As the International criminal tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR, respectively) are concluding their mandates, the archives they leave behind comprise an unprecedented historical record about the war years, about the collective and individual harms suffered, and about the development of international criminal law. The tribunals’ legacies will be interpreted, negotiated, and renegotiated as more researchers dive into these materials. Undoubtedly, the archives will keep scholars from a wide array of disciplines busy for years and decades to come.
So what are we to make of these archives? What are they documenting? What are they leaving aside? What kind of historical record do they produce, and what is it that they establish? For whom? On what premises? What are the values of trial truths and the legal narratives they story?
In a recent article in the British Journal of Criminology I engage with these questions by focusing on a specific subset of cases at the trial end of these archives: cases brought to trial and ending in convictions of defendants for their direct participation in sexual violence.
Rather than analysing the production of jurisprudence before these courts, or the treatment of victims and victim witnesses, I ask how these direct perpetrators and the causes of their offenses are constructed within and by these institutions and its primary actors.
Emphasizing arguments that are interpretive or explanatory in terms of the defendants and their participation in sexual violence over those that are descriptive in terms of the offenses, there are two primary narratives in the court actors’ arguments. These explain the defendant either as someone whose personal characteristics and personality deviate from the norm, or they re-present the defendant as an ordinary man/woman, pointing to factors beyond the control of the defendant as explanations for his or her crimes.
So-called deviance narratives are either formulated by the prosecution, for which they constitute aggravating arguments. Here, the defendants are portrayed as sadistic opportunists who thrived on the opportunity to rape or sexually torture their victims. These narratives are often repeated in judgments, as in the case against Delić at the ICTY:
The manner in which these crimes were committed are indicative of a sadistic individual who, at times, displayed a total disregard for the sanctity of human life and dignity.
When defense counsels invoke deviance narratives, they do so for mitigating purposes. Thee narratives often involve partial acknowledgement of the crime, while also full or partial denials of responsibility. Typically they are based on the statements of psychiatric experts who account for the defendants’ dependent personalities and their extreme conformity, which in turn inevitably lead to criminal behavior if authority figures ask for it.
Ordinary man/woman-narratives engage three different scripts: Narratives of complete denials makes claim of completely innocent defendants. Narratives of partial denials emphasize that the crimes could have been worse, that war necessitates extraordinary measures, or, as did several defendants before the ICTY, argue that rape and sexual violence were not violent at all, but simply sex and pleasure. Noticeably, none of the ”sex, not violence” narratives pertained to sexual violence against men. In these cases, the violence was explicitly argued not to have had a sexual component, it was violence sexualized for humiliating purposes. Yet other narratives point to situational pressures that made ordinary men and women act out-of-character for a limited time period. Responding to such arguments, the judgment in the ICTY case against Bralo reads:
[We] are aware of the deteriorating political and military situation … While it is notorious that [enormous] pressures existed, the Trial Chamber nonetheless finds that they cannot be considered in any way relevant to the sentence to be imposed upon Bralo for the crimes of which he has been convicted. Large sections of the population … were subjected to the same or similar pressures, and yet did not respond in the same manner.
What are we to make of these stories about defendants and their involvement in sexual war violence? Well, stories and knowledge are always situated. It is interesting to note that feminist legal strategies result in convictions that – to a considerable degree – disregard the collective origin of the offenses and the situational pressures that most feminist theories underscore. These court narratives are important reminders about the narrative repertoires available about the causes of sexual violence and collective crimes in an international court setting. As such, these stories say as much about the courts fas sites for the construction of historical accounts as they do about the phenomena and individuals they are outwardly about.
These stories emerge from a specific, regulated, theatrical and instrumental context. As any lawyer or lay person knows, court proceedings are bound by the jurisprudence at work. The stories reflect the principled individualization of guilt and the selection processes that brought the defendants there in the first place.
Yet, sense-making in court is not isolated from sense-making outside of court – these narratives also ”reflect and construct social and cultural narratives” about the offenses charged and the perpetrators thereof. But there are few other settings in which direct perpetrators are directly confronted with their acts and where they are forced to provide a story about their involvement or non-involvement, depending on their defence strategies. Hence, these stories are primary examples of how institutions can both ”enable and constrain stories.” Given the international investment in these tribunals, and their role in creating a collective account and official story about the violence that was, this is a reminder both of their potential contribution and the legal, institutional biases that these trial stories, and ultimately, the archives they form part of, rest upon.