A Restorative Response to Victims in Proceedings before the International Criminal Court: Reality or Chimaera?

The integration of the framework of victims’ participation into the legal proceeding of the International Criminal Court (icc) has been seen as a transformation of the icc process beyond narrow retribution to better accommodate restorative justice (rj) values and practices. However, there is little research into whether, or how the icc metes out rj. This article argues that rj principles brought within icc emphasise the growing importance that victims’ participation in proceedings plays in achieving justice for victims. It then examines how the icc process aligns to the key elements of rj practice, namely victim-offender meeting; offender’s acknowledgement of responsibility and apology; collaborative conflict-resolution approach; victims’ healing and reconciliation; symbolic reparation and material restitution. This article demonstrates that these elements, developed to address ordinary juvenile criminality, are not structured to operate in the particular context of the icc, characterised by grave harm caused to victims and communities by mass atrocity.


Introduction
Due to the growing recognition of the impact of mass crimes on victims and communities, victims' right to, and need for, justice have become important considerations in international criminal justice.A significant amount of literature has focused on highlighting the negative effects of widespread and systematic violence,1 which affects victims and communities by attacking the social values and safety of those communities and determining, consequently, a general social collapse.2The limited representation of victims of mass violence, whose perceptions and needs were frequently ignored, presumed, or misunderstood,3 has urged for positioning victims' participation in international criminal proceedings, wherein they bring a unique perspective on the factual and cultural elements vital to assist in the comprehension of the context of violence.4As such, the challenge of addressing the needs for justice of victims of international crimes has been subject to increasing normative development in recent years.5This can be evidenced by the incorporation of a regime of victims' participation6 and reparation7 for victims in the Statute of the International Criminal Court (icc).Much of the discourse around the new positioning of victims as 'active participants' within the icc proceedings engages with the claim that this new victim-oriented framework aligns the icc's justice approach to the restorative justice (rj) paradigm.8According to Findlay, the very legitimacy of international criminal justice depends upon a 'victim constituency' being centrally recognised, meaning that, ultimately, criminal justice has no choice but to embrace restorative practices.9However, there is no consensus on this issue.Experts, including McGonigle Leyh, have stated that the victim's participation scheme at the icc is not the same as an rj process, and that victims cannot, and do not, experience it as such.10Moffett argued that, while the Court can be more victim-orientated with the inclusion of provisions for victims' participation, the icc should maintain its core retributive goal and remain focused on prosecuting and punishing perpetrators.11Similarly, Vasiliev argued that the icc should free itself from the 'restorative complex' .12This article, therefore, engages with the vexata quaestio of whether and to what extent the icc system of justice can be labelled as a restorative mechanism, aiming at exposing the limitations that the rj paradigm faces when entering the international criminal justice arena.For this analysis, Braithwaite and Strang's definition is utilised for its prioritisation of a conception of rj involving a commitment to both restorative principles and restorative processes, the latter being conceived as a system of practices and outcomes.13This article argues that, to some extent, the icc embraces rj principles, such as hearing the voices of victims, restoring lost dignity, healing and reconciling communities, but proceedings before the icc are not the appropriate venue to run restorative practices.Even though the Rome Statute includes an element of restorative practice, as it previews the possibility of participation and reparation for victims, the icc is not structured to adhere to the typical practices of rj.To explore the icc's alignment to the practices of rj, this article analyses the five basic elements of restorative practices identified by Van Ness and Heetderks Strong: victim-offender meeting; offender's acknowledgement of responsibility and apology; collaborative conflict-resolution approach; healing and reconciliation of victims; symbolic reparation and material restitution.14These elements, which serve as framing devices to depict the restorative process from its beginning through to its outcome, are evaluated against the context of the icc, based on (1) their responsiveness to the socio-political context and nature of international crimes, which involve acts of mass violence and mass victimisation; and (2) their applicability to criminal justice processes, focused on providing accountability for such serious crimes.First, the mass violence nature of the atrocities that come under the jurisdiction of the icc and the following general social collapse in post-conflict societies15 pose a great challenge to the restorative substantive practices, which are structured to address low-level crime within criminal justice systems of Westerner democratic societies.The distinct differences between acts committed in the context of ordinary crime and crimes of mass violence in a conflict situation serve to highlight the limitations of the portability of restorative practices, intended as a mechanism for participation, healing, reparation and reconciliation, into the internal rationale of the criminal process at the icc, oriented towards accountability.The application of restorative practices within the icc, requiring them to operate in a socio-political context quite different from their original one, eventually stretches the five elements of the restorative paradigm beyond their original framework.Second, in line with the challenges attached to the applicability of rj practices to criminal justice processes, criticisms hold that such practices are 'a diversion from court prosecution; actions taken in parallel with court decisions, and meetings between victims and offenders at any stage of the criminal process.'16This article seeks to illustrate that the limits of routing rj practices through the vehicle of international criminal justice are the result of the attempt to bend the criminal process at the icc, where the retributive system's elements gain preponderance, to suit a restorative dimension.This article proceeds as follows.The second section locates icc's restorative turn in relation to the integration of victims into its proceedings and their contribution to the processes of truth and justice.The following section provides an overview of the central tenets of rj practices as applied to common crimes in criminal justice systems of peacetime societies.It identifies and provides a full understanding of the five elements around which restorative processes are structured.Section four focuses on the implementation of restorative practices in cases involving gross violations of human rights under the jurisdiction of the icc.It discusses the extent to which the restorative practices are structured to effectively work within the framework of the icc.It does so by framing the analysis around the key features of the rj practice into five subsections.The subsections are devoted to analysing how far the process before the icc aligns to each of the five elements of restorative practices, namely victim-offender meeting; offender's acknowledgement of responsibility and apology; collaborative conflict-resolution approach; healing and reconciliation of victims; and symbolic reparation.The last section introduces a reflection on the challenges encountered by elements of rj practice in the context of the icc's justice method.It suggests that the icc can make an important contribution to achieving justice for victims and redressing their harm; however, it would be short-sighted to put the restorative label on this international criminal justice institution.

