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‘As You Set out for Ithaka’: Practical, Epistemological, Ethical, and Existential Questions about Socio-Legal Empirical Research in Conflict

Abstract
Abstract

This is the story behind another story. Inspired by the anthropological practice of reflexivity, it traces some practical, epistemological, ethical, and existential questions behind a book based on empirical socio-legal research into international criminal law in situations of conflict. The challenges involved in such research are at times impossible to overcome. Indeed, the challenges may be such that the researcher will never be able to answer her original question fully and confidently. However, challenges can be findings in themselves. They may reveal insights into the role of law in a society, the limitations of vocabularies, the overexposure of international criminal law, and inequalities in global knowledge production. Rather than merely obstructing research into a topical issue, challenges may shift the researcher's attention to other, more fundamental, questions. Nonetheless, understanding challenges as findings does not resolve the existential problem of the researcher's possible complicity in maintaining the very challenges that she analyses and perhaps ambitiously tries to overcome.

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1 Cavafy C. P., Ithaka, in Collected Poems (ed. Savidis G., translated by Keeley E. and Sherrard Ph.) (1975), 67. The poem continues with the verses that are cited throughout this article.

2 Jackson J. and M'Boge Y., ‘Integrating a Socio-Legal Approach to Evidence in the International Criminal Tribunals’ (2013) 26 LJIL 33. The present article was written for the conference, ‘Integrating a Socio-Legal Approach to Evidence in International Criminal Tribunals’ organized by University College Dublin on 19 November 2011, which led to LJIL's special issues on empirical research in international criminal law (2013) 26 LJIL and (2014) 27 LJIL.

3 But see, on a different reality, N. A. Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (2010).

4 The empirical work of international criminal tribunals has received remarkably little attention in the literature. For some welcome exceptions, see Combs, supra note 3; Aranburu X. A., ‘Methodology for the Criminal Investigation of International Crimes’, in Smeulers A. (ed.), Collective Violence and International Criminal Justice: An Interdisciplinary Approach (2010) 355–81; and Aranburu X. A., ‘Sexual Violence beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases’, (2010) 23 (3)LJIL 609.

5 To state that such research has been scarce is not the same as suggesting that it does not exist. Important empirical research into the impact of international criminal justice on communities affected by the crimes within international tribunals’ jurisdictions has begun to emerge (see, for instance, E. Stover and H. M. Weinstein, My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (2004); Meernik J., ‘Justice and Peace? How the International Criminal Tribunal Affects Societal Peace in Bosnia’, (2005) 42 Journal of Peace Research 271; King K. L. and Meernik J. D., ‘Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia: Balancing International and Local Interests while Doing Justice’, in Swart A. H. J., Zahar A., and Sluiter G. (eds.), The Legacy of the International Criminal Tribunal for the Former Yugoslavia (2011); J. N. Clark, ‘The Impact Question: The ICTY and the Restoration and Maintenance of Peace’, in ibid., 55), and Snyder J. and Vinjamuri L., ‘Trials and Errors: Principles and Pragmatism in Strategies of International Justice’, (2003) 28 (3)International Security 5.

6 Hannah Arendt, On Violence (1969), quoted in Weinstein H., ‘Victims, Transitional Justice and Social Reconstruction: Who Is Setting the Agenda?’, in Vanfraechem I., Pemberton A., and Felix N. (eds.), Routledge International Handbook of Victimology (forthcoming, 2014).

7 See, more elaborately, Nouwen S. M. H., ‘Justifying Justice’, in Crawford J. and Koskenniemi M. (eds.), The Cambridge Companion to International Law (2012), 327.

8 The dearth of empirical evidence for the great claims on the effects of international tribunals is particularly apparent in the case of international criminal tribunals, but not unique to them. Thomas Skouteris has observed a ‘striking’ scarcity of empirical and sociological evidence for the assumptions underpinning the work of international tribunals more generally and on that ground challenges the unconditional narrative of ‘progress’ that has accompanied the proliferation of international tribunals (see Skouteris T., ‘The New Tribunalism: Strategies of (De)Legitimation in the Era of International Adjudication’, XVII Finnish Yearbook of International Law 2006, 307, 334. See also at 352–4).

9 See also Nouwen, supra note 7.

10 Roht-Arriaza N., ‘Foreword’, in van der Merwe H., Baxter V., and Chapman A. R. (eds.), Assessing the Impact of Transitional Justice: Challenges for Empirical Research (2009). Part of the explanation for such an attitude on the part of lawyer-researchers may lie in the fact that the law student is not primarily taught in law as research, but in law as a ‘profession’. As Claude Lévi-Strauss observed with respect to the difference in the 1920s between, on the one hand, law and medicine students and, on the other, science, arts, and humanity students:

The apprentice doctors and lawyers had a profession ahead of them. Their behaviour reflected their delight in having left school behind and assumed a sure place in the social system. Midway between the undifferentiated mass of the lycée and the specialized activity which lay before them, they felt themselves in, as it were, the margin of life and claimed the contradictory privileges of the schoolboy and of the professional man alike. Where letters and the sciences are concerned, on the other hand, the usual outlets, teaching, research-work, and a variety of ill-defined careers are of quite a different character. The student who chooses them does not say good-bye to the world of childhood: on the contrary he hopes to remain behind in it. Teaching is, after all, the only way in which grown-ups can stay on at school. Those who read letters or the sciences are characterized by resistance to the demands of the group. Like members, almost, of some monastic order they tend to turn more and more in upon themselves, absorbed in the study, preservation, and transmission of a patrimony independent of their own time: as for the future savant, his task will last as long as the universe itself. So that nothing is more false than to persuade them that they are committed; even if they believe that they are committing themselves the commitment does not consist in accepting a given role, identifying themselves with one of its functions, and accepting its ups and downs and the risks in which it may involve them. They still judge it from outside, and as if they were not themselves part of it. Their commitment is, in fact, a particular way of remaining uncommitted. Teaching and research have nothing in common, as they see it, with apprenticeship to a profession. Their splendours reside, as do also their miseries, in their being a refuge, on the one hand, or a mission, on the other.

