A holistic approach to international justice: Restorative justice perspectives within universal jurisdiction prosecutions

Universal jurisdiction is a means of international justice that empowers national authorities to prosecute crimes so grave that they attack the fundamental values of the whole international community, therefore legitimising any State to act on behalf of the latter. Although its domestic nature makes it independent of the political and legal restrictions of the international mechanisms, political considerations still strongly influence its exercise. Such a strong political component entails a selectivity issue concerning the cases to be addressed, that is the risk of double standards and a form of “legal colonialism” in the exercise of universal jurisdiction. Beyond such a context and among the recurring elements of this kind of prosecution there are strong evidentiary difficulties: the physical distance between the prosecuting State and that of the commission of the crimes, the persistence of conflicts that make territories inaccessible, the amount of time passed from the events, and the potential lack of cooperation from the State where the crime occurred, which may be itself complicit in it. Among the factors that favour the exercise of universal jurisdiction is conflict-based migration: it brings potential plaintiffs, witnesses, and defendants to the prosecuting States. The evidentiary difficulties of such prosecutions make victims and witnesses essential for the trials. Better involvement of affected communities can both increase the possibility of successful prosecutions and empower survivors through the recognition of their crucial role, assigning a restorative justice function to universal jurisdiction. Although universal jurisdiction originally derives from the retributive paradigm of justice – the one concentrating on the prosecution of the defendant – this kind of proceedings may nowadays include restorative justice means – those departing from the victim’s necessities and originating from indigenous peoples. In this sense, it is possible to refer to the inclusion of survivors’ needs between the factors that trigger the exercise of universal jurisdiction and the greater involvement of the latter in such proceedings. For instance, greater possibility to enter the courtroom, and the translation of official documents, which are traditionally issued only in the local language, as well as immediate translation for those attending in person. NGOs and survivors’ communities are advocating for a comprehensive right to access justice. Through trial monitoring, translation, filing of reports to prosecutors, and social, legal, and health assistance to victims and witnesses outside the courtroom, they contribute to including in the traditionally retributive tool instruments that enlarge the meaning of “justice”. This approach starts from the awareness of the necessity to address international crimes with a transitional justice perspective, with the recognition that prosecuting the crime abroad brings about greater consequences than the mere individual punishment which cannot be ignored as they may (and should) positively impact the whole affected society. The paper, therefore, aims to acknowledge the effects that proceedings based on universal jurisdiction may have on affected communities and identify which instrument of restorative justice may be resorted to and combined in such prosecutions in order to reach a more exhaustive “justice”.