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HISTORY ON TRIAL: HISTORICAL NARRATIVE PLURALISM WITHIN AND BEYOND INTERNATIONAL CRIMINAL COURTS

  • Barrie Sander (a1)

Abstract

With the resurgence of the field of international criminal justice in recent decades, expectations have increasingly been placed on international criminal courts to construct consistent and authoritative historical narratives about the mass atrocity situations that fall within their purview. Taking this expectation as its focus, this article seeks to illuminate the historical narrative pluralism that can arise both within and beyond the international criminal courtroom. Within the courtroom, two types of narrative pluralism are identified: first, inter-court narrative pluralism, which arises when different courts examine the same mass atrocity situation from different perspectives; and second, intra-court narrative pluralism, which emerges when narratives constructed within an international criminal judgment are revisited in later cases adjudicated by the same court. Beyond the courtroom, it is contended that even when international criminal courts manage to achieve inter-court and intra-court narrative consistency, in practice a range of social psychological and practical factors tend to generate a gap between the intended meaning of such narratives and their public or social meaning amongst different audiences. By illuminating the historical narrative pluralism that can arise both within and beyond the international criminal courtroom, this article calls for greater critical awareness of the constructed nature of the historical narratives rendered within international criminal judgments, as well as a sobering of the expectations that are typically placed on international criminal courts both with respect to the construction of narratives within the courtroom and their reception beyond it.

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References

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1 van Sliedregt, E and Vasiliev, S, ‘Pluralism: A New Framework for International Criminal Justice’ in van Sliedregt, E and Vasiliev, S (eds), Pluralism in International Criminal Law (Oxford University Press 2014) 3, 13.

2 See generally Stahn, C and van den Herik, L, ‘“Fragmentation”, Diversification and “3D” Legal Pluralism: International Law as the Jack-in-the-Box’ in van den Herik, L and Stahn, C (eds), The Diversification and Fragmentation of International Criminal Law (Martinus Nijhoff Publishers 2012) 21, 30ff; and van Sliedregt and Vasiliev (n 1) 20–9.

3 See generally Stahn and van den Herik (n 2) 23–6 and 43–56; van Sliedregt and Vasiliev (n 1) 29–34; Robinson, D, ‘The Identity Crisis of International Criminal Law’ (2008) 21 LJIL 925; Clapham, A, ‘Concluding Remarks – Three Tribes Engage on the Future of International Criminal Law’ (2011) 9 JICJ 689; and Dixon, P and Tenove, C, ‘International Criminal Justice as a Transnational Field: Rules, Authority and Victims’ (2013) 7 IJTJ 393. On the relationship between the fields of international criminal justice and human rights, see generally ‘Symposium: The Influence of the European Court of Human Rights’ Case Law on (International) Criminal Law’ (2009) 9 JICJ 571; and ‘Special Issue: The Cross-fertilisation Rhetoric in Question: Use and Abuse of the European Court's Jurisprudence by International Criminal Tribunals’ (2015) 84 NordJIntlL 363. On the relationship between the fields of international criminal justice and transitional justice, see generally Bisset, A, Truth Commissions and Criminal Courts (Cambridge University Press 2012).

4 See generally NA Combs, ‘Deconstructing the Epistemic Challenges to Mass Atrocity Prosecutions’ 75 Wash&LeeLRev (forthcoming); and Smeulers, A, ‘Perpetrators of International Crimes: Towards A Typology’ in Smeulers, A and Haveman, R (eds), Supranational Criminology: Towards a Criminology of International Crimes (Intersentia 2008) 233.

5 See generally S Nouwen, ‘International Criminal Law: Theory All over the Place’, University of Cambridge Legal Studies Research Paper No 44/2015 (2015); Vasiliev, S, ‘On Trajectories and Destinations of International Criminal Scholarship’, (2015) 28 LIJL 701; Burgis-Kasthala, M, ‘Scholarship as Dialogue? TWAIL and the Politics of Methodology’ (2016) 14 JICJ 921; Sliedregt, E van, ‘International Criminal Law: Over-studied and Underachieving?’ (2016) 19 LIJL 1; Kreß, C, Towards a Truly Universal Invisible College of International Criminal Lawyers (Torkel Opsahl Academic EPublisher 2014); and Cryer, R, ‘The Philosophy of International Criminal Law’ in Orakhelashvili, A (ed), Research Handbook on the Theory and History of International Law (Edward Elgar 2011) 232.

6 Osiel, M, Mass Atrocity, Collective Memory, and the Law (Transaction Publishers 1997) 265 and fn 76 (clarifying that by ‘positivist’, the author refers to ‘positivistic philosophy of science, specifically to its notion that knowledge derives from empirical evidence and experience rather than exclusively from a priori categories. It holds, in short, that there exist facts independent of the observer who claims to discern them and of the cultural categories through which they are described’).

7 Johnson, LD, ‘Ten Years Later: Reflections on the Drafting’ (2004) 2 JICJ 368, 378.

8 ICTY website, Achievements at <http://www.icty.org/en/about/tribunal/achievements>.

9 ‘The Rule of Law and the Role of the Individual in the Pursuit of Human Rights by Judge Navanethem Pillay, President of the ICTR’, Friedrich-Ebert Stiftung 2003 Human Rights Award, 20 May 2003, Berlin, Germany.

