Blog post

Perpetrators of mass atrocities:terribly and terrifyingly normal?

In this post, Prof. Alette Smeulers, University of Groningen, discusses the diversity and nuances in what drives individuals to become involved in mass atrocities. She presents a typology of perpetrators, which can help us better understand the drivers of perpetration, the internal social dynamics of violent groups, and how to fairly attribute (criminal) responsibility.

The trial of Adolf Eichmann in Israel in the sixties was a landmark event when it comes to studying perpetrators. It led to Hannah Arendt’s classic book ‘Eichmann in Jerusalem’ with the much-discussed subtitle: the banality of evil. In the book she also used the phrase ‘terribly and terrifyingly normal’ to describe Eichmann. This phrase has always fascinated me as it triggered the question: are perpetrators indeed terribly and terrifyingly normal? And if so, are they all terribly and terrifyingly normal? It became the subtitle of my book on perpetrators of mass atrocities, although with a question mark. And to answer the question immediately: yes many of them are but not all.

Perpetrators differ

Perpetrators of mass atrocities are all different: they differ in role, rank and motive. Some are predisposed to violence, others are not: some have criminal records, a violent past or are mentally disturbed while others have always been law-abiding citizens before they got involved in mass atrocities. When studying perpetrators, we need to take these differences into account. In literature, many explanations have been given as to why perpetrators commit horrendous atrocities, such as: obedience, conformity, ideology, hatred, material gain, self-interest and fear. These are all factors that indeed do play a role but in different ways for different types of perpetrators. They can also in some cases vary over time. Let’s give an example: For some perpetrators ideology is key and a motivating factor. These perpetrators strongly believe in an ideology which motivates them and which makes them get involved in mass atrocities. They believe that the goal justifies the means. Other perpetrators are not driven by an ideology but after they became involved in mass atrocities, for whatever reason, the ideology will help them rationalize and justify their crimes. They hence start to hold on to that ideology much more after the facts than they did before.

Fear can also play a role but here too the type and source of the fear can be very different. Some perpetrators get involved because they fear their opponent, while others fear the people in their own ranks. Some act under actual force and extreme pressure and have to choose between their own lives and that of the other person; while others merely suffer from social fear. They don’t want to be left out or be seen as cowards by their peers (see Browning’s book Ordinary Men)

Perpetrator typology

The perpetrator typology presented in my book Perpetrators of Mass Atrocities – Terribly and Terrifyingly Normal?, distinguishes 14 types of perpetrators. The typology was developed by studying perpetrators from different time periods and conflicts since the Second World War. I then looked at differences and similarities and grouped the perpetrators into categories ending up with 14 different categories or types of perpetrators. I included all perpetrators I could find enough information on in order to be able to analyse their role and motives – to understand what made them do what they did. The information used was found in biographies, interviews, letters, diaries, public statements, autobiographies and analysis of other scholars.

The typology is meant to provide more nuance to understanding perpetrator behaviour and show how dispositional factors and situational factors interact and how this can lead to different outcomes for different people. The perpetrators who are strongly driven by ideology are called the Fanatics, Holy Warriors and True Believers. The ones driven by material gain are called the Profiteers and Criminals; those by self-interest in the form of a career, the Careerists. Those who want to show they are the best at their jobs are the Devoted Warriors. The Followers are less ambitious and driven by obedience, the Avengers by revenge. Some are very vulnerable and have been put under extreme pressure, like the Compromised Perpetrators, while others go through a coercive training period, like the Professionals.  Some are very ordinary people like the Careerist, Devoted Warriors, Avengers and Followers while others are predisposed to violence like Predators, Deranged and some Criminals. At the top of the chain of command are the Criminal Masterminds, people like Hitler, Stalin, Saddam Hussein and Pol Pot. They are crucial but cannot come to power without the support of others.

Why do we need a typology of perpetrators?

It helps us see and understand the differences and nuances between types of perpetrators, thereby providing us with a better understanding of why people can come to commit mass atrocities. It shows the nuances in how ideology, obedience and fear work and how it does so in different ways for different people. Knowing this helps us understand how to prevent mass atrocities, as different types of perpetrators need to be deterred in different ways. To deter Criminals and Profiteers we need to make sure that war is not profitable. A good health care system can help people with mental deficiencies function well in society and prevent them from becoming mass murderers. By ensuring that  our societies are more inclusive we can take away the fertile breeding ground for extremism. By teaching our children to think critically, we can prevent them from uncritically following a violent group.

