logic of punitive justice is not enough to legitimate the political and material investments of states in the field of international criminal law, requiring a humanitarian supplement to the objectives of institutions such as the ICC.

As a form of humanitarian governance, the ICC’s victim mandate produces a regime of care – an institutionalisation of what Judith Butler calls ‘precarious life’, which is then governed and managed and attended to (or not).Footnote ⁸⁷ Governance is not always carried out by states (or by the Court), but also by non-state actors, by technologies of inscription such as victim participation forms, and through practices of adjudication, with their associated deferrals in line with the slow pace of juridical time. The conduits of legal humanitarianism are diverse, as the Court describes:

A plurality of actors participate in implementing the Court’s ‘victim mandate’ and, by extension, in disseminating its associated views about the utility of routing restorative justice through retributive law. As this chapter has illustrated, these interventions are consequential: they produce expectations about what the field of international criminal law enables; expectations that are to be ‘managed’, according to official ICC documents,Footnote ⁸⁹ but which nonetheless may be experienced as a form of institutional indifference bordering on cruelty. Staff working for the VPRS section must explain that specific forms of suffering will not be compensated, as when an aspiring victim participant requests compensation for lost livestock in response to a query on the participation form. Some applicants for victim participation in the Ugandan situation have filed forms in 2006 and continue to await formal recognition.Footnote ⁹⁰ Others in the Kenyan situation must be informed by Court staff that their status has changed from case to situation victim, with an attendant loss of participatory rights.

These practices of participation and assistance, animated by humanitarian sentiments and seeking to carve out a space for restorative justice within a retributive legal framework, are themselves modes of governance. They classify conflict-affected populations; for example, into groups with participatory rights at the ICC and those who fall outside its jurisdiction, and those whose wounds are regarded as emblematic and those whose are not. The Court has recognised the perils of implementing victims’ rights through the Rome Statute, arguing that it needs to exceed the Hippocratic imperative to ‘do no harm’ and address the conflict-affected individual as ‘a rights-holder to whom the duty-bearer – in this case, the Court, the TFV, and the Rome Statute system – owes an obligation it must fulfil’.Footnote ⁹¹ Yet in spite of these aspirational sentiments, the Court is constrained by its innate identity as a legal institution, bound to perpetually reinscribe the categories and classifications that inform its very being. To overcome this requires a step beyond the positivism of the Rome Statute system towards a broader notion of equity and responsiveness to the communities who most directly experienced the suffering wrought through the crimes the Court seeks to adjudicate – a step that may not be possible within the juridical frame of the ICC.