10 ‘Judge Denis Byron's Address to the UN General Assembly’ ICTR Newsletter (October 2008) 1.

11 See, in this regard, Alvarez, JE, ‘Rush to Closure: Lessons of the Tadić Judgment’ (1997–98) 96 MichLRev 2031, 2033 (referring to the ‘model of closure’ perspective of international criminal courts).

12 See similarly, Buss, D, ‘Expert Witnesses and International War Crimes Trial: Making Sense of Large-Scale Violence in Rwanda’ in Zarkov, D and Glasius, M (eds), Narrative of Justice In and Out of the Courtroom: Former Yugoslavia and Beyond (Springer 2014) 23, 43.

13 Marrus, M, ‘History and the Holocaust in the Courtroom’ in Brayard, F (ed), Le Génocide des Juifs entre procès et historie (CNRS 2000) 45, cited in Douglas, L, ‘Perpetrator Proceedings and Didactic Trials’ in Duff, A et al. (eds), The Trial on Trial: Volume 2: Judgment and Calling to Account (Hart Publishing 2006) 191, 198.

14 Fournet, C, The Crime of Destruction and the Law of Genocide: Their Impact on Collective Memory (Ashgate 2007) xxxii.

15 Prosecutor v Karemera et al., Case No ICTR-98-44-AR73(C), ICTR Appeals Chamber, Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice (16 June 2006) at paras 33–38. The decision was criticized by scholars for its potential to undermine the fair trial rights of the accused, in particular in light of the willingness of the ICTR to infer the genocidal intent of an accused in part from proof of a nationwide genocidal campaign. See, for example, KJ Heller, Prosecutor v Karemera, Ngirumpatse & Nzirorera. Case No ICTR-98-44-AR73(C). Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice’ (2007) 101 AJIL 157, 161–2; and Jørgensen, NHB, ‘Genocide as a Fact of Common Knowledge’ (2007) 56 ICLQ 885, 895. See, however, Prosecutor v Karemera et al., Case No ICTR-98-44-AR73(C), ICTR Appeals Chamber, Decision on Motions for Reconsideration (1 December 2006) at para 16 (emphasizing that ‘the taking of judicial notice of genocide does not, in itself, go to alleged conduct or acts of the Applicants as charged in the indictment’).

16 See similarly Douglas, L, ‘Perpetrator Proceedings and Didactic Trials’ in Duff, A et al. (eds), The Trial on Trial: Volume 2: Judgment and Calling to Account (Hart Publishing 2006) 191, 198 (‘it does not follow that the picture of history presented in any specific trial is fixed by the fact that a trial court must render an unequivocal verdict’).

17 For analysis of judicial dissent in the international criminal context, see generally, Mistry, H, ‘The Paradox of Dissent: Judicial Dissent and the Projects of International Criminal Justice’ (2015) 13 JICJ 449; Jain, N, ‘Radical Dissents in International Criminal Trials’ (2017) 28(4) EJIL (2017) 1163; and Simpson, G, Law, War & Crime: War Crimes Trials and the Reinvention of International Law (Polity Press 2007) 92101.

18 Prosecutor v Šešelj, Case No IT-03-67-PT, ICTY Trial Chamber, Judgment (31 March 2016) at paras 192–193; and Prosecutor v Šešelj, Case No IT-03-67-PT, ICTY Trial Chamber, Partially Dissenting Opinion of Judge Flavia Lattanzi (31 March 2016) at para 39.

19 Douglas (n 16) 199.

20 See Combs, NA, Fact-Finding without Facts the Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) 11; Stover, E, The Witnesses: War Crimes and the Promise of Justice in The Hague (University of Pennsylvania Press 2005) 18; and Douglas, L, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale University Press 2001) 16.

21 See Stover (n 20) 19 (noting that ‘eyewitness and survivor testimony would humanize the plight of Nazi victims’); and Douglas (n 20) 17–18 (noting that William J Donovan, Jackson's first deputy, argued in favour of building the case of the prosecution around eyewitness testimony so as to give the trial ‘an affirmative human aspect’).

22 Jackson, RH, The Nürnberg Case (Alfred A Knopf 1947) 10.

23 See, for example, A Tusa and J Tusa, The Nuremberg Trial (1983) 100–1, cited in Combs (n 20) 11 (noting that the Nazis ‘had a mania for writing things down. It is an amazing psychological phenomenon that not one of these men could have a minor political conversation without recording it.’).

24 See, for example, Landsman, S, ‘The Eichmann Case and the Invention of the Witness-Driven Atrocity Trial’ (2012) 51 ColumJTransnatlL 69, 73.

25 See, for example, ibid 77; Moffett, L, ‘The Role of Victims in the International Criminal Tribunals of the Second World War’ (2012) 12 IntCLR 245, 249; and Stover (n 20) 18.

26 Hausner, G, Justice in Jerusalem (Harper & Row 1966) 291–2.

27 ibid.

28 See, for example, The Attorney General of the Government of Israel v Eichmann, Criminal Case No 40/61, District Court of Jerusalem, Judgment (11 December 1961) at paras 129–130 (recounting evidence of survivors concerning living conditions in the Nazi camps and ghettos).

29 There was initially a discrepancy between the English, French and Russian versions of the Nuremberg Charter which raised doubts as to whether all types of crimes against humanity had to be tied to crimes against peace or war crimes, or simply the sub-category of persecution-like crimes against humanity. On the famous Semicolon Protocol of 6 October 1945, which has generally been considered to have clarified that all crimes against humanity must be linked to crimes against peace or war crimes, see Douglas (n 20) 53–4.

