Doing Justice to History Symposium: Towards Asking Better Questions within the Field of International Criminal Justice

[Barrie Sander (@Barrie_Sander) is Assistant Professor of International Justice at Leiden University – Faculty of Governance and Global Affairs]

Reflecting on the narrative nature of law, James Boyd White famously observed how ‘[t]he text does not conclude the difficulties of the real world, but begins a process, a process of its own interpretation. This is the process by which the law is connected to the rest of life. Whatever it may purport to say, what a judgment shall come to mean is thus a matter for the parties and their audiences to address and decide’. In many ways, the same may be said of an academic text – regardless of what I, the author of a text, may purport to say, what my book will come to mean will primarily be determined by the interpretive community of readers. 

While the process of publishing an academic monograph is a long, at times arduous, and in many respects uncertain road, I would describe the process of receiving book reviews as a mixture of relief (‘Someone is actually reading my book!’), anxiety (‘I hope they enjoyed reading it!’), and excitement (‘I can’t wait to engage in a conversation on this topic!’). And it is with these emotions in mind that I would like to begin by thanking each of the contributors to this symposium for taking the time to engage so thoughtfully with my work and for providing much food for thought about both the text and the field of international criminal law more generally. 

In what follows, I begin by providing a snapshot of the main arguments and themes of Doing Justice to History, before offering some reflections on each of the contributions to the symposium.

A Snapshot of the Book

In Doing Justice to History, I attempt to construct a particular narrative about the emancipatory potential and limits of international criminal law as seen through the prism of the historical function of international criminal courts. By exploring how international criminal courts confront the past through constructing historical narratives concerning both the culpability of the accused and the broader mass atrocity contexts in which they are alleged to have participated, I surface some of the legitimating qualities of international criminal judgments – illuminating, in particular, what tends to be foregrounded and included within, as well as marginalised and excluded from, the historical narratives constructed by international criminal courts in practice. 

I conclude by identifying three strands of legitimation that stand out within international criminal judgments. In particular, I suggest that the histories constructed by international criminal courts have generally been: 

• apologetic to State interests – shaped and restricted in significant respects in accordance with the established relations of domination that exist both between and within States in the international political order at particular moments of time;

• focused on spectacular harms – foregrounding a narrow set of egregious, physical, direct, and immediate forms of violence to the neglect of other types of harms, including the social, economic, and political structures that create the conditions of possibility for atrocities to occur in different societal contexts around the world;

• and narrowly contextualised in ways that focus on localised systems of criminality rather than broader international networks, emphasise military and political figures at the expense of economic actors, and direct attention towards the ways in which the collective and systemic qualities of system crimes may expand individual agency to the neglect of the dilemmas and ambiguities of agency experienced within the spectrum of human relationships that exist in mass atrocity situations. 

In the closing stages of the book, I temper these observations in two respects. First, I emphasise the importance of guarding against overstating the legitimating power of international criminal judgments so as not to occlude or understate broader political and economic configurations at play in transitional contexts (for example, the role of military and political elites, informal war economies, and international financial institutions), as well as to ensure that attention is directed towards spaces within and beyond international criminal courts that offer opportunities for ongoing narrative contestation. 

And second, I explore two perspectives that may open up avenues for orienting the practices of international criminal courts towards a more emancipatory politics: first, a strategic expressivist perspective concerned with whether and how different actors may mobilise the expressive power of the vocabulary and practices of international criminal justice processes to advance their strategic agendas; and second, a critical perspective concerned with contextualising the historical narratives constructed within international criminal judgments and viewing them in more humble terms as moments of discursive beginning rather than instances of historical closure.

Reflections on the Symposium

Turning to the contributions to this symposium, I am grateful that each of the contributors has focused on different themes within the book. In this section, my aim is less to offer a response than to continue the conversation by offering a few reflections on their remarks.

Kirsten Fisher begins the symposium by situating Doing Justice to History within a wider stream of scholarship focused on the expressivist dimensions of international criminal courts. As Fisher notes, one of the aims of the book is to underscore how the messages communicated within judgments are always the product of the situated choices of the different actors who interact within international criminal proceedings – and to explore how these choices and the historical narratives that follow are far from neutral or mechanical. One might refer to this as an attempt to surface the politics of historical narration. Interestingly, when embarking on research for the book, I was struck by how existing scholarship predominantly focused on grappling with this form of politics within domestic atrocity trials to the neglect of international courts. As such, one way of understanding Doing Justice to History is as an attempt to think through how international criminal courts that have been promoted as basis for challenging denial have somewhat ironically risked becoming forms of selective amnesia. Doing so, I suggest, not only reveals something about the histories constructed in these courts, but also the limits of their emancipatory potential and the forms of justice they are able to deliver.

