PRODUCTOS Y PREPARACIONES REPRESENTATIVOS DE LA COMUNIDAD DE LA RIOJA

The theory that concerns itself with the efficacy and fairness of societal processes is called procedural justice. Lawrence Solum defined procedural justice as: “the conditions under which the application of the norms of corrective justice to particular cases is fair” (2004: 238). Solum’s linkage between notions of procedural justice and legal proceedings is a common feature of the academic literature (see Bottoms and Tankebe, 2012; Hollander-Blumoff and Tyler, 2011; Jenkins, 2011; Macdonald, 1980), with procedural justice often being associated with common law principles, including: due process (see Resnick, 1977; Scanlon, 1977), fundamental justice (see Evans, 1991) and natural justice (see Baxter, 1979). However, it should be noted that procedural justice also concerns itself with non-legal settings when some form of resolution regarding a distribution of resources is required (see Blader and Tyler, 2003; Tyler and Blader, 2000; Barrett-Howard and Tyler, 1986). For this thesis, procedural justice will be used to analyse the efficacy and fairness of the processes which guide the workings of the ICC, in this case: referrals, complementarity, gravity and cooperation.117 _{This thesis identifies four models of procedural justice, which determine}

whether a procedure can be said to be just: the accuracy model, the balancing model, the participation model, and the transparency model.118 _{The remainder of this Section will}

explore the four aforementioned models independently, so as to establish a framework

117 _{These will be discussed further in Chapter Six.}

118 _{It should be noted that procedural justice concerns itself with formal procedures rather than the aspects of}

justice which focus on how decisions are made, such as impartiality and lawfulness, which are discussed in Section 3.4.

88 against which the justness of the ICC’s procedures can be measured. However prior to this, the Section will first explore John Rawls’ three types of procedural justice (see 1999b: 73-78).

3.3.1 John Rawls’ Three Types of Procedural Justice

According to Rawls, procedural justice exists in three forms: perfect, imperfect and pure (see 1999b: 73-78). The first of these, perfect procedural justice, exists when “there is an independent standard for deciding which outcome is just and a procedure guaranteed to lead to it” (Rawls, 1999b: 74). From Rawls’ explanation it can be argued that perfect procedural justice assumes two things: first, an objectively identifiable desired outcome; and second, a procedure that will accurately and consistently ensure that this outcome will be produced. To demonstrate perfect procedural justice, Rawls used the cake-cutting scenario whereby a group of people are tasked with dividing a cake so as they each receive an equal share (see 1999b: 74). Here, Rawls identified the desired outcome as being an equal share of the cake for all participants in the transaction and suggested that this outcome could be accurately achieved by employing a procedure whereby the person charged with cutting the cake is given the last slice (see 1999b: 74). According to Rawls, this procedure works because making the cutter pick last ensures that they will divide the cake as equally as possible so they do not get left with a significantly smaller slice (see 1999b: 74). However, in qualification of this principle, Rawls noted that: “pretty clearly, perfect procedural justice is rare, if not impossible, in cases of much practical interest” (1999b: 74).119

Moving on, Rawls defined his second type of procedural justice, imperfect procedural justice, as existing when although “there is an independent criterion for the correct outcome,

119 _{In fact, for reasons which will be discussed in Section 3.3.2, Lawrence Solum argued that “procedural}

89 there is no feasible procedure which is sure to lead to it” (1999b: 75). Here again, Rawls’ principle holds two characteristics: first, an objectively identifiable desired outcome; and second, no procedure through which this outcome can be accurately and consistently delivered. For Rawls, imperfect procedural justice is exemplified by the criminal justice system because although a desired outcome exists, those responsible for committing crimes get punished, it is “impossible to design the legal rules [or procedures] so that they always lead to the correct result” (1999b: 74-75). In defence of his suggestion, Rawls explained that criminal justice is an example of imperfect procedural justice because “even though the law is carefully followed, and the proceedings fairly and properly conducted, it may reach the wrong outcome. An innocent man may be found guilty, a guilty man may be set free. In such cases we speak of a miscarriage of justice” (1999b: 75). Therefore, imperfect procedural justice highlights a vagary insofar as it suggests that justice and injustice can coexist simultaneously. For example, during a criminal trial the process itself could be just if all the correct laws and provisions were followed but an incorrect decision could still be delivered which would make the outcome unjust.120

Finally, Rawls argued that his third type of procedural justice, pure procedural justice, exists for arrangements where “there is no independent criteria for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed” (1999b: 75). This means that pure procedural justice is defined by a single characteristic, the process itself, because there is no objectively identifiable desirable outcome which will benefit all the concerned parties. To explain pure procedural justice, Rawls used the example of gambling (see 1999b: 75).