30 Göring and others, Nuremberg International Military Tribunal, Judgment (1 October 1946) Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946: Volume I (Nuremberg IMT, 1947) 171, at 254–255 (‘[F]rom the beginning of the war in 1939 War Crimes were committed on a vast scale, which were also Crimes against Humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute War Crimes, they were all committed in execution of, or in connection with the aggressive war, and therefore constituted Crimes against Humanity.’). See, in this regard, Clark, R, ‘Crimes Against Humanity at Nuremberg’ in Ginsburgs, G and Kudriavtsev, VN (eds), The Nuremberg Trial and International Law (Martinus Nijhoff Publishers 1990) 177, 194 (‘The discussion of the two offenses is indeed quite jumbled up’).

31 For further discussion of the different framing of these convictions within the different language versions of the IMT judgment, see generally Acquaviva, G, ‘At the Origins of Crimes Against Humanity: Clues to a Proper Understanding of the Nullum Crimen Principle in the Nuremberg Judgment’ (2011) 9 JICJ 881; and Gallant, KS, The Principle of Legality in International and Comparative Criminal Law (Cambridge University Press 2009) 119–24.

32 Marrus, MR, ‘History and the Holocaust in the Courtroom’ in Smelser, R (ed), Lessons and Legacies V: The Holocaust and Justice (Northwestern University Press 2002) 215, 218. See similarly Simpson (n 17) 91 (‘a large-scale conspiracy to commit an aggressive war became the primary motif of the trial’).

33 Koskenniemi, M, ‘From Impunity to Show Trials’ (2002) 6 MaxPlanckYrbkUNL 1, 20.

34 See generally Schabas, WA, ‘The Contribution of the Eichmann Trial to International Law’ (2013) 26 LIJL 667, 670–6.

35 Eichmann (n 28) para 79.

36 See, in particular, Eichmann (n 28) at paras 182–199.

37 Felman, S, The Juridical Unconscious: Trials and Traumas in the Twentieth Century (Harvard University Press 2002) 61.

38 ibid 62.

39 Steinke, R, The Politics of International Criminal Justice: German Perspectives from Nuremberg to The Hague (Hart Publishing 2012) 13.

40 Douglas, L, ‘Truth and Justice in Atrocity Trials’ in Schabas, WA (ed), The Cambridge Companion to International Criminal Law (Cambridge University Press 2016) 34, 46.

41 For further discussions pertaining to this issue, see generally Bachmann, K and Fatić, A, The UN International Criminal Tribunals: Transition without Justice? (Routledge 2015) 247–51; and Buss (n 12).

42 Prosecutor v Jean-Paul Akayesu, Case No ICTR-96-4-T, ICTR Trial Chamber, Judgment (2 September 1998) at para 126. See similarly, Prosecutor v Clément Kayishema and Obed Ruzindana, Case No ICTR-95-1-T, ICTR Trial Chamber, Judgement (21 May 1999) at para 289; and Prosecutor v Nahimana et al., Case No ICTR-99-52-T, ICTR Trial Chamber, Judgement and Sentence (3 December 2003) at para 118. For further information on the views of expert witness Alison Des Forges concerning the planned nature of the Rwandan genocide, see generally Human Rights Watch, The Rwandan Genocide: How It Was Prepared (April 2006).

43 Akayesu (n 42), at para 126.

44 Kayishema and Ruzindana (n 42) at para 528.

45 Prosecutor v Bagosora et al., Case No ICTR-98-41-T, ICTR Trial Chamber, Judgement and Sentence (18 December 2008) at para 2094. For a useful account of the prosecution's narrative in its indictment, see Bachmann and Fatić (n 41) 249–50.

46 Bagosora et al. (n 45) at para 2097.

47 Bagosora et al. (n 45) at para 2107 (emphasis added). See similarly Prosecutor v Ndindilyimana et al., Case No ICTR-00-56, ICTR Trial Chamber, Judgement and Sentence (17 May 2011) at para 2066 (‘the Chamber cannot rule out the possibility of the existence of plans to commit genocide’).

48 Bagosora et al. (n 45) at paras 2107–2109.

49 Bagosora et al. (n 45) at para 2110. See similarly Ndindilyimana et al. (n 47) at para 2068 (‘while certain elements proved by the Prosecution could collectively be suggestive of a conspiracy to commit genocide, they are also consistent with […] a political and military power struggle against the RPF’).

50 Bagosora et al. (n 45) at para 2110.

51 Bagosora et al. (n 45) at para 2113. The ICTR has acquitted other individuals of conspiracy to commit genocide before its commencement. See, for example, Prosecutor v Juvénal Kajelijeli, Case No ICTR-98-44A-T, ICTR Trial Chamber, Judgement and Sentence (1 December 2003) at paras 449 and 794–796; Ndindilyimana et al. (n 47) at para 2069; and Prosecutor v Édouard Karemera and Mathieu Ngirumpatse, Case No ICTR-98-44-A, ICTR Appeals Chamber, Judgment (29 September 2014) at paras 731–742.

