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This research pillar focuses on the ethical roots and foundations of criminal law, and the effect ethical norms and values continue to exert on the structures and functioning of criminal justice.

1. Ethical roots and foundations of criminal law

Each criminal justice system, domestic or international, incorporates within its structure and regulatory framework countless normative judgements and legal policy choices. These may relate, for example, to (de)criminalisation, requisite threshold of blameworthiness as delineated through liability doctrines, availability and parameters of justifications and excuses, pardon and commutation rules and practice, and the configuration of penitentiary regimes. All of these aspects raise issues of moral judgement and recurring binaries of good v. evil, moral v. immoral, humane v. inhumane, empathy v. cruelty etc., harking back to normative sources other than the law in the strict positivist sense. How do ethical principles continue to inform the content of domestic and international criminal law, the institutional designs and procedural norms and practices in criminal justice, and pre‐trial detention and penitentiary regimes? What are the connections and interactions between the criminal law, on the one hand, and values and norms not amounting to law in the formalist sense (e.g. morality, equity, custom etc.)? How are these translated and mediated within the law and practice of a secular and pluralist society – or, for that matter, the universalist ‘international community’? What basic values are objects of protection in penal responses to offences as different as trafficking in arms and people, terrorism, offences against the environment, crimes against humanity, and the crime of aggression?

2. Restorative, participatory and reparative criminal law? Accommodating competing values

The debates on whether victims should be allowed to actively pursue their interests in the context of the criminal justice process, and what form their involvement may take, continue unabated in both domestic and international settings. The objections to victim participation in, and reparations through, criminal trials tend to be couched in terms of countervailing considerations relating to a fair trial and resource efficiency. This framing is a proxy for the deeper contestation over the fundamental values grafted in criminal justice as a tool of social governance. Should the criminal process be limited to serving the traditional goals of criminal law enforcement in a traditional retributive, if victim‐friendly, justice framework? Or should it (also) seek to accommodate the objectives of healing and restoration by providing victims with participatory and reparatory rights? Are the retributive and restorative paradigms complementary or barely compatible in international and domestic practice?

3. Professional ethics and institutional culture in criminal justice

The orderly administration of justice, judicial decorum and sociological legitimacy of criminal justice institutions are contingent upon the integrity, professionalism and good standing of legal practitioners populating them. Both at the domestic and international level, a system of checks and balances should be in place, consisting of professional deontology standards and disciplinary (administrative or peer control) mechanisms designed to prevent, curtail and sanction any abuse. In the international context, some of the criminal justice practitioners like the defence are subject to both domestic and international codes of conduct, leading to ambiguities and double‐bind. Others like the judiciary and prosecution are subject to internal as well independent (external) oversight but such mechanisms might not fully and effectively address the range of potential unseemly behavior or misconduct. What are the inadequacies of the current professional ethics and disciplinary regimes and mechanisms in international tribunals as well as national judiciaries, prosecution services and other law-enforcement organs? How can the high moral character of justice professionals be ensured and unprofessional conduct be addressed? What impact can an adversarial working environment and institutional culture (poor management, excessive partisanship, disruptions of collegiality, toxic masculinity, etc.) have on the performance of the tribunals’ core functions?

ACCJ researchers under Pillar 2