Doing Justice to History Symposium: Expressivism and “The Struggle for Historical Justice”

[Kirsten J. Fisher is Associate Professor of Political Studies at the University of Saskatchewan, Canada.]

Barrie Sander’s Doing Justice to History: Confronting the Past in International Criminal Courts is a significant piece of work on the way history is constructed through contestation in courtrooms and the judgements rendered from those proceedings. While there is much to say about this work, I will focus my thoughts on what this book contributes to the expressivist literature on international criminal law. Not unintentionally, this is an important work for those of us who accept, promote, and work with the assumption that criminal trials are expressively significant – one that asks us to go beyond acknowledging that “social practices carry meanings and transmit messages quite apart from their consequences”, as Sander has written in the past, and demands that we reflect on who exactly is shaping those messages and in what way and for what purpose.

Sander’s Doing Justice to History reinforces the understanding of criminal trials and the resultant judgements as expressively significant and argues that because they are seen as such, actors engage “in a struggle to ensure that their preferred version of history receives a judicial seal of approval”, what he calls the struggle for historical justice (p. 6). It is not lost on the variety of actors engaged in the performance of atrocity trials that not only can criminal trials be useful for establishing a particular version of the truth of what happened during particular periods of history, but also that a judgement can be a stronger message of truth and condemnation than a reveal in a historian’s monograph or a truth commission’s report.

Much work has been done on the expressive nature of criminal trials as a normative justification for the pursuit of them in the aftermath of mass atrocity. In my own work, I’ve posited that the best justification for post-atrocity criminal trials is the value of their expressive nature, and I am by no means alone or the first to turn to an expressive justification for post-atrocity criminal trials, especially when it seems that deterrent or utilitarian grounding of such mechanisms offers poor justification for them. I have argued, as have others, that an expressive value of criminal trials and other mechanisms of post-atrocity justice is becoming a common normative justification for choices that may be made initially intuitively.

Atrocity trials can be particularly dramatic and more expressively significant than even the resultant punishment. David Luban argues that when it comes to addressing atrocity crimes, it is perhaps “because compared with their trial, their punishment lacks didactic and dramatic force” that “the center of gravity so often lies in the proceedings rather than in their aftermath” (p. 8). As Carsten Stahn tells us, expressivism sees criminal justice as seeking “to counter performative dimensions of crimes, provide societal reassurance, and produce positive meaning and experiences” (p. 394). The expressivism of the criminal justice system may also, it is argued, consolidate a moral community, as Martti Koskenniemi explains, or reinforce social norms and strengthen social solidarity. Expressivist thought is not concerned only with which messages are purposefully conveyed but also with the reception of (unintended) messages by a variety of audiences. 

All of this seemingly assumed a community speaking to itself, reinforcing its own deeply-held values and social norms, locally or more broadly with the vaguely understood ‘international community’ transmitting the values of the global community that were temporarily ignored in a local context for the events in question. What Sander’s book does is reinforce the rebuke of the idea that criminal trials can produce objective justice or an honest historical account and underscores the idea that the messages that are communicated via criminal trials are products of the particular moment in time and the particular actors engaged in the process. In some ways, this is why their expressive value is so important to victims and survivors and other stakeholders, because it represents the values of those with power and those who believe (or are fighting to portray) that they are reflecting what the community holds as right. 

While those of us working in this area acknowledge that there are a variety of actors who help shape the messages – sometimes working towards messages that will help to heal victims and promote positive peace and sometimes working towards messages that reinforce feelings that power only protects power – the work generally takes as its starting point the public-facing events and products. It is right that Sander’s newest work directs us to look specifically at the many actors who vie for their particular interpretation or the narrative they find politically advantageous and how they influence and mold the histories that are told about the events that transpired. It is often argued that the “truth” that comes from criminal trials is generally more objective than other narratives, that it has been vetted through the adversarial process, and that while it may be limited in scope (and therefore ignoring much of what is important about any given mass atrocity), this “truth” is a small sliver of accuracy. Sander shows how truth-narratives that develop from processes limited by strategically manipulated boundaries take on a legitimating function that they are not equipped to do since they have “tended to be apologetic in nature – oriented and circumscribed in ways that reflect the patterns of domination within the political environments in which” the courts operate at a particular moment in time (p. 317).

As Sander highlights, what he calls the “struggle for historical justice” does a lot of work in determining which values are projected through the expressive value of the trials, which performative dimensions stand and which are countered, and which moral community is represented and consolidated. The choices made about which narratives are prioritized are expressively significant. These narratives are presented in the way decisions are made about whether certain categories of crimes have been committed, and whether criminal responsibility for their commission can be attributed to particular people. As Sander claims, “Through the practice of historical narration, international criminal courts reveal their productive power – their expressive capacity to construct and shape the identities of individuals, groups, and the relations between them, and to define and delineate boundaries between guilt and innocence, blamers and blamed, and victims and perpetrators” (p. 305).

Sander does a fine job of laying out the multitude of ways in which different struggles – from which crimes to include in the statutes and how they ought to be defined, debated by states and influenced by civil society; to temporal boundaries of courts and “situations”; to the interpretation of crimes, and the inclusion of what evidence by lawyers and judges – shape the final communication from the court that establishes a specific narrative of what happened, what wrongs were committed, and who is to blame. While it is often acknowledged that a court is not a unitary actor, the many interested parties vying to influence the outcome is rarely dissected as fulsomely as Sander does. Those involved can include prosecutors, judges, defence lawyers, witnesses, victims’ legal representatives, civil society members, and representatives of the state and foreign states. Sander points out that there are often more people interested and involved in the construction of the particular narrative about the past than participated in the actual conflict.

This book is important for a number of reasons, some of which will no doubt be explored in other posts in this symposium. This work is a valuable contribution to the expressivist literature on international criminal law because if the trials and judgements are expressively significant in the way expressivists suggest, then this book helps to illuminate more clearly where, perhaps, we ought to look to understand that the manner of historical narrative and norm creation is itself expressive. How the decisions about what procedures structure such production should also be seen as reflecting particular values of time and place. Criminal law is the central pillar of transitional justice. There is a consensus among many that atrocity must be addressed by the judging and punishing of at least some of the perpetrators; it is the right of victims. If a community wants to forgo retributive justice for another approach (a restorative justice project, for example), there is a sense in which it must justify and defend its decision. That criminal law has been established in this principal role both invites the vying of interested parties to ensure their narrative is the one reflected in the product of the court and communicates something about the values of those in power over these decisions. To be able to understand the various ways in which interested parties participate and influence the message is valuable to understanding the value of the institution. We should question what this says about “our” values: that criminal law is the choice, with all of its holes and limitations and questions of inclusion and prioritization, (as expertly explored in Sander’s book) and that it has such legitimating power is, itself, meaningful and worth more critical thought in light of Sander’s work.