Victims' Participation and the Restorative Turn of the icc
Gross violations of human rights have been, and continue to be, perpetrated in several armed conflicts as well as in peacetime.While it might have been expected that the extensive nature, seriousness and recurrence of the atrocities committed would have triggered the operation of an effective scheme of victims' participatory rights as a response to those violations, the reality seems to have been the reverse.Provisions of the earliest institutions of international criminal justice, namely the International Criminal Tribunal for the former Yugoslavia (icty) and the International Criminal Tribunal for Rwanda (ictr), do not confer upon victims any independent standing in criminal proceedings.Victims could participate in proceedings only as witnesses, since their participation was ruled by the norms governing witnesses' testimony.17In practice, the actual possibility for a victim to be able to tell her/his story at trial-stage relied on either one of the parties (prosecutor or defence) summoning her/ him and the chamber approving the summoning or the chamber itself calling her/him to testify.18The mandates of the icty and ictr are the main reason explaining the marginal role of victims before these tribunals.The concept informing those systems is punitive, since the UN Security Council resolutions setting up the icty and ictr assert that they have been established 'for the sole purpose of prosecuting persons responsible for serious violations of humanitarian law.'19 The drafters of the Statute and the rpe of the icc were fully aware of the incredible opportunity to fill the gap left by the icty and ictr, which failed to provide for the active participation of victims of gross violations of human rights during their proceedings.The acknowledgement that 'millions of children, women, and men have been victims of unimaginable atrocities'20 emphasises the importance of understanding the devastating effect that crimes can have on victims and recognises the growing importance that participation and reparations play in providing them with more meaningful and tangible justice.21The icc Statute has set an important standard in international criminal law, since it elevates victims to the status of participants in their own right.Article 68(3) of the icc Statute provides that Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial (…) This innovative victim-oriented provision suggests that the icc holds an aspiration beyond the traditional punitive function.The wording of Article 68(3) points out that the core scope of the active role granted to victims is not simply correlated to the goal of punishing who commits crimes.Rather, the opportunity for victims to have their voices heard permits them to represent and pursue their interests.22This provision of the Rome Statute expands the notion of 'interest of justice' to be more attuned to the idea of 'justice for victims' ,23 which has been recognised as the raison d'être of the icc.24The redefinition of 'interest of justice' urges the icc not only to ensure that victims are granted some form of support and a role in proceedings which affect their interests, but also to fully restore the harm they have suffered and contribute to the process of reconciliation of conflict-affected communities, by redressing the causes of victimisation.25 The view that the integration of victims as active participants within the icc proceedings can contribute to reconciliation, restoration and justice for victims has been developed into a narrative claiming that icc operates as a mechanism of rj.Several commentators have asserted that the icc does not stand only for criminal accountability, but also for 'social welfare and rj.26' Wemmers27 and Combs28 suggested the icc marks something of a shift away from purely retributive international criminal justice, towards a more expansive model that incorporates elements of rj.By the same token, Funk and Guhr advanced that enabling victims to participate in international criminal justice indicates a broader construction of justice than retribution and deterrence, towards a more reparative approach that seeks to restore victims.29 These commentaries suggesting that the icc has turned towards a restorative form of justice are based on the intersection between the concept of 'justice for victims' and the rj approach towards victim constituency.rj works from the premise that crime is an 'individual, relational and social harm'30 done to victims and communities, causing divisions in the social fabric.31With a view to address these divisions, the rj is informed by a set of values and principles,32 including the healing of victims and society;33 amends made by the offender;34 reconciliation of parties and community;35 reparation of the harm caused to victims;36 and active participation of parties in the process.37Concerning the role of victim-participant in particular, primary concerns of rj are giving voice to victims, healing them through positive engagement in the process and repairing the harm they suffered.38 The inclusiveness of victims' constituency at the icc seems to be consistent with the restorative model of justice, since it seeks to connect international criminal justice to the process of social reconciliation typical of the rj paradigm.39In the aftermath of mass atrocities, victims must not only cope with their individual suffering, but also participate in the process of social healing involving all those affected by the violence.40The recovery of victims is, thus, intertwined to the restoration of the socio-political fabric, as reconciliation requires not only the healing of individuals, but also of society as a whole.41In this view, the right of victims to actively participate in proceedings at the icc becomes an important factor in this healing process,42 as well as an indispensable element if post-conflict justice processes are to be 'capable of building the foundations for a strong transition through empowerment of those who were victimised during conflict.'43 Along with the academic commentary suggesting that the icc leans towards a restorative turn, the proposition that the icc metes out rj to victims through their participation in legal proceedings, was advanced by Judge Silvia Fernandez de Gurmendo,44 Judge Sang-Hyun Song45 and the Registrar.46The Report of the Court on the strategy in relation to victims (Strategy) affirmed that a key feature of the system established in the Rome Statute is the recognition that the icc has not only a punitive, but also a restorative function, which reflects the growing importance that participation and reparations play in achieving justice for victims.47In the following Court's Revised Strategy in Relation to Victims (Revised Strategy), the icc emphasised the key role played by victims -as participants -before the Court and the importance of the Court's restorative function.48

