The international criminal justice project through the lense of Narrative Expressivism

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.

Defendant perpetrators and conflict-related sexual violence

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.

Deviant defenders

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.

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Radovan Karadzic Convicted by ICTY Trial Chamber

Yesterday, the Trial Chamber of the International Criminal Tribunal for Yugoslavia convicted Radovan Karadzic, former leader of the Bosnian Serbs during the 1990’s, of numerous crimes committed during the conflict.  Karadzic received a 40-year sentence; because he is 70 years old, the sentence essentially amounts to life imprisonment (unless he is released on compassionate grounds at some future point in time, but in all likelihood, even if that were to happen, he will be in his late 80’s or early 90’s by then).  The trial verdict is over 2,000 pages long and is available here.  A shorter summary of the verdict is available here, and an excellent analysis of the verdict by Marko Milanovic on EjilTalk! is available here.

This post will highlight some of the most interesting points from the Karadzic verdict.  While the fact that Karadzic was found guilty is not surprising to anyone in the academic community, a few more nuanced points from the verdict are worthy of interest.  First, Karadzic had been charged with several counts of genocide, one of which (count 1) was for genocide committed against different municipalities in Bosnia.  Karadzic was acquitted of that charge.  While the acquittal in this context should not mean much – because even if he did not commit genocide in the legal sense, Karadzic still committed other numerous crimes, such as crimes against humanity, war crimes, etc., which are equally reprehensible – the acquittal on the genocide charge may be interpreted by some (Serb nationalists, in particular) as a legitimization of Republika Srpska and of some of its heinous policies.  Marko Milanovic has already made this point, and I simply repeat and emphasize it here.  What I would add though is that the Karadzic case can serve as guidance to future international criminal tribunals’ prosecutors in the following sense: the crime of genocide is notoriously difficult to prove, and prosecutors would be much better off, in many cases, if they charge defendants with crimes against humanity and win “easy” convictions.  An acquittal on the charge of genocide can be much more harmful to the affected region and can contribute toward fueling nationalistic tensions and hatred.  Trying to win a genocide conviction simply because of the symbolic value that this type of conviction and “label” may carry is not worth the risk of acquittal on the same charge, especially in places like Bosnia where resentments still linger and where true reconciliation may be decades away.

Second, the Karadzic case is interesting because of the genocide conviction on a separate count – Karadzic was actually convicted of genocide because of his role in the Srebrenica massacre.  The trial chamber held that Karadzic was a participant of a joint criminal enterprise “who agreed to the expansion of means so as to encompass the killing of the men and boys intended to kill all the able-bodied Bosnian Muslim males, which intent in the circumstances is tantamount to the intent to destroy the Bosnian Muslims in Srebrenica.” (para 5741).  The trial chamber then established that Karadzic had the requisite intent to commit genocide at Srebrenica, as a participant in the said joint criminal enterprise, based on conversations which Karadzic had with Miroslav Deronjic, an official appointed earlier as a civil administrator of Srebrenica.  From these conversations, the trial chamber infers that Karadzic both knew that the massacre was about to happen, and had the intent for it to occur.  The relevant language, which Marko Milanovic quoted in his post already, and which I choose to reproduce here, because of its legal significance is as follows:

“The Chamber therefore takes particular note of the fact that, despite his contemporaneous knowledge of its progress as set out above, the Accused agreed with and therefore did not intervene to halt or hinder the killing aspect of the plan to eliminate between the evening of 13 July and 17 July. Instead, he ordered that the detainees be moved to Zvornik, where they were killed. Moreover, once Pandurević reported on 16 July that he had opened a corridor to allow members of the column who had not yet been captured or surrendered to pass through, Karišik was promptly sent to investigate and the corridor was closed within a day. Finally, the Chamber recalls that although he touted the opening of the corridor when speaking to the international press, in a closed session of the Bosnian Serb Assembly held weeks later, the Accused expressed regret that the Bosnian Muslim males had managed to pass through Bosnian Serb lines. Accordingly, the Chamber considers that the only reasonable inference available on such evidence is that the Accused shared with Mladić, Beara, and Popović the intent that every able-bodied Bosnian Muslim male from Srebrenica be killed, which, in the Chamber’s view, amounts to the intent to destroy the Bosnian Muslims in Srebrenica.”