C. Lévi-Strauss (translated by J. Russell), Tristes tropiques (1961 (1955)) 57–58).

11 See also M. E. Keck and K. Sikkink, Activists beyond Borders (1998), at 30 (‘Like epistemic communities, transnational advocacy networks rely on information, but for them it is the interpretation and strategic use of information that is most important’).

12 Koller D., ‘The Faith of the International Criminal Lawyer’, (2008) 40 (4)NYUJILP 1019. See also Nouwen, supra note 7.

13 See, inter plurima alia, www.icty.org/sid/324; www.unictr.org/AboutICTR/GeneralInformation/tabid/101/Default.aspx; and L. Moreno-Ocampo, ‘Building a Future on Peace and Justice’ (Nuremberg, 24 and 25 June 2007). On the grand claims and little empirical evidence in international criminal law, see also H. M. Weinstein and E. Stover, ‘Introduction: Conflict, Justice and Reclamation’, in Stover and Weinstein, supra note 5, 1 at 4 and 27.

14 See Merry S. E., ‘Measuring the World: Indicators, Human Rights, and Global Governance’, (2011) 52 (S3)Current Anthropology S83.

15 See John Conley's comment on Merry in ibid., S92.

16 The corporate mindset has not left international criminal justice unaffected – the language of market rationality is already used to ‘sell’ international criminal justice to ‘donors’. See Kendall S., ‘‘Donors’ Justice: Recasting International Criminal Accountability’, (2011) 24 LJIL 585.

17 See Merry, supra note 14, and Krever T., ‘Quantifying Law: Legal Indicator Projects and the Reproduction of Neoliberal Common Sense’; (2013) 34 (1)Third World Quarterly 131.

18 I am indebted to the Arts and Humanities Research Council, the Bartle Frere Fund, Emmanuel College, the Gates Cambridge Trust, Pembroke College, the Yorke Fund, the UAC of Nigeria Travel Fund, and the Smuts Fund for Commonwealth Studies for funding large parts of my research in Uganda and Sudan.

19 For some illustrative accounts of challenges encountered by scholars who have done fieldwork in situations of conflict, see Hutchinson S. E., ‘Uncertain Ethics: Researching Civil War in Sudan’, in Cramer C., Hammond L., and Pottier J. (eds.), Researching Violence in Africa: Ethical and Methodological Challenges (2011) 79; Ross A., ‘Impact on Research of Security-Seeking Behaviour’, in Sriram C. L.et al. (eds.), Surviving Field Research (2009), 177; and C. Nordstrom and A. C. G. M. Robben (eds.), Fieldwork under Fire: Contemporary Studies of Violence and Survival (1995).

20 See, for instance, K. M. Clarke, Fictions of Justice: The ICC and the Challenge of Legal Pluralism in Sub-Saharan Africa (2009).

21 The literature on fieldwork is vast. For some useful texts, see the literature cited in this article and, among many others, S. Devereux and J. Hoddinott (eds.), Fieldwork in Developing Countries (1992); D. Spencer and J. Davies, Anthropological Fieldwork: A Relational Process (2010); the four volumes edited by C.J. Pole, Fieldwork (2005); and A.R. Stiffman, The Field Research Survival Guide (2009).

22 Elenore Smith Bowen, Return to Laughter: An Anthropological Novel (1964 (1954)). A few years later, anthropologist Rosalie Wax published a reflexive piece under her own name (Wax R.H., ‘Twelve Years Later: An Analysis of Field Experience’, (1957) 63 (2)American Journal of Sociology 133). Her book manuscript on fieldwork, written in 1946, was at first rejected on account that it was ‘fascinating but unpublishable’; only twenty years later were the anthropology publishers interested in publishing her R.H. Wax, Doing Fieldwork: Warnings and Advice (1971) (see ix).

23 D. Riesman in Smith Bowen, supra note 22, xvi.

24 B. Malinowski, A Diary in the Strict Sense of the Term (1967).

25 C. Geertz, Local Knowledge: Further Essays in Interpretative Anthropology (1993) 56.

26 See also ‘The Crisis over a Western Researcher and the Diary: Defending Malinowski and the Discipline’, http://classes.yale.edu/03–04/anth500b/projects/project_sites/00_Smith/DiaryCrisis.html.

28 Mintz S. M., ‘Infant, Victim and Tourist: The Anthropologist in the Field’, (1977) 27 Johns Hopkins Magazine 54, at 58.

29 B. Malinowski, Argonauts of the Western Pacific: An Account of Native Enterprise and Adventure in the Archipelagoes of Melanesian New Guinea (1922).