52 Bagosora et al. (n 45) at para 2092.

53 Bagosora et al. (n 45) at para 2112. See similarly Gaynor, F, ‘Uneasy Partners – Evidence, Truth and History in International Trials’ (2012) 10 JICJ 1257, 1272 (observing how ‘a conscientious historian, analysing the same evidence, might well conclude that it was more probable than not that there had been a high-level conspiracy to commit genocide in Rwanda before it unfolded’).

54 Bagosora et al. (n 45) at para 2112.

55 ibid, para 2111.

56 Buss (n 12) 24.

57 See generally MJ Ventura, ‘Specific direction à la Perišić, the Taylor Appeal Judgment and what it could mean for the ICTY Appeals Chamber in Šainović et al. – Part I’ Spreading the Jam (8 January 2014).

58 Prosecutor v Duško Tadić, Case No IT-94-1-A, ICTY Appeals Chamber, Judgment, (15 July 1999) paras 151–152.

59 Prosecutor v Momčilo Perišić, Case No IT-04-81-A, ICTY Appeals Chamber, Judgment (28 February 2013) at para. 46.

60 For a similar example in the jurisprudence of the ICTR, see MA Drumbl, ‘The Curious Criminality of Mass Atrocity: Diverse Actors, Multiple Truths, and Plural Responses’ in van Sliedregt and Vasiliev (n 1) 68, 97–9 (discussing divergent findings in the ICTR cases related to the Nyange parish church massacre).

61 Prosecutor v Milutinović et al., Case No IT-05-87-T, ICTY Trial Chamber, Judgement: Volume 3 of 4 (26 February 2009) at para 95.

62 Milutinović et al. (n 61) at para 95. The Trial Chamber's analysis and findings as regards the common purpose of the JCE were upheld on appeal. Prosecutor v Šainović et al., Case No IT-05-87-A, ICTY Appeals Chamber, Judgement (23 January 2014) at paras 604 and 664.

63 Prosecutor v Vlastimir Đorđević, Case No IT-05-87/1-T, ICTY Trial Chamber, Public Judgement with Confidential Annex: Volume I of II, 23 February 2011, at para 2126. The Trial Chamber's analysis and findings as regards the common purpose of the JCE were upheld on appeal. See Prosecutor v Vlastimir Đorđević, Case No IT-05-87/1-A, ICTY Appeals Chamber, Judgement (27 January 2014) at paras 139–141 and 158.

64 Milutinović et al. (n 61) at paras 618 (regarding Ojdanić) and 919 (regarding Lazarević).

65 Đorđević Trial Judgment (n 63) at paras 2127 and 2211.

66 Đorđević Appeals Judgment (n 63) at para 135.

67 ibid, para 142.

68 ibid.

69 ibid, para 143.

70 Osiel, M, Making Sense of Mass Atrocity (Cambridge University Press 2009) 75.

71 See, in this regard, Ford, S, ‘The Complexity of International Criminal Trials Is Necessary’ (2015) 48 GeoWashIntlLRev 151, 193–4 (arguing, based on an empirical study, that adopting a symbolic charging strategy would have reduced trial complexity of the ten most complex cases at the ICTY by around 27 per cent).

72 This example was brought to my attention by Hartmann, F, ‘Abdicated Legacy: The Prosecution's Use of Evidence from Milošević’ in Waters, T (ed), The Milošević Trial: An Autopsy (Oxford University Press 2014) 465.

73 See Prosecutor v Slobodan Milošević, Case Nos IT-99-37-AR73, IT-01-50-AR73 and IT-01-51-AR73, ICTY, Appeals Chamber, Decision on Prosecution's Interlocutory Appeal from Refusal to Order Joinder (1 February 2002).

74 Prosecutor v Slobodan Milošević, Case Nos IT-99-37-PT, IT-01-50-PT and IT-01-51-PT, ICTY, Trial Chamber, Decision on Prosecution's Motion for Joinder (13 December 2001) at paras 16 and 42. Rule 49 of the ICTY Rules of Procedure and Evidence provides that ‘[t]wo or more crimes may be joined in one indictment if the series of acts committed together form the same transaction, and the said transaction, and the said crimes were committed by the same accused’.

75 Milošević (n 74) at paras 52–53.

76 Milošević (n 73).

77 Prosecutor v Slobodan Milošević, Case No IT-02-54-T, ICTY Trial Chamber, Decision on Motion for Judgement of Acquittal (16 June 2004) at para 138.

78 ibid, para 140.

79 Bachmann and Fatić (n 41) 223. See similarly, Hartmann (n 72) 472 (claiming that a significant part of the Prosecutor's strategy to prove that Milošević had participated in the JCE entailed demonstrating how Stanišić and Simatović had served as ‘channels of communication between and among the core members of the JCE in Belgrade, and had controlled and directed Serbia's covert special forces in some of the most brutal campaigns against non-Serb civilians’).

80 H van der Wilt, ‘The Spider and the System’ in Waters (n 72) 484, 487.

81 For a detailed summary of the standard of review applied in Rule 98bis decisions, see Milošević (n 77) at para 13 (‘Where there is some evidence, but it is such that, taken at its highest, a Trial Chamber could not convict on it, the Motion [to acquit the defendant on those charges] is to be allowed’) (emphasis added).

82 Prosecutor v Slobodan Milošević, Case No IT-02-54-T, ICTY Trial Chamber, Decision on Motion for Judgement of Acquittal, Dissenting Opinion of Judge Kwon (16 June 2004) at para 1.

