Mariana Pena is a legal officer at the international justice programme of the Open Society Justice Initiative. With her team, she works on strengthening the rule of law for the most serious crimes. In her work and when reporting about developments at the ICC and other courts, she strives to bring to the attention of experts and the tribunals the views of people on the ground.
“When I think about justice, I think about an image of balance. It means fairness to everyone who is involved. It means that we need all the information possible about the different aspects and actors involved in order to make fair decisions. It also means trying to bridge the gap between those running the courts and those affected by the cases.
“My thoughts were shaped by my upbringing in a country [Argentina] where mass human rights violations were committed. My legal education is based on a natural law approach. I have also been influenced by my work experience and personal experience as a human being.
“When I work with the courts, especially the ICC, I understand that I interact with complex institutions and a complex working culture. But I also understand that, first and foremost, I interact with human beings.
“I have had extensive experience with victim communities and civil society groups on the ground. They are also human beings, but with a different culture and living in a different context. I want to bear in mind the context, understand where people’s questions and concerns come from and endeavour to bridge the gap by bringing the Court closer to the victims and the affected communities and vice versa.
“Those two parties have a different kind of a dialogue and operate in almost separate ’bubbles’. In fact, I feel that I have to switch into a different mode of thinking and expressing myself in each context. When talking to victims, I need to explain complex notions in simple terms, repeat concepts multiple times, listen, understand and learn from them. At the ICC, instead, it’s more about explaining simple notions in complex terms: theorising, seeking to break assumptions and perceptions, advocating for a better understanding of the context, its implications and impact.
“Something I would change in the ICC’s approach to proceedings is to better incorporate local perspectives. This also has to do with my idea of justice: understanding the context and making sure that judicial decisions adequately take that into account because justice cannot be abstract. From a judicial perspective, understanding the context is essential to analyse and weigh the evidence. With relation to the ICC, for example, I am disappointed that there have been no in situ hearings yet and that the judges have only conducted one in situ visit in one case.
“I was involved as a member of the victims’ legal representation team in the pre-trial stage of the Ruto case. Part of my work included coordinating action between The Hague and the field. We were a very small team: I was in The Hague, there were two senior lawyers in London and we had three colleagues in Kenya whose work was to liaise with victims and with whom I coordinated action on a daily basis Working with victims and local civil society has been one of the most enriching experiences of my career.
“I have found that there is a perception among some international criminal law experts, including tribunal staff, that there are too many victims, and they are too difficult to deal with. Many have a condescending approach. Others find it difficult or do not know how to empathise with their suffering. I have found that despite such suffering or because of it, victims normally have so much dignity. Contrary to the perception that they may not understand legal processes, they understand much more than we may think and have so much to contribute. These are people who have had terrible experiences. Those experiences and often the simplicity of the context they live in help them connect to the essence of humanity in a unique way.
“Away from the diplomatic discourse and the institutional struggles, they remind me of what justice is really about. One thing that I have learned from victims and local groups is that no matter whether they have had an experience of justice within their national systems, they understand the notion of justice. Some of them live in countries with a completely dysfunctional judiciary. Yet, they understand justice because it is a human value.
“I have learned to understand their perceptions about justice and the tribunals. Some of them have huge expectations about the process. My challenge is then to make clear that the court cannot fulfil all of them without disappointing them. I try to make very clear that this is a legal process and that the ICC has a definite mandate. It was not created to put an end to poverty and all human rights violations. In that process, it is essential to not just provide answers but to also explain the reasons behind the Court’s limitations.
“Another important lesson that I have also learnt from working with victims is that they have various personal needs and that their quest for justice is only just one of them. Often, they expect help, not just on the legal front, but they also have psychological, material and sometimes medical needs in relation to the crimes they experienced. While I agree that the mandate of tribunals or victims’ lawyers is inevitably limited, I think you also need to be flexible and find ways in which you can create a system that provides all the types of assistance they need. Ideally, you should not even need to explain to them that this is where your work ends and this is where the other organisation starts.
“When I write about victim participation, the message that I want to get across to experts is that victims are the reason why the tribunals were created and the key to their success. Again, a tribunal that does not adequately take into account the needs of the local population and context will inevitably fail as a justice project. It may hand down a decision, but will it have delivered justice?
“In the end, I always ask myself what are these tribunals going to produce? What will the impact be? Is it about developing principles of international law and complex jurisprudence? Is it a court for lawyers and judges? Or is it a court that is meant to have an impact in the affected countries and contribute to strengthening the rule of law at the local level? “
One of Pena’s latest articles is a comparative analysis of victim participation decisions at the ICC
Photo: Kathinka Gaess/Justice Hub
My Justice highlights the stories of individuals who work in the field of international justice or who have been affected by it and asks what does justice mean to them.