The typology also teaches us more about the internal social dynamic between the various types of perpetrators and it shows that perpetrators play different roles within violent and oppressive groups. At the top of the chain of command there usually is the Criminal Mastermind: they set the direction but are usually not physically involved in the crimes. They are supported by Fanatics who are driven by fanatical hatred or contempt and set out the ideological framework and motivate others like the Holy Warriors and True Believers. Criminal Masterminds are usually assisted by several power hungry and greedy Careerists, who want to make their mark in history. Going down the chain of command there are Devoted Warriors who want to show that they are the best at their job. They completely subdue themselves to the leadership. Profiteers, Criminals and Predators take advantage of the situation and sometimes take the lead within particular military units, while Followers just go along. Understanding these dynamics makes it easier to come up with tailor-made interventions.

Relevance for international criminal law and transitional justice

When it comes to attributing individual criminal responsibility, understanding that there are different types of perpetrators and how they affect and influence each other could help to attribute blameworthiness in a fairer way. In the past this was not always the case. After WWII in the Netherlands for instance, Ans van Dijk a Jewish woman who was captured by the Nazis and forced to work for them while being threatened with deportation to Auschwitz, where she would have been killed, was a Compromised Perpetrator. When faced with the threat of deportation, she gave in and after a while adapted to her new role. Sadly enough, van Dijk betrayed up to a hundred, possibly even over two hundred Jews. After the war she was one of the 39 people who were executed after having been given a death penalty in the Netherlands. Remarkably, the Dutch police officer who had put pressure on her was a witness in her trial rather than the other way round. He was later executed as well but the two Nazis above him were not and they were eventually released from prison. Ans van Dijk would, however, never have committed her crimes or even been tempted to do so, without them forcing her. The two Nazis in turn were pressured to do so by the lists, schemes and quotas imposed by Eichmann and as presented during the Wannsee conference. It shows how the dynamic of social influence, pressure and coercion trickled down to this unfortunate woman.

For transitional justice to really serve justice it is important to better understand the individual roles and responsibilities and to focus on those who create the context, who invent the system, who started the dynamic leading to mass atrocities as the prime targets of the criminal justice system. Others lower in the chain of command who committed horrendous crimes, can be prosecuted and punished too but in order to do so fairly we need to be very much aware of their agency and of how big their role really was. I very much hope that the typology of perpetrators as described in the book can help to better understand how atrocities come about and who played what role. I hope it can help give all the cogs in the machine a human face and provide a better understanding of both the complexity and fluidity of responsibilities involved in periods of mass violence.

Alette Smeulers is professor of international crimes at the University of Groningen and author of the book: Perpetrators of Mass Atrocities: terribly and Terrifyingly Normal? (Routledge 2024). She also has a podcast series: Terribly and Terrifyingly normal with Nicola Quaedvlieg. For more info see her personal website

Blog post

A Belgian court provides hope for justice in Guatemala

In December 2023, a historical trial took place in Leuven, Belgium. Five high-level officials from Guatemala’s military and political apparatus stood trial for murder, enforced disappearance and torture of Belgian missionaries in Guatemala in the eighties. And as a new president just got sworn in in Guatemala, the Belgian judgment may come at a crucial time, say researchers and activists Sanne Weber (Radboud University Nijmegen) and Marlies Stappers (Impunity Watch).

In the nineteen eighties, Guatemala was in the throes of a bloody internal armed conflict. The conflict not only took the lives of hundreds of thousands Guatemalan citizens, but also made foreign victims. Among them were four Belgian missionaries who undertook pastoral work with communities on Guatemala’s South Coast. Priest Walter Voordeckers was murdered on 12 May 1980, pastoral worker Ward Capiau was killed on 22 October 1981, and pastoral worker Serge Berten was kidnapped on 19 January 1982. He was never seen again and his body was never found. Pastoral worker Paul Schildermans was detained and tortured in 1982 but released under international pressure. Even though Guatemala’s internal armed conflict ended in 1996, justice for these crimes was never a possibility, as the country became characterized by high levels of impunity.

Since Belgium has extraterritorial jurisdiction over the case, as the victims are Belgian nationals, the victims’ family members, united in the organization Guatebelga, eventually decided to file a complaint with civil action before the investigating judge in Brussels. Belgian witness Carlos Colson, nephew of Father Voordeckers, described the action of holding the trial in Belgium in itself as a complaint against the Guatemalan state. After 21 years of judicial investigation, in 2022 the Council Chamber and then the Indictment Chamber referred the case to the Assize Court of Flemish Brabant – the court that tries the most serious cases. On 14 December 2023, after 11 days of hearings, the jury in Leuven decided that the five accused could be considered the intellectual perpetrators of the crimes, and sentenced them to life imprisonment and court costs, ordering their immediate arrest.