83 ibid, para 2.

84 Hartmann (n 72) 472.

85 ibid 474 (emphasis added).

86 ibid 479–81.

87 Prosecutor v Jovica Stanišić and Franko Simatović, Case No IT-03-69-T, ICTY Trial Chamber, Judgement (30 May 2013) at paras 2290–2304. The judgment of the Trial Chamber has recently been quashed by the Appeals Chamber, which has ordered a retrial of the defendants. See generally, Prosecutor v Jovica Stanišić and Franko Simatović, Case No IT-03-69-A, ICTY Appeals Chamber, Judgement (9 December 2015).

88 See, in this regard, van der Wilt (n 80) 488 (observing that ‘the major blow to the structural cohesion of the JCE [originally alleged in Milošević] has been administered by the Prosecution itself, which, by eliding the indispensable links between Milošević and the acts of genocide, has caused the whole JCE to fall apart’.).

89 See generally, Friman, H et al. , ‘Charges’ in Sluiter, G et al. (eds) International Criminal Procedure: Principles and Rules (Oxford University Press 2013) 381, 415–22; and Locke, J, ‘Indictments’ in Reydams, L et al. (eds), International Prosecutors (Oxford University Press 2012) 604, 642–5.

90 Nahimana et al. v Prosecutor, Case No ICTR-99-52-A, ICTR Appeals Chamber, Judgment (28 November 2007) at para 322. See similarly Prosecutor v Kvočka et al., Case No IT-98-30/1-A, ICTY Appeals Chamber, Judgement (28 February 2005) at para 33; and Prosecutor v Moinina Fofana and Allieu Kondewa, Case No SCSL-04-14-A, SCSL Appeals Chamber, Judgment (28 May 2008) at para 443.

91 Nahimana et al. (n 90) at para 325.

92 ibid, para 326.

93 Prosecutor v Charles Ghankay Taylor, Case No SCSL-03-01-T, SCSL Trial Chamber, Judgment (18 May 2012) at para 124.

94 ibid, paras 129–131.

95 ibid, para 134.

96 Prosecutor v Sesay et al., Case No SCSL-04-15-T, SCSL Trial Chamber, Judgement (2 March 2009) at paras 1302–1309.

97 See, in this regard, Oosterveld, V, ‘Evaluating the Special Court for Sierra Leone's Gender Jurisprudence’ in Jalloh, CC (ed), The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge University Press 2014) 234, 256–7.

98 For detailed discussions of the ‘nexus’ requirement, see generally Ambos, K, Treatise on International Criminal Law: Volume II: The Crimes and Sentencing (Oxford University Press 2014) 140–4; Cryer, R et al. , An Introduction to International Criminal Law and Procedure (3rd edn, Cambridge University Press 2014) 281–2; Cassese, A et al. , Cassese's International Criminal Law (3rd edn, Oxford University Press 2013) 77–9; and Mettraux, G, International Crimes and the Ad Hoc Tribunals (Oxford University Press 2006) 3847.

99 Ambos (n 98) 140–1.

100 See, for example, Akayesu (n 42) at paras 621 and 627 (concluding that the different threshold requirements for the existence of an armed conflict under common Article 3 of the Geneva Conventions of 1949 and Additional Protocol II had both been fulfilled with respect to the conflict between the RPF and the Rwandan governmental forces). For a critical discussion, see generally Darcy, S, Judges, Law and War: The Judicial Development of International Humanitarian Law (Cambridge University Press 2014) 109–10; and van den Herik, L, The Contribution of the Rwandan Tribunal to the Development of International Law (Martinus Nijhoff Publishers 2005) 216–20 and 226–7.

101 Cassese, A, ‘The Nexus Requirement for War Crimes’ (2012) 10 JICJ 1395, 1407. On the ‘closely related to’ nexus standard, see Prosecutor v Duško Tadić, Case No IT-94-I-AR72, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) at para 70; and Prosecutor v Georges Anderson Nderubumwe Rutaganda, Case No ICTR-96-3-T, ICTR Trial Chamber, Judgment and Sentence (6 December 1999) at para 104. For further elaboration of the nexus requirement, see Prosecutor v Kunarac et al., Case No IT-96-23 and IT-96-23/1-A, ICTY Appeals Chamber, Judgement (12 June 2002) at paras 57–59.

102 L van den Herik, ‘A Quest for Jurisdiction and an Appropriate Definition of Crime: Mpambara before the Dutch Courts’ (2009) 7 JICJ 1117, 1125.

103 van den Herik (n 100) 228–9.

104 See similarly, Cassese (n 101) 1407 (‘initially tepid approach’); H van der Wilt, ‘War Crimes and the Requirement of a Nexus with an Armed Conflict’ (2012) 10 JICJ 1113, 1119 (‘Initially, trial chambers of the ICTR […] were quite reluctant to accept a nexus between crimes and the armed conflict.’); and van den Herik (n 100) 235 (‘high threshold set by the ICTR Chambers’).

105 Cassese (n 101) 1408.

106 Akayesu (n 42) at para 640. See similarly, Rutaganda (n 101) at para 98; and Prosecutor v Alfred Musema, Case No ICTR-96-13-A, ICTR Trial Chamber, Judgement and Sentence (27 January 2000) at paras 264–275 and 280.

107 Kayishema and Ruzindana (n 42) at para 603.

108 ibid, para 619.