Understanding Restorative Practices
The view that rj can play an important role in dealing with gross violations of human rights at the judicial level, such as in criminal cases brought before the icc, merits further scrutiny.The widely-held assumption that central principles of rj have been increasingly invoked and utilised in the justice approach of the icc involves theoretical claims based on the socio-political and philosophical background of rj, but it does not engage with the restorative process as it operates as a system of rules, practices and outcomes.49It is, therefore, necessary to explore the structures of restorative substantive practices to provide an understanding of the restorative process as it operates from its beginnings through to its outcome.A variety of programmes fall under umbrella term of rj practices, which extends to victim-focused initiatives, such as victim compensation schemes, victim-offender mediation, crime repair crews, victim intervention programmes, family group conferencing, peace-making circles, sentencing circles, community reparative boards before which offenders appear, victim empathy classes for offenders, community-based support groups for crime-victims and community-based support groups for offenders.50  (3) collaborative conflict-resolution approach.The other two elements, notably (4) healing and reconciliation of victims and communities; (5) symbolic reparation and material compensation are tied to outcomes of such process.The typical restorative process consists of an encounter (circles, conferencing, and mediation),56 which involve a face-to-face meeting with a victim, an offender, their respective supporters and often community members, as representatives of the community's interest.57However, first and foremost, prior to the beginning of the rj procedure, it is imperative for the offender to admit his/her guilt.Once the offender does so, the restorative procedure can start.The victim-offender meeting aims to encourage dialogue and negotiation between victims and offenders, since the victim has the chance to explain to what extent the criminal conduct harmed her/him, while the offender has the opportunity to acknowledge the consequences of the harm s/he provoked, s/ he sympathises and sincerely apologises to the victim.58This meeting leads to a collaborative conflict-resolution approach that lies at the heart of rj practice as it is concerned with negotiating the settlement of the case.59This negotiated process places victims in an active problem-solving role, as they work together with offenders to reach an agreement on how to overturn the harm originated by the criminal conduct.60Victims and communities' involvement as decision-makers at this stage of the process is crucial because redress cannot be accomplished without the input from those who have suffered the most from the crime.61 The outcome of the restorative process is an agreement between the parties on the appropriate terms of compensation to redress the wrongdoing and "heal individuals, communities, and even nations after harm."62In this kind of agreement, the offender offers as material restitution monetary compensation or some services that they can provide to victims,63 but, when material restoration can be unable to undo the effects of the crime, the outcome of this negotiated process should include a symbolic redress seeking to restore the psychological losses and dignity of individuals and communities.64

Problematic Positioning of Restorative Practices within the icc Process
There is a conceptual difficulty that the restorative mechanisms have to face when entering the international criminal procedure, as it is unclear whether and to what extent the icc figures its legal proceeding as a practice of rj as outlined above.The icc's Strategy and Revised Strategy, which is the primary articulation of the icc's approach to its victims' mandate, recognised rj principles,65 but failed to integrate them into the modalities of participation and reparation for victims.It is critical to point out that the icc does not employ central practices of rj, like mediation, circles and conferencing, which bring victims and offenders together in face-to-face meetings to determine how to fix the harm caused by the wrongdoing in question.66Questions concerning the positioning of restorative mechanisms within international criminal justice should be answered looking at the specific context within which they are used.Practices of rj have been developed mainly against the background of Westerner democratic societies and their application mainly addresses situations involving first-time offenders, low-level crime and juveniles.67Quite the opposite, international criminal justice is a product of discontinuity, of upheaval and political rupture.68It would be fallacious to ignore the contrasting histories, assumptions and paradigms of domestic and international criminal justice systems, while assessing whether the icc's justice approach is effectively structured to mete out restorative practices.Unlike domestic crime, international crimes consist of mass atrocities on a scale incomprehensible to those who have not experienced them, causing suffering and mental trauma to victims, but also to those who simply witnessed these events.69International crimes often occur in situations of civil conflict that set community against community70, involving, therefore, a wide number of victims and large-scale participation of perpetrators as well.71Victims suffer particularly serious violence, not just at the individual level, but also members of a given community are affected.In fact, the scale of the violence often targets communities on ethnic, political, religious, ideological or economic grounds, in order to destabilise and eventually cause the disintegration of the community not simply physically, but also in terms of its identity.72In this background marked by dysfunctional institutions, serious disruptions of the judicial system and traumatised populations, the icc is confronted with transitions from conflict to peace, from authoritarianism to a form of democracy and from the dearth of public trust in the State's capacity to the restoration of security, peace and human rights protection.73These core aspects of post-conflict justice situations, which are mainly absent in the domestic realm of criminal justice, pose a challenge to the successful implementation of restorative practices into cases of gross violations of human rights and other serious acts of mass violence and mass victimisation, amounting to international crimes.