30 Riesman, supra note 23, xviii.

31 Indeed, some anthropologists have dedicated entire books to their fieldwork experiences. For early examples see, in addition to Smith Bowen, H. Powdermaker, Stranger and Friend: The Way of an Anthropologist (1967); P. Rabinow, Reflections on Fieldwork in Morocco (1977); and J.-P. Dumont, The Headman and I: Ambiguity and Ambivalence in the Fieldworking Experience (1978).

32 For early examples of this practice, see E. E. Evans-Pritchard, The Nuer: A Description of the Modes of Livelihood and Political Institutions of a Nilotic People (1940); and G. Balandier, Afrique ambiguë (1957). For a more recent and more explicit example of an introductory reflexive chapter, see H. Behrend, Alice Lakwena & the Holy Spirits: War in Northern Uganda, 1985–97 (1999).

33 For an early example, see Jean Briggs, Never in Anger: Portrait of an Eskimo Family (1970), which, in a period in which reflexivity was not yet a catchphrase, reveals how the fieldworker's behaviour influences the responses she obtains from the community she studies.

34 American Anthropological Association, ‘Statement on Ethics: Principles of Professional Responsibilities’, Preamble, www.aaanet.org/profdev/ethics/upload/Statement-on-Ethics-Principles-of-Professional-Responsibility.pdf.

35 This was the experience of political scientist Carpenter Charli, described in her reflexive piece ‘“You Talk of Terrible Things So Matter-of-Factly in This Language of Science”: Constructing Human Rights in the Academy’, (2012) 10 Perspectives on Politics 363, at 364.

36 See M. Lockwood, ‘Facts or Fictions? Fieldwork Relationships and the Nature of Data’, in Devereux and Hoddinott, supra note 21, 164, for a similar account (and critique) of economic research.

37 See also Carpenter, supra note 35, for a call for more reflexivity in political science.

38 See M. Witteveen, ‘Closing the Gap in Truth Finding: From the Facts of the Field to the Judge's Chambers’, in Smeulers, supra note 4, 383 at 406–7.

39 See also, inter plurima alia, Smith Bowen, supra note 22, 184–5:

A lecture from the past reproached me. “The anthropologist cannot, like the chemist or biologist, arrange controlled experiments. Like the astronomer, he can only observe. But unlike the astronomer, his mere presence produces changes in the data he is trying to observe. He himself is a disturbing influence which he must endeavor to keep to the minimum. His claim to science must therefore rest on a meticulous accuracy of observation and on a cool, objective approach to his data.

And see Powdermaker, supra note 31, at 19; Barth F., ‘On Responsibility and Humanity: Calling a Colleague to Account’, (1974) 15 (1)Current Anthropology 99, at 100; N. Barley, The Innocent Anthropologist: Notes from a Mud Hut (1983), 169; Sally Engle Merry interviewed in S. Halliday and P. D. Schmidt (eds.), Conducting Law and Society Research: Reflections on Methods and Practices (2009), 134; Sangarasivam Y., ‘Researcher, Informant, “Assassin”, Me’, (2001) 91 (1/2)American Geographical Society 95; and, more generally for social scientists, B. Latour, Reassembling the Social: An Introduction to Actor-Network Theory (2007), 28–9 and 33–4.

40 This phenomenon is also known as ‘reflexity’ (which is to be distinguished from the practice of ‘reflexivity’ discussed in this article), on which see M. Hammersley and P. Atkinson, Ethnography 5:Principles in Practice (1995), 16–21; and Ahmed A. G. M., ‘Some Remarks from the Third World on Anthropology and Colonialism: The Sudan’ in Asad T. (ed.) Anthropology and the Colonial Encounter (1973), at 263.

41 See, in the different context of framing peace negotiations, Srinivasan S., ‘The Politics of Negotiating Peace in Sudan’, in Curtis D. and Dzinesa G. A. (eds.), Peacebuilding, Power and Politics in Africa (2012), 195 at 205.

42 Lévi-Strauss quoted in S. Sontag, Against Interpretation and Other Essays (2009 (1961)), 73.

43 S. M. H. Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (2013).

44 The term ‘traditional leaders’ is used to refer to community leaders who derive their leadership position from cultural practices, rather than from a constitutional position in the administration of the state. The term ‘traditional’ is controversial, however, since the historical leadership role of some present ‘traditional’ leaders is at times contested, since ‘traditional’ leaders often also participate in the administration of the state and their role is at times provided for in the constitution and since the term ‘traditional’ may raise the incorrect impression of a static (or, even more problematically, ‘backward’) practice, whereas their role, like most cultural practices, is contested and dynamic (see, for instance, Allen T., ‘The International Criminal Court and the Invention of Traditional Justice in Northern Uganda’, (2007) 10 (7)Politique Africaine 147, at 156).

45 Moving between The Hague, Gulu, Khartoum, Darfur, Kampala, and headquarters of international organizations, the study does not focus, like classic anthropology, on the culture of one community, traditionally a village. In terms of its mobility, this research is more like the more modern multi-sited ethnography (see G. E. Marcus, Ethnography through Thick and Thin (1998)).

46 On ‘more reflexive than thou’ positions, see Marcus G. E., ‘On Ideologies of Reflexivity in Contemporary Efforts to Remake the Human Sciences’, 15 (3)Poetics Today (1994) 383, 393–4.

