Symposium on Forensic and Counter-Forensic Approaches to International Law: The New Geometries of International Law – Deploying Self-Reflexive Inquiry to Re-Build the Discipline

[Marina Aksenova is an associate professor of international and comparative criminal law at IE University]

Introduction

The two projects inspiring this post – Cartography of Genocide by Forensic Architecture and Anatomy of Genocide by the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 – have in common the idea of a multi-dimensional approach to international law. In the case of Forensic Architecture, there is a literal movement away from linear narration of legally significant events towards greater immersive 3D experience. The effect is granting the viewer (public or legal professionals) instant access to a more holistic picture of events.

In contrast, the report Anatomy of Genocide uses seemingly familiar language of international law to describe and provide legal qualification to the ongoing atrocities. Yet the report takes extreme care to de-construct instances of instrumentalization of legal terms (such as the ‘military objective’). In other words, the report unpacks the trend aptly referred to as ‘humanitarian camouflage’, which is the deliberate erosion of meanings traditionally assigned to international humanitarian law categories, done with the intention to create confusion and a smokescreen of legitimacy. The report thus reveals specific ways in which the legal notions are manipulated to serve purposes contrary to the spirit of international humanitarian law. For instance, the work explains how the term ‘human shields’ has been (mis-)applied to most of the civilian population in Gaza with the goal of implicitly undermining the requirements of the principle of distinction in international humanitarian law.

What unites these two projects is their commitment to an in-depth inquiry outside of the well-trodden legal routes. In one instance, such inquiry centers around innovative ways of working with evidence coupled with a strong visual and aesthetic component. In the second instance, the investigation de-constructs the elaborate ‘legal scaffolding’ designed to cover the reality of the unfolding mass atrocities. In both cases enhanced clarity results from using tools – visual, rhetorical, and metaphorical – to curate contextual awareness. The new geometries of international justice emerge in a space cleared of the debris of literal meanings, binary interpretations, and unquestioned beliefs in distinct ideologies.

The effect of this contextualization of knowledge is creating necessary ‘space’ around the legal terms and principles to guide the reader, viewer or interpreter of law in formulating a more comprehensive understanding of how international law applies to a specific situation. This approach aligns more broadly with the new type of human intelligence emerging with the rise of computational power. The machines are increasingly excelling in task-oriented work and complex diagnostics, gradually eroding the specialist power in multiple professional fields (eg. coding, architecture, law, and medicine). This very same trend also reveals the irreplaceability of a human vision grounded in contextual awareness. We still need people to establish relevance, structure meaning, and exercise systemic sensitivity.

The Self-reflexive Inquiry Method in a Nutshell

Both projects – Cartography of Genocide andAnatomy of Genocide –are excellent examples of an intuitive application of the self-reflexive inquiry method grounded in aesthetics, discussed in detail in the last chapter of my recent monograph Art, Aesthetics and International Justice.

The purpose of this method is to facilitate deeper engagement with the core assumptions in the field of international justice by focusing on the power of clear perception and engaging with (legal) imagination. Invoking the term ‘imagination’ might arouse associations with simple daydreaming. Children often share imaginative stories, which possess certain degree of congruity but do not aim at establishing knowledge or truth. John Dewey called this type of imagination the ‘flights of fancy’. However, the self-reflexive inquiry method produces a different type of imagination, which can be described as ‘intelligent’.

Intelligent imagination is a form of reasoning based on past experiences and future possibilities. It enables connections between the past and the future and triggers empathy when relating to the lived experience of other people. The cognitive process gets enriched precisely because it includes scenarios not based on one’s personal experience but rather on what is observed in others. The ability to imagine and feel what it might be like to be someone else then fosters harmonization in society.

The summary of the method is presented in Graph 1 below. There are three core tenets in the method of inquiry into international justice grounded in aesthetic theories. To be clear, ‘aesthetic theories’ are referred to collectively not to brush over any individual differences among distinct philosophical traditions but to stress some common features, such as their emphasis on the quality of perception, as well as the interest in the process and purpose of creation. The three stages of the method are to be engaged in a non-linear fashion, meaning that the exercise is to be repeated until sufficient clarity ensues. The approach is thus cyclical in nature.

The stage of observation prioritizes multi-perspectivism by inviting the practitioner to shift between the first and the third-person perspectives on the situation that demands legal qualification. The idea is not to foster solutionism – which is often the default starting position of a lawyer – but rather to hold multiple perspectives simultaneously, while questioning one’s own assumptions and possible ‘blind spots’ in the dominant forms of discourse.

The stage referred to as ‘play’ engages the relational dynamics in the field of international justice. It exposes associations between the law ‘out there’ and one’s individual stake in it. This stage emphasizes improvisation and spontaneity as well as experiencing justice from different vantage points (as opposed to just making sense of it cognitively). The prompt to embodiment enables simultaneous recognition of one’s agency in practicing or researching law and the limitations of assigning such agency to distinct persons and institutions. The ‘play’ then occurs at the margins of what is possible in each moment individually and collectively; it is neither powerlessness, nor power grasping in an abstract way. It is rather an empowerment – a way of engaging with international justice as a lived reality and not just a mere set of rules.

