“Whose Justice Matters?”

ICC Justice Matters Campaign Photo ​© AP/Reporters/Karel Prinsloo

As part of its 10 ten year anniversary, the International Criminal Court has set up a multimedia exhibit campaign entitled “Justice Matters”.  The exhibit uses explicit and graphic photographs and video clips and its aim is to show that justice matters to the individuals and communities affected by the crimes under the Court’s jurisdiction and to show that it matters to the world. This got me thinking about the meaning of the term justice and whether it meant the same thing to most people, especially those affected by mass violence or conflict?

According to the great social scientist and African Scholar Mahmood Mamadani, in his article entitled “How Shall We Think of Mass Violence: Criminal or Political? Reflections on Nuremberg and CODESA”, he suggests that notion of justice as criminal justice has had the effect of being symbolic or performative. This in his opinion is victors’ justice and has largely shaped our perception of the term justice when it comes down to mass violence as we know it today. Mamdani draws attention to the new human rights paradigm which focuses its attention on individual criminal responsibility for mass atrocities rather than focusing on the main issues that drive the violence, whether political or otherwise. He distinguishes between victors justice, victims justice and at last posits a new framework of justice called survivors justice. In victors justice there is a clear victor who will emerge as powerful as was the case during the Second World War ending with Nuremberg.  Under victims justice there is no clear perpetrator as both victim and perpetrator exchange roles blaming each other during the ongoing conflict, as is often the case in during civil wars such as in Rwanda where both Hutu and Tutsi blamed each other, often switching roles of victim and perpetrator. While, with survivors’ justice, victims transition into survivors as a result of political reform, such was the case in South Africa, with CODESA (Convention for a Democratic South Africa) where strategic multiparty talks were held and agreement was reached to end apartheid. Mamdani argues that there can be no single narrative in each given case and that each case should be determined accordingly.

Mahmood Mamdani 

I think we can learn a lot from Mamdani’s analysis which is a good vantage point to analyse the processes of justice in each given case. It makes one think out of the legal box, which is often confining. Similarly, aside from understanding the driving forces which propel individuals or states into conflicts, we should also re-evaluate the international justice process as it operates today. Since we have reduced justice to individual responsibility, as Mamdani puts it, shouldn’t we make sure that the processes which shape its development are effective: first to its victims, perpetrators and immediate community and then to the international community? As Howard Zehr, aptly puts it, “Justice is an act of liberation” It should work to liberate the victim from the offense and offender by making the offender feel accountable. In other words, by making him aware of what he has done to his victims while coming to a true realization of the harm he or she has inflicted upon another.  Zehr holds that the current justice paradigm only focuses on making sure that guilt is relieved through punishment of the offender rather than focus on the process as a whole and its outcomes, which in his view should be that of restoration and healing. Genuine accountability in Zehr’s words is giving the offender the opportunity to make things right, or to repair the damage with the victim and society. This cannot happen by only establishing the guilt of the offender only or by reducing the justice process to an impersonal adversarial battle where victim and offender are marginalized during the trial process.

If this scenario is difficult to imagine at the domestic level, imagine it at international level where establishing the guilt of the perpetrator is paramount. In fact many defendants are already from the outset considered guilty even before the trial begins.  This, probably on account of the crimes committed which are so grave to say the least, pressure by the international community to bring the perpetrators to justice and the need to see the offender pay for his crimes This probably also explains the reason for the imposition of very stringent prison sentences. This retributive paradigm as coined by Zehr, is the only one we know, so how do we consider elements of restoration and forgiveness fitting into a retributive paradigm?

Immediately Gacaca comes to my mind. Recently, during one of my visits to Rwanda, I visited a village where both victims and offenders lived in peace during the aftermath of the genocide.  Although the Gacaca courts have had its share of criticisms and flaws, I feel that it has resonated with many people because of the restoration it radiated. Traditionally, justice in Africa emphasized restoration, forgiveness and reintegration, similar to what restorative justice proponents advocate. Of course Gacaca was also retributive, in that those refusing to confess were sent to prison or when the crimes were of such a grave nature that it did not allow reintegration into Rwandan society.

Although practically speaking there cannot be a sharp departure from the way criminal justice has been meted at the international level, we can consider ways in which to improve upon the system and processes. International justice can draw on the knowledge systems from different cultures, it can give the victim a more prominent or decision-making role in the proceedings (Zehr), it can enable the offender to engage with the victim/s in private sessions (a type of mediation) to try and repair the wrong;  it can benefit from the knowledge bases of other disciplines, such as the social sciences, not only through the use of expert witness testimony but through having such professionals in for instance, the Court's employ and it can strive to understand the crimes  in the context and culture in which it occurs. In this way, the quality of the judicial determinations handed down will no doubt be of a better quality or standing, and those involved in the international criminal process will have more confidence in the justice system. Justice should not be a word or process that reflects a purely legal understanding, according to Zehr it should not rule out what its participants feel if the process is to be effective. International justice suffers from the perception of being merely a symbolic process, an impartial legal process, a demonstration to the world.  

Justice Matters, but the question we should be asking is whose justice matters and to whom?

For more information on the ICC Justice Matters Campaign please go to:

http://www.icc-cpi.int/iccdocs/PIDS/other/JusticeMattersSlideshow-ENG.pdf

Posted By:

Ingrid Roestenburg-Morgan