47 S. Sontag, ‘A Hero of Our Time’, New York Review of Books (1964). See also Barley, supra note 39, 10; and T. Swedenburg, ‘With Genet in the Palestinian Field’, in Nordstrom and Robben, supra note 19, 25. Sontag's idealization of Lévi-Strauss as fieldworker is likely to have been based on his description of fieldwork, as opposed to his actual fieldwork. As Paul Rabinow comments: ‘[A]s everyone knew, Lévi-Strauss was not a good fieldworker. The book [Tristes Tropiques] was treated by anthropologists either as a fine piece of French literature or, snidely and true to form, as an overcompensation for the author's shortcomings in the bush’. (Rabinow, supra note 31, 4).

48 Lévi-Strauss C., ‘Anthropology: Its Achievements and Future’, (1966) 7 (2)Current Anthropology 124, at 126.

49 Ibid., 127.

50 But see Wax, Doing Fieldwork, supra note 22, 23–8, on historical precedents for participant observation ‘at home’, including by Max Weber.

51 See more elaborately on this shift, Hartman T., ‘Beyond Sontag as a Reader of Lévi-Strauss: “Anthropologist as Hero”’, (2007) 9 (1)Anthropology Matters Journal.

52 Lévi-Strauss, Tristes tropiques, supra note 10, 39.

53 R. Meister, After Evil: A Politics of Human Rights (2011), 73.

54 See, more generally on the importance that ‘intellectuals’ are aware of the consequences of their ‘brandishing concrete experience’, Spivak G. C., ‘Can the Subtaltern Speak?’, in Nelson C. and Grossberg L. (eds.), Marxism and the Interpretation of Culture (1988), 271.

55 Cavafy, supra note 1.

56 See also C. Bijleveld, ‘On Research Methods for International Crimes: Methodological Issues in the Empirical Study of International Crimes’, in Smeulers, supra note 4, 275, at 284. On the need for baseline data for any assessment of ‘impact’, see V. Baxter, ‘Critical Challenges for the Development of the Transitional Justice Research Field’, in H. van der Merwe, Baxter, and Chapman supra note 10, 325 at 326.

57 On the politics of Darfur death-rate statistics, see S. Dealy, ‘An Atrocity That Needs No Exaggeration’, New York Times, 12 August 2007; ‘Row over Number of Darfur Deaths’, BBC, 20 August 2007; Degomme O. and Guha-Sapir D., ‘Patterns of Mortality Rates in Darfur Conflict’, (2010) 375 The Lancet 294; J. Hagan and W. Rymond-Richmond, Darfur and the Crime of Genocide (2009), Chapter 4; and M. Mamdani, Saviors and Survivors: Darfur, Politics and the War on Terror (2009).

58 See G. Christensen, ‘Sensitive Information: Collecting Data on Livestock and Informal Credit', in Devereux and Hoddinott, supra note 21, 124 at 124.

59 ‘Messiness of data’ is not exclusive to conflict zones: H. M. Kritzer, ‘Conclusion: “Research Is a Messy Business” – An Archeology of the Craft of Sociolegal Research’, in Halliday and Schmidt, supra note 39, 264 at 270–1, shows how it also creates problems when investigating trials in federal courts.

60 The term ‘conflict-related crimes’ is used to refer to offences for which the conduct is the same as the conduct of the crimes within the ICC's jurisdiction, but which are not necessarily criminalized domestically as genocide, crimes against humanity, or war crimes as in the Rome Statute.

61 W. Ali, ‘Sudan Bans Media from Reporting on Darfur War Crimes Cases’, Sudan Tribune, 27 March 2007.

62 For instance, ICC, Third Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 (2005), 14 June 2006, 4, reports: ‘The Special Prosecutions Commissions (SPC) were established by the Chief Justice of the Sudan in January 2006’. However, the Chief Justice does not have the authority to establish prosecution commissions. The Commission was established by the minister of justice (Decision No. 9/2005 Establishing a Committee of Prosecution for Special Criminal Cases in Darfur 2005). Following the creation of two additional special courts, he divided the prosecution team into three teams.

63 Interview with an MP, Khartoum, November 2008. Other parliamentarians have been put in jail for expressing their views (interview with another MP, Khartoum, November 2008).

64 On Sudanese GONGOs, see Farred G., ‘The End of Violence: Against Civil Society’, in Hassan S. M. and Ray C. E. (eds.), Darfur and the Crisis of Governance in Sudan: A Critical Reader (2009) 311, at 312.

65 On the politics of spokespersons, see also U. Ukiwo, ‘Hidden Agendas in Conflict Research: Informants’ Interests and Research Objectivity in the Niger Delta’, in Cramer, Hammond, and Pottier, supra note 19, 137 at 150.

66 See also Witteveen, supra note 38, 401; and, more generally on interpretation problems in the context of court proceedings, Combs, supra note 3, Chapter 3. For a classic account of the difficulties involved in translating concepts, see Bohannan L., ‘Shakespeare in the Bush’, (1966) 75 Natural History Magazine 462.

67 At the same time, interpreters can bring enormous benefits, including enhancing access to information. On the dual role of interpreters and informants more generally, see Buechler H. C., ‘The Social Position of an Ethnographer in the Field’, in Henry F. and Saberwal S. (eds.), Stress and Response in Fieldwork (1969) 7.

68 Discussion with Sudanese lawyers, Khartoum, October 2008. When asked for the decree appointing a Special Prosecutor for Darfur, one political analyst observed (interview, Khartoum, October 2008): ‘These decrees are always kept secret. . . . They never declare his jurisdiction. So many committees are set up. You hear about their establishment, but not about their work. You cannot access what they do.’

