Art, Aesthetics and International Justice 1032605898, 9781032605890

Table of contents :
Cover
Endorsement Page
Half Title
Title Page
Copyright Page
Dedication
Table of Contents
List of Illustrations
Chapter 1 Introduction
International justice 2.0
Limitations of an outcome-oriented approach to international justice
Two reasons for choosing art and aesthetics to contemplate international justice 2.0
International criminal justice and aesthetics
State of the art
Structure of the book
Conclusion
Bibliography
Chapter 2 Philosophical foundations of universality and the role of aesthetics in building international justice 2.0
Introduction
Two problems with the centrality of state in global justice discourses
The moment of consensus
Theories of art and aesthetics
Natural law theory in a nutshell
The universal source of authority and natural law theory
Conclusion
Bibliography
Chapter 3 Re-thinking the mode of expression in international justice
Introduction
Three reasons language matters in building international justice 2.0
The Rig Veda and the role of imagination in exploring the language of international justice
Four levels of speech and international justice
Case study: the origins of the ICTY
Conclusion
Bibliography
Chapter 4 International justice as a ritual: Anthropological and sociological accounts
Introduction
Legal and social identities of international law and solidarity
Symbolic rituals
Aesthetics and rituals
Conclusion
Bibliography
Chapter 5 The role of art and aesthetics in the practice of symbolic and creative reparations at the ICC and IACtHR
Introduction
Legal frameworks for reparations at the ICC and IACtHR contrasted
Distinctive features of symbolic reparations at the IACtHR
Conclusion
Bibliography
Chapter 6 Observe – build – play – repeat: The new method of international justice 2.0
Introduction: going beyond the instrumentalisation of art
The method grounded in aesthetics: overview
The method grounded in aesthetics: case study of citizenship
Conclusion
Bibliography
Index

Citation preview



‘Too often, international justice is simply presented, then resented, coldly as objective fact. Marina Aksenova wants something better. With this aim, she links international justice to perception, emotion, and experience. Her lens is that of aesthetics. An aesthetically sensitive justice is improved justice. Her powerful book is erudite, elegant, and engaging. It elevates readers. Aksenova has written an instant classic in connecting art to life, and justice to the human condition.’ Mark Drumbl, Class of 1975 Alumni Professor, Director of Transnational Law Institute, Washington and Lee University ‘Marina Aksenova presents a vision of global justice which integrates and engages all of our senses by harnessing the powers of art and aesthetics. Her argument is both compelling and urgent. Embracing Aksenova’s account is crucial for identifying meaningful responses to the wars, natural disasters, and inequalities of our time.’ Valentin Jeutner, Associate Professor of Law, University of Lund, Sweden; Founder of the International Law Museum in Lund ‘Aksenova’s path-breaking work redefines our understanding of international justice through a sophisticated exploration of aesthetic contemplation. Her transformative approach inspires as it lays the foundation for a more creative, inclusive, and humane approach to global justice. This book is a must-read for anyone who wishes to see the world anew.’ Christopher NJ Roberts, Associate Professor of Law, University of Minnesota Law School and Department of Sociology







Art, Aesthetics and International Justice

This book demonstrates that art is implicit in the process of administration of international justice. The diverse nature of recent global threats as well as an overwhelming pull towards isolationism and nationalism challenge the dominant deterrence paradigm of international governance created in the aftermath of the Second World War. An alternative model is to focus on cooperation, and not deterrence, as a guiding operational principle. This volume focuses on the theoretical component linking justice with aesthetics as well as on the practical manifestation of such connection evident, inter alia, in the rhetoric of international courts, their architectural design and their commemorative practices expressed by the practice of symbolic reparations adopted by some of the courts. The underlying premise of the book is that international justice requires new vocabulary and new approaches, which can be derived from the study of aesthetics. It is held that exploring the aesthetical dimension of international justice contributes to the discussion on the foundations of its authority and the grounds for compliance with it. The work engages deeply with the theory of aesthetics developed by Immanuel Kant and Abhinavagupta, a Kashmiri critic, philosopher and scholar writing in the early eleventh century. The book will be of interest to academics and researchers working in the areas of Legal Philosophy, International Criminal Justice and International Law and International Relations. Marina Aksenova is Associate Professor of International Criminal Law at IE University in Madrid and founder of Art and International Justice Initiative. She worked at the United Nations International Criminal Tribunal for the Former Yugoslavia and as a legal associate in White and Case LLP. As part of her academic journey, she held postdoctoral research positions at the Centre of Excellence for International Courts at the University of Copenhagen, the Institute for Advanced Studies at the Central European University in Budapest, and the University of Florence. Marina’s research lies at the intersection of

deep doctrinal engagement with international law and creativity. Marina seeks to innovate without losing touch with the core methodological and philosophical assumptions underlying the field of international justice. Her first book Complicity in International Criminal Law (Hart, 2016) won Paul Guggenheim award at the Geneva Graduate Institute.