Experiences of justice in a faraway country

There are obvious challenges to try crimes that took place forty years ago in a faraway country. How will a Belgian jury understand the historical and cultural context of the crimes? This was an important task for the prosecutors, lawyers, the civil parties, and scientific advisor Prof. Stephan Parmentier. Through the use of Guatemalan witnesses and expert witnesses, who talked about the historical context, the patterns of human rights violations during the armed conflict, and their personal experiences witnessing the violence and persecution in the South Coast, the jury indeed came to understand the context and gravity of the violence. It considered the crimes grave enough to qualify them as crimes against humanity, committed within the framework of “a generalised or systematic attack on the civilian population”. One of the Guatemalan witnesses, who lost most of her family members during this wave of persecution, describes this as one of the main achievements in the case: “The interventions by each and every one of us, of situating them [the jury] and giving them the necessary information so that they could take a decision.”

There were however aspects of the trial that were more complicated for the Guatemalan witnesses. Two witnesses told us that, because of the way in which the Belgian judicial system aims to preserve the independence of the testimonies and prevent witness tampering, they had received little prior information about the trial and the proceedings. Being unaware what to expect in an unfamiliar justice system with a very different legal culture generated insecurity among them, and even fear among some witnesses travelling from rural areas in Guatemala.

Language barriers also played a role. Although interpreters translated the witness statements from Spanish into Flemish, this was not true the other way round for the rest of the proceedings, making it difficult for the Guatemalan witnesses to follow the course of the hearings and understand the verdict. The issue of translation has also come up in other universal jurisdiction cases. Language was also an obstacle for receiving psychosocial accompaniment, which is essential in a case involving traumatic experiences like experiencing the death or enforced disappearance of loved ones. The provision of sufficient information about the functioning of the specific justice system and the importance of two-way translation are important insights for similar universal jurisdiction cases, which could help to make these processes more victim-centred and make the proceedings accessible to the population of the countries where the crimes took place.

Justice for them is also justice for us

Nevertheless, both Guatemalan and Belgian witnesses unanimously consider the verdict of great significance. The trial helped to achieve justice for the Belgian victims and make clear that cases of grave human rights violations should be judged, even if the crimes took place decades go and regardless of where the court sits. It contributed to establishing the truth about what happened to the Belgian missionaries, but also about the context of human rights violations in the Guatemala’s Southern Coast, which is still relatively unknown. All three witnesses that we spoke with agreed that the case contributed to the dignification of the thousands of Guatemalan victims. “I feel that this is justice for them [the Belgian missionaries], but also for our families,” said one of the Guatemalan witnesses.

In fact, the jury in its motivation for the verdict explicitly expressed compassion with the victims and witnesses that suffered violence first-hand or lost their family members. This recognition is an important aspect of justice for the Guatemalan witnesses, especially since a similar judgment has so far been lacking in Guatemala, where the justice system has been co-opted by political and economic elites.

The witnesses also express the importance of transnational solidarity for this case. The relationships between the Belgian missionaries, their families and the Guatemalan communities where the missionaries worked, has remained strong throughout the decades. Belgian witness Colson described this solidarity as a motivation for starting the case: “After the peace accords in 1996, we wanted to know the truth. Our first visit strengthened us through the people we saw, the stories we heard and the understanding we gained of this terrible period.” Vice versa, the strong sense of solidarity also inspired the Guatemalan witnesses to travel all the way to Belgium to testify. A Guatemalan witness described the relief and happiness with the verdict among the Guatemalan community members who knew the missionaries well and also lost family members during this same period. Justice in Belgium, remote though it may seem, therefore also feels like justice for Guatemalan survivors of the armed conflict.

Next steps for justice for the Belgian missionaries

The five accused did not cooperate with the Belgian court. They were not present during the hearings and were not represented by lawyers. Angel Aníbal Guevara Rodriguez, former Defence minister and Donaldo Alvarez Ruiz, former Interior minister, are currently fugitives. Pedro García Arredondo, former head of the police secret service, and Manuel Benedicto Lucas García, former chief of staff of the army, are in prison or under military supervision in Guatemala, while Manuel Antonio Callejas y Callejas was recently released because of health reasons.