The following analysis seeks to assess the extent to which the proceedings before the icc can deliver a restorative process and whether this process has contributed towards restoration, reparation and healing for victims.It does so by framing the analysis around the five key elements of the rj practice, as described in the previous section.

4.1
The Voluntary Victim-Offender Meeting The rj process provides an opportunity for the voluntary meeting between victims and offenders, in which victims are able to ask clarifications and questions, informally express their feelings and emotions, while defendants accept and acknowledge their guilt or, at least, the wrongness of their acts.74Through the expression of emotions, both victims and offenders open up a forum for discussion, which addresses the offence, unsolved and, perhaps, undiscovered emotional consequences of the wrongdoing and eventually develops a narrative for the healing of victims and community at large.75 Victims and offenders provide an account of the crime through the lens of a subjective narrative, using an emotional language, instead of the rational legal language.76However, this kind of meetings falls short of the symbolic element of a public trial, as victim-offender dialogue is not mediated through formal legal rules.Such encounters are not concerned with producing legal evidence that a crime occurred, they rather seek to reach a 'mutually satisfactory written restitution agreement'77 between private participants.It is difficult to reconcile these specific features of the voluntary-based encounter with the nature of the trials at the icc, which are a much more public affair, normatively built as an adversarial contest, constrained by rules of evidence, due process and associated rights.Through the application of evidential rules, the adversarial format of the proceeding enables the judges to identify the central action in the alleged crime; to make empirical connections among evidential elements based on that storyline; and then to interpret and evaluate those connections for consistency, completeness and their collective implications for the central action.78 Most significantly, the icc's Trial Chambers have limited the opportunities for a direct victim-offender encounter to take place, as very few victims have appeared in person in proceedings before the icc.Common legal representation (clr) has become a settled feature at the icc, despite neither the Rome Statute nor the rpe considered it as mandatory.In the Prosecutor v. Thomas Lubanga Dyilo (Lubanga), the Trial Chamber I decided that victims' views and concerns should have been presented through a joint presentation of views and concerns by joint legal representatives.79The Chambers' prerogative of setting groups of victims under legal teams has been confirmed in the Prosecutor v. Jean-Pierre Bemba Gombo80 (Bemba) and Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui81 (Katanga and Chui).It can be said that the clr has the task of condensing victims' personal interests into 'generalisable interests.'82In practice, the clr enjoys considerable discretion, because, in drawing the victims' interests, the representative filters, weighs and selects the diverging personal interests of the victims.This evaluation risks damaging some of the interests of individual victims, because of the diversity of interests The clr changes drastically the nature of the role of victims within the proceedings before the icc, because it contributes to developing the idea of an 'abstract collectivity' or, better, an abstract concept of victimhood.The participation through the clr, which merges the interests and views of the individual victim within thousands of views of a broad number of victims, does not enhance an effective victims' participation.84This mode of operation of the clr conflicts with the emerging victims' role as active participants, sustained by rj practices that supposedly prioritise direct participation in the process of all parties involved in the offence.

Offender's Acknowledgement of Responsibility and Apology
As explained above, the offender has to acknowledge his/her responsibility before the restorative process gets underway.The first step of the restorative process is contingent on the degree to which offenders are genuinely sorry for what they have done and can communicate their remorse effectively.85 The process of acknowledging responsibility entails, first, the offender's realisation of the full measure of his/her wrongdoing, as s/he must sincerely feel guilty, rather than formally admit his/her guilt.After acknowledging their culpability, defendants must apologise for their conduct, by providing an explicit manifestation and declaration of repentance and, lastly, they must express willingness to undertake steps to expiate their guilt.86 However, in the experience of international criminal justice institutions, the expression of a fully accomplished acknowledgement of guilty and sincere apology is rather unlikely to occur.The case law of the icty and ictr shows that in only a few cases have defendants admitted their guilt and expressed profound regret and convincingly apologised for their wrongdoing.87A very common occurrence, instead, is the expression of what can be considered an insincere acknowledgement of responsibility.This is due to the practice of accepting statements of apology as a mitigating factor if they include expressions of sincere remorse for wrongdoing.88The jurisprudence of the icty has given an extremely broad interpretation of the legal definition of sincere remorse as a mitigating factor.In a few cases, a sincere expression of remorse did not require the admission of criminal responsibility or guilt, but only the defendant's acceptance of some measure of moral blameworthiness for personal wrongdoing.89In other cases, the judges accepted as mitigating circumstances the expressions of remorse made by defendants who maintained their innocence.90Lastly, another strand of decisions by the icty and ictr held that simple expressions of sympathy, compassion or sorrow, which do not amount to remorse as such,91 are sufficient to be qualified as mitigating circumstances.92Indeed, granting discounts for remorse and apology creates a strong incentive to deceive.
