There is no direct reference to “reconciliation” as a purpose of punishment in the preamble. International Criminal Law protects “peace, security and the well-being of the world”, referring to the accepted basic, inherent values of the international community.170
Reconciliation could be one means to achieve the goals mentioned, however, the preamble does not go into any further detail on the intended means to achieve peace, security and the well-being of the world. Still, some authors argue that collective reconciliation is thereby included as one of the objectives of the ICC171, that a
reconciliatory role inheres in the aims of the ICC beyond the punitive function, that the ICC therewith goes beyond what is expected from national trials.172 It has even been said
that reconciliation is one of the most important purposes of punishment in this context, that reconciliation is indispensable because peace and security cannot be achieved through punishment and retribution alone.173
170See Triffterer, O. (1999). Commentary to the Preamble. Commentary on the Rome Statute of the International Criminal Court. O. Triffterer. Baden-Baden, Nomos Verlag: 1-16. At page 13.
171 See for example Stehle, S. (2006). Das Strafverfahren als immaterielle Wiedergutmachung. Frankfurt am Main. At page 40; compare also Scomparin, L. (2003). La victime du crime et la juridiction pénale internationale. La justice pénale internationale entre passé et avenir. M. Chiavario. Paris, Dalloz- Giuffrè: 335-352. At page 340.
172 McDonald, A. (2002). The Role of Victims and Witnesses in International Criminal Trials. Treaty Enforcement and International Cooperation in Criminal Matters with special reference to the Chemical Weapons Convention. R. Yepes-Enriques and L. Tabassi. The Hague, T.M.C. Asser Press: 257-276. At page 259; Haslam, E. (2004). Victim Participation at the International Criminal Court: A Triumph of Hope over Experience? The Permanent International Criminal Court. Legal and Policy Issues. D. McGoldrick, P. Rowe and E. Donnelly. Oxford and Portland Oregon, Hart Publishing: 315-334. At page 315; Fife, R. E. (1999). Art. 77, Applicable penalties. Commentary on the Rome Statute of the
International Crimina Court. Observers' Notes, Article by Article. O. Triffterer. Baden-Baden, Nomos Verlagsgesellschaft: 985-998. At page 986. Pinto, M. C. W. (2003). Truth and consequences or truth and reconciliation? Some thoughts on the potential or official truth commissions. Man's Inhumanity to Man. Essays on International Law in Honour of Antonio Cassese. L. C. Vohra, Y. Featherstone, O. Fourmyet al. The Hague, Kluwer Law International. At page 701.
173 Stehle, S. (2006). Das Strafverfahren als immaterielle Wiedergutmachung. Frankfurt am Main. At page 40.
Reconciliation has on the other hand been said to be merely a side effect of the restoration of the values of the international community.174
Others seem to view reconciliation as a subject reserved to institutions like the Trust Fund or Truth Commissions
175 and ascribe a purely retributive function to International
Criminal Tribunals.176
The incorporation of norms on victim participation and reparations into the Rome Statute could be indicative of the incorporation of restorative elements177 into this body of rules,
which also involve the concept of reconciliation. However, this line of reasoning could lead to a circular argument if victim participation for instance was only introduced to serve the purpose of retribution. As concerns reparations, they however clearly serve a reconciliatory goal.178
On the ICC’s website, section “victims and witnesses” one can read that “the victim- based provisions within the Rome Statute provide victims with the opportunity to have
It seems that the ICC’s aims are therefore not exclusively retributive but that restorative aims are included to an extent which is, as yet undetermined.
174 See Safferling, C. J. M. (2003). "Das Opfer völkerrechtlicher Verbrechen." Zeitschrift für die gesamte Strafrechtswissenschaft 115: 352-384. At page 384.
175 Glickman, S. (2004). "Victim's Justice: Legitimizing the Sentencing Regime of the ICC: Dorsey and Whitney Student Writing Prize in Comparative and International Law Best Note Award Winner." Columbia Journal of Transnational Law 43: 229-268. At page 242.
176 Eisnaugle, C. J. N. (2003). "An International Truth Commissions: Utilizing Restorative Justice as an
Alternative to Retribution." Vanderbilt Journal of Transnational Law 36(1): 209-242, Glickman, S.
(2004). "Victim's Justice: Legitimizing the Sentencing Regime of the ICC: Dorsey and Whitney Student Writing Prize in Comparative and International Law Best Note Award Winner." Columbia Journal of Transnational Law 43: 229-268. At pages 229, 230.
177 There are different approaches to explain the conception of “restorative justice”. Summarizing it can be said that the primary objective of restorative justice is to correct violations of relationships between people and to restore relationships. As such, it necessarily involves victims and survivors, perpetrators and the community, in the quest for a level of justice that promotes repair, trust building and also reconciliation. Quod vide in detail Eisnaugle, C. J. N. (2003). "An International Truth Commissions:
Utilizing Restorative Justice as an Alternative to Retribution." Vanderbilt Journal of Transnational Law
36(1): 209-242. Pp 211 et seq.
178 See Dwertman, E. The Reparations System of the International Criminal Court, its implementiation, possibilities and limitations, forthcoming; Shelton, D. (2005). Remedies in International Human Rights Law. Oxford, Oxford University Press. At page 320.
their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is this balance between retributive and restorative justice that will enable the ICC, not only to bring criminals to justice but also to help the victims themselves obtain justice.”179 This can be understood as another indication that restorative justice is
intended to be included in some form or another although the website of course is in no way legally binding. A restorative function was also already mentioned at the Preparatory Commissions.180
The ICTY has not explicitly cited reconciliation as a purpose of punishment but has occasionally made reference to the mission of the Tribunal described as, among other things, “restoring and keeping peace in the former Yugoslavia”.181 However, even if the
ICTY has sometimes been ascribed a reconciliatory role182, it has also been stated, that an
implementation of this purpose has not been achieved in reality.183
In summary, we may observe that there are indications that restorative and thus also reconciliatory elements will be included in procedures before the ICC.
More precisely it should be said that one purpose will be collective reconciliation.184
179 See
Finally, when discussing “reconciliation” it should be kept in mind that the ICC can only promote reconciliation. But a successful reconciliation also requires the approval of
http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Victims/.
180 See Lee, R. S. (2001). The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Ardsley, New York, Transnational Publishers. At page 457.
181 See Prosecutor vs. Mucic et. al (“Celebici”), Judgement, Case No. IT-96-21, 16 November 1998, paras. 1203 and 1232; Prosecutor vs. Jelisic (“Brcko”), Judgement, Case No. IT-95-10, 14 December 1999, para. 116.
182 See McDonald, A. (2002). The Role of Victims and Witnesses in International Criminal Trials. Treaty Enforcement and International Cooperation in Criminal Matters with special reference to the Chemical Weapons Convention. R. Yepes-Enriques and L. Tabassi. The Hague, T.M.C. Asser Press: 257-276. At page 259
183 See Stover, E. (2005). The Witnesses. War Crimes and the Promise of Justice in The Hague. Philadelphia, University of Pennsylvania Press. At page 15 pointing out that there is no direct link between criminal trials and reconciliation, although admitting that this could changer over time. 184 The preamble by mentioning “peace, security and the well-being of the world” does not speak of
victims as much as the perpetrator and also society’s acknowledgement and reconciliation with the past.185