Art, Aesthetics and International Justice

Marina Aksenova

First published 2025 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2025 Marina Aksenova The right of Marina Aksenova to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-032-60589-0 (hbk) ISBN: 978-1-032-62883-7 (pbk) ISBN: 978-1-032-62884-4 (ebk) DOI: 10.4324/9781032628844 Typeset in Galliard by Deanta Global Publishing Services, Chennai, India

To my beloved mother Mоей любимой маме

Contents

List of Illustrations

xi

1 Introduction 1 International justice 2.0  1 Limitations of an outcome-oriented approach to international justice 9 Two reasons for choosing art and aesthetics to contemplate international justice 2.0  13 International criminal justice and aesthetics  18 State of the art  21 Structure of the book  24 Conclusion 27 Bibliography 27

2 Philosophical foundations of universality and the role of aesthetics in building international justice 2.0

34

Introduction 34 Two problems with the centrality of state in global justice discourses 36 The moment of consensus  40 Theories of art and aesthetics  43 Natural law theory in a nutshell  51 The universal source of authority and natural law theory  55 Conclusion 61 Bibliography 62



x Contents

3 Re-thinking the mode of expression in international justice

67

Introduction 67 Three reasons language matters in building international justice 2.0  69 The Rig Veda and the role of imagination in exploring the language of international justice  71 Four levels of speech and international justice  75 Case study: the origins of the ICTY  84 Conclusion 88 Bibliography 89

4 International justice as a ritual: Anthropological and sociological accounts

93

Introduction 93 Legal and social identities of international law and solidarity  95 Symbolic rituals  103 Aesthetics and rituals  111 Conclusion 112 Bibliography 113

5 The role of art and aesthetics in the practice of symbolic and creative reparations at the ICC and IACtHR

116

Introduction 116 Legal frameworks for reparations at the ICC and IACtHR contrasted 120 Distinctive features of symbolic reparations at the IACtHR  126 Conclusion 140 Bibliography 149

6 Observe – build – play – repeat: The new method of international justice 2.0

156

Introduction: going beyond the instrumentalisation of art  156 The method grounded in aesthetics: overview  159 The method grounded in aesthetics: case study of citizenship  162 Conclusion 169 Bibliography 170

Index 173

Illustrations

Figures

3.1 Levels of speech in the Rig Veda 4.1 The ICTY crimes against humanity as a collective identity-building tool 6.1 Creative method grounded in theories of aesthetics

72 110 159

Table

5.1 Symbolic reparation orders at the IACtHR

141



1

Introduction

International justice 2.0 Art and aesthetics are fundamental for developing the field of international justice in the twenty-first century. ‘International justice’ is defined here as a complex of norms, institutions and methodologies of global ordering, shaped by consensus following the Second World War and then expanded further around the point of collective reckoning in the 1990s.1 International justice as a concept is elastic in a sense of constantly evolving itself to respond to global challenges.2 The invitation is to incorporate an aesthetic lens of perception in any new iteration of international justice. The purpose of this exercise is to better connect the future physical manifestation of justice (in the form of treaties, trials or institutions) to the common core of humanity, while moving away from the discipline’s fascination with its own – already existing – contents, including cultural hierarchies and biases.3 An aesthetic contemplation emphasises the nature of perception itself, which has the quality of universality.4 Every living being is able to perceive. A turn inwards, in search of this common core, is essential for effectively addressing current global concerns, threatening the survival of humanity. Misguided territorial conquests, the rise of unaccountable corporate and state power, the climate emergency, cyberspace vulnerability, and threats to biosafety are all symptoms of a deeper malaise, which is our collective overreliance on deterrence-based calculus in managing global threats. While fearinducing (enforcement) elements are significant in international justice and

