Restorative Justice, Impunity and Amnesty in International Criminal Law
| Author | Li Di |
| Position | Ph.D., Lecturer at the School of Law, Beijing Normal University |
| Pages | 21-38 |
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Restorative Justice, Impunity and Amnesty in International
Criminal Law
Li Di
1
Abstract: The idea of restoration and the special form of justice-restorative justice are
viewed by many scholars as a “teething problem” for the young International Criminal Court
(the ICC). Aiming at bringing peace, restorative justice has been argued as the opposite side of
the current legal framework at the ICC, which is often referred as “peace versus justice”. The
article goes deep to the real meaning of restorative justice, and differentiates restorative justice
from transitional justice. Based on such differentiation, it proves that the logic behind “peace
versus justice” is not completely correct, because the non-impunity principle in nternational
law does not necessarily exclude amnesty. Restorative justice provides international criminal
justice a new lens to the form of punishment that the convicted persons should contribute to
the local community rather than simply serving the sentences in prison. Also, restorative justice
supports the policy of “zero tolerance to crime” and complies with the non-impunity principle
in international law.
Key Words: Restorative Justice; Impunity; Punishment
The International Criminal Court when trying to bring more than justice and legalism into
its legal framework needs to overcome many difficulties. One of them being the “peace versus
justice” dilemma has already caused serious and prolonged debates in the International
Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL). The
dilemma often involves how international criminal justice balances the principle of impunity
and the spirit of justice.
Restorative justice often practiced in the form of national reconciliation and
rehabilitation, has become very popular in studying international crimes. The call for using
restorative justice at the ICC was an enthusiastic initiative and over the years, different studies
have made the voice of supporting the idea of restoration and restorative justice in the ICC
calmer and more rational. As more disputes are reaching the Hague, people realise that the
dilemma of “peace versus justice” always exists, particularly in the on-going armed conflicts,
and restorative justice has not prepared the ICC well enough. But it does not mean that the ICC
should withhold such an idea, because the ultimate aim of the ICC is to end the most imaginable
atrocities in the interests of all humanity. For the victims who survived the atrocities but have
to live with them every day, peace may be even more urgent than justice. Although restorative
justice does not completely solve the problems, it may be the closet answer we humans have
found. Hence, it is necessary to clarify the real meaning of restorative justice in the context of
international crimes, and analyse whether restorative justice is simply a wrong path or has it
been utilised or implemented incorrectly.
1
Li Di, Ph.D., Lecturer at the School of Law, Beijing Normal University. This short study comes from his Ph.D.
thesis, which he accomplished at Middlesex University, London, in 2019. The author wants to primarily express
his sincerest gratitude to the first supervisor, Professor William A. Schabas, for his warmest encouragement and
guidance in both academy and life. His sincerest gratitude also goes Ms. Penelope Soteriou, Professor Schabas’
wife, who helped him to improve writing in English. The author would like to thank the second supervisor, Dr.
Jennifer Ward, for her warmest help on the research and insightful comments on the criminology parts.
Additionally, the author wants to thank his dearest fr iend and colleague, the President of FLIA, Dr. Zhu Shao-
ming, for taking him in as one member of FLIA, and recommending his study to the Foundation for Law and
International Affairs Review. Last, but not least, his appreciations are given to the editor and other staff at the
Foundation for Law and International Affairs Review. Their hard work means a lot.
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1. The Meaning of Restorative Justice
In many countries, restorative justice has emerged in judicial practices as a means to
address criminal justice issues involving indigenous peoples.
2
It was utilised to address the
internal problems of a country, and was mutually influenced with crime victims’ movements.
3
It differs from the adversarial model of criminal justice in which prosecutorial actions are
subjected to restriction. Sometimes it is linked to ideas in civil rights litigation, such as
compensation. It is a criminal procedure that includes alternative dispute resolutions.
Restorative justice consists of multiple aspects that go beyond the slender principles of
criminal law. It concentrates on reality and adjusts its concrete practices accordingly. From this
standpoint, there is no unchangeable pattern for restorative justice as long as those practices
are able to conclude the restoration process. Consequently, it is hard to draw a conclusion on
the definition of restorative justice and narrow down to an exhaustive list of restorative justice
practices. Some researchers turn to describe restorative justice in various manners.
4
For
example, Howard Zehr, one of the frontier scholars on restorative justice, tries to justify what
restorative justice is not,
5
rather than describing how it should be formulated. He further
emphasises that “[r]estorative justice is a compass, not a map”,
6
indicating that there may not
be a constant mode for approaching or practicing restorative justice.
Professor Kathleen Daly contests the idea that restorative justice cannot be clearly defined.
Based on “purist” view, Professor Daly argued that restorative justice must be “defined
concretely” as “a justice mechanism” for the purpose of satisfying the “empirical inquiry”.
7
After reviewing various theories relating to the definition and context of restorative justice,
Professor Daly specifically pointed out that formal criminal justice, which is often regarded as
“retributive justice”, is not contrary to “restorative justice” because both retributive justice and
restorative justice, “as a coherent system or type of justice, do not exist.”
8
Restorative justice,
in Daly’s opinion, shall be included in the concept of “innovative justice” which does not solely
rely on legal processes but also other forms of participation and interaction.
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In other words,
she believes that an ideal justice mechanism must focus on the forms it intends to include and
shall extend its processes to solve real problems, and restorative justice, like formal criminal
justice, is simply one part of such an “umbrella term”.
10
As a conclusion, Daly states that:
“Restorative justice is a contemporary justice mechanism to address crime, disputes, and
2
See Elmar G.M. Weitekamp, The History of Restorative Justice, in G. Bazamore & L. Walgrave (eds),
Restorative Juvenile Justice: Repairing the Harm of Youth Crime, Criminal Justice Press, pp.75-102 (1999)See
Moana Jackson, Maori and the Criminal Justice System: A New Perspective, He Whaipaanga Hou, Policy and
Research Division, Department of Justice (1987).
3
See Daniel W. Van Ness, Crime and Its Victims: What We Can Do, Inter Versity Press, pp.5-9 (1986). Marlene
Young & John Stein, The History of the Crime Victims’ Movement in the United States, National Criminal Just-
ice Reference Service, US (2004), https://www.ncjrs.gov/ovc_archives/ncvrw/2005/pdf/historyofcrime.pdf (acc-
essed on February 2, 2015) .
4
See Burt Galaway & Joe Hudson, Restorative Justice: International Perspectives, Willow Tree Press, pp.1-14
(1996). Daniel. W. Van Ness & Karen H. Strong, Restoring Justice: An Introduction to Restor ative Justice (5th
ed), Anderson Publishing, pp.23-25 (2015).
5
See Howard Zehr, The Little Book of Restorative Justice, Skyhorse Publishing, Inc., pp.3-11 (2015).
6
See Howard Zehr, The Little Book of Restorative Justice, Skyhorse Publishing, Inc., p.8 (2015).
7
See Kathleen Daly, What is Restorative Justice? A Fresh Answer to a Vexed Question, 11 Victims and Offenders
9, 11 (2016).
8
See Kathleen Daly, What is Restorative Justice? A Fresh Answer to a Vexed Question, 11 Victims and Offenders
9, 15 (2016).
9
See Kathleen Daly, What is Restorative Justice? A Fresh Answer to a Vexed Question, 11 Victims and Offenders
9, 18 (2016).
10
See Kathleen Daly, What is Restorative Justice? A Fresh Answer to a Vexed Question, 11 Victims and Offenders
9, 19 (2016).
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