A paradigmatic example of this phenomenon is the case of the Prosecutor v. Biljana Plavšić.During the trial, Mrs. Plavšić pleaded guilty and released a statement in which she accepted her responsibility and expressed 'her remorse fully and unconditionally, Mrs. Plavšić hopes to offer some consolation to the innocent victims -Muslim, Croat and Serb -of the war in Bosnia and Herzegovina.'93The icty, in the sentencing judgment, acknowledged that this step by Mrs. Plavšić was 'undertaken under circumstances requiring considerable courage' and it represented 'an unprecedented contribution to the establishment of truth and a significant effort toward the advancement of reconciliation.'94The expression of remorse given in her guilty plea allowed Mrs. Plavšić to receive a mild judgment, since the Court dropped the charge of genocide against her.However, several years later she retracted her statement of remorse, explicitly stating she still felt she had done nothing wrong.95 In the Prosecutor v. Radovan Karadžić, the defendant's statements appeared calculated, carefully scripted and exactly tailored in order to receive a milder sentence.In a Final Brief, the defendant: expresses his deep regret and sympathy to the victims (…) and to their families.Regardless of the issue of his individual criminal responsibility for those crimes (emphasis added), he understands that as President of Republika Srpska, he bears moral responsibility for any crimes committed by citizens and forces of Republika Srpska.96With this statement, Mr. Karadžić apologised to the victims and expressed his regret and sympathy, but he did not admit his criminal responsibility or guilt.He only acknowledged he had moral blameworthiness for the conducts perpetrated by the Republika Srpska citizens, rather than for his actions.This is inconsistent with the restorative acknowledgement of responsibility and apology process, which holds that the perpetrator has to acknowledge his/her culpability and then ask for forgiveness to the victims.In the rj mechanisms, acknowledgement of responsibility and apology require sincerity and authenticity as the first step towards reconciliation.Conversely, the above-described cases revealed a remarkable gap between the dynamics of the trial in the tribunals' everyday work and the restorative practices, as the offenders failed to turn the corner from formal acknowledgement of their responsibility to a genuine experience of it.
The difficulty in achieving a declaration of guilt and a sincere apology suggests that the rj might appear less than restorative.The level of restoration includes the degree to which the offenders are remorseful, aware of the impact of the crime on the victim and spontaneously apologetic to the victim.97The lack of a fully accomplished apology jeopardises the restoration of the process that should emerge in the relationship between the victim and the offender and requires a degree of empathic concern and perspective-talking.98

4.3
Collaborative Conflict-Resolution Approach The collaborative conflict-resolution approach aims to achieve an agreement between the parties involved in the process, with regard to 'what should be done to achieve both material and emotional restoration.'99This approach does not provide any method of adjudication because restorative practices are participatory and consensually based,100 meaning that there is no judge, only a facilitator, whose main function is to ensure that the victim-offender dialogue remains within the boundaries of mutual respect.101That said, it does not mean that the restorative process does not hold the offenders accountable, but the standard of restorative accountability needs offenders to acknowledge their culpability and willingness to amend for their wrongdoing.102 In the conflict-resolution approach there should be no place for punitive measures, such as prison sentences.103Punishment is not imposed on the offender; conversely, amends arise from the accused themselves who accept the burden and recognise it as the price to be paid to expiate their guilt.104This view clashes with the Preamble of the Rome Statute, which, by affirming that 'the most serious crimes of concern to the international community as a whole must not go unpunished …' ,105 demands the icc to pursue justice through adjudication and punishment and not by means of an agreement made between victims and offenders.More specifically, the icc Statute does not envisage any role for victims in the decision-making and sentencing process.The decision on the guilt or innocence of the defendant is issued through judgment by a Trial Chamber,106 and, in case of a conviction, the determination of the appropriate sentence to be imposed on the convicted one is still a task of the Trial Chamber.107The exclusion of victims from the decision-making process is confirmed by the fact that they are not allowed to present during the trial those evidence relevant to the Trial Chamber's decision.In Lubanga and Bemba, the victims' expression of views and concerns is the equivalent of presenting submissions, which can assist the Chamber in its approach to the evidence in the case, but do not form part of the trial evidence.108While a pure conflict-resolution approach seems reasonable for non-serious offences committed by young offenders,109 moving beyond the retributive-focused paradigm of international criminal justice does not properly fit the seriousness and heinousness of the large-scale violence perpetrated against civilians and communities.In the adversarial arena of the icc, the visible punishment of perpetrators seems more likely to serve the interests of justice.

4.4
The Healing and Reconciliation Outcome The extent of the burgeoning body of literature on the sufferings of victims brought about through mass conflicts illustrates that victims experience a high tendency to develop depression and anxiety arising from the internalisation of negative feelings, such as self-blame, outrage, alienation and exclusion during any subsequent legal proceedings.110Victims can also suffer from the fragmentation of their community and social culture of segregation.In war-torn and impoverished societies, the long-term employment of coping mechanisms can endanger victims' health.Pena and Carayon have expressed their strong belief that the icc can deliver rj to victims through their participation at trial, which per se can 'be an important factor in their healing and rehabilitation.'111 The possibility of healing victims and affected societies through their participation at the icc has been also discussed by the Court.In the Strategy, the icc acknowledged the importance of understanding the devastating effect that crimes can have on victims and, therefore, recognised that a positive engagement with victims can contribute to their healing process.112This view was confirmed in the Revised Strategy, wherein the icc holds that victims' participation in the justice process is one step on the road to healing, not only for individuals, but for affected societies as well.113The recognition of the dignity of victims as human beings114 and of the need to ensure that the interaction between victims and the icc is positive and beneficial,115 is largely consistent with the compelling concept of rj.However, neither the Strategy, nor the Revised Strategy clarified how the justice process can effectively heal the individual and reunite splintered communities, given that, apart from setting objectives and principles, they do not develop detailed approaches to victims' participation to be applied in the proceedings before the icc.