Further reflecting on the limits and potential of international criminal courts, Cheah W.L. observes that ‘while the political, institutional, and doctrinal limits of international criminal courts are real, these do not need to be taken as an unchanging given’. To illustrate, Cheah suggests that ‘the international criminal law community could pay more attention to the alternative paths that these courts could have taken’, in particular by exploring ‘bottom-up experiments in adjudication, such as peoples’ tribunals and feminist judgment projects’. As Cheah notes, this avenue of inquiry complements my call for international criminal judgments to be viewed as at best discursive beginnings for individuals and communities to engage with and debate the past. 

In the conclusion to Doing Justice to History, I also suggest international criminal justice processes may be likened to public monuments, which, once constructed, permit debates over memory and the past, and potentially conflicting and diverse meanings and understandings of the underlying events. In his recent book, The Sentimental life of International Law, Gerry Simpson suggests that monuments ‘do not simply remember; they actively “unremember” that which is not commemorated’ and that ‘just as monuments unremember acts of history, trials sometimes erase those “crimes” not juridified’. Attempting to come to terms with historical remembrance and absence in the field of international criminal law, Simpson engages with the notion of ‘counter-history’, namely ‘a history of trials not convened, prosecutions not initiated, investigations not begun; not a rising to the occasion but a falling away’. In this vein, Simpson raises the prospect of a ‘political-historical project for international criminal law… aimed at detecting the history inscribed in the legal form but read out of it, the blood in the code… a history of atrocity or preventable deaths actively forgotten or subject to un-remembering’. Viewed from this perspective, Cheah’s suggestion to look to peoples’ tribunals and feminist judgment projects may be understood as offering a valuable pathway for constructing counter-histories of international criminal courts that seek to reveal and contest the field’s constructed absences, invisibilities, and silences.

Alonso Gurmendi Dunkelberg picks up the theme of how different justice institutions sometimes construct histories concerning the same atrocity situation by exploring the narratives constructed by Peru’s Truth and Reconciliation Commission (TRC) and the evolving caselaw of the Inter-American Court of Human Rights (IACtHR) which each considered whether the violence that arose in Peru during the early 1980s until the end of 2000 amounted to an armed conflict or a social upheaval caused by terrorist violence. Ultimately, Gurmendi critiques the IACtHR for uncritically adopting the historical narrative constructed by the TRC, rather than treating it as ‘the starting point for a wider, nuanced, difficult and much longer national conversation’ and as ‘one of many versions; versions that can change and accommodate new discoveries and evolving norms and rules’. 

These observations complement my analysis in Doing Justice to History, in which I surface a degree of historical narrative pluralism within and beyond international criminal courts. Within the courtroom, despite the asserted finality of international criminal judgments, judicially constructed narratives are often less final and uniform than is generally assumed: first, inter-court narrative pluralism arises where the judgments of different courts examine the same mass atrocity situation from different perspectives; and second, intra-court narrative pluralism arises where narratives constructed within an international criminal judgment are revisited in later cases adjudicated by the same court. The roots of narrative pluralism within the courtroom are varied, including differences that arise between cases relating to the availability and evaluation of evidence, the charging practices of international prosecutors, and the judicial interpretation of legal categories such as crimes and modes of participation. And even in situations where international criminal courts achieve some degree of inter-court and intra-court narrative consistency, I discovered that a range of social psychological factors (including motivational and cognitive biases) and practical factors (including the geographical, cultural, and linguistic remoteness of international courts) have often generated a gap between the intended meaning of such narratives and their public or social meaning amongst different audiences beyond the courtroom. 

Gurmendi’s post offers a fascinating illustration, not only of how narratives within justice institutions can evolve over time, but also the risks of the uncritical adoption of particular narratives between different institutions. Narrative consistency is not necessarily something to strive for and narrative pluralism need not necessarily be a cause for concern. In fact, narrative pluralism can serve to enrich the historical record of international criminal courts. As Lawrence Douglas argues, ‘Particularly in the case of traumatic or sensational history, it seems the law often only reaches a satisfactory result and understanding through a process of revisiting and re-trying the contested events’.

Turning to the ICC, Michelle Burgis-Kasthala relies on Doing Justice to History to reflect on the ICC’s relationship to two episodes of violence within Jenin refugee camp. She suggests that an imagined future judgment, restricted by the Court’s narrowly circumscribed jurisdiction and apologist orientation, is likely to prove ‘wholly incapable’ of speaking to the historic and ongoing harms in the region. At the same time, Burgis-Kasthala observes how the ICC has already become a site of contestation over Palestinian sovereignty, with Palestinian participation in ICC proceedings forming part of an effort to strengthen their claims to statehood. 