109 ibid, para 621 (emphasis added).

110 Akayesu (n 42) paras 127–128.

111 Cassese (n 101) 1410 (emphasis in original).

112 See, for example, Akayesu (n 42) at paras 640–644; Kayishema and Ruzindana (n 42) at paras 598–624; Musema (n 106) at paras 973–975; and Rutaganda (n 101) at paras 442–445.

113 Prosecutor v Jean-Paul Akayesu, Case No ICTR-96-4-A, ICTR Appeals Chamber, Judgment (1 June 2001) at paras 433–439.

114 ibid, para 444.

115 ibid, paras 440–444.

116 Bagosora et al. (n 45) at para 2232. See similarly Prosecutor v Théoneste Bagosora and Anatole Nsengiyumva, Case No ICTR-98-41-A, ICTR Appeals Chamber, Judgement (14 December 2011) at para 405; and Ndindilyimana et al. (n 42) at para 266.

117 Bagosora et al. (n 45) at paras 2233–2235.

118 ibid, paras 2228–2257.

119 Cassese (n 101) 1410–11.

120 van der Wilt (n 104) 1122.

121 van den Herik (n 100) 239.

122 ibid 256–257 (referring to the ICTR case of Ntagerura et al. as an example of a tribunal that applied this approach).

123 ibid 257.

124 ibid 257 (arguing that the more lenient approach to the nexus requirement ‘fails to observe that the Tutsi within Rwanda cannot necessarily be equated with the RPF’ and that ‘it may be argued that the Rwanda Armed Forces (RAF) had two “war fronts”, one against the RPF and the other against the Tutsi population in Rwanda’).

125 See similarly Sloane, RD, ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’ (2007) 43 StanJIntlL 39, 84 (‘The expressive dimensions of punishment depend on its ability to convey the right meaning against the background of social norms, which vary significantly between the states, societies, cultures, and other constituencies that comprise the international community’); and Amann, DM, ‘Group Mentality, Expressivism, and Genocide’ (2002) 2 IntCLR 93, 118 (focusing ‘not on the intended meaning of a deed, but rather on the meaning that is understood by hearers, the public or social meaning’).

126 Mégret, F, ‘Practices of Stigmatization’ (2013) 76 LCPs 287, 311. See also Stahn, C, ‘Between ‘Faith’ and ‘Facts’: By What Standards Should We Assess International Criminal Justice?’ (2012) 25 LIJL 251, 273 (‘The acceptance and internalization of facts are processes that are shaped by other factors, such as media, inter-ethnic contact, or local politics.’); and Clark, JN, ‘The Impact Question: The ICTY and the Restoration and Maintenance of Peace’ in Swart, B et al. (eds), The Legacy of the International Criminal Tribunal for the Former Yugoslavia (Oxford University Press 2011) 55, 79 (‘attitudes and behaviours are shaped and affected less by the work of a distant and poorly-understood tribunal than by a variety of far more immediate factors, including the media, levels of inter-ethnic contact, and whether a person has had positive experiences with members of other ethnic groups’.).

127 White, J Boyd, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (University of Wisconsin Press 1985) 185 (emphasis added).

128 This section builds on material first articulated in Sander, B, ‘International Criminal Justice as Progress: From Faith to Critique’ in Bergsmo, M et al. (eds), Historical Origins of International Criminal Law: Volume 4 (Torkel Opsahl Academic EPublisher 2015) 749, 809–11; and B Sander, ‘The Expressive Limits of International Criminal Justice: Victim Trauma and Local Culture in the Iron Cage of the Law’ 5 European Society of International Law Conference Paper Series (2015) 5–6.

129 See generally Ford, S, ‘A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms’, (2012) 45 VandJTransnatlL 405; Milanović, M, ‘Establishing the Facts about Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences’ (2016) 47 GeoJIntlL 1321; and M Milanović, ‘Courting Failure: When Are International Criminal Courts Likely to be Believed by Local Audiences?’ in KJ Heller et al. (eds), The Oxford Handbook of International Criminal Law (Oxford University Press, Oxford, forthcoming).

130 Ford (n 129) 419.

131 ibid 419–420.

132 ibid 423.

133 ibid 419.

134 Festinger, L, A Theory of Cognitive Dissonance (reprint edn [1957] Stanford University Press 1962) 3.

135 Ford (n 129) 434.

136 ibid 436–7.

137 Milanović, ‘Establishing the Facts about Mass Atrocities’ (n 129) 1340–1.

138 ibid 1341.

139 Ford (n 129) 459.

140 ibid 459–461; Milanović, ‘Establishing the Facts about Mass Atrocities’ (n 129) 1343–4 and 1347–52; Stover (n 20) 143; M Ignatieff, ‘Articles of Faith’ 25 Index on Censorship (1996) 110, 116.

