Justice as Message Symposium: Sending Out an SOS

[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University.]

Carsten Stahn, in the very first line of his terrifically impressive book, invokes a jingle from The Police. When I was teenage boy, I loved the Police. I greatly fancied Sting, his confidence and his presence, and how in his songs he tapped into the churn and burn of the human condition. At times his crooning missed the mark, to be sure, but mostly he was right on the money. So Carsten opens – indeed, the very first words of many tens of thousands – with a line from ‘Message in a Bottle’: ‘Just a castaway’, Carsten begins, ‘an island lost at sea’. And, yes, international criminal law (ICL) is about messages, such as those of the castaway tucked in a bottle, and so goes the remainder of the book, exploring ICL’s messages, how it expresses itself and how people listen, or not, and whether they ‘get it’, or not.

Yet there is more to the song, and this more does not appear in the book. The song is about ‘another lonely day, no one here but me.’ and, because of all this loneliness, the bottled message, well, it becomes an ‘SOS to the world’. The message is sent with urgency, with desperation, before the man sending it falls into despair and tumbles into disrepair. The message is a plea. ‘Only hope can keep me together / Love can mend your life but love can break your heart’.

I have written elsewhere about how ICL, and its institutions, notably the ICC, don’t love well, and hence, are often not loved back. ICL doesn’t want – or can’t – get too close: close to me and close to you. And, then, this desperate urgency to be ‘gotten’, to be seen, not to be background noise, presses. ICL yearns. So that is the starting point, no? When we speak of ICL’s messages, we must recognize its desperate hunger to be heard, to be appreciated, and to be valued. Carsten’s book picks up the traditional rationales of atrocity trials, namely retribution and deterrence, but explores at length the expressive function, namely, this desire to communicate and the longing to be listened to. And, in turn, these messages become existential justifications to answer the age-old questions that haunt us all: why am I here? What difference do I make? And what footprints shall I leave?

Carsten’s unpacking of expressivism is indeed a paean to ICL’s search for meaning. For or all those who write about ICL, well, it is an unpacking of whether we, too, are writing about something meaningful.

In earlier work, published long ago, I felt that expressivism is among the more muscular of ICL’s justifications. The expressivist punishes to strengthen faith in rule of law, to build historical narratives, to story-tell, and to touch people and help them understand and become gentler and better. Perhaps in all this I was writing to myself, for my own search for some meaning. As time passes, and riffing off Carsten’s book, I am less sanguine about whether the expressive function can bear all this weight. Carsten does not expect it to, which is refreshing. His book is not normative, rather it is expository.

But let’s say that international criminal law expressively works. Let’s say it can build snow-men and snow-women – not out of sand, but out of cold, actual snow – in the Northern hemisphere’s summer sun and becomes not ‘a’ (as Carsten puts it), but ‘the’ major way of ‘making sense of the world’.  Let’s say its fate is like that of the narrator in ‘Message in a Bottle’, who walks out one morning, on his forlorn island, unexpectedly to find ‘a hundred billion bottles washed up on the shore’ and ‘a hundred billion castaways looking for a home.’ He is reassured. He is less lonely. So let’s say that ICL comes one day to achieve that. Should we celebrate with a delirious dance? Does that victory signal the kind of world we wish to live in? A world of all law, only law, law all the time? I am not so sure. Do we want to live in a world where everything is expressed?  A world in which hundreds of billions of bottled messages float up on our shores? A world without silences? Perhaps we already live in that noisy world, so, then, would we wish for law to pile on further? When everything is expressed, nothing remains implicit. There are no more secrets. Transitional justice generally and law specifically tend to abhor secrets. Secrets are seen as corrosive; cultures of secrecy are assumed as rotten. Yet we cannot live without secrets. We cannot function. Without secrets, there can be no revolution against oppression. Without secrets, there can be no resistance to authoritarianism. Without secrets, well, there would be no transitions. When law expresses all, perhaps it may say too much – it may compromise human dignity, fester wounds, act cruelly, and moralize over too much. This is something I have been thinking about a lot in a book I am now co-authoring, with Prof. Barbora Holá, on informants and the sentiments and emotions that motivate them – as ordinary people – to speak to secret police, and what to do, if anything, after transition, with the content of all that has been expressed.

And, indeed, content matters. There are many words in Carsten’s book, but one word that appears less frequently than I would have anticipated is ‘truth’. Messages are procedural; in Carsten’s words, a modus operandi.  ‘Expressivism is grounded in the idea that law has value because if its ability to convey social meaning’, he notes. While speaking is the frame, I would add, content is the color. What if what is being messaged is false, fanciful, pyrrhic, or revisionist? It strikes me that without a careful consideration of what is being narrated, rather than locating meaning in the process of speaking and being heard, discussions of expressivism remain thin.  Another word that makes a quick appearance in a brief subsection, despite being so key to the expressive function, is ‘outreach’. An entire bureaucratic industry devotes itself to operationalizing these messages, to getting word out, and the operational effect of this industry remains underassessed. Messages, too, can be mixed. What to do about those?

It is too soon to tell whether ICL and expressivism go together. When it comes to pairings, well, we know some work. Things that are a little bit salty and also a little bit sweet go together. That we know. Other pairings, however odd, end up fitting together but this only becomes clear – as a surprise – after many decades. I was reading recently that The Great Gatsby and Winnie the Pooh have been identified as two of the books that best defined the representational ethos – the spirit – of the roaring 1920’s. Neither author — Fitzgerald nor Milne – in their earthly lives ever would have imagined their eventual shared pairing.  Some pairings are quizzical, and impossible, but when we look at them we are touched, as in Milne’s book: ‘But wherever they go, and whatever happens to them on the way, in that enchanted place on the top of the forest, a little boy and his bear will always be playing.’ And other things, well, they just don’t click, together, and we know it from the start. As for ICL and expressivism, we don’t yet know, and we may never be ready to know. All we can do is reflect, in the present, and it is here that Carsten’s work finds itself in its finest hour.

Justice as Message: Expressivist Foundations of International Criminal Justice is a must read. It offers a brilliant compass to where expressivism may and may not lead. It has been a privilege to engage with Carsten’s work, and we all owe him not only congratulations, but also appreciations, for the effort, creativity, and comprehensiveness he brings to the subject.