As I have discussed in earlier work, it has not been uncommon for domestic atrocity trials to become didactic mechanisms for nation-building. Commenting on the trial of Adolf Eichmann, for example, then-Israeli Prime Minister David Ben Gurion emphasised how ‘for the first time in Jewish history, historical justice is being done by the sovereign Jewish people… For the first time Israel is judging the murders of the Jewish people… And let us bear in mind that only the independence of Israel could create the necessary conditions for this historic act of justice’. Not only would survivor testimony educate the world about the horrors of the Holocaust, but as Lawrence Douglas has recounted in his compelling study of the trial, it would also provide an opportunity for Israel to rely on their testimony to buttress ‘a specifically Israeli ideology of nationhood and Jewish identity’. Taking the stand were not victims, but survivors, whose testimony symbolized the struggle of the Jewish people against continual attempts aimed at their eradication. 

The criminal courtroom, then, is sometimes more than the trial of an accused or memorialisation of the experiences of survivors, but can also become a means to construct, strengthen and protect particular conceptions of national identity. And as Burgis-Kasthala’s post illuminates, it is this dimension of proceedings at the ICC that Palestinians have sought to rely on to legitimate their claims to statehood.

Picking up the theme of legitimation, Marina Veličković’s post critically explores the concluding sections of Doing Justice to History, including my suggestion that there may be greater emancipatory potential within international criminal courts by directing attention away from international criminal judgments towards the broader international criminal law process. 

Veličković suggests that there may be a degree of internal inconsistency in my account between the apologist, spectacularised and selectively contextualised tendencies of international criminal judgments that my study reveals and the emancipatory potential I identity for narrative pluralism within and beyond the courtroom. As Veličković argues, ‘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’. I agree that there are constraints within the courtroom that constitute a disciplining influence on international criminal proceedings which can impact the narratives that are constructed in practice, especially within international criminal judgments. However, my sense is that once our gaze is directed towards the broader international criminal law process, it is possible to identify opportunities for counter-hegemonic demands to be articulated and granted a degree of legitimacy. As Gerry Simpson argues, ‘Trials retain at their core a symmetry that can never quite be dissolved by the political elites who convene the trial… Law’s adversarialism, its commitment to equality of participation, and its openness mean it creates the occasional space for hitherto obscured “dissenting judgments”’. One example explored in the book is the possibility for a strategy of rupture whereby defendants and/or their counsel attempt to divert attention away from the acts of the defendant towards atrocities allegedly committed by the States on whose behalf the prosecution is conducted. While such strategies tend to have little influence over the narratives ultimately validated in international criminal judgments, the success of such strategies tends not to hinge on their legal acceptance, but on their ability to transmit counter-narratives to audiences beyond the courtroom. 

Towards the end of the book, I expand on this to suggest that the broader international criminal law process may provide opportunities for strategic expressivism – a concept that refers to the ways in which actors may be able to harness the expressive power of the vocabulary and practices of international criminal justice processes as one tactical means for advancing their longer-term strategic agendas for sociopolitical change. As Veličković points out, there are risks in relying on international criminal courts in this way, including the legitimation of their broader disciplinary practices along with the decontextualising tendencies of the vocabulary of international criminal law. In her study of strategic human rights litigation, Helen Duffy also cautions that it is important to remember that a legal intervention ‘is not a neutral enterprise that at worst does little good, while not doing any harm’. Any legal intervention, even if intended to positively contribute towards a strategic objective, has the potential to be counter-productive and generate negative repercussions – whether by over-inflating victim and community expectations, establishing regressive jurisprudence, or providing a veneer of legal legitimacy around the practices under scrutiny. 

Ultimately, therefore, I agree with Veličković’s gut feeling to resist, but continue to grapple with the question of whether such resistance necessarily negates any engagement with international criminal justice institutions. In her recent book, Feminist Theory and International Law: Posthuman Perspectives, Emily Jones suggests that it is important ‘to see resistance and compliance, not as binary options but as a spectrum of choices’ and that there is a need for ‘multiple, sometimes contradictory interventions’. At the same time, reflecting on the possibility that feminists might seek to shape the development and making of military technologies, Jones concludes that ‘while resistance and compliance should be seen, not as binary options but a continuum, there are still always two opposite ends to a continuum’. For Jones, working to support the development of killing machines would be ‘too far along the compliance side for comfort’, particularly since ‘having feminists working to develop these technologies would only serve to help legitimise their use’. As such, ‘[w]hile staying with the trouble may sometimes be necessary, the trouble is sometimes too troublesome to be able to stay with’. 

Going forward, a key question for those reflecting on and practising within the field of international criminal justice is whether the practices of international criminal courts and the vocabulary of international criminal law are simply too troublesome to be able to stay with. Oumar Ba, Kelly-Jo Bluen and Owiso Owiso recently observed, ‘If the field and the [ICC] are both failing to perform and if what they are to perform is mired in violence, perhaps it is time for better questions’. In that spirit, perhaps it is time for those working within the field of international criminal justice to engage more with work on abolitionism and to begin to ask abolitionist questions.