For a long time, the state of the Guatemalan justice system did not give any hope that a Belgian ruling would make any difference to their position, as more and more human rights cases were facing setbacks, with perpetrators already imprisoned being released. The most that could be hoped for was that the accused would feel restricted in their movement outside of Guatemala, because of an international arrest warrant.

Things might now change. On 14 January, Bernardo Arévalo was sworn in as the new president of the country. Arévalo, an anti-corruption champion from opposition party Semilla, has pledged to restore the rule of law in the country. Restoring the justice system will be a huge task, after years of systematic dismantling in which dozens of independent judges and prosecutors fled the country. Furthermore, Arévalo faces a divided congress, while his party has been under attack by the Attorney General’s Office. But Arévalo can count on strong support from the population and the international community. This might be the first time in years that there is finally hope for justice for conflict-era human rights violations in Guatemala. The Belgian verdict can therefore represent a small impulse for justice at a crucial moment.

This post was originally published on JusticeInfo.

Marlies Stappers is the founder and Executive Director of Impunity Watch. She has been deeply involved in research and policy work related to the fields of human rights, transitional justice, impunity reduction, and strengthening the role of civil society, victims and affected communities in countries such as Guatemala and Honduras, Burundi, the Great Lakes region, the Western Balkans and Cambodia. She is also the initiator and coordinator of the Dutch branch of the International Platform against Impunity in Central America.

Sanne Weber is Assistant Professor in Peace and Conflict Studies at the Radboud University Nijmegen. Her research and teaching address how post-conflict countries deal with their violent past and take steps towards peace and reconciliation. Her particular interest is to understand how conflicts change gender relations and how gender equality can be promoted in the post-conflict situation.

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Call for Submissions – Special Blog Series on the Genocide Convention

The Leuven Institute of Criminology will host a special series on its Leuven Transitional Justice Blog to mark the 75th Anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide.

While the horrific techniques and realities of genocide stretch far back into pre-history, the origins of the ‘concept’ and ‘crime’ of genocide can be traced back to the 1940s and  the work of Polish-Jewish lawyer Raphael Lemkin. The origins of the concept and crime are legal, but Lemkin also couched genocide in sociological, political, and anthropological terms, based, in large part, on his own experiences witnessing and seeking to respond to episodes of group destruction before, during, and after WWII. As such, genocide is not a concept owned by the law: sociology, criminology, history, political science, psychology, and many other disciplines have a lot to say about the subject.

9 December 2023 marks the 75th anniversary of the unanimous adoption by the United Nations General Assembly (UNGA) of the Genocide Convention, and, thus, the codification of genocide as a crime. This came just one day before the UNGA’s adoption of the Universal Declaration of Human Rights, and the event marked a crucial waypoint on the road towards ensuring justice following atrocity crimes, fighting impunity, and seeking to respond to the interests of victims.

After a somewhat underwhelming legal debut at Nuremberg and some attention in post-WWII trials, the definition of genocide spent some time in hibernation, before a general renewal of interest in the concept during the turbulent 1990s.

The past decades have seen a great deal of inter-disciplinary work done on the topic of genocide: the definition of genocide has changed and developed, and new interpretations of the concept and the legal definition appear year-on-year. Genocide is a dynamic concept, which is owned by no single discipline, and there is room within the convention for different interpretations of genocide as a process, as an event, and as a crime.

Recent years have witnessed increasing calls for academia, governments, societies, and institutions to deal with pressing issues, including the prevention of genocide, the punishment of offenders, and reparations for victims. The evidence of the past few years indicates that there is still much to do to ensure that the ‘never again’ agenda maintains its momentum and continues to develop.

We make a call here for blogposts which reflect the dynamism and ever broadening state of genocide studies. We, therefore, encourage the submission of contributions which examine genocide from different perspectives: across disciplinary, societal, political, social, professional, and institutional lines. We aim for a series that can look back over the past 75 years but also forward towards the potential challenges and opportunities of the next 75. We, thus, wish to contemplate views from a variety of different stakeholders besides academics: not least victim-survivors, perpetrators, advocates, justice professionals, civil society actors, and politicians.

