International Criminal Justice’s Nostalgia

[Kiran Mohandas Menon (@KiranMMenon) is Senior Officer at the International Nuremberg Principles Academy and a Hardiman Doctoral Researcher at the Irish Centre for Human Rights. Views reflected are his own.]

The author would like to thank Professor Shane Darcy and Professor Dirk Moses for their very helpful reviews of an earlier draft of this article.

International criminal justice is often defined by vague, contrasting and fragmented threads of memory. Its nostalgia(s) can perhaps naturally be seen in its soaring origin stories. These nostalgias are visible when different institutional designs and initiatives (or none at all) are propounded to address horrific crimes committed in a particular situation. Their influence has affected international criminal justice’s sometimes bipolar relationships with the development of its own norms, which in turn has created (at times) troublesome normative hierarchies. These nostalgia(s), be they linear, institutional or normative, are inter-connected and ostensibly mutually catalysing. They have affected the field’s histories, institutional and procedural contours as well as the shape and form of its normative foundations and content. This article leans on the writings of Svetlana Boym to provide guidance on how to understand the function of these legitimating stories.

In her ruminative 2001 book The Future of Nostalgia, Boym writes of the importance of distinguishing “between the habits of the past and the habits of the restoration of the past.” It is a distinction that is often as subtle as it is crucial, and one that can be lost in the range and chaos of a particular discourse. This divergence, if ignored, also has the potential to further exclusionary narratives and lopsided visions. “Invented traditions” in relation to the retelling of a particular pioneering moment are loaded and have the ability to conveniently free or cleanse its histories of their inconvenient dispositions. In Boym´s words, “Nostalgia is history without guilt”. A statement applicable to the Kremlin’s position that “as simultaneously a victor and a victim, it cannot be a perpetrator – neither during the Second World War nor during the “special military operation”, the latter being its euphemistic description of its horrific ongoing aggression against Ukraine. 

International criminal justice’s linear nostalgia furthers what Gerry Simpson has described as its “linear arrangements of history”(fn 73), and is pervasive in what Immi Tallgren has called the “power of images of international criminal justice”. The consequence of this linearity for Simpson is the “sidelining” of “the historical failure of international criminal law to address colonial crimes” as well as the “downplaying” or “misrepresentation of the complex relationship between international criminal law and sovereignty in a manner that conceals both its hegemonic tendencies and emancipatory potential.” Instances where the complete erasure of the former and tacit approval of the latter have prevailed are not entirely absent from even international criminal law’s most iconic and glorified moments. 

These nostalgias have made international criminal justice complacent enough with such narratives that it “hides histories” and excludes the irreplicable role of women and minorities for its own genesis, even when doing so is self-harming for its acceptance and vitality. And so, we arrive at a place where obituaries for a figure as extraordinary and uniquely influential as Ben Ferencz ignore his positions on the invasion of Iraq including his view that the leadership of the United States should face trial as the “principal perpetrators and planners of the crimes which occurred” there. This is not an isolated example. When Telford Taylor wrote Nuremberg and Vietnam in 1970, applying the Nuremberg standard to the United States’ actions in Vietnam, television networks were said to have been reluctant to provide him a forum to express these views. And a law review article described the book as a “melange of inaccuracies, half-truths, and rhetorical implications”. 

While international criminal justice’s institutional nostalgia is not entirely disconnected from this linearity, it is arguably more understandable viewed through practical and political lenses. In this vision, processes that have successfully fulfilled their stated mandates in the past take on a whole different life, historical weight and character. They become, as Kateryna Busol has written on Nuremberg and its “idealised symbolism” for Ukraine, “more about catalysing a powerful reverberation of a particular message rather than procedural particularities.” Francine Hirsch has detailed how Nuremberg has deep “symbolic significance for Ukraine, which endured a brutal occupation by Nazi Germany during the Second World War.” She notes that since the “towns and cities that were bombed and terrorized by Nazi occupiers in the 1940s—including Mariupol, Kyiv, and Kharkiv—are once again the site of devastation and mass atrocities”, for Ukraine, Nuremberg “means hope—the possibility of bringing Russia’s leaders to justice for waging an illegal war of aggression”. 