90 According to Rawls, when stakeholders partake in a betting transaction there is no outcome which will be desirable for all parties involved because either the bookmaker or the gambler will end up losing (see 1999b: 75). As such, Rawls argued that the outcome is irrelevant when assessing the fairness of gambling transactions because justice is intrinsically linked to the process itself (see 1999b: 75). In short, within a pure procedural justice arrangement as long as the correct procedures are followed, such as those surrounding the placing and adjudicating of bets, then the outcomes that arise will always be considered just despite either the bookmaker or the gambler losing.

Thus, from the above discussion on Rawls’ types of procedural justice it can be argued that the concept is complex, multi-faceted and exists in many forms (see also Johnston, 1994; Damaska, 1986). In particular, given that perfect procedural justice arrangements are rare, it is important to delineate whether the arrangement being discussed is considered to be an example of imperfect or pure procedural justice (see Rawls, 1999b: 75). This is because these arrangements purport a different understanding of how justice is measured. For example, if one applied the principles of pure procedural justice to a criminal trial, then the judgment rendered would be considered just so long as the correct procedures had been followed, regardless of whether the outcome was correct. Whereas, when a criminal trial is considered in relation to the principles of imperfect procedural justice, the judgment is considered just not only by virtue of the process followed but also by whether or not its substantive element, be that conviction or acquittal, was correct.

In light of this observation, it is important to note that the type of procedural justice most appropriate for this thesis’ analysis of the ICC is imperfect procedural justice. There are three broad reasons why this thesis argues that the ICC’s procedural framework is an example

91 of an imperfect procedural justice arrangement. First, the ICC conducts criminal trials so is relevant to Rawls’ example of imperfect procedural justice discussed above. Second, this thesis is primarily concerned with procedures away from the trial process, such as complementarity, cooperation, gravity and referrals, which can also be considered examples of imperfect procedural justice because although objective desired outcomes can be arrived at, there remains no process that can guarantee a correct decision. Finally, whilst the ICC possesses an overarching goal, to end impunity, there remains no procedural mechanism that can guarantee that the Court can achieve this aim; thus, depicting it as an example of imperfect procedural justice. Having discussed Rawls’ three types of procedural justice and related them to the ICC’s framework, this thesis now turns its attention to the theoretical models used to judge when procedures are just; beginning with the accuracy model.

3.3.2 Accuracy Model

The accuracy model of procedural justice suggests that procedures should be measured entirely on their ability to produce accurate or correct outcomes. For instance, in the context of criminal litigation proceedings, Robert Bone argued that “the purpose of adjudication is to determine each party’s rights accurately” (1993: 598). Similarly, but in relation to civil rather than criminal proceedings, Patrick Johnston measured a procedure as just in relation to the “success” it brought “in providing dispute-resolution participants what they think they are due” (see 1994: 833). In the context of the ICC, the accuracy model would depict the Court’s procedures as being just in accordance with the extent to which they were able to consistently produce accurate outcomes. In other words, do the ICC’s procedures achieve what they were intended to?

92 However, Solum highlighted two broader problems related to measuring the effectiveness of procedures in accordance with the accuracy of the outcomes they produce. First, Solum noted that accuracy itself is a contested concept that can be viewed from two perspectives: case accuracy, whether the outcome in a specific case was correct; and systemic accuracy, whether the procedure will produce the correct outcome in future cases (see 2004: 247). Solum argued that this was problematic because these two perspectives are not always compatible insofar as occasionally “the goals of case accuracy and systemic accuracy may conflict” with one another (see 2004: 250). Second, Solum purported that defining procedural effectiveness in terms of accuracy was problematic because it failed to recognise that “justice has a price” and that there comes a “point at which that price is not worth paying” (2004: 247). This reality was echoed by Bone who suggested that it was poor practice to suggest that notions of procedural justice be measured solely in terms of accuracy because of the reality that current justice systems tolerate “procedural error even when expensive procedures might reduce it” (1993: 599).