69 Fieldnotes, November 2008.

70 Fieldnotes, November and December 2008.

71 Fieldnotes, November 2008.

72 Interview with a law professor, Khartoum, November 2008.

73 On the practice of seduction by suggesting national ties, see also A. C. G. M. Robben, ‘The Politics of Truth and Emotion among Victims and Perpetrators of Violence’, in Nordstrom and Robben, supra note 19, 81 at 89.

74 Evans-Pritchard, supra note 32, 11. On reasons for hostility towards the fieldworker, see also J. C. Faris, ‘Pax Britannica and the Sudan: S. F. Naudel’, in Asad, supra note 40, 153 at 160.

75 ‘BBC pundits on World Cup Final’, BBC, 12 July 2010, http://news.bbc.co.uk/sport1/hi/football/world_cup_2010/8808636.stm.

76 ‘Europe and Iraq: Who Stands Where?’, BBC, 29 January 2003, http://news.bbc.co.uk/1/hi/world/europe/2698153.stm.

77 ‘Dutch MP Posts Islam Film on Web’, BBC, 27 March 2008, http://news.bbc.co.uk/1/hi/world/europe/7317506.stm.

78 See ‘Dutch Government Blamed for Fire’, BBC, 5 September 2006, http://news.bbc.co.uk/1/hi/world/europe/5315870.stm.

79 For other dilemmas involved in self-representation, see S. Brown, ‘Dilemmas of Self-Representation and Conduct in the Field’, in Sriram et al., supra note 19, 213.

80 Fieldnotes, November 2008.

81 Interview with a senior judge, Khartoum, November 2008. Fieldworkers generally have often been associated with spies, since they seem to be able to afford spending endless time talking with people. See also Wax, ‘Twelve Years Later’, supra note 22, 135 and 140; and J. A. Sluka, ‘Reflections on Managing Danger in Fieldwork’, in Nordstrom and Robben, supra note 19, 276 at 283.

82 This belief is fostered by diplomats who suggest having unique information from the ICC. See A. Fernandez, ‘Articles 17 and 19 of the Rome Statute: Sudan's Legal System Unlikely to Be of Help to President Bashir’, 08khartoum1717, 26 November 2008, http://wikileaks.org/cable/2008/11/08KHARTOUM1717.html, para. 7.

83 Cf. Sluka, supra note 82, 276, at 289, referring to work done by Henslin: ‘if you do research on drug users or homosexuality, you may fall under suspicion of being a drug user or homosexual yourself. If you do research on a political movement, some, particularly those opposed to that movement, may believe that you are a partisan. The more political or controversial a subject one researches, the more likely one is to be suspected of bias or partisanship’.

84 See also the experience of Kovats-Bernat J. C., ‘Negotiating Dangerous Fields: Pragmatic Strategies for Fieldwork amid Violence and Terror’, (2002) 104 (1)American Anthropologist 215; and Ross, supra note 19, 184. On informed consent, see, for instance, American Anthropological Association, ‘Statement on Ethics: Principles of Professional Responsibilities’, supra note 34, principle 3; and Association of Social Anthropologists of the UK and the Commonwealth, ‘Ethical Guidelines for Good Research Practice’, www.theasa.org/ethics/Ethical_guidelines.pdf, 4.

85 Fieldnotes, August 2008.

86 See also International Bar Association Human Rights Institute, ICC Monitoring and Outreach Programme, First Outreach Report (June 2006), 19.

87 See also Baxter, supra note 56, 327, and, calling for improvement in this respect already 50 years ago; S. Saberwal, ‘Rapport and Resistance among the Embu of Central Kenya (1963–1964)’, in Henry and Saberwal, supra note 68, 47 at 62.

88 Discussion with a cultural leader, Gulu, September 2008.

89 The disturbing experience of the predatory character of fieldwork is common to many fieldworkers. See, amongst many others, S. Razavi, ‘Fieldwork in a Familiar Setting: The Role of Politics . . .’, in Devereux and Hoddinott, supra note 21, 152 at 157.

90 The book to which this article relates, i.e. the ‘official’ story, will be made freely available to the hundreds of people who participated, directly or indirectly, in the research. The book will be acquired and distributed with resources obtained thanks to the Yorke Prize that it was awarded and with funds from the Cambridge Humanities Research Grants Scheme. But even then, returning the research products is in many instances an insufficient response to requests for assistance in exchange for data. As Amy Ross describes one interviewee's response to her offer to send a copy of the published article for which she was collecting data: ‘Sure send your paper. When we get it (here he made a gesture of rolling a set of papers into a log) we can put it into the fire and maybe have a hot dinner, if there is any food. Send a book! Ha ha.’ (Ross, supra note 19, 184).

91 See, more elaborately, Buechler, supra note 68, at 17.

92 See, on the harmful effects of extensive use of intermediaries (and their (indirect) payment) on truth finding in the ICC's first case, Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, Trial Chamber I, 14 March 2012, 90–221. See also Combs, supra note 3, Chapter 5.

93 See also Behrend, supra note 32, 5.

94 See also, for instance, Mothibe T. H., ‘Fieldwork among Neighbors: An African's View of Another African Country’, in Adenaike C. K. and Vansina J. (eds.), In Pursuit of History: Fieldwork in Africa (1996), 11 at 16.

95 Interviews with government officials, Kampala, September and October 2008, May and June 2010, and November 2011.

96 Interviews with traditional leaders in Darfur, December 2008.

97 Robben, supra note 74, 97.

98 Ukiwo, supra note 66, 137.

99 Answers inspired by a survival strategy reflect the interviewee's perception of which account will serve his or her interests.

