Justice as Message Symposium: A Closer Look at Chapter 6, “International Criminal Law as Expressivist Justice”

Justice as Message is 436-page is a detailed exploration of justice as a message, including the various forms, messaging can take. Of particular interest to me was chapter 6, “International criminal law as expressivist justice-meanings, implications and critiques.”

Stahn opens this chapter by stating that “expressivist practices have a larger space in international criminal justice than traditionally assumed.” Whether we like it or not, in the business of administering justice including, the methodology and approach taken, there are multiple messages, in what is done and left undone.  Providing a basis for the expressionist justification for criminal justice, Stahn quotes Larry May and Shannon Fye,  who note that it is justified because it serves as “an articulation of the appropriate reaction to criminal act on the part of a society.”

After explaining the multidisciplinary origins of expressivism and its realist motivations, Stahn importantly points out that it has two different, “broader social functions. One relates to community formation, social bonding, formulation of societal aspirations…[and] serves as a means to continuingly reaffirm the purposes and ambitions of the field…” The second relates to the goal to see, “ law in action. Expressivism makes the law real and tangible,” giving “concrete shape and meanings to international criminal law.” In pointing out expressivism’s functions, Stahn brings its value into context before digging deeper into international criminal law as expressivist justice.

By this point in the chapter, I am following Stahn’s analysis with great interest and with no strong objections, but then Stahn states that “international criminal justice has been more concerned with messaging to global constituencies, rather than communication with offenders and victims,” and it is here where Stahn and I hold differing views. The active participants in all phases of the international criminal justice process, from investigation to trial, are the ones who grapple first and foremost with justice as a message. I agree that there is a great deal of messaging to “global constituencies” but would not go so far as to say that it international criminal justice is more concerned with that, in comparison to communication with offenders and victims.

Stahn goes on to say that  “[v]ictims’ rights are path-dependent on the scope of the Prosecution case,” in general I would agree but (understanding victim’s rights in the broadest possible sense), I would say that the International Criminal Court’s Trust Fund for Victims (TFV) and their assistance programme is a notable deviation.  The TFV finds its legal grounding in article 79 of the Rome Statute.

As pointed out in the Report to the Assembly of States Parties on the projects and the activities of the Board of Directors of the Trust Fund for Victims for the period 1 July 2019 to 30 June 2020, the TFV’s mandate is twofold:

“ 1)Implementing reparations ordered by the Court against a convicted person for the benefit of victims, be it individually or collectively.

 2) Providing assistance to victims of crimes falling within the jurisdiction of the Court and to their families through implementing partners in situation countries.”

The reparations arm of their mandate falls in line with Stahn’s perspective, but the assistance mandate diverges slightly in that no conviction is necessary and the TFV has scope to assist more people. As noted in the TFV’s 2020 Report “[A]ssistance projects also permit the TFV to assist a wider victim population than that which may be possible in relation to harms suffered within specific cases before the Court.”

It is by no means a perfect entity and has had its challenges, however, since 2008 more than 400,000 individuals have benefitted from their support in the DRC and Uganda alone. They have assistance programmes in the Central African Republic and have recently announced that assistance programmes will be opened in Georgia and Mali.

Whilst one could still say there is a link between the assistance programme and the prosecution, I remain of the view that the TFV’s assistance programme is not as “path-dependent on the scope of the Prosecution case,” as are other methods used to give meaning to victims’ rights. The TFV’s assistance programme is designed to provide more latitude for efficient and effective assistance and not being bound to a conviction, or even a specific case within a situation, is central to allowing them to assist many more affected communities.

The creation of a TFV with a dual mandate, carries a message of its own- reparations that are dependent on convictions are not enough. Securing a conviction can take years and victims should not have to wait that long for basic assistance including rehabilitation. Having a criminal justice institution that recognizes its own limits and thus has an assistance programme is an important formulation that has had a positive impact.

As the chapter develops, Stahn does make other references to victims that I can wholeheartedly agree with, including the limitations of viewing victimhood “through narrow accountability lenses” and rightly noting that scientists are not in agreement when it comes to determining the extent to which international justice “procedures have therapeutic effects on witnesses and victims.” Stahn goes on to say that,  “studies seem to suggest that participation in proceedings may have positive effects. However, they may also trigger retraumatization or disappointment or disillusion, such as in cases of acquittals or low sentences.”

After going through the contestations, and implications Stahn ends this chapter with the sub-heading, “Re-thinking law and learning” reminding us that expressivism is an “invitation to rethink the way we see law.” Stahn comes full circle by ending the chapter where it began, emphasising the value of multidisciplinary learning.

It is evident that a great deal of thought and detailed research bought this chapter to life, however, as a practitioner who has greatly benefitted from academic analysis and exploration of topics that shape international criminal justice, I could not help but wish there were a few more practical examples in this fascinating chapter.

Stahn is correct when he says that “judicial entities send multiple messages, consciously or unconsciously” and understanding this is crucial, making his book a valuable contribution to the discourse on justice and its messages.