Doing Justice to History Symposium: On Plurality and Ideology

[Marina Veličković is a Lecturer at the University of Kent, UK. In her research she explores the role of international law in (re)producing structures of violence in post-conflict settings.]

Everyone has a moment of sheer panic during their PhD journey (or a few moments if your anxiety levels are that of an average academic) when they come across the thesis/article/book that has just been published and which is on their exact PhD topic. For me, one of these moments was when, in the final year of my PhD I came across Barrie Sander’s book Doing Justice to History. I had read some of Sander’s work already, and knew that we were working on broadly similar things, but reading the book blurb ‘broadly similar’ suddenly sounded ‘very similar’. First, I hyperventilated; then I opened it, skimmed the first couple of chapters while hyperventilating; and I finally stopped hyperventilating when I realised that although what we were both doing (exploring the limits of historical narratives that are produced by International Criminal Courts and Tribunals [ICCTs]) was very similar; how we were approaching this was very different. And so my moment of panic was resolved in a way that most of these moments are: by realising that our approach to the topic rather than the topic is what makes our work unique. This was followed by a second realisation, that Sander’s work, while different, was really, really great. I thought this the first time I read the book in 2021, and I was reminded of it as I re-read the book now. Three things, in particular, stood out. 

First, while I try not to judge a book by its cover, I 100% pre-emptively decide I like a book if it has (what I consider) a good title and Sander’s book has a very good title. It links justice and history in a way that makes the book’s subject clear, but which also makes it clear that justice and history are co-constitutive. Second, the book is ambitious. Sander works with both primary and secondary materials. He analyses pre-trial and trial documents, and judgments from six different ICCTs (IMT, IMTFE, ICTY, ICTR, SCSL and the ICC); and he engages with a range of different strands of scholarship, including: scholarship on the capacity of the ICCTs to write history; critical scholarship on international criminal law; and scholarship from peace studies, political economy and social theory. The reason I have not offered chapter numbers next to each of these items is that although some chapters are ‘thematic’ (for example Chapter 2 offers in-depth analysis of the tensions inherent in the ICCTs historiographic function, and Chapter 6 engages with political economy as Sander explores what is marginalised in the ICCTs historical narratives) most chapters integrate many of these elements (for example, Chapter 6 also considers a number of different cases to demonstrate some of the broader points the author is making). The book is then not merely ambitious in its plan, it is ambitious in its delivery, and the first time I read it this felt a little bit intimidating (how does he do it). Now, re-reading it as I was preparing for the symposium it felt impressive (I imagine he did it by working relentlessly, because integrating so many different strands into a monograph seamlessly can only be achieved by writing, re-writing and editing endlessly). 

Finally, the book is simultaneously empirical, normative, and critical. Sander demonstrates how different factors, including which situations become subject of international prosecutions (Chapter 3), the definitions of crimes (Chapter 4), and the available modes of liability and defences (Chapter 5) shape historical narratives in a range of institutional settings. He then argues that this results in some uniformity in terms of what is left out (Chapter 6), but that a plurality of narratives is still possible (and in fact exists) both within and beyond the individual judicial institutions (Chapter 7). In the final chapter (Conclusion) Sander argues that taking into account both that which can and cannot be known through judicially constructed historical narratives one has to acknowledge, but should not overstate, the ICCTs ‘legitimating function’, which he defines as the ‘legitimation of particular perspectives and understandings of mass atrocity situations at the expense of others’ (p.305).

In the remainder of this blog post I will unpack this aspect of Sander’s argument, because I think it speaks to a number of broader tensions in the field around the meaning and function of critique; and the relationship between doctrine, critique and praxis. 

In Chapter 6 Sander considers ‘three dimensions of mass atrocity contexts that have been diminished within or excluded from the narratives constructed by international criminal courts’ (p.250): structural and slow forms of violence (pp.252-6), interventions by international actors (pp.257-67) and roles of bystander communities (pp.268-73). Throughout Sander demonstrates that the structural (and historical) injustices which often play a significant role in conflicts are systematically marginalized in the official accounts, and he does this by meticulously (re)constructing narratives of conflicts as diverse as Sierra Leone, Yugoslavia and Rwanda, drawing on NGO reports, newspaper articles and literature. Ultimately, he argues that judicial narratives risk ‘absolving and helping to entrench the systemic processes and actors that they marginalise or exclude’ and that the ICCTs ‘[b]y portraying themselves as neutral arbiters of international criminal rules […] may inadvertently operate ideologically to naturalise, validate, and build consensus in the existing international political order’ (p.274).