100 On which, see also Ross, supra note 19, 183.

101 Wilkinson C., ‘Positioning “Security” and Securing One's Position: The Researcher's Role in Investigating “Security” in Kyrgyzstan’, in Wall C. R. L. and Mollinga P. P. (eds.), Fieldwork in Difficult Environments: Methodology as Boundary Work in Development Research (2008) 43, at 55.

102 Fieldnotes, September and October 2008, participant observation official meeting, Kampala 2008.

103 Definitive Conciliated Text of Law Bill Number 211 of 2005 Senate and 293 of 2005 House of Representatives.

104 R. M. Wintrob, ‘An Inward Focus: A Consideration of Psychological Stress in Fieldwork’, in Henry and Saberwal, supra note 68, 63, at 71. Wintrob (at 70) found that a common response among ‘relatively inexperienced fieldworkers’ to this conflict is to continue drifting ‘into an overdetermined role as healer or other authority figure’.

105 Fernandez, supra note 83, para 4:

If a genuine prosecution of Haroun and Kushayb under Sudanese law satisfies the conditions of articles 17 and 19, the prosecutor, under article 53 of the Rome Statute, can conclude that ‘a prosecution is not in the interests of justice . . . (or) the interests of victims,’ and can determine that there is no ‘reasonable basis to proceed with the investigation’.

106 ‘Three Human Rights Activists Arrested in Sudan’, Sudan Tribune, 25 November 2008.

107 Fieldnotes, December 2008.

108 Fieldnotes, November 2008.

109 See Prosecutor v. Thomas Lubanga Dyilo, Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain Other Issues Raised at the Status Conference on 10 June 2008, ICC-01/04-01/06-1401, Trial Chamber I, 13 June 2008.

110 See, for instance, Fifth Diplomatic Briefing of the International Criminal Court: Compilation of Statements, The Hague, 26 October 2005, 12, where the Registrar recounts: ‘Roads are often impassable due to heavy rain or peppered with mines . . . Physical hardship and poor sanitary conditions have had repercussions on the Court's operations. . . . [A] large number (approximately 80%) of those ICC staff working in the field have returned to Headquarters sick.’

111 Lévi-Strauss, Tristes tropiques, supra note 10, at 17. See also Barley, supra note 39, at 98, suggesting that perhaps one per cent of his time in the Cameroons was spent on research, the rest ‘on logistics, being ill, being sociable, arranging things, getting from place to place, and above all, waiting’. For a good description of the time it can take to obtain one interview, see also Saberwal, supra note 88, at 50–2.

112 M. Mamdani, Good Muslim, Bad Muslim: America, the Cold War and the Roots of Terror (2004) 219.

113 E. W. Said, Orientalism: Western Conceptions of the Orient (1995 (1978)), 5.

114 See also Tallgren I., ‘The Sensibility and Sense of International Criminal Law’, (2002) 13 (3)EJIL 561, at 567; and Clapham C., ‘Clientalism and the State’, in Clapham C. (ed.), Private Patronage and Public Power (1982), 1 at 33.

115 For some sobering observations on European practice in this respect, see T. Judt, Postwar: A History of Europe since 1945 (2005), 41–62.

116 Cavafy, supra note 1, 68.

117 Cf. Elizabeth Oglesby's description of an inequality that infuriated Guatemalan anthropologist Myrna Mack:

For decades, Guatemala has been a haven for US scholars studying the country's Indian cultures and, more recently, documenting the effects of social upheaval on those cultures. While foreign academics can count on relatively unimpinged and risk-free access to even the remotest regions, few Guatemalan social scientists dare venture outside the capital city.

E. Oglesby, ‘Myrna Mack’, in Nordstrom and Robben, supra note 19, 254, at 255.

118 Fieldnotes, November 2011.

119 Fieldnotes, November 2008.

120 T. Asad, ‘Introduction’, in Asad, supra note 40, 17. This is not to say that anthropologists were always willing agents of colonialism. As Wendy James has argued, while the anthropologist was dependent on colonial authorities for permission to carry out research and sometimes for material support, and while political dissent was scarcely possible, many anthropological works had a radical site, criticizing the philosophy of Western superiority on which colonialism was based (see W. James, ‘The Anthropologist as Reluctant Imperialist’ in ibid., 41, at 42–3). For a nuanced assessment of the funding structures of anthropological fieldwork in colonial times, see J. Goody, The Expansive Moment: The Rise of Social Anthropology in Britain and Africa, 1918–1970 (1995).

121 Cavafy, supra note 1, 68.

122 See, more elaborately, Nouwen S. M. H. and Werner W. G., ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’, (2010) 21 (4)EJIL 941.

123 J. Luyendijk, ‘Agreement on Terms’, Le monde diplomatique, 16 March 2007.

124 See also T. Kelsall, Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone (2009); and Combs, supra note 3.

125 Finnemore M. and Sikkink K., ‘International Norm Dynamics and Political Change’, (1998) 52 (4)International Organization 887, at 893, speak of ‘norm entrepreneurs’.

126 See Merry S. E., ‘Transnational Human Rights and Local Activism: Mapping the Middle’, (2006) 108 (1)American Anthropologist 38, at 43–4; and, specifically for the Ugandan context, see Nouwen, supra note 43, at 167.