We particularly welcome blog posts that examine the following topics:

  1. the origins of the concept of genocide; the work and life of Raphael Lemkin; histories of the Convention’s drafting, including insights into interactions between the drafting of the Convention and the UDHR
  2. new insights and interpretations of the Convention
  3. reflections on the usefulness or shortcomings of the concept of genocide, whether legal or otherwise
  4. the interaction between genocide and politics, particularly the difficulties and possibilities of preventing and responding to genocide at the political level and insights into the political power of the word, i.e., “the genocide mystique”
  5. reflections on transitional justice approaches and genocide, including the practice and impact of recognition, political apology, and acknowledgment of genocide; guarantees of non-recurrence; redress and reparations as a means to respond to victimisation, address genocidal histories, and intergenerational and inherited traumas; and the meaningfulness of prosecutions as an answer to historical genocides.
  6. insights from and/or research involving perpetrators
  7. victim-survivors’ insights and/or insights from research with victim-survivors
  8. sociological and psychological perspectives on genocide
  9. the effectiveness of international criminal law/justice, transitional justice, and political entities, including the UN and other international organisations, when it comes to preventing, punishing, and generally responding to genocide
  10. genocide, genocidal acts, or potential genocides in the contemporary world

Blog posts can be written in English, Spanish, French, or Dutch. However, pieces written in Spanish, French, or Dutch should be accompanied by an extended English summary. Please ensure that the blog post complies with our guidelines, which can be found here.

Contributions should be sent to leuventransitionaljusticeblog@gmail.com by 31 January 2024 for consideration by the editorial board.

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A Bottom-Up Approach to Transitional Justice: Using International Criminal Prosecution to Facilitate Reconciliation in Uganda

In this post, Tonny Raymond Kirabira (University of Portsmouth) makes a case for using formal criminal justice courts as avenues for achieving both retributive justice and reconciliation. Using the ongoing domestic prosecution of war crimes in Uganda as an example, it makes an argument for a direct engagement of victims and survivors with the perpetrator using the process of Alternative dispute resolution (ADR).

Uganda is one of the many African countries that have suffered from political instability, dating back to the post-colonial era. It has dealt with a legacy of civil unrest and wars, with dozens of rebel movements seeking to gain political power. Northern Uganda was engulfed in a two decade war between the Lords Resistance Army (LRA) and the government, causing massive deaths, abductions and internal displacement. Peace talks held between 2007 and 2008 did not yield much in terms of peacebuilding, but launched a process of transitional justice, which the country is dealing with at the moment. The mechanisms included amnesty, reparations and criminal accountability, in the form of domestic prosecutions and the International Criminal Court (ICC).

Prosecution of international crimes in Uganda: The International Crimes Division

Uganda domesticated the Rome Statute of the ICC through the International Criminal Court Act (ICC Act) of 2010.  Besides enforcement of the Rome Statute, the Act also makes further provision in the domestic laws, for the redress of international crimes of genocide, war crimes and crimes against humanity. In terms of the applicable law, the Act largely adopted Article 21 of the Rome Statute, that includes: “… applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict”.

The International Crimes Division or ICD (initially known as the War Crimes Division) was established under the failed Juba peace process, which included a proposal for the creation of a special division of the High Court to try perpetrators of war crimes committed during the LRA war.

Thomas Kwoleyo is the first and only defendant charged for war crimes and crimes against humanity at the International Crimes Division (ICD), following his indictment in September 2010. Kwoyelo is a former colonel in the LRA who was taken into custody in 2009 after army forces captured him in combat. His indictment and prosecution are based on a host of charges under both domestic and international laws, including war crimes and crimes against humanity (including rape, murder and recruitment of child soldiers), robbery and destruction of property in Northern Uganda.

Kwoyelo was not charged under the ICC Act, as his crimes occurred before the law was enacted. Rather, he was charged under the domestic laws and the 1964 Geneva Conventions Act. This normative background is important in order to determine the applicability of customary laws or victim-offender mediation, as part of ADR.

Is alternative dispute resolution feasible?

Kwoyelo’s case has received significant financial and technical support from development partners and NGOs, but still has a long way to go. Besides the significant delays, Kwoyelo’s trial has been negatively impacted by insufficient funding for the Court’s operations and challenges impeding on victims’ access to justice. As such, there is a strong case to be made  for a pluralist criminal justice approach, in line with the local context in Northern Uganda.

The idea put forward here is to propose using Alternative Dispute Resolution (ADR) as a gateway for traditional reconciliation between Kwoyelo and the victims, also encompassing the wider war affected communities. ADR refers to means of solving disputes outside of simple litigation in the court system, and often involves things like mediation or arbitration, but can take many forms. This approach is needed in order to navigate the challenges that come with using international criminal law practices at the ICD-delayed trials because of limited funding for the victims, court staff, and witness protection, among others. The pluralist approach would involve directly engaging survivors in ADR as a process embedded in plea-bargaining at the ICD.