At the level of individuals, the contention that there is a connection between victims' engagement in international criminal proceedings and their restoration is unverified so far, as little has been written about the cathartic and therapeutic experience of victims expressing their views and concerns before the icc.116The only study to date on the experience of victims as participants in international criminal trials and their views following such participation was conducted in the context of the trial of Kaing Guek Eav, better known as the Duch case, before the Extraordinary Chambers in the Courts of Cambodia (eccc).117 The study interviewed victims participants to examine how they perceived the participation in the trial, the work of the eccc, and how, if at all, it had affected them.118Generally, victims viewed the experience of participating and providing testimony positively, since 'the trial made them feel stronger mentally and increased their hopefulness about the future.'119However, victims, when asked specifically whether or not the trial had an impact on forgiveness, reconciliation and mental health, were more negative compared to the Cambodian population.Regarding forgiveness and reconciliation, victims-participants were more negative than the general population about the trustworthiness of the defendant's apology and their readiness to reconcile with him after the trial.In more general terms, civil parties were more negative about the eccc's contribution to reconciliation, rebuilding trust in Cambodia and bringing justice to victims.120Considering the impact on mental health, the expected restorative effects of participation were not observed, as none of the victims described any cathartic or healing effect.121Victims were also less positive about the ability of the trial to help them to accept the loss of loved ones and come to terms with the past.122Victims' participation in trials at the eccc turned out to be of little help in contributing to the recovery of highly distressed victims.This can suggest that the healing effect of the eccc's proceedings for victims is not mandatory or a regular outcome, but, on the contrary, those effects are strictly individual and subject to variables that are difficult to foresee in advance.123 The context in which the eccc operates, characterised by heinous and widespread crimes and an extremely violent social and institutional background where such atrocities occur, allows the building of a nexus with the participation of victims in proceedings before the icc.The finding of this study casts doubts on the capacity of the icc to effectively bring about therapeutic effects and beneficial outcomes in order to heal the harm and suffering experienced by victims.
At the collective level, it is even more difficult to ascertain the extent to which the participation of the individual victim can contribute to the reconciliation and restoration of society.124In the aftermath of mass violence, societies are characterised by complex politicised issues and, at a basic level, prosecution can effectively remove public figures whose presence impedes reconciliation, but it is still questionable whether and how the icc can undertake the ambitious task of providing social catharsis.The capacity of the rj process of transforming the relationship between victims, perpetrators and society requires a close interaction between people responsible for such gross violations of human rights and their victims.Studies showed that the icty and ictr, instead of being vehicles for public catharsis and promoting reconciliation, in some cases deepened the contrasts within ethnically divided communities and confirmed existing biases.Akhavan reported that each Yugoslav ethnic group thought that the tribunal favoured the other and was biased against it.125 Meernik observed that the effect of trials at the icty was quite the opposite of reconciliation for destabilised communities.In his study of the relationship between the trials at the icty and reconciliation, the author found that '[m]ore often than not, ethnic groups responded with increases hostility toward one another after an arrest or judgment.'126 Recently, the discussion on the reduction of Lubanga's sentence127 has arisen issues concerning the effective contribution to peace and reconciliation of the judicial proceedings at the icc.Consultations with victims, ngo s, community leaders and activists illustrate that there was major disagreement about the impact on security and reconciliation of Lubanga's possible resettlement in the drc.Some expressed fear that Lubanga's release from prison could undermine the peace process and destabilise the situation in the Ituri region, by reigniting tension between the communities and fomenting reprisals for the victims.128Others argue that Lubanga's release can contribute to reinforce peace and consolidate reconciliation.129 The different reactions to the prospect of Lubanga being freed, which range from frustration and despair by victims to satisfaction by Lubanga's network, demonstrate that, in post-conflict societies, achieving reconciliation by a judicial process is a rather difficult task.In this scenario, the reconciliation and healing in the community dimension through international criminal proceedings are yet to be empirically verified.