This is significant for the purposes of defining the requisite mens rea for genocide.  Genocide is notoriously difficult to prove because a defendant must have the highest mens rea, intent, to kill or harm in other ways members of protected groups, because of their membership in such groups.  Here, the trial chamber seems willing to infer such intent, presumable because Karadzic knew that the massacre was about to be committed but did nothing to stop it, and because, according to the trial chamber, he must have shared the genocidal intent with other participants of this joint criminal enterprise.  If one accepts the idea that one of the most fundamental goals of international criminal justice is to secure the highest level of convictions against those who commit atrocities, and that the most significant conviction is that of genocide, then one would support the argument that the definition of genocide should be interpreted more loosely, to allow for inferences of this sort.  If one thinks, on the other hand, that rule of law is the most important thing and that legal definitions should be interpreted strictly, then one may take issue with the trial chamber’s liberal approach in finding a genocidal intent based on inferences.

What is almost certain is that the Karadzic team will appeal the verdict on some of these grounds and will hope for a partial reversal and a reduction of the sentence.  What is also certain is that Karadzic participated in the commission of some of the worst atrocities in Bosnia and that his conviction in general is a victory for international criminal justice.

Learning About International Justice on the Ground—The Balkans & War Crimes (Part II)

By Belinda Cooper and Jennifer Trahan

SARAJEVO

After experiencing the Hague tribunals (see Part I of this post), we travel to the region itself, starting in Sarajevo, Bosnia and Herzegovina—the city that was besieged from 1992-1995. From the moment we arrive and begin to pass buildings covered in bullet holes, students are confronted directly with the reality of a conflict that ended barely 20 years ago. Interaction with survivors of that conflict begins almost immediately: the guide who tells us about the tunnel under the airport that was used to bring in supplies during the siege was involved in building it; the staff at the hotel we stay in, as well as many people we meet in interviews and casual conversation, lived through the siege and lost family members during it. These discussions and conversations heighten the impact of our more official meetings.

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Professor Cooper at a building in Sarajevo with bullet holes

 

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International Commission for Missing Persons (ICMP)

 

We visit the International Commission for Missing Persons (ICMP), which conducts forensic analysis to identify persons killed in the war. Visiting the DNA labs is always fascinating in itself, but we are particularly interested in the crucial role forensics plays in both international and transitional justice. Where private individuals and government officials deny or minimize the number of people killed at Srebrenica, forensic proof of the number of victims and how they were killed becomes a crucial component of criminal trials, as well as one way of establishing the truth and combatting denial. Also, for families whose loved ones went missing, return of the bodies for burial is critical in seeking some level of closure.

Our visit to the ICMP, as well as meetings with other NGO representatives, leave students feeling that much positive work is being done in Bosnia. But they are very quickly confronted with fundamental political problems that defy solution. In our meetings with journalists, academics, survivors, and ordinary people, we hear repeatedly that Bosnia is not a functional state—that it is mired in the regime created by the Dayton Peace Accords, which was never meant as a permanent solution. The two entities that comprise the state—the Muslim and Croat “Federation” and Republika Srpska—coexist uneasily, with very little sense of unity. The pessimism this creates extends to the existing mechanisms of international justice, which were once heralded as at least a partial solution to the region’s problems.

Thus we encounter great skepticism about the ICTY and its role in the region on the part of Bosniaks, who were the main victims of the war. After seeing the courts in The Hague, meeting their committed staff, and learning about their achievements, it can be disconcerting to discover how deeply the hopes they once raised have been disappointed. From our perspective as professors, however, it is very useful for the students to be so directly confronted with the limits of international justice and perhaps take away some important lessons for the future. Importantly, too, despite the often pessimistic and critical responses, no one has suggested that the region would be better off without the ICTY. Those we speak with may be frustrated that the ICTY has not proved to be a panacea for all the region’s ills—for instance, it cannot try a low-level perpetrator who may still live down the block—but ultimately, they admit that things would be far worse had the ICTY never existed.

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Learning About International Justice on the Ground—The Balkans & War Crimes (Part I)

By Belinda Cooper and Jennifer Trahan

Students of international affairs or international law can learn about the field of international justice through textbooks, films, discussions and lectures in the classroom, but an additional depth of understanding comes from traveling to the locations where crimes occurred, observing tribunals adjudicating those crimes, and meeting in the field with court officials, NGOs and victims.

Each year, we lead a group of master’s degree students from NYU’s Center for Global Affairs on a trip to The Hague, Bosnia, and Serbia to learn about war crimes prosecutions and issues surrounding international and transitional justice. We both work in the international justice field, and over the course of years have built up networks of contacts in both The Hague and the Balkans region; we are thus able to introduce students to a broad variety of actors and institutions and thereby expose them very directly to the controversies and pitfalls, as well as successes, of international and transitional justice.