Ugandan legal scholars have made critical assessment of ICD and the ongoing trial of Thomas Kwoyelo. Most notably, there are concerns about structural challenges like limited staff, absence of victim and witness protection mechanisms, and impartiality in the prosecution strategy. I am persuaded in particular by the argument that the application of both domestic and international law should be aligned to the  2007 Peace Agreement and its general spirit of reconciliation.

It is important to recall that traditional justice concepts have been utilised within the broad frame of complementarity during transitional justice in other African contexts like the gacaca courts in Rwanda. However, there are also challenges with using such systems, for example, inherent violations of due process and fair trial rights for the accused. Nonetheless, traditional justice mechanisms are still very important alternative mechanisms to formal retributive approaches in transitional justice.

From a normative perspective, the notions of complementarity and universal jurisdiction are key normative bases for the ICD and other internationalised courts to align with the general practice of international criminal law. However, implementing International Criminal Law (ICL) at national level is a tall order, due to the heterogeneous legal systems. As such, it is very important not only to recognise but also to manage the pluralistic nature of the ICL regime – transitional justice can offer additional layers for pluralism, through ADR.

Hybrid courts like the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) illustrate “the belief that no one set of norms applies to the crimes committed in Sierra Leone and Cambodia respectively.” As such Elies van Sliedregt’s recommendation for managing pluralism is equally instructive for transitional justice and the ICD in Uganda.

An issue for explicit legal pluralism at the ICD could be the judges’ reliance on ADR for offences under the Geneva Conventions Act and the domestic laws. The idea is to explore the use of victim participation during plea bargaining processes, to include elements of customary dispute resolution into the court processes.  As I have argued before, such an approach could drive international criminal courts to foster reconciliation during transitional justice, in legally pluralistic societies like Uganda. This need to address transitional justice from a pluralistic perspective, with different mechanisms, is also highlighted by key non-governmental organisations that are supporting the ICD.

In Northern Uganda, reconciliation is synonymous with peacebuilding and community building through the use of customary practices of justice, such as mato oput or “bitter roots” among the Acholi people. The rituals have been used to facilitate the process of reconciliation and plea bargaining, but not as a substitutive for criminal justice. Such processes are akin to victim-offender mediation, a notable restorative justice model in criminal justice.

Acholi scholar Opiyo Oloya presents a vivid summary of the aspects of reconciliation, truth telling and compensation, in the context of a homicide case in Uganda: “By starting the process of reconciliation, Kanyamunyu[he was the offender] is required to publicly come clean about what really happened — no more hiding behind legalese and lawyers. If in the process of the truth-rendering he is found credible, the next phase involves Culo Kwor[another ritual], restorative restitution for the loss of life.”

Put within the ambit of the trial, Kwoyelo and his community would be facilitated to meet with the victims and war affected communities to explore ways of resolving the cases, in line with their preferences. Under the ADR process, the victims would be able to put forward their demands to Kwoyelo or his local community, as envisaged under their local traditional dispute resolution practices. The court would still be required to make a judgement on his culpability and penalty, but would keep in mind the resolutions made under the mediation. Kwoyelo would also be able to provide some form of compensation individually or through his local community.

In sum, it is possible to promote a bottom-up approach to transitional justice within the ambit of international criminal justice. As this blog post has illustrated, the ongoing domestic trial of Thomas Kwoyelo in Uganda is a good avenue to explore this approach, through the import of victim-offender mediation, as part of ADR. In a nutshell, it is recommended to have a direct engagement between the perpetrator, war affected community and the victims in ADR as a process embedded in plea-bargaining at the ICD. When ADR approaches are utilised within international criminal justice processes, there is a greater possibility for engaging with victims and other conflict affected communities, whilst also expediting the criminal justice process and promoting reconciliation.

Dr. Tonny Raymond Kirabira is a legal practitioner and academic in the fields of public international law and international relations, based at University of Portsmouth(UK). He practices law in Uganda, and previously worked as a Visiting Professional in the Office of Public Counsel for Victims at the International Criminal Court. He is the current Vice Chair of Uganda Law Society’s  Research and Publications Committee, and has published widely in the fields of Internatioal Law, Human Rights and Transitional Justice. He was a Visiting Fellow at University of Copenhagen, London School of Economics, and KU Leuven Institute of Criminology (LINC). He has taught undergraduate law courses at the University of Greenwich, University of Portsmouth and Royal Holloway, University of London.

Blog post

Victims and Justice Paradigms in Criminal Justice Systems

In this blog post, Dr. Juan-Pablo Perez-Leon-Acevedo, Oslo University and Universidad Tecnológica del Perú, examines how the retributive and restorative justice paradigms have framed the role of victims in criminal justice processes.