1  K. Sikking, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (Norton, 2011). 2  Ibid.; P. Akhavan, ‘The Rise, and Fall, and Rise, of International Criminal Justice’ (2013) Journal of International Criminal Justice Vol 11(3), 527. 3  E. Cusato, R. Mignot-Mahdavi, S Stolk, R. Vos ‘In Praise of Multiplicity: Suspending the Desire to Change the World’ (2023) Leiden Journal of International Law Vol 1–5, doi:10.1017/ S0922156523000638; D. Van Den Meerssche, ‘The Multiple Materialisms of International Law’ (2023) London Review of International Law Vol 11(2), 197. 4  J. Dewey, Art As Experience 7 (Capricorn Books, 1958) (1934); R. Gnoli, The Aesthetic Experience According to Abinavagupta (4th edn, Chowkhamba Sanskrit Series Office, 2015), XV. DOI: 10.4324/9781032628844-1

2  Art, aesthetics and international justice international relations,5 there is also a message of unity and an aspiration for mutual flourishing encoded in the UN Charter.6 In other words, the edifice of the norms and institutions created in the aftermath of the Second World War with the intention of preventing the misery of aggressive wars cannot fully respond to the nature of threats society faces today and must be re-interpreted to enliven the goals of cooperation and friendly co-existence. International justice and its fragmentation

A word on terminology is merited at the beginning. The choice of term ‘justice’ – and not ‘law’ – in the title of the book and throughout the discussion is intentional. In many contexts, these are used interchangeably, as synonyms. Yet the term ‘justice’ has wider philosophical implications. Positive law is most often viewed as a product of a specific technique of social organisation, which is free from moral connotations. In contrast, the notion of justice encompasses the subjective judgment of value.7 This term better aligns with natural law theory that connects aesthetics and justice in this book through universality.8 Furthermore, the term ‘international justice 2.0’ used throughout this volume refers to a new model of international justice, which emerges in the next decades as a reflection and a response to global changes. The tragic wars in Ukraine and Gaza – ongoing at the time of writing – are a testament to the inability of the old institutional architecture to deal with current challenges. In the case of Ukraine, the UN Security Council – the body most empowered to take collective action on behalf of international community – failed to adopt a resolution on 25 February 2022 aimed at ending the crisis at its early stage.9 It is true that the UN General Assembly passed another resolution just a few days later which demanded that Russia ‘immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders.’10 Despite an overwhelming support for this document (141 countries voted in favour), this strong call for the cessation of violence has not been fruitful to date. The devastating war in Gaza – commencing with the attack perpetrated by Hamas on 7 October 2023 and continuing with Israel’s extensive military offensive in Gaza – further exposed the vulnerability of current system

 5  B. Çali, The Authority of International Law: Obedience, Respect, and Rebuttal (Oxford University Press, 2015); K. Alter, L. Helfer and M. Madsen (eds), International Court Authority (Oxford University Press, 2018).  6  See, e.g. the Preamble and Articles 1(2) and 1(3) of the Charter of the United Nations, 1 UNTS XVI, 24 October 1945 (UN Charter).  7  See H. Kelsen, General Theory of Law and State (Harvard University Press, 1949), 5–6.  8  See Chapter 2.  9  Article 24 UN Charter; UN Security Council 8979TH Meeting, SC/14808, 25 February 2022, https://www​.un​.org​/press​/en​/2022​/sc14808​.doc​.htm 10  UN General Assembly Resolution ES‑11/1, 2 March 2022.

Introduction  3 of international justice. The UN Security Council failed three times to pass a resolution calling for an immediate ceasefire.11 The ceasefire proposal – to be implemented in phases – was eventually adopted on 10 June 2024 but its destiny will be determined by the degree of cooperation of the warring parties.12 International justice as a project is somewhat reaffirmed by the recent resurgence of interest in the work of the International Court of Justice (ICJ).13 The ongoing case brought by South Africa against the State of Israel before the court under the Genocide Convention14 in relation to Palestinians in the Gaza Strip is premised on the idea of the erga omnes – or universally upheld – nature of obligation to enforce the prohibition of genocide.15 The ICJ found prima facie jurisdiction in this case and ruled on provisional measures, ordering Israel to meet its obligations under the Genocide Convention and ensure humanitarian assistance to Palestinians in Gaza.16 Nearly all the judges on the ICJ bench voted in favour of these provisional measures, helpfully signalling a strong sense of unity coming from the court. It is significant that the initial order was primarily symbolic in nature, reiterating the list of already existing commitments but falling short of the most effective measure to stop immediate suffering, namely the ceasefire.17 The following ruling – issued a few months later – was more assertive in ordering Israel to halt its military offensive.18 The seeming near unanimity of the court in setting the standard of conduct may be contrasted with fragmented media and political coverage of South Africa’s case. One of the leading publications – the Economist – had circulated an article leading up to the ICJ order calling the

