Until recently, the International Criminal Court (ICC) described its legal practices as offering a balance between retributive and restorative justice. It was held that restorative justice was progressed through its framework of victim participation in legal proceedings. However, there is little research into how, or whether, the Court metes out restorative justice. This article first considers the key pillars of restorative justice as 'encounter', 'amends' and 'reintegration', and the form of victim participation within these practices. It then examines how the ICC aligns to the direct participation of victims prioritised by restorative justice, and shows that victims do not hold such participatory possibilities. Instead, legal professionals take on direct participation in dialogue and decisionmaking processes. Using Bourdieu's framing of the juridical field, the article identifies key reasons for the absence of direct victim participation and argues that the ICC primarily functions as a retributive approach to the resolution of conflict.
Contemporary initiatives to address civilian victimisation in armed conflict increasingly focus on international criminal justice institutions, rules and practices. These institutions are now expected to construct legal recognition of civilian victims of armed conflict, as well as prosecute the perpetrators. This article uses a case-study of the Prosecutor v. Dragomir Milošević heard by the International Criminal Tribunal for the former Yugoslavia to explore the concept of the civilian. It first examines the international legal frameworks and obligations that enforce the protection of civilians. It then explores the concept of the civilian as defined by the rules of humanitarian law, and the different approaches to defining civilians utilised by the parties to the Milošević trial. The article argues that the current 'negative' definition of civilians creates significant difficulties for understanding civilians as a distinct category of persons, and does not adequately capture their choices, actions and experiences in armed conflict.
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