141 Fletcher, LE and Weinstein, HM, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 HumRtsQ 573, 588.

142 Milanović ‘Establishing the Facts about Mass Atrocities’ (n 129) 1343–4 and 1347–52; Stover (n 20) 1343.

143 Koskenniemi (n 33) 16.

144 Mégret, F, ‘What Sort of Global Justice Is ‘International Criminal Justice’?’ (2015) 13 JICJ 77, 90.

145 This has been confirmed by a range of empirical studies. See, for example, Ford (n 129) at 426–33 (explaining the effect of cognitive dissonance on ethnic Serbians with respect to indictments and convictions at the ICTY); Clark, JN, ‘The ICTY and Reconciliation in Croatia: A Case Study of Vukovar10 JICJ (2012) 397, 414 (qualitative empirical study in Croatia); Clark (n 126) 77 (qualitative empirical study in Bosnia-Herzegovina); and Fletcher, LE and Weinstein, HM, ‘A World unto Itself? The Application of International Justice in the Former Yugoslavia’ in Stover, E and Weinstein, HM (eds), My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge University Press 2004) 29, 44 (qualitative empirical study of 32 judges and prosecutors with primary or appellate jurisdiction for national war crimes trials in three areas of Bosnia-Herzegovina). See also Milanović, M, ‘The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Postmortem’ (2016) 110 AJIL 233.

146 See, in this regard, Ford (n 129) 463–75 (arguing that in some contexts the accumulation of evidence by international criminal courts can contribute to ‘tipping points’ that will lead individuals to revise their initial beliefs).

147 Clark (n 126) 76.

148 Henry, N, War and Rape: Law, Memory and Justice (Routledge 2011) 119–22.

149 Wilson, RA, Writing History in International Criminal Tribunals (Cambridge University Press 2011) 11.

150 West, R, A Train of Powder (Viking Press 1955) 3.

151 See similarly, G Frankenberg, ‘Human Rights and the Belief in a Just World’ 12 I-CON (2014) 35, 55 (noting, in the field of human rights, that ‘[u]nless they're able to command a modicum of legal training or a pathologically robust psyche or both, claimants will hardly be able to avoid feeling dispossessed of what had once been their conflict – a feeling that may very well be described as alienation’).

152 See, for example, Clark (n 145) 409 (noting that ‘not everyone has access to the internet’ and ‘ordinary people cannot be expected to read long and complex legal documents’).

153 Taylor (n 93).

154 See similarly Gaynor (n 53) 1274–5 (noting that ‘length is not necessarily undesirable in a document describing massive criminal activity’, but adding that ‘[w]hat matters to the public, it appears, is […] clarity and readability’).

155 See generally, Milanović Establishing the Facts about Mass Atrocities (n 129) 1330–1336.

156 See, for example, Clark, JN, ‘From Negative to Positive Peace: The Case of Bosnia and Hercegovina’ (2009) 8 Journal of Human Rights 360, 374 (‘As a Tribunal that is geographically removed from the former Yugoslavia, that does not operate in the local languages of Bosnian/Croatian/Serbian, and that leans towards the unfamiliar adversarial common law system, the ICTY was always going to struggle to reach out to and engage local people.’).

157 See, for example, Ramulić, E, ‘Victims’ Perspectives’ in Steinberg, RH (ed), Assessing the Legacy of the ICTY (Martinus Nijhoff Publishers 2011) 103, 105; Hodžić, R, ‘A Long Road Yet to Reconciliation: The Impact of the ICTY on Reconciliation and Victims’ Perceptions of Criminal Justice’ in Steinberg, RH (ed), Assessing the Legacy of the ICTY (Martinus Nijhoff Publishers 2011) 115, 117; and Klarin, M, ‘The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia’ (2009) 7 JICJ 89, 90.

158 For discussion of Croatian reactions to the subsequent acquittal of the Generals on appeal, see Clark, JN, ‘Courting Controversy: The ICTY's Acquittal of Croatian Generals Gotovina and Markač’ (2013) 11 JICJ 399, 419420.

159 Clark (n 145) 417.

160 ibid 418.

161 ibid 417. See similarly Ford (n 129) 432 (referring to an ‘echo chamber’ effect, whereby the initial negative perceptions of the ICTY by the general Croat population are ‘reflected back by associates and elites’).

162 Milanović, ‘Courting Failure’ (n 129).

163 Luban, D, ‘Demystifying Political Violence: Some Bequests of ICTY and ICTR’ (2016) 110 AJIL Unbound 251, 254 (arguing that while international criminal courts may help fight denialism amongst global audiences, they are unlikely to succeed within the affected populations. As a result, we should ‘think globally, hope locally – but don't be surprised if trying to establish the truth locally fails in the face of ongoing identity politics’).

164 See similarly Alvarez, JE, ‘Crimes of Hate/Crimes of State: Lessons from Rwanda’ (1999) 24 YaleJIntlL 365, 448 (referring to ‘the assumptions of many international lawyers that international trials only reflect truth but do not construct it’).

165 Skouteris, T, ‘Engaging History in International Law’ in Beneyto, JM and Kennedy, D (eds), New Approaches to International Law (TMC Asser Press 2012) 99, 104. See also Osiel (n 6) 272 (noting that history is always embedded ‘within a normative framework governing the inclusion and exclusion of particular facts and the connections between them’); and H White, ‘The Historical Text as Literary Artifact’ in White, H, Tropics of Discourse: Essays in Cultural Criticism (Johns Hopkins University Press 1978) 81, 84 (noting that facts are transformed into narratives ‘by the suppression or subordination of certain of them and the highlighting of others, by characterization, motific repetition, variation of tone and point of view, alternative descriptive strategies, and the like’).

166 Löytömäki, S, ‘Legalisation of the Memory of the Algerian War in France’ (2005) 7 Journal of the History of International Law 157, 177.