Diverse authors have studied the status of victims before national and international criminal courts focusing on different perspectives. This blogpost discusses victims’ role in criminal justice according to justice paradigms. Victims’ roles are examined according to the retributive justice and restorative justice paradigms as well as a combination thereof. Following this, some philosophical/theoretical arguments for changing justice paradigms are discussed.

Victims and Justice Paradigms

Retributive justice primarily responds to rather than prevents crimes, grounded on the crime-responsibility relationship and proportional punishment. It has guided crime punishment in Western societies, invoking the need to punish offenders proportionally to their crimes because they deserve so. In this view, guilt and punishment cannot vary with victims’ identities.

Under retributive justice, victims lack a (decisive) role in guilt/punishment determination. Victims’ status in criminal justice is not central to retributive justice  scholarship. While retributive justice partially recognises victims’ plights, it is not victim-oriented, as it seeks to respond to crimes rather than victimisation. Retributive justice justifies victims’ limited role in criminal justice to avoid procedural arbitrariness related to victims’ revenge or forgiveness.

Restorative justice consists in processes whereby parties to crimes collectively resolve crime consequences, including reparations for victims. Since restorative justice is a narrow concept involving offender-victim dialogues, restorative practices is a more accurate term when talking about (adapted) incorporation of restorative justice into criminal justice. Unlike retributive justice, restorative justice is a forward-looking theory: moving on from crime and focusing on remedies, agency, and reparations. Instead of limiting victims’ roles to witnesses in criminal justice procedures, restorative justice recognises their active roles as proper participants, or reparations claimants, in (legal) processes. Through restorative practices, restorative justice is increasingly influencing national/international criminal justice, particularly when it comes to victim matters.

Victims are central to criminal justice processes and outcomes following a restorative justice approach. Restorative justice seeks to ‘restore justice’ via victim participation and reparations in (extra-)judicial proceedings. It can be adapted and integrated into criminal justice systems. It may guide victims’ role in criminal justice worldwide because it relies on universal values. Restorative justice addresses emotional dimensions of crimes, can transform destructive effects of offences into constructive motivations, and, as Hoyle remarked,  addresses victims’ rights and needs. When incorporated into criminal justice processes, restorative justice has the potential to have a significant effect on victims’ status within criminal justice: victims’ needs are centralised; victims, offenders, and their communities become key elements; victims can ‘tell their truth’; and victims’ suffering is acknowledged. Yet, restorative justice is not necessarily victim-centred.

Victims’ Status and Combining Justice Paradigms

There is no consensus about the (full) compatibility of retributive justice and restorative justice, and criminal courts still primarily focus on offenders. Nevertheless, authors have considered that both justice paradigms could be connected. As Hoyle remarked, they can coexist; they are complementary, not contradictory. Domestic criminal justice systems have incorporated restorative practices. This is arguably a key factor explaining how strong the status of victims actually is in a given criminal justice system. Although different justice paradigms’ advocates have criticised combining theories, retributive justice and restorative justice may work jointly in criminal justice. These justice paradigms are not diametrically opposed because their goals can be integrated within the criminal justice system: they are reconcilable. Polarization between them can be misleading, hiding collaborative areas.

Scholars have supported the need for combining retributive justice and restorative justice to achieve broader justice. Restorative justice may fulfil several criminal law objectives, which may include addressing certain consequences of crimes such as harm. Incorporating restorative practices within predominantly retributive criminal justice systems seems advisable so that victims are seriously considered.

Restorative justice could be perceived as inverted, constructive retributivism as they share some elements: blameworthiness of unlawful behaviour is expressed, the offender’s responsibility is indicated, and moral imbalance is repaired; however, restorative justice presents these retributive justice elements constructively: both are ‘two sides of a coin’.

While retributive justice underlies national/international criminal courts, it should be combined with the social constructiveness of restorative justice: as some retributive justice proponents acknowledge. The ‘paying back’ idea is also present in restorative justice, although the offender’s ‘paying back’ role in punitive retributivism is reversed from a passive to an active role: the offender must pay back by repairing. At national/international criminal courts, this may be implemented through reparations. Concerning victims’ status at criminal courts, retributive justice and restorative justice can be reconciled regardless of predominantly retributive criminal proceedings.