Therefore, because there is no agreement over how accuracy should be measured and at times accuracy is sacrificed in favour of cost, the usefulness of the accuracy model as a means for analysing whether procedures are just is debatable. Moreover, the standalone strength of the accuracy model becomes further diminished when Rawls’ observation that the majority of procedural justice arrangements are imperfect and therefore cannot guarantee the correct or accurate outcome all the time (see also Solum, 2004: 244-247).121

Nevertheless, because correct outcomes are desirable accuracy remains an important criterion for just procedures and as such should not be ignored as an overarching goal of

121 _{Lawrence Solum suggested that prioritising accuracy above any other criterion is troublesome because justice}

93 procedural arrangements. In short, and as asserted by Solum, accuracy exists as a “component of an ideal of procedural justice, but it is not a candidate for a complete account of procedural justice” (2004: 252). Having outlined the strengths and weaknesses of the accuracy model of procedural justice, this thesis now turns its attention to the balancing model.

3.3.3 Balancing Model

The basis of the balancing model is that a procedure can be judged as just when it is designed in a manner that effectively weighs the benefits of accuracy against the cost of said accuracy being achieved (see Schebesta, 2014: 854; Solum, 2004: 252-259). For our discussion, the balancing model would purport that the ICC’s procedures be designed in a manner which effectively weighs the costs and benefits of achieving an accurate outcome. Moreover, it should be noted that, in an ICC context, any cost/benefit calculations not only need to measure costs in financial terms but also political ones, such as the loss of sovereignty (see Hafner-Burton, Mansfield and Pevehouse, 2015; Alter, 2008; Bradley and Kelley, 2008: 27-32; Abbott and Snidal, 2000: 436-441; Moravcsik, 2000: 227-228).

However, the extent to which the balancing model is a suitable measure of procedural effectiveness and fairness is debatable. One issue with the balancing model relate to these two questions which can be asked of it: when should accuracy be forfeited in favour of cost and how should the costs of procedural justice be distributed? Solum offered some possible answers to these questions by grounding the balancing model of procedural justice in the context of two broader notions of normative ethics. First, Solum outlined a consequentialist proposal where the benefits of accuracy were weighed against the costs of obtaining it and the option that would result in the best consequences, namely the highest levels of utility,

94 would be chosen (see 2004: 252-257). Second, Solum proposed a deontological defence which would emphasise right-based constraints on decision-making, particularly the nature and distribution of costs created (see 2004: 257-259).

However, Solum qualified this debate by suggesting that neither the consequentialist nor the deontological arguments were adequate for resolving cost-benefit vagaries underpinning the balancing procedural justice model. For Solum, the consequentialist justification was weak because it did not make decisions in accordance with widely shared societal values and is instead built in accordance with an amoral aim of maximising utility (see 2004: 256-257). Likewise, Solum argued that the deontological justification was problematic because not enough academic analysis has been conducted to determine if it is fit for purpose (see 2004: 258-259). These observations led Solum to remove the balancing model from his theory of procedural justice, although references to cost-benefit analysis do remain in his principles (see 2004: 259). Nevertheless, this thesis would not go as far as to discredit the balancing model as a means for analysing procedural effectiveness because it would appear clear that cost/benefit judgments do feature in justice decisions at both the domestic and international level (see Abrams, 2013; Starr, 2013; Rosenberg and Mark, 2011; Brown, 2004; Roman, 2004). For example, those discussions raising concerns about, or sometimes even criticising, the cost of international criminal justice are often grounded in a cost/benefit narrative (see Davenport, 2014; BBC News, 2012b; Skillbeck, 2008; Wippman, 2006). Instead, this thesis would argue that, as it did with the accuracy model, cost/benefit analysis should be considered as an integral part of any analytical framework built on notions of procedural justice. Having discussed the vagaries of the balancing model of procedural justice, this thesis now turns its attention to the participation model.