11  ‘World Slams US Ceasefire Veto at UN Security Council on Israel’s Gaza War,’ 21 February 2024, https://www​.aljazeera​.com​/news​/2024​/2​/21​/world​-condemns​-uss​-latest​-un​-security​-council​-veto​-on​-gaza​-ceasefire 12  UN SC Resolution 2735 (2024), 10 June 2024, S/RES/2735 (2024). 13  See Statute of the International Court of Justice, 18 April 1946 (ICJ Statute). 14  UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, United Nations, Treaty Series, Vol 78, 9 December 1948 (Genocide Convention). 15  South Africa v. Israel, Application Instituting Proceedings and Request for the Indication of Provisional Measures, 29 December 2023, https://www​.icj​-cij​.org​/sites​/default​/files​/case​ -related​/192​/192​-20231228​-app​-01​-00​-en​.pdf 16  South Africa v. Israel, Order, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip, 26 January 2024, https://www​.icj​-cij​.org​ /sites​/default​/files​/case​-related​/192​/192​-20240126​-ord​-01​-00​-en​.pdf 17  Ibid. 18  South Africa v. Israel, Order, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip, Request for the Modification of the Order of 28 March 2024, 24 May 2024, https://www​.icj​-cij​.org​/sites​/default​/files​/case​-related​ /192​/192​-20240524​-pre​-01​-00​-en​.pdf

4  Art, aesthetics and international justice case against Israel a ‘mockery.’19 The ICJ orders were also followed by the declarations of multiple states’ governments that the case is meritless.20 Can this perceived lack of authority of international justice be explained by fragmentation?21 Is the field inherently prone to multiple competing narratives, which never arrive at a common understanding?22 Neil Walker aptly observes that monistic authority of international law is a myth to start with, and the discipline evolved in a fragmented way. Yet the current level of diversity of various regimes is much thicker than it was decades ago.23 It is therefore helpful to revisit the general part of international law discourses.24 Fragmentation is a natural result of the extrinsic political pressure and the intrinsic limitation of the global system of governance. The difficulties of finding shared ground seemingly result from the multifaceted nature of discourses within the field. International justice embodies the rules of conduct designed to have universal or quasi-universal application, reflecting shared consensus about certain areas of human activity that are of global or transnational concern. As the landscape of consensus shifts, the discipline becomes exposed to divergent, sometimes polarising, interpretations when engaged stakeholders assign distinct meaning to various concepts of international law.25 The underlying unity is preserved in a way the principles are formulated but not at the level of the actual application of law. When consensual tilt shifts dramatically, the fundamental unitary impulse becomes more difficult to discern. International justice is thus easily instrumentalised to serve competing narratives. Some examples of the intrinsic pressures within the system include legal commentaries by the relevant domestic and international organs. Russia ceased to be a member of the European Court of Human Rights (ECtHR) on 16 September 2022, following the termination of its membership in the Council

19  ‘Charging Israel with Genocide Makes a Mockery of the ICJ’ The Economist, 18 January 2024. 20  T. O. Hansen, ‘“Not All Scripts Come with One Voice”: Variations in State Responses to South Africa v Israel’ EJIL Talk, 19 February 2024, https://www​.ejiltalk​.org​/not​-all​-scripts​ -come​-with​-one​-voice​-variations​-in​-state​-responses​-to​-south​-africa​-v​-israel/ 21  International Law Commission Study Group on Fragmentation, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, report of the Study Group, finalised by Martti Koskenniemi (13 April 2006, A/CN.4/L.682) (‘ILC Fragmentation Report’). 22  M. Aksenova and I. Marchuk, ‘Reinventing or Rediscovering International Law? The Russian Constitutional Court’s Uneasy Dialogue with the European Court of Human Rights’ (2018) International Journal of Constitutional Law Vol 16(4), 1343. 23  N. Walker and P. Zumbansen, ‘Legal Pluralism and Legal Universalism in a Global Context’ (2011) Legal Philosophy Between State and Transnationalism Seminar Series 14, https:// digitalcommons​.osgoode​.yorku​.ca​/legal​-philosophy​/14 24  Ibid. 25  ILC Fragmentation Report, supra note 21.