The potency and influence of this symbolism while lobbying for the support of States, obtaining essential resources and cooperation, fulfilling the demands or visions of victims, or even for preventing looming collective amnesias deserve recognition and reckoning with. And while it is crucial to stay true to these needs, there will also be value in ensuring that this symbolism does not entrench itself into an institutional nostalgia that aids the replication of legacies driven by hegemonic agendas and considerations. Symbolism, like memory according to Mario Vargas Llosa in the novel El Hablador (1987), can be a “snare” which “alters and subtly rearranges the past to fit the present.” In recreating or building upon institutional designs or procedural rules from the past, the need to separate “the habits of the past” from “the habits of the restoration of the past” becomes timely and pertinent. If not, in the context of International Criminal Justice, such nostalgia can also be mis-used to both deprive local stakeholders of agency as well as create models of enforcement that are selective and self-indulgent. 

Also falling victim to this institutional nostalgia tends to be the extraordinary developments that have quietly accumulated in pioneering domestic jurisdictions and lie waiting for their moment, before some major cataclysmic event leads to their incorporation into the international narrative. When international criminal justice’ historiography leaps from Nuremberg and Tokyo to the ad hoc tribunals, innovative and exceptional processes such as The Trial of the Juntas in Argentina, critical approaches and counterfactuals are deracinated. Such nostalgia can also lead to conditions where influential actors ponder and propose solutions for atrocities committed in a certain State while discarding actors and voices from the State concerned itself.

Normative nostalgia, if not confronted, can lead to international criminal justice professing apparent hierarchies for its core crimes as well while also omitting the reasons that have historically led to it treating this category of core crimes differently. While aggression may be the “supreme international crime”, that today’s international criminal law and especially the International Criminal Court are ill-equipped to prosecute, it is not the result of some unfortunate accident of history. Rather, it is the by-product of foresight being instrumentalised by hegemonic interests to debilitate the system, where opportunity existed to empower and unchain it. And so, initiatives that seek to derive authority from “constitutional moments” such as Nuremberg should reflect on how the system as a whole and especially the Rome Statute system can benefit from a “principled jurisdictional regime” (quote from Claus Kress) that will prosecute any future aggression. No bonafide invocation of Nuremberg can afford to ignore the portion of Robert Jackson’s opening statement before the International Military Tribunal that states “while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment”. 

In relation to the hierarchy of its crimes, the idea that a particular situation needs to be termed a genocide for it to receive a certain kind of attention from States and other stakeholders can lead to unintended consequences. Here, a nostalgia which views historical precedents that might fit the genocide or crimes against humanity criteria being given a particular status in judicial and public imagination, as opposed to others that may have been war crimes for example, may be a relevant factor. This is also an area that has not been aided by the “relative loose normative formulations” that have characterized the definitions of the core crimes and the “ensuing “cumulative charging” that have sometimes been seen in international tribunals. Ultimately, the postulation from the International Criminal Tribunal for Former Yugoslavia´ Krstić Appeals Chamber that, “the law must not shy away from referring to the crime committed by its proper name” [para 37] may be relevant to international criminal justice´s general discourse. 

While creating a taxonomy of sorts for the phenomenon of nostalgia, Boym writes of two that are of particular interest: “restorative” and “reflective” nostalgia. She defines the former as one which “manifests itself in total reconstructions of monuments of the past” while the latter “lingers on ruins, the patina of time and history, in the dreams of another place and another time.” International criminal justice and “its anxieties” (as termed by Frédéric Mégret) by their very nature are likely susceptible to engaging with or being caught up in both these forms of nostalgia. Milan Kundera once wrote that “in the sunset of dissolution, everything is illuminated by the aura of nostalgia, even the guillotine.” And the dangers of international criminal justice and its histories and legacies being whitewashed by its yearnings are ones which the relevant discourse should not ignore. For there will be value if these legacies are granted the gift of acknowledgment in relation to their own intricacies and shortcomings.