127 Interview, Kampala, September 2008.

128 See, more elaborately, Nouwen, supra note 43, Chapter 5.

129 The terms ‘unwilling’ and ‘unable’ are used here in a sociological meaning rather than in the meaning of Art. 17 of the Rome Statute of the International Criminal Court, Rome, 17 July 1998, 2187 UNTS 90 (RS). Legally, an assessment of willingness and ability is required only if there are domestic proceedings and the terms ‘willingness’ and ‘ability’ are narrowly defined in Art. 17. However, other forms of unwillingness and inability can still lead to the admissibility of a case, because they lead to the absence of domestic proceedings.

130 See Weber, Politik als Beruf (1919), published in English in D. Owen and T. Strong, Max Weber: The Vocation Lectures: “Science as a Vocation”; “Politics as a Vocation” (2004).

131 For similar experiences of anthropologists, see, e.g., P. C. W. Gutkind, ‘The Social Researcher in the Context of African National Development: Reflections on an Encounter’, in Henry and Saberwal, supra note 68, 20; and B. Manz, ‘Reflections on an Antropología Comprometida: Conversations with Ricardo Falla’, in Nordstrom and Robben, supra note 19, 261 at 272.

132 Focus group, Gulu, 18 September 2008.

133 See also Manz, supra note 132, 261, at 267–7 (‘A typical anthropologist in the United States . . . chooses a research topic based on what he or she reads in the library, often without any connection to the community that is going to be the object of that research’).

134 See, in a different context, D. Curtis, ‘Introduction: The Contested Politics of Peacebuilding in Africa’, in Curtis and Dzinesa, supra note 41, at 16.

135 See Charlesworth H., ‘International Law: A Discipline of Crisis’, (2002) 65 (3)Modern Law Review 377.

136 PAR is a form of collective self-reflective enquiry undertaken by participants in social situations in order to ‘improve the rationality and justice of their own social or educational practices, as well as their understanding of these practices and the situations in which these practices are carried out’ (Kemmis and McTaggert cited in Kemmis S., ‘Critical Theory and Participatory Action Research’, in Reason P. and Bradbury H. (eds.), The Sage Handbook of Action Research: Participative Inquiry and Practice (2008), 121 at 122, emphases omitted). PAR methods are valuable for ethical as well as epistemological reasons. With respect to ethics, PAR is ideally conducted by local people and for local people, unlike traditional extractive research where so-called experts go to a community, study their subjects, and take away data for their articles. In PAR studies, everyone is at the same time researcher, learner, analyst, and knowledge contributor. With respect to epistemology, traditional research methods frequently obstruct truth-finding because those with power determine both the questions and the frameworks for answers (R. Chambers, Whose Reality Counts? Putting the First Last (1997)). For challenges to PAR, see Cornwall A. and Jewkes R., ‘What Is Participatory Research?’, (1995) 41 (12)Social Science & Medicine 1667. For outright criticism of PAR, see B. Cooke and U. Kothari (eds.), Participation: The New Tyranny? (2001); but note that much of the criticism goes to the way PAR is conducted in practice rather than to the idea as such. See also Baxter, supra note 56, at 329.

137 R. Nixon, Slow Violence and the Environmentalism of the Poor (2011), 2. The idea of ‘slow violence’ builds on Johan Galtung's work on ‘structural violence’ (see Galtung J., ‘Violence, Peace and Peace Research’, (1969) 6 (3)Journal of Peace Research 167).

138 See also Nixon, supra note 138, at 10–11.

139 For a compelling analysis of how the ICC in Lubanga applied the criminal-law lens, seeking causal connections that allow it to assign guilt or innocence, and dismissing more ethnographic understandings, see Wilson R. A., ‘Through the Lens of International Criminal Law: Comprehending the African Context of Crimes at the International Criminal Court’, (2011) 1 (1)Studies in Ethnicity and Nationalism 106.

140 ‘Uganda: 1,000 Displaced Die Every Week in War-Torn North – Report’, IRIN, 29 August 2005. See also the comment by a father of a child with the ‘nodding syndrome’:

It hurts us when the government and then the international community puts more attention on the Kony issue while we're suffering with the disease here . . . It's all well and good if they can flush out the [LRA] rebels from wherever they are, but the most important thing for now is that this disease is tackled.

Reported in A. Fallon, ‘Why Are Uganda's Children Nodding to Their Deaths? While the World Still Reels at Joseph Kony's Atrocities, Hundreds of Young People Are Dying from an Illness No One Understands and Which Has No Cure’, Independent, 10 April 2012.

141 See also A. Branch, ‘Dangerous Ignorance: The Hysteria of Kony 2012’, 12 March 2012, www.aljazeera.com/indepth/opinion/2012/03/201231284336601364.html.

143 RS, Art. 7(2)(e). See also Art. 8(2)(a)(ii).

144 For all quotes and arguments contained in this sentence, see C. Dolan, Social Torture: The Case of Northern Uganda 1986–2006 (2011), Chapter 1.

145 Ibid.

146 See Wood E. J., ‘The Ethical Challenges of Field Research in Conflict Zones’, (2006) 29 Qualitative Sociology 373, at 383; and C. Cramer, L. Hammond, and J. Pottier, ‘Navigating the Terrain of Methods and Ethics in Conflict Research’, in Cramer, Hammond, and Pottier, supra note 19 1, at 7.

147 Arundhati Roy in an interview with M. Bunting, ‘Dam Buster’, Guardian, 28 July 2011, also cited by Nixon, supra note 138, 1.