Introduction  5 of Europe a few months earlier.26 While leaving (or being asked to leave) this organisation can be primarily attributed to the war in Ukraine, it is possible to trace clear signs of division in the earlier jurisprudence of the Russian courts. For instance, the Constitutional Court of the Russian Federation interpreted the notion of ‘sovereignty’ – in its 2015 standoff with the European Court of Human Rights – as one of the fundamental principles of the Russian Constitution that includes the supremacy and independence of state authority and it has a status a rule of jus cogens.27 This is at odds with the general reading of jus cogens, or peremptory norms of international law, as the limitation on state sovereignty and a guarantee against the un-abridged exercise of state power.28 Another example would be China’s historically driven claims in the South China Sea, rejected by the Permanent Court of Arbitration (PCA) in The Hague as having no basis in international law.29 China argued for a new meaning to be assigned to the term ‘historic title’ used in Article 298 of the UN Convention on the Law of the Sea.30 China has not recognised the award of the PCA.31 Finally, the legality of the military action taken by the UK against the Syrian government on 13/14 April 2018 on the ground of ‘humanitarian intervention’ came into question as no such ground is expressly permitted under international law.32 These emerging new interpretations support the idea of fragmentation of international law not only from a strictly legal perspective – as a plethora of conflicting sources of law – but also from a socio-legal perspective as a discipline harbouring conflicting narratives and interpretations.33 It is important to note that the problem of instrumentalisation persists even if one accepts simultaneous co-existence of multiple normative regimes within

26  Press release issued by the Registrar of the Court, ECHR 286 (2022), 16 September 2022; Resolution CM/Res (2022), 2, on the cessation of the membership of the Russian Federation to the Council of Europe, adopted by the Committee of Ministers on 16 March 2022 at the 1428ter meeting of the Ministers’ Deputies. 27  Decision of the Constitutional Court of the Russian Federation on the Review of Constitutionality of Article 1 of Federal Law ‘On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and Additional Protocols Thereto,’ No. 21–П (14 July 2015), at 2.2. 28  A. Orakhelashvili, Peremptory Norms in International Law (Oxford University Press, 2006), 542. 29  Republic of Philippines v. The People’s Republic of China, PCA Case No. 2013–19, award dated 12 July 2016, para. 1203. 30  Ibid., para. 191. 31  ‘Beijing Rejects Tribunal’s Ruling in South China Sea Case’ The Guardian, 12 July 2016, https://www​.theguardian​.com​/world​/2016​/jul​/12​/philippines​-wins​-south​-china​-sea​-case​ -against​-china 32  D. Akande, ‘The Doctrine of “Humanitarian Intervention” and the Legality of the UK’s Air Strikes against the Assad Government in Syria,’ 16 April 2018, para. 10 https://www​.globalresearch​.ca​/the​-doctrine​-of​-humanitarian​-intervention​-and​-the​-legality​-of​-the​-uks​-air​-strikes​ -against​-the​-assad​-government​-in​-syria​/5637943 33  Aksenova and Marchuk, supra note 22.

6  Art, aesthetics and international justice the field of international justice.34 Modern crisis of international justice is not so much about the lack of a centralised system ensuring the hierarchy among the courts, consistency in treaty interpretation and coherence of the judgments emanating from different international bodies.35 Academic and international legal debates addressing ‘the problem’ of fragmentation are plentiful.36 For instance, Cassandra Steer brilliantly argues that the debate on fragmentation in international law can be sidestepped altogether by rejecting the view of a single system premised on the requirement of a clear hierarchy of norms and sovereign authority.37 Steer relies in her analysis on a famous distinction made by a legal sociologist John Griffiths back in 1986 and with respect to domestic law – between ‘legal pluralism,’ which is a ‘fact’ and ‘legal centralism,’ which is ‘a myth, an ideal, a claim, an illusion.’38 In his essay, Griffiths dismantles an assumption of legal centralists that law is and should be the law of the state, which is premised on hierarchal and systematic order of normative propositions.39 Steer builds on this critique and observes a widespread acceptance of the fact that law does not have to originate only from the sovereign state and can be generated by any number of the semi-autonomous social fields which interact with each other.40 The core problem of international justice is thus not its pluralistic discourses but rather the lack of self-reflection.41 Academic debates on pluralism and fragmentation tend to focus on material outcomes of the process of the administration of justice (judgments and legal texts) and how to reconcile them,42 often leaving untouched the actual direct experience of law’s active participants and outside observers.43 There is scope to develop new methodologies that engage with the discipline of international justice from a different,