4.5
Material Restitution and Symbolic Reparation Restoring victims and the wider community by reparation and compensation is an important key feature of rj.Along with the more conventional means of material reparation, like proprietary and monetary measures, symbolic redress is widely considered to be a fundamental element of rj,130 particularly in those cases where the harm caused to victims is of moral nature.131 In the context of international crimes, material restoration can be unable to undo the effects of serious and traumatic events and rectify the harm caused to victims and societies.132Symbolic redress, therefore, can come into play to contribute to restoring victims' dignity and making it easier for them to cope with multiple losses they suffered.133In this view, the tfv's Strategic Plan held that the concept of reparation is in no way limited to individual monetary or material compensation.It could also include symbolic forms of reparation, which, being focused on providing recognition of the injustices that have occurred, mark a major step towards healing and reconciliation.134In the Prosecutor v. Uhuru Muigai Kenyatta, Judge Eboe-Osuji further develops the concept of symbolic reparation, by observing that the right to reparation for victims should be in step with developments in international law that lay a great store in ensuring that rj is delivered to the victims.135In this connection, an element of symbolic redress is satisfaction, which belongs to the stock list of what reparation has been accepted to mean in international law.136The Judge draws on Principle 22 of the Basic 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 to explain that satisfaction includes: disclosure of the truth, verification of the facts, and a judicial decision restoring the dignity, reputation and rights of victims.137Therefore, the value of satisfaction as a measure of reparation includes, among other things, the right of the victims to have their day in court to settle the truth to the extent possible.138In this vein, if proceedings at the icc are understood to provide symbolic reparation, they should reasonably comprise both the recovery of facts, which relates to the victims' narration of the truth and harm suffered, and their clarification through the formal acknowledgement by the icc of victims' experiences in the judgment rendered against the accused.However, the icc seems to be ineffective when addressing these features of symbolic redress for victims, as its focus remains on the proof of guilt rather than on truth-finding and acknowledgement of victims' experiences.In Lubanga, the proceeding neither exhaustively recovered the truth of victims' harms through their truth-telling, nor did the outcome of the case adequately acknowledge the victims and their harm.The Trial Chamber limited the potential contribution of victims 'views and concerns' to the construction of the truth of the events under adjudication, because, despite victims' claims, In Bemba, the judges failed to substantiate victims' individual experiences, since they instructed victims' legal representatives on the criteria to narrow down the list of 17 victims included in the applications into a shorter list of no more than eight individuals.140The lack of direct participation by victims was exacerbated by the clr scheme adopted in this case.Only two representatives were present in the courtroom acting on behalf of their assigned victim-participants,141 whose views were filtered and eventually lost to the majority of the views.The participation of a chosen few victims fails to create a link among perpetrators, their criminal conducts and all victims, leading to a potential symbolic restoration for only some of them, which is not what rj intends to achieve.142 Bemba and Lubanga have shown the difficulties met by the icc in providing a symbolic restorative effect for victims participating in trials.If we follow the principle of symbolic redress as a fundamental element of rj, the icc should also function to recover and clarify the truth of the harm and experiences of victims.The proceedings and outcomes of these cases, on the contrary, do not adequately contribute to the full disclosure of the truth.Victims' direct form of participation, their individual experiences and the impact of the harm on their past, present and future lives are constrained to serve the retributive model of justice, focused to prove or refute the guilt of the accused.The narrative constructed in the courtroom has decontextualised, recategorised and re-organised the events.In this way, the Bemba and Lubanga judgments have represented the harmful act perpetrated against victims, but not the harm of the act itself experienced by victims.It appears questionable whether the icc, by excluding several victims from the proceeding, as happened in Bemba, or by prohibiting victims from relating details about sexual violence, as this was not relevant to the charges of the Lubanga case, can live up to the promises of rendering a symbolic redress to victims.

Conclusion
While the scholarly debates on the victim-based provisions of the Rome Statute have been marked by the contention that the icc leans towards a restorative form of justice, this article has cast doubts on the pertinence of labelling the icc as an rj institution.In principle, there is nothing which prevents the icc from aspiring to the ideals of rj.Principles of rj, like granting to victims the opportunity to have their voices heard in the legal process, healing victims, repairing the harms done to them, and reconciliation of affected community, are reflected in the growing importance that participation in proceedings at the icc plays in achieving justice for victims.However, this article has added to this debate by showing that the icc does not align to rj practice and its prioritisation of victims' participation.The bulk of this article was spent on investigating the hurdles faced by the icc in aligning with the five core elements of rj practices delivering a restorative process.It has argued that these elements, developed to address juvenile criminality, first-time offenders and low-level crime, are not structured to operate in the particular context of the icc, which is characterised by grave harm caused to victims and communities by mass atrocity.The trial-focused process of the icc reflects divergences from rj practice.First, it has rarely allowed direct participation by victims, preventing the victims-offenders encounter from taking place.In the adversarial arena of the icc, dominated by rules of evidence, opportunities for such voluntary-based encounters, where victims enter into dialogue with the offenders to describe the harms that flowed from the wrongdoing, the emotional consequences and the impact upon their lives, are extremely limited.In proceedings at the icc, where the adversarial duel between the defence lawyers and prosecutor seeks respectively to disprove or prove the offender's guilt, communication flows only through legal representatives speaking on behalf of victim-participants and lawyers representing the accused.
Second, the icc trial setting displays a further discrepancy from restorative practice requiring the offender to admit his/her liability for the offence.Defendants have mostly been unwilling to admit their liability for the reality or chimaera International Criminal Law Review 21 (2021) 313-341 Downloaded from Brill.com11/16/2022 03:45:41PM via free access offence, instead, they have challenged the legitimacy of the trial process and, even at the point of the conviction, rejected offers to demonstrate or declare remorse.In several cases, the defendant's apology statement was carefully scripted and tailored in order to receive a milder sentence, rather than to acknowledge responsibility and express remorse and apologise to victims.More in general, the recognition that, without the offender's acknowledgement of his/her guilt, the restorative process cannot begin, casts doubts on the understanding that the integration of victims into proceedings marks the shift towards a restorative function for the icc.When this requirement is missing, victims' participation at the icc trials can be an effective way to express emotional suffering, but it is not a sufficient element to make the process restorative.It appears reasonable to suggest that conferring an active role in the judicial process to victims is not enough to convert the icc system into a restorative one.
Third, the collaborative conflict-resolution approach holds the offender responsible, but does not provide any method of adjudication because it is participatory and consensually-based, requiring offenders to acknowledge their culpability and willingness to amend for their wrongdoing.This approach is primarily about reconciliation and reparation, not about the adjudication of guilt or innocence and, therefore, it conflicts with the Preamble of the Rome Statute that urges the icc to prosecute and punish those responsible for the most heinous crimes.The Statute suggests that, given the seriousness of the crimes that the icc adjudicates, reparation and restoration without accountability and punishment fall short of justice.Moreover, in the context of the icc, the chances that the offender volunteers to make up for his/her conduct are minimal.