THE HAGUE

While still in New York, we hold a number of class sessions that provide basic background on the wars in the former Yugoslavia and the ways in which judicial systems and societies deal with the aftermath of mass atrocity crimes. But the trip really begins in The Hague, which puts us on the doorstep of international institutions, even in the literal sense: our hotel is next door to the International Criminal Tribunal for the former Yugoslavia (ICTY). That tribunal has been the focus of our Hague visit, but we also bring students to the International Criminal Court (ICC) and on occasion the Special Tribunal for Lebanon.

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International Criminal Tribunal for the former Yugoslavia

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NYU Group at the Peace Palace

To provide some insight into the history of the movement for international justice, we spend some time at Andrew Carnegie’s imposing Peace Palace, the home of the International Court of Justice and the Permanent Court of Arbitration. Whenever possible, we sit in on trials at the ICTY and ICC; in past years, student have had the chance to view the Karadžić and Mladić trials, Haradinaj, Bemba, and others. Sitting barely feet away from accused war criminals and hearing lawyers, judges and witnesses speak brings home the drama—and sometimes the tedium—of international criminal trials.

In addition, we organize substantive meetings with a wide variety of people involved in the courtroom process: these include the various offices of the ICTY (prosecution, defense, judges, outreach, registry) and the ICC, as well as journalists covering the tribunals. Highlights of past years have included ICTY Judge Theodore Meron, ICC Judge Hans-Peter Kaul, Karadžić defense advisor Peter Robinson, SENSE news chief Mirko Klarin, and many others. Sometimes serendipity takes a hand: this year, the chief prosecutor of the ICTY, Serge Brammertz, passed our students as they waited to enter the building and began a conversation with them. At these meetings, students gain insight into the mechanisms of international justice, and profit from speaking directly to people involved every day in the nitty-gritty of preparing and carrying out trials of major war criminals.

The impression they receive is an understandably positive one of successful, if not always perfect, institutions staffed by dedicated, skilled, and often idealistic professionals. But questions about the efficacy of the tribunals on the ground in former Yugoslavia already arise in our discussions about the ICTY’s reception in the region, its outreach program, and its perceived legacy. These concerns increase in immediacy and intensity once we arrive in the region, and they become a central focus of our discussions.   (To read more, see Part II.)

Go On! ICTY Open Day in The Hague this Sunday, 20 September   

This Sunday, 20 September 2015, the International Criminal Tribunal for the former Yugoslavia (ICTY) will host its Annual International Open Day as part of The Hague International Day.

At the Open Day, there will be opportunities to interact with ICTY Judges and other key staff members, view documentaries produced by the ICTY Outreach Programme, learn about the Mechanism for International Criminal Tribunals (MICT) and explore exhibitions and material from the ICTY Archives. Events will take place from 11:00 to 17:00.

Location: ICTY Main Building, Churchillplein 1, 2517 JW Den Haag

Speakers (with Q&A sessions) for the day include:

  • Judge Carmel Agius, ICTY Vice-President
  • Judge Christoph Flügge
  • Judge Alphons Orie 
  • Michelle Jarvis, Principal Legal Counsel (Deputy to the Prosecutor and Head of Appeals)
  • Bob Reid, OTP Chief of Operations
  • Martine Durocher, Chambers Legal Officer

To register, please visit https://www.evite-sendmail.nl/gem_dh/opend15/web/opend15_aanmelden_zndr_uit_en.php  or contact Alexa Magee (magee [at] un.org) for an event programme.

Go On! ASIL Webinar on ‘Getting Started in International Criminal Law’ this Friday, Feb. 27

This Friday, February 27, from 12pm to 1pm ET, the American Society of International Law New Professionals and International Criminal Law Interest Groups present a webinar featuring speakers from the international courts and tribunals in The Hague and other organizations engaged in international criminal law.  “Getting Started in International Criminal Law,” part of the ASIL New Professionals Interest Group’s “Getting Started” series, will be broadcast live through the ASIL website.

Speakers include staff from the Office of the Prosecutor of the Special Tribunal for Lebanon and the International Criminal Court, legal officers from the chambers of judges on the International Criminal Tribunal for the former Yugoslavia, and defense counsel from the Special Tribunal for Lebanon, as well as academic and non-governmental practitioners working in the field.

The event will be moderated by IntLawGrrl Beth van Schaack, who is currently the Leah Kaplan Visiting Professor in Human Rights at Stanford Law School and a Visiting Scholar at the Center for International Security & Cooperation at Stanford University. Viewers can stream the event on their personal computers and submit questions during the livestream by emailing events [at] asil [dot] org.  For more information and to register, go here.