34  C. Steer, ‘Legal Transplants or Legal Patchworking? The Creation of International Criminal Law as a Pluralistic Body of Law’ in E. van Sliedregt and S. Vasiliev (eds) Pluralism in International Criminal Law (Oxford University Press, 2014), 58. 35  Ibid. 36  ILC Fragmentation Reaport, supra note 21; See also T. Megiddo, ‘Beyond Fragmentation: On International Law’s Integrationist Forces’ Yale Journal of International Law Vol 44 (2019), 115; E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford University Press, 2014); M. Koskenniemi, M. L. Päivi, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) Leiden Journal of International Law Vol 15(3), 553. 37  Steer, supra note 34, 58. 38  J. Griffiths, ‘What is Legal Pluralism?’ (1986) Journal of Legal Pluralism and Unofficial Law Vol 24(1), 4. 39  Ibid. 40  Steer, supra note 34, 58. See also S.F. Moore, ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’ (1973) Law & Society Review Vol 7(4), 719. 41  Cusato et al., supra note 3; Van Den Meerssche, supra note 3. 42  For example, Van Sliedregt and Vasiliev (eds), supra note 34. 43  M. Drumbl and C. Fournet, Sights, Sounds and Sensibilities of Atrocity Prosecutions (Brill, 2024).

Introduction  7 more experiential, standpoint.44 This is where art and creative expression can prove to be useful mediums for studying international justice. The role of art

This volume adopts a broad understanding of art that encompasses its representational and transformational – or affective – qualities.45 The representational quality of art stands for its function of imitating social life by reflecting emotions and ideas associated with its various institutions.46 The physical medium of creative expression is thus an important point of reference in the study of the representational aspects of art. This communicative vehicle can present as a painting, a musical oeuvre, a piece of poetry or an event imbued with aesthetic quality. In answering the question as to which specific forms of expression constitute art, this book therefore adheres to a wide view of art and culture, treating them as inseparable from collective human experiences. This encompassing perspective is in contrast with a more restrictive vision of art and its specific forms as artefacts to be relegated only to designated spaces, such as museums and opera houses. An art historian and philosopher John Dewey observes that the separation of culture from the origins of its production happened rather recently and somewhat unnaturally, with the advent of industrialisation.47 Originally, art was inseparable from the conditions of its creation, thereby bringing its affective dimension to the forefront – an experience associated with the object of art was of utmost importance.48 In the context of developing new methods of international justice, it is constructive to view art in its original understanding as accompanying and reflecting a broad range of human experiences. This observational standpoint opens doors to creatively engaging with both the representational aspects of art in the context of international justice and its experiential value. The former exploration includes engagement with specific outputs, such as architecture of courthouses and performativity of trials.49

44  I. Venzke, International Law and Its Methodology: Introducing a New Leiden Journal of International Law Series, 28 Leiden Journal of International Law Vol 185 (2015); D. Van Den Meerssche, ‘The multiple materialisms of international law’ (2023) London Review of International Law Vol 11(2), 197. 45  S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art Beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125. 46  Dewey, supra note 4. 47  Ibid., 9. 48  Ibid., 4; See also Chapter 4. 49  E.g. T. Aalberts and S. Stolk, ‘The Peace Palace: Building (of) The International Community’ (2020) AJIL Unbound Vol 114, 117; E. Garnsey, The Justice of Visual Art: Creative StateBuilding in Times of Political Transition (Cambridge University Press, 2019), ch. 4; E. J. Buis, Aristotle in The Hague: Artistic Pleading and Emotional Theatricality in International Criminal Proceedings (2020) AJIL Unbound Vol 114, 133.

