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This symposium provides a critical opportunity for international legal scholars to engage with the value and power of certain aspects of culture. The successive holders of the UN mandate on cultural rights have declined to define culture, instead taking a holistic, inclusive approach to its meanings, including inter alia diverse forms of artistic and cultural expressions, languages, worldviews, practices, and cultural heritage. Cultural rights—including the right to take part in cultural life without discrimination, the right to access and enjoy cultural heritage, and freedom of artistic expression—are a core part of the universal human rights framework. They are vital in and of themselves and protect key aspects of the human experience, but they have also been increasingly recognized as important elements of accessing justice and responding to atrocities and as “fundamental to creating and maintaining peaceful and just societies and to promoting enjoyment of other universal human rights.” The artistic and cultural expressions which result from the exercise of these rights likewise have inherent value and can also play significant roles in achieving basic goals of international law and human rights. As I noted in a report to the UN Human Rights Council in my capacity as UN Special Rapporteur in the field of cultural rights:
Humanity dignifies, restores and reimagines itself through creating, performing, preserving and revising its cultural and artistic life . . . . Cultural heritage, cultural practices and the arts are resources for marshalling attention to urgent concerns, addressing conflicts, reconciling former enemies, resisting oppression, memorializing the past, and imagining and giving substance to a more rights-friendly future.
Memorials and monuments are envisioned as positive ways to honor victims of atrocity. Such displays are taken as intrinsically benign, respectful, and in accord with the arc of justice. Is this correlation axiomatic, however? Art, after all, may be a vehicle for multiple normativities, contested experiences, and variable veracities. Hence, in order to really speak about the relationships between the aesthetic and international criminal law, one must consider the full range of initiatives—whether pop-up ventures, alleyway graffiti, impromptu ceremonies, street art, and grassroots public histories—prompted by international criminal trials. Courts may be able to stage their own outreach, to be sure, but they cannot micromanage the outreach of others. And the outreach of others may look and sound strikingly different than that curated and manicured by courts. This essay presents one such othered outreach initiative: a memorial in Tokyo dedicated to Justice Radhabinod Pal of India, who authored a vehement dissent at the International Military Tribunal for the Far East (IMTFE). The IMTFE was established in 1946 to prosecute Japan's leadership in the aftermath of the Second World War. Pal would have acquitted each defendant. This essay describes Justice Pal's legal philosophy, situates his place in the currents of international law, and reflects on the broader role of memorials as discursive sites.
These things also require their material forms, their easily recognizable visible symbols, their homes. . . . [With the Peace Palace,] international justice between nations has moved into a splendid home. The proud building is standing now, visible, and tangible: Temple, symbol and workplace. At least the spirit of peace is no longer homeless.
The potential convergence of art and international justice has received greater attention in recent years. In light of recognition of the limitations of international courts and the challenges of outreach, scholars and practitioners have begun to seek alternative ways of fostering engagement among the communities most affected by the crimes under their jurisdiction. In this context, the question has arisen: What can art do? What is the potential role of art and aesthetics in furthering goals of international courts beyond justice, i.e., towards peace and reconciliation? In this essay, I discuss three ways in which art has enormous potential, while also acknowledging that there are associated risks and challenges that might cause us to temper our enthusiasm.
The body is falling backwards, facing the sky. The hands are clasped together in a sampeah, as if in greeting, as if in prayer. For the artist of the Cambodian Tragedy Memorial, also called A ceux qui ne sont plus là (For those who are no longer here), the body “speak[s] both to and beyond individual identity.” By standing both as personal testimony of loss and “in memory of the Cambodian genocide and its impossible representation,” the memorial raises longstanding questions on the authority and limits of testimony, on representation, and, importantly for this symposium, on the relation between art and international criminal law.
This essay contends that emotions provide an extralegal framework that can contribute to a better comprehension of international legal justice and the ways in which it works. The examination of two cases brought before the International Criminal Court (ICC)—namely Ongwen (ICC-02/04-01/15) and Al Mahdi (ICC-01/12-01/15)— identifies how the parties in the process attempt to harness the power of emotion in their pleadings and arguments. This examination fosters a better understanding of the dramatic nature of international trials.