Justice as Decision-Making: Principal Pathways of Influence

Abstract

This chapter considers how judicial discretionary power may best be mobilised in order to achieve a more inclusive and restorative form of justice for international trials. The changes we propose recognise that giving effect to the interests of victims and communities of justice will be a holistic exercise in which the development of appropriate relationships between trial professionals will be critical to their realisation. Professional actors in the trial will therefore be instrumental in recognising and protecting the interests of victims and communities, so reducing formalism and promoting inclusivity. The move will necessarily be away from an adversarial towards a collaborative commitment. This does not mean that the legitimate aspirations for retribution will be rejected. Rather, these will be required to coexist with other important aspirations of victims and communities, which the judge and the legal professionals will be called on to balance and recognise. The capacity of the trial to identify and facilitate victim interests will therefore require a judge-directed collaborative approach committed to a truth-finding process that is balanced rather than confrontational. Hence, the trial will be directed towards outcomes which can be retributive, restorative or degrees of both depending, on what is considered appropriate and achievable in giving effect to the legitimate interests of victim communities.