’Playfulness’ in this context is not the opposite of ‘seriousness’ and is not to be interpreted as a way of bypassing the gravity of the problems addressed by the field of international justice. Quite the opposite, the idea is to utilize the urgency of the current polycrisis to question the solidity of some of the outdated structures in the edifice of international justice and the inability or unwillingness of the actors in the field to enforce already existing law due to cognitive biases and self-interest. The stage of play generates necessary distance to tackle the outdated patterns of institutional and individual behavior. In other words, it interrupts automated responses and fosters new neural connections (literally, in individual brains, and metaphorically, in policies and practices).

The phase of play then enriches and contextualizes more traditional approaches represented by the building stage, whereby law is methodically applied to the facts of the case. Harmonization and adaptation occur through the process of switching between (1) traditional ways of approaching the field of international justice, such as, for instance, using socio-legal research to deconstruct assumptions and find applicable rules, and (2) alternative tools, including those engaging sensory perception.

Practicing International (Humanitarian) Law with Aesthetic Sensibility

Practicing international law with aesthetic sensibility takes stock of the fact that law is inherently multidimensional. It is not just an ordering language or a fixed set of conceptual claims grounded in the sources of law (treaties, customs, and the general principles of law). International law is also an ever-evolving body of rules, processes, and narratives filtered through individual and collective memory and interpreted by the sense organs of sight, hearing, smell, touch, and taste. It is then fruitful to infuse the practice of international law with distinct strategies inviting closer connection to the senses. This invitation can be as subtle as generating inner visualizations, fostering a non-linear mind-map of events or revealing confusing (legal) metaphors (eg. ‘human shields’).

Experiencing with the senses results in a more embodied connection to the context and relieves the interpreter from some of the ideological baggage of the discipline of international law. This view aligns with the description of aesthetics as the inquiry into perception and the origins of creation. Aesthetic sensibility, then, enables separating the dominant structures of discourse and representation from the origins of their production (Cf. Christine Schwöbel-Patel and Robert Knox, 2024, 9). This occurs by loosening the connection between the descriptive category (with its historically assigned meaning) and the actual lived reality, or facts, to which the category is applied. The Anatomy of Genocide and the Cartography of Genocide master such an aesthetic sensibility.

The Anatomy of Genocide engages legal imagination as an organizing principle to reveal the distortions of legal terminology. The report painstakingly shows how international humanitarian law concepts, such as the human shields, collateral damage, safe zones, evacuations and medical protection, are deployed to corrupt the meaning and objectives of these definitions. Manipulating legal notions is possible through the literary device of metaphor – the labels with a narrow technical meaning are applied by analogy to a much broader category (para. 55). This move dilutes the significance of the original legal term. Furthermore, the Anatomy of Genocide engages a sense of sight when it vividly describes the plight of Palestinians, mentioning ‘near-constant carpet-bombing, along with draconian evacuation’ (para. 37) and ‘digging through the rubble, often with bare hands, searching for loved ones’ (para. 32).

The Cartography of Genocide works with the senses of vision and touch (spatial awareness) by documenting and representing, in an interactive manner, the scale of Israel’s assault on Gaza. The unique feature of the project is its engagement with multiple datapoints to solidify evidentiary patterns that can otherwise become obscured in the ever-changing news cycle. This project challenges the linear representation of evidence indicative of the sequential view of events. The Cartography of Genocide rather demonstrates the rhythms and levels of destruction. This way the interactive projects by Forensic Architecture (the authors of the report) create a bridge between the actual violence on the ground and the interpretative frameworks applied to it. The multidimensional representation approximates the viewer with a degree of embodied awareness of atrocities.

Both projects generate wider contextual awareness through observation by identifying and interrupting patterns of legal discourse and evidence presentation. They trigger sensory perception by presenting information using the senses of vision, touch, and imagination (the latter being the ‘buffer’ between the five senses and the habitual cognitive process). Finally, they revolve around the knowledge categories widely used in the field of international humanitarian law, thereby fostering effective dialogue with the stakeholders.

Contextual awareness, which is at the heart of the self-reflexive inquiry method, is essential for the future of international humanitarian law not just as way to work with evidence and prevent discourse manipulation. There is also a need to have a clearer interpretative guidance as to the core tenets as the discipline evolves. For instance, the traditional ways to establish mens rea of military personnel get challenged when it comes to AI-assisted targeting, using the software such as Lavender.

Articles 8(2)(b)(i) and (ii) of the Rome Statute of the International Criminal Court prohibit intentionally directing attacks against the civilian population and civilian objects. These provisions require intent, which is possible to adduce based on the circumstances surrounding each individual strike, conventionally ordered by the commander. The equilibrium shifts when the strikes are no longer authorized by the commander but, rather, they result from a pre-programmed AI-powered technology, which is deployed in a quasi-automatic fashion. The degree of knowledge of the commander will then need to be assessed based on a larger and more extended list of contextual criteria (the level of precautions taken, the degree of monitoring of the situation, the ongoing control of data glitches, etc). In other words, meaningful accountability in the age of automated warfare necessarily results in a more nuanced assessment of commander’s mens rea. The self-reflexive inquiry method may assist in this regard by focusing on commander’s level of contextual awareness and sensory input.

Conclusion

The process of non-engaged observation, interactive and a-chronological inquiry into the origins of creation of certain discourse forms, and the emphasis on combining different methodological tools and traditions underlie self-reflexive inquiry. This post referred to two significant projects relating to mass atrocities in Gaza that intuitively utilize this method – the Anatomy of Genocide and the Cartography of Genocide. These projects powerfully interact with sensory perceptions to reveal patterns otherwise obscured by linear thinking.