148 Noni Munge draws a parallel with the situation in Kenya:

The trial of the President and Vice-President is one of the most topical issues in the country – occupying prime time on TV news networks, front pages of the local dailies, and discussed in all manners of social settings from the bars to the hair salons. But discussion of the political and socio-economic issues (land insecurity, high poverty, tribalism) which contributed to the violence (and which have contributed to the cycles of violence witnessed in all elections at least since ‘multipartyism’) appear to have largely fallen to the wayside. A worry of mine is that, because of this preoccupation, the ICC and the trial of the President and Vice-President will become the main if not sole narrative of a moment in history, and as a nation we will have missed an opportunity to address phenomena contributing to systematic injustices and cyclical violence.’

Personal correspondence, 14 September 2013.

149 See also Rabinow, supra note 31, 154.

150 See also L. Green, ‘Living in a State of Fear’, in Nordstrom and Robben, supra note 19, 105.

151 See also Mintz, supra note 28, 60: ‘[I]n that chance to pack up and leave, the anthropologist enjoys the tourist's most valued privilege’. Cf, in the context of international revolutionaries, the novel by A. Makine, Human Love (2009) 73: ‘Most of all, he grasped the very great difference between two types of revolutionary: those who could pack their bags, depart, settle somewhere else, and those who did not have this choice.’ See also C. Nordstrom, ‘War on the Front Lines’, in Nordstrom and Robben, supra note 19, 129 at 130; and Swedenburg, supra note 47, at 31, citing Jean Genet, who observed that he was auprès, not avec the Palestinians and that he looked onto their revolt ‘as if from a window or a box in a theatre, and as if through pearl-handled opera glasses’.

152 C. Nordstrom and A. C. G. M. Robben, ‘Introduction: Anthropology and Ethnography of Violence’, in Nordstrom and Robben, supra note 19, 1 at 13.

153 One friend challenged the use of the word ‘field’: ‘are you going to plant?’ In the context of both university research and international criminal investigations, there is a risk that the ‘field’ is presented as a place that is to be developed, in contrast to the ‘non-field’, the ivory tower or the courtroom. I use ‘field’ here in the meaning of the natural environment of the object of research. In my case, I have done ‘fieldwork’ not merely in Uganda and Sudan, but also at the ICC.

154 Cavafy, supra note 1, 69.

155 See D. Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (2004) 78. See also, inter plurima alia, K. Wilson, ‘Thinking about the Ethics of Fieldwork’, in Devereux and Hoddinott, supra note 21, 179 at 195–6. On the common experience of a sense of ‘betrayal’ when contrasting the intense fieldwork experience with the relatively dull piece of academic work that results from it, see A. Coffey and P. Atkinson, Making Sense of Qualitative Data (1996), 41.

156 As suggested by C. Geertz, After the Fact: Two Countries, Four Decades, One Anthropologist (1995), 132.

157 More generally on discrimination as to what accounts as knowledge, see H. Dabashi, ‘Can Non-Europeans Think? What Happens with Thinkers Who Operate Outside the European Philosophical “Pedigree”?’, AlJazeera, 15 January 2013, www.aljazeera.com/indepth/opinion/2013/01/2013114142638797542.html.

158 More theoretically on complicity of anthropologists, see Marcus G. E., ‘The Uses of Complicity in the Changing Mise-en-Scène of Anthropological Fieldwork’, (1997) 59 Representations 89; and K. M. Clarke, ‘Toward a Critically Engaged Ethnographic Practice’, (2010) Current Anthropology S301; and of international lawyers, see Knox R., ‘Strategy and Tactics’, (2013) 21 Finnish Yearbook of International Law 2010, 193.

159 Cavafy, supra note 1, 69.

160 See also A. Simons, ‘The Beginning of the End’, in Nordstrom and Robben, supra note 19, 42, 57:

if anthropology can offer any antidote at all to the generalizations of social history, the tailored particulars of political economy, or the momentous occasioning of chronology, it may well be to counter all narrative flows with the confusion of participants’ emotions and the observed realities of chaos.

161 C. K. Adenaike, ‘Reading the Pursuit: An Introduction’, in Adenaike and Vansina, supra note 95, xvii at xxxix.

162 See also Marcus G. E., ‘Ethnography in/of the World System: The Emergence of Multi-Sited Ethnography’, (1995) 24 Annual Review of Anthropology 95, at 113–14.

163 Geertz, supra note 25, 4.

164 See also R. M. Shain, ‘A Double Exile: Extended African Residences and the Paradoxes of Homecoming’, in Adenaike and Vansina, supra note 95, 104.

165 A. Roy, Power Politics (2001), 26.

166 Manz, supra note 132, at 266.

* Lecturer, Faculty of Law, University of Cambridge, Fellow of the Lauterpacht Centre for International Law and Pembroke College, Cambridge []. I am very grateful to Clemens Greiner for reading suggestions and to Barbara Bodenhorn, James Crawford, Fiona Houben, Noni Munge, Christine Schwöbel, Sergey Vasiliev, Alexander Zahar, and an anonymous LJIL reviewer for comments on previous versions of this article. I owe special thanks to Sara Kendall: she not only commented on several drafts of this piece, but also shared many of the thoughts and experiences that inspired it. I repeat and endorse the acknowledgements expressed in the prologue to S. M. H. Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (2013).

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Leiden Journal of International Law
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