8  Art, aesthetics and international justice The latter – and arguably even more important – element of art is its experiential, or perceptual, dimension, independent of the medium through which it is expressed. This quality makes art truly transformational because of its capacity to generate intimacy with the present moment. It does so by allowing individuals to transcend habitual patterns of thinking and acting. The mere act of perceiving can be eye opening. Simon O’Sullivan refers to this function of art as the ‘aesthetics of affect,’ which is the quality of art to induce direct and uninhibited experience of life.50 It is this feature of culture and its inherent component of art that makes it,51 in the words of the former Special Rapporteur in the field of cultural rights Karima Bennoune, an ‘oxygen for the human spirit.’52 Bennoune laments that despite such great importance of art and culture for the evolution of humanity, its value is rarely recognised in the field international justice, save for a few distinct subfields such as women’s human rights.53 The core purpose of the book is to explore an alternative vision of justice that incorporates all senses and allows for the kind of direct experience discussed by O’Sullivan.54 This is to develop a more holistic understanding of the discipline through the perceptual lens of art and aesthetics. This approach has implications for the way international justice is construed. The traditional way of looking at international justice is to see it as evolving along a linear timeline with distinct juncture points in the form of legal documents generated by courts and international organisations, punctuating the timeline.55 Looking at international justice through the lens of art and creative expression, however, uncovers new observational angles, complementing static understanding of the discipline. Such dynamic view assists with transcending some of the limitations of a linear account presented in the following section.

50  O’Sullivan, supra note 45, at 127. 51  Along with knowledge, beliefs, morals, laws, customs, and any other capabilities and habits acquired by [a human] as a member of society. See the classic anthropological definition of culture by E. B. Tylor, Primitive Culture: Researches into the Development of Mythology, Philosophy, Religion, Language, Art and Custom (1871). 52  UN Human Rights Council, Cultural Rights: Tenth Anniversary Report – Report of the Special Rapporteur in the Field of Cultural Rights, A/HRC/40/53, 17 January 2019, para. 90. 53  K. Bennoune, ‘Dignifying, Restoring, and Re-Imagining International Law and Justice Through Connections with Arts and Culture’ (2020) AJIL Unbound Vol 114, 108; R. Mani, ‘Women, Art and Post-Conflict Justice’ (2011) International Criminal Law Review Vol 11, 543 See also F. Gatheret, N. Guibert and S. Stolk, Art and Human Rights: A Multidisciplinary Approach to Contemporary Issues (Edward Elgar, 2023). 54  See Drumbl and Fournet, supra note 43. 55  For the account of the history of legal imagination as it unfolded over centuries, please see M. Koskenniemi, To the Uttermost Parts of the Earth Legal Imagination and International Power 1300–1870 (Cambridge University Press, 2021). This volume bridges together the linearity of law and the circularity of imagination.

Introduction  9 Limitations of an outcome-oriented approach to international justice There are at least two reasons for the inability of the old paradigm of international justice to fully respond to current challenges. The first reason is the ever-increasing interconnectedness of humanity. We are witnessing an unprecedented level of growth in networks: global supply chains, social media, affordable airfare, easily available student exchange programmes make our globe appear much smaller than what it used to look like for previous generations.56 One may object that these changes mostly affect the ‘global North’ with fewer possibilities of expansion available to the economically disadvantaged countries. There is, however, an argument to be made that even with less resources and opportunities to travel, people still connect globally through technology and by consuming products and services designed and manufactured in faraway places.57 There is undeniable benefit in this level of cohesion as it promotes access to knowledge and resources and enables human flourishing. The shadow side of this development is that polarising ideas based in identity and misinformation spread quickly, galvanising misguided collective action that can reduce the chances of humanity for survival in the future.58 The horizontal networks of connection – often fostered by technology – therefore simultaneously become battlefields for the attention of those partaking in them. An example of such manipulation of public opinion at a horizontal level is a practice known as ‘astroturfing.’ This is a method of presenting initiatives as ‘grassroots’ or originating from local community when the real sponsors of a widely circulated message are concealed from the consumers of digital data.59 It is true that the wars in Ukraine and Gaza and the effects of the global pandemic are challenging the type and the degree of our interconnectedness – there is a movement towards securing supply chains by domesticating them or by shifting production to the countries aligned in values.60 For instance, 2022