Fourth, this article has challenged the view that the proceedings before the icc run a therapeutic process for social catharsis and restore individuals and society as well.The few studies undertaken were mostly small-scale and the empirical research made very limited inquiries into mental health issues of participating victims, nevertheless, they do not form a promising picture.At the level of micro-dynamics, trials did not have a substantial impact on forgiveness and reconciliation for victims, neither expedited any cathartic effect or recovery from any post-traumatic stress or any other clinical condition.On a macro level, the connection between reconciliation and the icc process is a difficult one to make, since it entails a prior relationship among communities that requires to be resumed, while it is often not possible.The extremely violent social and institutional background where widespread crimes occur makes it almost impossible to rewind events and undo the effects of victimisation on such a profound scale.This arguably brings into question the extent cuppini International Criminal Law Review 21 (2021) 313-341 See also Women's Caucus for Gender Justice, Recommendations and Commentary for August 1997 PrepCom on the Establishment of an International Criminal Court, United Nations Headquarters (1997) 29, http://iccnow.org/documents/WomensCRecomm.pdf,accessed 15 July 2020; Yael Danieli, 'Victims: Essential Voices at the Court' , The Bulletin of the Victims' 1 See, e.g., Kristen Hagen and Sophie Yohani, 'The Nature and Psychosocial Consequences of War Rape for Individuals and Communities' , 2 International Journal of Psychological Studies (2010) 14-25; Julie Mertus, 'Shouting from the Bottom of the Well: The Impact of International Trials for Wartime Rape on Women's Agency' , 6 International Feminist Journal of Politics (2004) 110-128; Nicola Henry, 'The Impossibility of Bearing Witness: Wartime Rape and the Promise of Justice' , 16 Violence Against Women (2010) 1098-1119; Inger Skjelsbaek, 'Victim and Survivor: Narrated Social Identities of Women Who Experienced Rape During the War in Bosnia-Herzegovina' , 16 Feminism & Psychology (2006) 373-403. 2 Nathalie E.J. Dijkman, Catrien Bijleveld and Philip Verwimp, 'Sexual Violence in Burundi: Victims, Perpetrators, and the Role of Conflict' , Households in Conflict Network Working Paper (2014), p. 33. 3 Fiona McKay, Universal Jurisdiction in Europe: Criminal Prosecutions in Europe since 1990 for War Crimes, Crimes Against Humanity, Torture & Genocide (redress 1999), p. 15. 5 See eccc, Internal Rules, Rule 23; stl, Statute, Article 17. 6 icc, Rome Statute, Article 68(3).7 Ibid., Art.75; icc, rpe, Rules 94-99.cuppini International Criminal Law Review 21 (2021) 313-341 Downloaded from Brill.com11/16/2022 03:45:41PM via free access 51lling under the rubric of restorative process, there is still contention among academics on its precise definition.51Thedifficulty in defining rj as a process can be attributed to the various elements involved in the restorative mechanisms and methods, which 'are given differing weights (…) reflecting different 'sensibilities' and cultures.'52Marshall has offered one of the most widely accepted definitions,53 which described rj as 'a process whereby all parties with a stake in a specific offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.'54 Conceived as such, the rj process involves five reciprocally linked key features, put forward by Van Ness and Heetderks Strong.55Three of these elements relate to the restorative process, namely (1) victim-offender encounter; (2) offender's acknowledgement of responsibility and apology; 49 Claire Garbett, '"And Focused Upon Victims' Needs": Towards an Assessment of the Victim-Friendly Principles of Restorative Justice Practice' , 19(3) Contemporary Justice Review (2016) 307-324, p. 308.50 James Dignan, Understanding Victims and Restorative Justice (Open University Press, Maidenhead, 2004), p. 2; M Heikkilä, supra note 18, p. 39. cuppini International Criminal Law Review 21 (2021) 313-341 Downloaded from Brill.com11/16/2022 03:45:41PM via free access of practices , which sometimes may be paradoxically in conflict with each other.Latour referred to clr as a 'mediator' , rather than an 'intermediary' .The difference is that, while intermediaries merely channel views, mediators 'transform, translate distort, and modify that meaning of the elements they are supposed to carry.'83 82 Sara Kendall and Sarah Nouwen, 'Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood' , 76 Law and Contemporary Problems (2013) 235-262, p. 250.reality or chimaera International Criminal Law Review 21 (2021) 313-341 Downloaded from Brill.com11/16/2022 03:45:41PM via free access that clr represents was not included in the charges as forming an intrinsic part of the recruitment and use of child soldiers.The Lubanga trial provides an account of the actions of the accused, but it leaves the narrative of victims' harms and experiences in connection with sexual crimes outside the courtroom.Similarly, Lubanga's sentencing judgment established the role and responsibility of the offender for the recruitment of child soldiers, but neither clarified nor validated the experiences of the victims of sexual violence, nor included any consideration on the effects of harms as victims understood and felt them.139 reality or chimaera International Criminal Law Review 21 (2021) 313-341 Downloaded from Brill.com11/16/2022 03:45:41PM via free access sexual violence