Doing Justice to History Symposium: Exploring the Narrative Limits and Potential of International Criminal Law Judgements

[Dr. Cheah W.L. is an Associate Professor at the Faculty of Law, National University of Singapore.]

In his excellent and compelling monograph, Barrie Sander argues that the historical narratives captured in international criminal judgments amount to “forms of legitimation” by “recognizing and foregrounding particular aspects and perspectives of mass atrocity situations” while “marginalising and excluding others from view”. His book provides a detailed account of how international criminal judgments do so through different types of “selectivity” including the actors involved, the questions engaged with, and the practices undertaken. His study reveals three “strands of legitimation” produced by the historical narratives generated by international criminal judgments: those which “have generally been apologetic to State interests”, “focused on spectacular forms of violence” and “narrowly contextualized in ways that emphasise the individual agency of military and political actors operating at the local level of mass atrocity situations”.

Sander’s convincing arguments draw on, and contribute to, observations by researchers from critical schools of thought (e.g., TWAIL, feminism, critical legal studies) on the conservative nature of international criminal courts and their judgments. He concludes by observing, inter alia, that these judgments should be seen as a “discursive beginning” and as “just one of many societal platforms for confronting the past”. One takeaway could be that the “strands of legitimation” identified by Sander are simply inherent to international criminal law judgments. Yet, while the political, institutional, and doctrinal limits of international criminal courts are real, these do not need to be taken as an unchanging given. In addition to diversifying justice efforts beyond international criminal courts, the international criminal law community could pay more attention to the alternative paths that these courts could have taken. Other international criminal law futures have been demonstrated by bottom-up experiments in adjudication, such as peoples’ tribunals and feminist judgment projects.

For example, Sander notes that both the Nuremberg Tribunal and the Tokyo Tribunal “suffered from a major blind spot in terms of sexual and gender-based crimes” due to limitations of the charges. The Tokyo Tribunal’s indictment did include rape allegations as ‘inhuman treatment’, ‘mistreatment’, ‘ill treatment’ and ‘failure to respect family honour and rights’. It also concluded that during the Japanese military’s invasion of Nanking, ‘approximately 20,000 cases of rape’ had been committed in the first month of the city’s occupation. However, as Sander and other scholars have recognized, the Tokyo Tribunal’s judgment also omitted to address other systemic forms of sexual violence, specifically that committed against so-called ‘comfort women’ from Korea, China, the Philippines, and other locations in Asia.

In seeking to deliver some form of justice to survivors, activists supporting former ‘comfort women’ challenged the Tokyo Tribunal’s judgment by organizing a peoples’ tribunal – the Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery or Tokyo Women’s Tribunal. Intended to be a continuation of the Tokyo Tribunal, the TWT convened in Tokyo from 8 to 12 December 2000 to address the Japanese military’s sexual enslavement and rape of ‘comfort women’ during the Second World War. Given that the TWT is a peoples’ tribunal, its findings are not legally binding or enforceable. While the TWT took a formal approach to law, it nevertheless challenged conventional legal understandings through its progressive interpretations of international criminal law and human rights law. The TWT confronted power by pronouncing on the guilt of high-ranking individuals, specifically Hirohito. It employed the concept of continuing violations to hold Japan responsible for its actions and inactions over time. Throughout its judgment, the TWT took care to respect the principle of retrospectivity by applying law that existed at the time of the crimes. The TWT also included portions of survivor testimonies in its judgment, bringing a personal and emotive dimension into the law. Overall, the TWT judgment put forward a historical narrative that privileged the voice of survivors, called a powerful state to account, and went beyond the confines of individual criminal responsibility. While some aspects of the TWT are not easily replicable, such as its combination of individual criminal responsibility and state responsibility, the TWT judgment stands out for pushing the boundaries of international criminal law and human rights law while adhering to accepted legal limits. As I argue elsewhere, the TWT’s formal approach to law enhanced its legal legitimacy and facilitated its penetration of formal legal spheres.

Another exciting experiment in adjudication may be found in feminist judgment projects undertaken by feminist scholars and judges in different areas of the law, including international law. Scholars and judges involved in these projects re-write existing judgments with the aim of showing that the courts concerned could have adopted alternative and more progressive interpretations of the law.  These projects recognize that judges and courts can and should actively develop the law to address injustices. Bertha Wilson, who was a judge of the Supreme Court of Canada, observes that though legal change is best implemented by the legislature, there is “no reason why the judiciary cannot exercise some modest degree of creativity in areas where modern insights and life’s experience have indicated that the law has gone awry.” Feminist scholars have promoted feminist approaches to adjudication and identified some principles associated with such feminist judging. Feminist judgments are notable for prioritizing the perspectives and life experiences of the marginalized.

In other work, I argue that while criminal law judgments should focus on the determination of individual criminal responsibility, these judgments can draw attention to deeper root causes of violence and catalyze structural change. This does not require extreme departures from mainstream judicial practices. The narratives told in the re-written judgments of these feminist judgment projects seek to hold the powerful to account while complying with widely accepted judicial convention and reasoning. As emphasized by Brenda Marjorie Hale, who was the president of the Supreme Court of the United Kingdom, judicial law-making is not completely without limits and should be done using “permissible and accepted forms of judicial reasoning”. For example, particularly in criminal law matters, judicial decisions should observe principles of fairness, non-retroactivity, and due process. Feminist judgment projects show that judicial decisions can produce ‘better’ narratives and conclusions that challenge the powerful, empower the marginalized, and draw attention to structural violence.

Sander’s book clearly demonstrates the limits of international criminal law judgments as narrative vehicles, highlighting the need for post-conflict societies to consider diverse mechanisms when addressing the past. Reading Sander’s work alongside the work of peoples’ tribunals and feminist judgment projects challenges courts to produce judgments with more inclusive and progressive narratives.