In a recently published article in Criminology and Criminal Justice, I set out a framework through which we can address the stories and truths that the international criminal justice (ICJ) project produces about violent pasts, conflicts, perpetrators, victims, crimes, causes and consequences.
By the term ”the international criminal justice project”, as opposed to internatioanl criminal law institutions, I refer both to these institutions (the courts and tribunals, and the stories produced within by prosecutors, judges, counsels, defendants, experts, victims and so on) – but also to the epistemic communities surrounding these courts, enabling them, pushing for them, advocating fortheir existence, for different parties, campaigning for their creation or continued funding, doing research on their work – that is, everyone engaged with the ICJ project in some way or the other.
I call this framework narrative expressivism. Narrative expressivism is situated at the juncture of insights from the analytical and theoretical framework provided by narrative analysis; as well as the body of literature that caters to the quality of the historical record produced by international criminal trials; and as the name also implies, expressive theories of international criminal law.
From narrative theory, and particularly narrative criminology, narrative expressivism sees stories of the past as important for the future, appreciating that stories affect “the way we perceive the social and material worlds“ (Autesserre 2012: 206). And further, the way we perceive the world “orient how we act upon our environment.” That is, “stories animate human life”. The stories available to us affect our perceived maneuverability for action in given situations, whether or not the stories are true.
From the body of literature engaging an expressive argument for international criminal justice, comes the emphasis on courts as didactic, or educative – communicative – to the wider society.
In my article, which builds on a four-year case study on the ICTY as a site for explaining and managing collective violence – I ask what stories and understandings of international crimes the criminal justice framework allows for and what it means when knowledge from and for court proceedings is used to describe and understand a social phenomenon outside of it.
What I suggest we do, is to look at the ways in which criminal law conceptualizations of the past affect the ways in which we are able or willing to deal with collective violence as societies and communities on the one hand, and as individuals – either politicians or potentially ordinary fighters on the ground, maneuvering possibilities for action in the face of violent profusions.
In my own research in particular, I have focused on defendants and how they are re-presented, and how conflict-related sexual violence specifically, is constructed as a problem of law – what ideas and subjects are called into service for criminal law’s operation through court narratives, as well as in policy and advocacy actors’ framing of conflict-related sexual violence, in order to push criminal prosecutions
Narrative expressivism theorizes international criminal justice as an empirical field for knowledge construction and sees criminal justice as a potent source of information about past crimes – yet also, as a site that impacts on present and future societal understandings of mass violence, promoting a particular structuring of thought. That is, it theorizes the juridification of societal and political understandings of complex collective and social problems.
The whole process of campaigning for the establishing of courts and cases, of adjudicating guilt and innocence, of evaluating evidence, hearing, challenging and sorting stories, establishing facts – the process of ordering chaos through a legal model that streamlines causality, draws individuals out of collectives, and categorizes both them, acts, victims, and contexts – makes a less complex and more comprehensible narrative of what was, through means and under influence of what constitutes legally relevant arguments and according to the courts’ binary logics. Such legal understandings are appealing. As Tallgren (2002: 594) states, “[b]y focusing on individual responsibility, criminal law reduces the perspective of the phenomenon to make it easier for the eye … It reduces the complexity and scale of multiple responsibilities to a mere background.”
What law, and particularly judgments, construct is not an objective history of the past, but the events anew, formed by these constraints and possibilities of the legal framework
Narrative expressivism caters to this reduction, to the processes of inclusion and exclusion of different voices, and to the leveraging and silencing of some stories over others during proceedings and in the epistemic community surrounding ICJ institutions.
Importantly, this way of seeing ICJ, emphasizes all the expressive, or communicative, work courts do or facilitate. This includes all the narratives that the international criminal justice project produces about acts charged as international crimes – either from the inside of its institutions or from the outside by its proponents – whether the narratives morally condemn or deny mass violence, and, importantly, whether they strengthen or challenge the legitimacy and authority of international criminal justice institutions.
While courts through judgments produce normative evaluations of international crimes, leveraged through the authority of criminal law, international criminal courts also provide international, public platforms for protest – as evidenced by the defiant defendants ‘performances’ at the very final proceedings of the ICTY last year.
This way, the common expressive understanding of law changes significance from being primarily a normative theory or argument of purpose (legal expressivism) to a descriptive theory of its function as storyteller and narrative conveyor, weighting the explanations of problematic social phenomena and mass harm and the role of law that it produces (narrative expressivism).
With public proceedings and transcripts, and the access to its goldmine archives for research, the trial at international criminal law institutions becomes a public theatre of different and contesting ideas – a place to test and rename, pronounce and project, and also, establish history about mass harms. Herein is an acknowledgement that “not only is knowledge power, but power is knowledge too”, as Ayoob (2002: 29) has stated. Focusing on power in its discursive forms, involves attention to how specific sets of logics organize and produce knowledge.
Narrative expressivist approaches to international criminal justice would, thus, concern how law and ICJ communities, act as central contributors to “[t]he wider politics of representation.” At the very least, this necessitates attention to questions such as “whose representations are these, who gains what from them, what social relations do they draw people into, what are their ideological and political effects, and what alternative representations are there?” (Fairclough, 2013: 549–550).
This take on ICJs influence on our understanding of collective and political violence may appear at first as at odds with recent, and oftentimes well-addressed, critique of the effectiveness and legitimacy of ICJ institutions and selectivity. However, there is a difference between what is understood as and expected from international criminal justice on the one hand, and the realitites that international criminal justice describes when handling crime, ie., the structuring of thought that the criminal law frame feed our understanding with – whether or not it succeeds with its prosecutions.