Any space for Arbitration in Criminal law

It might seem like a surprising topic to bring up but nevertheless it's essential to discuss this topic and why firstly, arbitration and in a more narrow sense mediation is important to dispute resolutions, or diffusing all the cultural, or economic or legal misunderstandings that some other posts have been referring to, and also to what is the role in context of criminal law, and here I am suggesting more in light of the view of victims or survivors of certain crimes.

A few days ago, I attended the British Institute of Comparative and International Law day seminar on a series of varied topics but focusing on the lines of Law of wars and development of international law.

There were many guest speakers including Geoffrey Robertson QC discussing the challenges that for instance the Sierra Leone Tribunal faces in dealing with crimes against humanity and attrocities that had occurred in that region. Tribunals, the International Criminal Courts, the International Courts of Justice, ought to and should be institutions that all Nation States have faith and trust in them, objectively undergoing a mammoth task of ensuring that individuals, regardless of nationality, background whom have committed certain crimes to stand trial and to live up to the consequences of their actions, and in most unfortunately such cases occur in failed states.

The problems that we are talking about include, a sense of distrust of what the courts of doing, a sense of distrust of having ICC badged Prosecutors, legal assistants and advisors gathering information freely and unobtrusively..however it's not as easy as we may think. There are certain political hurdles that are far higher than we would like to think. If we refer back to the Milosevic Trial- how long could it have lasted? What would have happened if we managed to gather all the evidence that he wanted before the court? Could any state trust the ICC with all the materials that they have gained, without contradicting all State National interest or security?

But this is not my biggest concern, what really matters is whether victims and individuals down on a more recognisable level would feel they could trust the ICC or other tribunals. When they are asked to give evidence, and asked to describe in detail their experiences, it must be hard and it must be difficult to speak openly and freely without hesitation or fear.

However, very often this is not the case and thats is why there are witness programs to ensure individuals concerns are safeguarded.

So is mediation an option? Can arbitration be considered in large scale cases? Some critics would say no? Because it is so personal and really mediation is about expressing one side of the story that was never told, never given an opportunity to be told. It's a matter of saying one really thinks and not have a cold response from the courts. In a way it is reconciliation, it is about an individual sharing a life experience of pain to others in which the solution is provided by an objective ear and also safeguarding their interests out of the public eye. But at what cost? What remedy?

Enforcement is always an issue. Whether it maybe time delays, change of circumstances and simply lack of teeth. But this is where the whole basis of trust comes in, the understanding that after this dispute, one can resort to a mature discussion of the issues and to resolve each one in a peaceful fashion. So where does trust matter most in these circumstances? I argue it is the individual first. When an individual can trust the organisation or party that would provide it with the service that it believes will bring justice, then naturally the majority will follow.