Philosophical and Theoretical Arguments for Changing Justice Paradigms

There are several philosophical and theoretical arguments which justify changing the justice paradigm guiding criminal justice systems from retributive justice to a mixed justice paradigm. First, justifying pain infliction on offenders under retributive justice can be morally questioned. As Del Vecchio remarked, repaying evil with evil is ‘really an empty sophism […] an evil is to be put right only by doing good’. Retribution deliberately inflicts pain and suffering, making it ethically flawed and ‘morally indefensible’. Ethical justifications/obligations to sanction norm violations hardly resist further scrutiny. Maintaining a purely retributive justice approach is ‘ethically doubtful’: retributive justice-led-criminal justice systems do not appropriately restore the moral balance disrupted by crimes, and ‘punitive proportionality is itself highly debatable’. Therefore, criminal justice systems should go beyond crime punishment.

Second, a theory of the good (how persons move from evil to good) or restorative justice as a social justice theory is necessary. Restorative justice lies on values including non-domination; empowerment; respectful listening; equal concern for all stakeholders, such as victims; and respect for human rights recognised in international instruments. Compared to retributive justice, restorative justice is based on different justice ethics, due to its values and principles stemming from various discursive justice traditions (theological roots, moral philosophy, socio-political theories, communitarian philosophy). Restorative justice values are cultural universals because virtually all cultures value reparations, security, dignity, and empowerment, based on justice and social support.

Third, the ethical need to respond to crime should not adopt manifestations violating dialogical principles, including re-empowering victims, and restorative justice reflects dialogical justice involving humans’ dialogical condition. ‘Militaristic’ criminal justice led almost exclusively by retributive justice should be replaced with a system meaningfully incorporating the ‘peaceful co-operative dialogue of restorative justice’.

Fourth, humanitarian goals such as reparations orient restorative justice, making the criminal justice system more just, and restorative justice brings a crucial goal: justice for victims. Restorative justice is not a panacea. Yet, it can lead to fairer criminal justice systems, which retributive justice alone cannot. Hence, moral/ethical grounds for moving from systems led purely by retributive justice to systems which are also guided by restorative justice are justified according to the notion that justice should aim ‘not to harm the guilty but to help the innocent’.

Fifth, restorative justice offers balanced justice approaches: it elevates the roles of victims, communities, and offenders. Restorative justice orients its pursued goals towards these primary actors of the criminal system. Criminal justice systems exclusively led by retributive justice, which deprive victims of expressing their views and concerns, are replaced with criminal justice systems that provide more recognition and validation to victims through the incorporation of restorative practices: systems led by combined justice paradigms. Restorative justice is neither punitive nor lenient, and it brings important elements which are absent in traditional criminal justice systems.

Sixth, justice equality justifies a shift in justice paradigm: not (equal) hurting of offenders but victim restitution, ‘(e)quality of justice means equal treatment of victims’, and rights should be equally enforced. Restorative justice acknowledges victims’ rights to reparations from the offender, and, hence, equality of justice demands equal enforcement of each victims’ right to restitution.

Finally, although natural law theory and constructive interpretivism support the previous arguments, legal positivism can also support a shift in justice paradigm: what the State establishes through correct proceedings as law is the law. Following legal positivist philosophy, by shifting a criminal justice system led (almost) exclusively by retributive justice to one that includes restorative practices, states must enforce rights through, e.g., reparations. Since internal aspiration to do the morally right thing, community values, and fear of the community’s disapproval are crucial elements of compliance with the law, criminal justice systems guided by restorative justice are strengthened.

Conclusion

The retributive justice paradigm continues to influence the victim’s role in most criminal justice systems. However, the need for the adapted incorporation of restorative justice elements through restorative practices has been recognised. In practice, this requires enhanced (procedural) role(s) for victims in criminal justice: with victims not limited to the role of witness but encouraged to participate actively, for example through reparations claims. More foundationally, philosophical/theoretical arguments justify this justice paradigm shift.

Dr. Juan-Pablo Perez-Leon-Acevedo is an affiliated/visiting researcher at PluriCourts, Faculty of Law, University of Oslo, and a visiting professor at the Universidad Tecnológica del Perú. Starting in September 2023, he will undertake his second doctoral course: DPhil in Law at the University of Oxford. He has served in different capacities at, inter alia, University of Jyvaskyla (Finland), PluriCourts, Abo Akademi University (Finland), University of Pretoria, the International Criminal Court, and the International Criminal Tribunal for the Former Yugoslavia. He holds a doctoral degree in social sciences (international law), Abo Akademi; a master of laws degree, Columbia University; and a bachelor of laws degree, Catholic University of Peru.