95

3.3.4 Participation Model

According to Solum, the participation model holds that procedures are effective and fair when “those affected by a decision have the option to participate in the process by which the decision is made” (Solum, 2004: 259; see also Saliternik, 2016: 623-624; Stewart, 2014: 213- 214; Guinier, 1991: 1489-1513). Discussions on the relationship between participation and procedural justice can be narrowed to concern two questions: who can participate and how do they do so? Concerning the matter of who can participate, Michal Saliternik distinguished between open and closed levels of participation, with open participation allowing the direct involvement of any party with an interest in proceedings, whereas, closed participation narrows this so that only those stakeholders directly affected by the matter being discussed are allowed to participate (see 2016: 623). Moving on to the question of how parties can participate, Richard Stewart differentiated between decisional and non-decisional participation, with decisional participation allowing participants to directly influence the outcome of proceedings, often by awarding them a vote on the final decision, whereas non- decisional participation are directly involved in the proceedings but have no final say over the outcome (see 2014: 213-214). In terms of the ideal system of participation, directly referring to Stewart’s work, Saliternik preferenced a closed/decisional model of participation as the means for best ensuring that stakeholder interests and rights are promoted and respected (see 2016: 623). However, Saliternik did qualify this by stating that although not ideal, an open/non-decisional participatory system is better than no participation at all (see 2016: 623).

Now, Saliternik’s qualification perhaps highlights the importance of stakeholder participation in meeting the demands of procedural justice but this thesis disagrees with Saliternik’s suggestion that open participation is suitable for justice transactions. The basis of

96 this disagreement is centred on the suggestion that open participation may challenge the integrity of the process by allowing indirect stakeholders the opportunity to use proceedings as a platform on which to promote their own agendas. This is important in the context of the ICC because allowing open participation could provide critical states, regional/international organisations and/or victim groups with the ability to further criticise the Court’s proceedings and practice; a reality that would perhaps fail to meet the liberal notion that justice efforts should serve the interests of the weakest members within a transaction. Furthermore, this thesis agrees with both Saliternik (see 2016: 623-624) and Stewart’s (see 2014: 213-214) preference of decisional participation but also considers non-decisional participation as a suitable replacement.

As such, this thesis would argue that closed/decisional participation is most desirable for justice transactions not only before the ICC but in other situations as well because it can help in ensuring the purity of proceedings. This said, closed/non-decisional would be a suitable alternative if logistics prevent decisional participation from occurring. In the context of the ICC, the participation framework is reflective of a closed/non-decisional system. Participation before the ICC can be considered closed because only stakeholders directly affected by proceedings, usually a combination of the prosecution, defence, state representatives and victim representatives, can take part. Moreover, participation in ICC proceedings can be classed as non-decisional because the aforementioned stakeholders do not have a say in the final outcome, this is instead made by a panel of judges who base their decision in accordance with the evidence and arguments provided during the proceedings heard.

97 Now, the above discussions from Saliternik and Stewart provide a strong context for understanding participation within justice transactions as well as highlight the importance of participation within procedural justice. However, interestingly neither Saliternik nor Stewart give any reasons as to why stakeholder participation enriches the search for procedural justice. Solum addressed the issue of why participation is an important element of a just procedural arrangement through four separate explanations, the gaming interpretation, the dignity interpretation, the satisfaction interpretation and the discourse theory interpretation (see 2004: 259-273). But, as highlighted by Solum, only two of these explanations, the dignity and satisfaction interpretation, are relevant to criminal proceedings and subsequently the workings of the ICC (see 2004: 260-272). Moreover, Solum does acknowledge that no one of these interpretations is a standalone explanation, instead they combine to provide a defence of participation as an important requirement for procedural justice (see 2004: 272-273). The remainder of this Section will define the dignity and satisfaction interpretations in order to defend the important role held by participation within justice transactions.

According to Solum, the dignity interpretation’s defence of participation within justice transactions is best articulated through the maxim: “everyone is entitled to their day in court” (see 2004: 262). Underpinning the dignity interpretation is the argument that the ability to participate in legal proceedings that directly affect an individual is a right and that being allowed to have their story heard ensures that the stakeholders are treated with dignity (see