Sander returns to this argument in the concluding chapter where he first offers a summary of his findings (that the historical narratives ‘produced by international criminal courts have generally been apologetic to State interests, focused on spectacular forms of violence, and narrowly contextualised’ (p.306)); he then proposes that this has legitimating functions by (1) ‘privileging perspectives of the past that tend to be circumscribed in ways that accord with the contemporaneous balance of power between and within States in the international community’ (p.309); (2) ‘naturalising the chaotic social, economic, and political structures that create the conditions of possibility for atrocities to occur in different societal contexts around the world’ (p.311) and (3) foregrounding the individual and the local on trial ‘at the expense of the broader context in which mass atrocities occur’ (p.311). Overall, ICCTs risk becoming the ‘instruments of legitimation that reflect and potentially reinforce patterns of domination in the existing international political order, displace attention from structural and slow forms of violence, marginalise the ambiguities and possibilities of individual agency in mass atrocity contexts, and understate the contributions of economic and international actors towards episodes of mass violence’ (p.312). Yet, Sander then proposes, these legitimating characteristics should not be overstated. He points out that ICCTs rarely operate alone, and so need to be considered along with a range of other transitional justice measures (pp.312-3) and moreover, that even if we consider the ICCTs somehow unique and their historical narratives uniquely impactful, these narratives are both plural and contested and therefore might not have quite the hegemonic quality ascribed to them (pp.315-6). In the final section of the concluding chapter, Sander then proposes that ‘strategic’ engagement with ICCTs might be a way forward. 

This is where, for me, the argument has some internal inconsistencies. On the one hand, Sander acknowledges that ICCTs are almost universally bad at writing historical narratives that account for slow and structural violence; political economy or historical injustice and he argues that this is precisely central to their legitimating function. However, he then tempers some of the critique by pointing out that the historical narratives produced by the ICCTs are in fact contested both within and beyond the courtroom (he does this both in-depth in Chapter 7 and briefly in the Conclusion) and can therefore, perhaps, be used strategically. If, as Sander argues, ICCTs can produce many narratives, but none of these narratives take into account issues of slow, structural and historical violence, then it is difficult to see how plurality could be used strategically. 

The way I understand Sander’s argument relating to plurality of narratives is that Chambers both within and beyond a single institution can reach different findings by relying on different forms of evidence (pp.280-4), adjudicating different charges (pp.284-8), and developing different interpretations of legal categories (pp.288-97). However, all of the different findings Sander points out still fall under the same narrative frame which is apologetic, spectacular and selectively-contextualized. And, it is precisely the frame which does the work of legitimating. For this reason, I struggle with the link that Sander draws between legitimation and plurality. It seems to me that while there may well be many narratives which complicate our understandings of conflicts, they all share some crucial characteristics, so that the ICL accounts of conflict are always ideological and never material.

Precisely because of our divergence here I struggle with the final section of the book which calls for a strategic engagement with ICCTs. Sander defines strategic as ‘the ways in which the expressive power of the language and institutions of international criminal justice may be invoked and mobilised by different actors in line with their longer-term political and social agendas’ (pg. 320), and he offers an example of what he considers this type of strategic engagement. In 2017 Global Legal Action Network and the Stanford International Human Rights Clinic submitted a communication to the the ICC Prosecutor calling on them to ‘open an investigation into alleged crimes against humanity committed by Australian officials and private companies against refugees and asylum seekers held offshore in Nauru and Manus Island’ (pg. 320). According to Sander the Communication sought to counter the ongoing dehumanization of refugees by the Australian government, and, by framing the policy in terms of the crimes against humanity, to counter the possibility of such policy being replicated elsewhere. In a sense the Communication was intended as a disciplinary measure. 

I see the appeal. I also, however, worry that there are dangers in asking the ICC to discipline. For one, it legitimates the ICC’s disciplinary role, which we know is often exercised in ways that reproduce injustice and inequality. Second, by using the ICC to make an issue visible, we are also making the ICC visible: the press, the coverage, the op-eds and blog posts are never just about the issue, they are always also about the institution and about our faith in its capacity to fulfil its role. In this sense ‘strategic engagement’ runs the risk of legitimating the institution, in a similar way in which the institution legitimates historical and structural violence and injustice. Finally, I find the idea that ICL can be used as an ‘emancipatory vocabulary’ (p.321) unpersuasive, precisely because framing of injustices in terms of ICL means that they are stripped of their histories and divorced from the conditions in which they arise. Sander’s conception of strategic engagement seems to assume that ICL is an ideologically-neutral tool, which can be inscribed with different political agendas, but his own work tells us otherwise: ICL is fundamentally and deeply political, and its politics are not emancipatory. But if we say no to strategic engagement with ICCTs, what can we do? My gut feeling is – we resist, but I have no practical tips on how to do this, and so it makes for terrible advice, and for an even worse conclusion. In this sense I both appreciate and admire Sander’s decision to offer something more, a path forward. Even if I disagree with it, offering a solution to profound critique is always brave, precisely because it will always fall short. A solution limited by our own conditions of possibility is unlikely to overcome them; and the goal of Sander’s book was never to dream up of a utopia, it was to demonstrate why we are where we are, and this he does exceptionally well.