167 See similarly Jenkins, K, Refiguring History: New Thoughts on an Old Discipline (Routledge 2003) 13 (noting that the critical perspective of history does not lead to the conclusion that ‘we must therefore accept that everyone else's discursive “reality” and historical constructs are all equally correct or all equally wrong’. For, ‘although there is no ultimate, objective foundation for our historical positions (or our moral decisions), we do still make decisions on the basis of preferences according to the tools at hand in any given social formation, we do still put worlds under descriptions, and we are still able to give (relative to such descriptions) argumentative support for them to those who might decide to listen to it and engage in conversation.’).

168 White (n 165) 97; White, H, The Content of the Form: Narrative Discourse and Historical Representation (Johns Hopkins University Press 1990) 45 and 78; White, H, ‘Historical Emplotment and the Problem of Truth’ in Friedlander, S (ed), Probing the Limits of Representation: Nazism and the “Final Solution” (Harvard University Press 1992) 37, 38. See similarly, Löytömäki (n 166) 177 (noting that ‘[t]here certainly do exist more or less plausible accounts of past events which can be evaluated by a community of scholarly historians’); and Funkenstein, A, ‘History, Counterhistory, and Narrative’ in Friedlander, S (ed), Probing the Limits of Representation: Nazism and the “Final Solution” (Harvard University Press 1992) 66, 79 (noting that while no historiographical endeavour may presume to ‘represent’ reality, this does not mean that the construction of narratives is arbitrary: ‘If the narrative is true, reality, whatever its definition, must “shine through it” like Heidegger's being – and, like the latter, without ever appearing directly.’).

169 White, H, ‘Response to Arthur Marwick’ (1995) 30 JContempHist 233, 244. See also Löytömäki (n 166) 177 (noting that history has become ‘an interpretation subject to time, place, and the point of view of the interpreter’); and White (n 165) 91 (noting how ‘histories ought never to be read as unambiguous signs of the events they report, but rather as symbolic structures, extended metaphors, that “liken” the events reported in them to some form with which we have already become familiar in our literary culture’).

170 White, H, ‘Postmodernism and Textual Anxieties’ in Strath, B and Witoszek, N (eds), The Postmodern Challenge: Perspectives East and West (Rodopi BV 1999) 27, 38 (‘The important distinction from a post-modernist point of view is not between ideology and objectivity but between ideological constructions of history that are more or less open about the “constructed” nature of their versions of history and more or less willing to make of their own modes of production elements of their contents. […] If postmodern notions of history are informed by a critique of the ideology of objectivism, this does not necessarily mean that they are opposed to the truth and committed to lie, delusion, fantasy, or fiction. It means rather that […] post-modernism recognizes that “reality” is always as much constructed in discourse as it is discovered in the historical record. Which means that post-modernist “objectivity” is aware of its own constructed nature and makes this work of construction the subject of its discourse.’).

171 See generally Cupido, M, ‘Facing Facts in International Criminal Law: A Casuistic Model of Judicial Reasoning’ (2016) 14 JICJ 1.

172 Douglas (n 16) 198–9 (‘Particularly in the case of traumatic or sensational history, it seems the law often only reaches a satisfactory result and understanding through a process of revisiting and re-trying the contested events.’).

173 In this vein, it is welcome that the Outcome Document of the ICTY Legacy Dialogues Conference recently concluded that the historical value of court records ‘extends beyond judgments’, requires a comparison of ‘findings and testimony across cases’, and that ‘a fuller picture may emerge through complementarity of courts and other justice mechanisms’. See ‘Outcome of the ICTY Legacy Dialogues Conference: Conclusions and Recommendations’ (22–24 June 2017) Sarajevo, Bosnia and Herzegovina, 7.

174 See, for example, Landsman (n 24) 111 (noting, with regard to the Eichmann trial, that ‘[w]hether it was the key to the ignition of public discourse is open to question, but that it significantly contributed to the movement in that direction seems beyond serious doubt’).

175 See, for example, O'Connell, J, ‘Gambling with the Psyche: Does Prosecuting Human Rights Violators Console Their Victims?’ (2005) 46 HarvIntlLJ 295, 232 (discussing trials as ‘stimulants of social awakening’).

176 See generally Osiel (n 6) 36–55 and 283–301.

177 Milanović, ‘Courting Failure’ (n 129) 37 (‘by themselves international criminal tribunals have little, if any, power to shape local public opinion. In other words, their relative success or failure in gaining acceptance for their findings among target audiences is not really their success or failure’) (emphasis in original).

178 On the importance of modesty within the field of international criminal justice, see generally Sander, ‘International Criminal Justice as Progress’ (n 128); Koller, DS, ‘The Faith of the International Criminal Lawyer’ (2008) 40 NYUJIntlLaw&Pol 1019; Kendall, S and Nouwen, SMH, ‘Speaking of Legacy: Toward an Ethos of Modesty at the International Criminal Tribunal for Rwanda’ (2016) 110 AJIL 212; and van den Herik, L, ‘International Criminal Law as a Spotlight and Black Holes as Constituents of Legacy’ (2016) 110 AJIL Unbound 209. See also Moyn, S, ‘On a Self-Deconstructing Symposium’ (2016) AJIL Unbound 258, 262 (pointing to ‘the intuition that what people need is not exactly a legacy monument for the ICTY or the ICTR so much as a reality check about what it might actually take to improve a recalcitrant and violent world’).

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