56  I expand on this idea of interconnectedness in terms of its implications on citizenship in a forthcoming article. See M. Aksenova, ‘Global Citizenship and the Right of Access to Justice: Adapting T.H. Marshall’s Ideas to the Interconnected World’ (2023) Humanity Journal Vol 14(2), 169. 57  L. Silver et al., ‘Use of Smartphones and Social Media is Common Across Most Emerging Economies’ Pew Research Center: Internet, Science & Tech. (2019), https://www​.pewresearch​ .org​/internet​/2019​/03​/07​/use​-of​-smartphones​-and​-social​-media​-is​-common​-across​-most​ -emerging​-economies/ 58  A. Bessi et al., ‘Trend of Narratives in the Age of Misinformation’ (2015) PLOS ONE Vol 10(8): e0134641. https://doi​.org​/10​.1371​/journal​.pone​.0134641. 59  M. Leiser, AstroTurfing, ‘CyberTurfing’ and Other Online Persuasion Campaigns (2016) European Journal of Law and Technology Vol 7(1), 1. 60  ‘The Structure of the World’s Supply Chains is Changing: The Pandemic and War in Ukraine Have Speeded Up the Transformation’ The Economist, 16 June 2022, https://www​.economist​.com​/briefing​/2022​/06​/16​/the​-structure​-of​-the​-worlds​-supply​-chains​-is​-changing

10  Art, aesthetics and international justice witnessed the move of Apple’s centre of activity from China to Vietnam.61 The same year major international corporations exited the Russian market en masse following consumers’ demands to take a stand on the war in Ukraine. Such value-driven readjustment is nonetheless still global in nature as its effects are felt on a world scale. The habits formed in the past decades require certain level of transnational coherence. It is thus fair to say that we are not entering a de-globalisation phase but rather there is movement towards gated globalisation, which implies going in the same direction but at a lower speed with a few bumps in the road. International justice in the twenty-first century has a role to play in this rearrangement and must attune to the changing landscape of global ordering. Second, the current ‘operating system’ of international justice is based on a state-centric model, which is outdated. This is so because the original purpose of its institutions was to maintain peace and prevent war among nations.62 There are, however, implicit limitations in the model centred around states and their consent. The most obvious way to illustrate this is to observe the shift towards a heteropolar world in which the multiplicity of actors defines global agenda. The rising power of corporations and other non-state actors, such as non-governmental organisations or social movements, can no longer be ignored in designing the new structures of international justice. Arguably, privatisation of international justice is already occurring as private actors use international law as a benchmark for their decisions63 and non-governmental organisations step in to fill seeming accountability gaps. Take, for instance, the Commission of International Justice and Accountability (CIJA), which is a non-governmental organisation created in response to the inability of the International Criminal Court (ICC) to respond to the Syrian crisis that erupted in 2011.64 Syria is not a state party to the Rome Statute of the ICC, so the only way to establish jurisdiction over its territory or nationals is through the authorisation by the UN Security Council.65 An attempt to refer the situation in Syria to the court failed in 2014 as Russia and China voted against the resolution.66 CIJA, aptly called by Michelle Burgis-Kasthala ‘an entrepreneurial justice’ model, was created – in part – to cover for the ICC in this situ­‑

61  Ibid. 62  H. Lauterpacht, The Function of Law in the International Community (Oxford University Press, 1933); M. E. O’Connell, The Art of Law in the International Community (Cambridge University Press, 2019). 63  Çali, supra note 5, 11. 64  M. Burgis-Kasthala, ‘Entrepreneurial Justice: Syria, the Commission for International Justice and Accountability and the Renewal of International Criminal Justice’ (2019) European Journal of International Law Vol 30 (4), 1165. 65  Articles 12 and 13 of UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998. 66  Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution, 22 May 2014, Security Council SC/11407, Press Release, https://press​.un​.org​/en​/2014​/sc11407​.doc​.htm

Introduction  11 ation. CIJA collects evidence on mass atrocities in Syria (and elsewhere) with the view of facilitating later prosecutions either internationally or domestically under the principle of universal jurisdiction.67 Another way to showcase the constraints of a state-centric model of international justice is to look at the inherently indeterminate nature of the sources of international law listed in Article 38(1) of the Statute of the International Court of Justice.68 A treaty usually requires a certain number of ratifications by states to enter into force. In practice, this means a mismatch between the intentions of the drafters and the actual outcomes in terms of participation and compliance.69 Few treaties have a truly universal reach when it comes to binding obligations. The Rome Statute of the ICC is a stark example: China, Russia, the US and India are not parties to the core international criminal law instrument which aims to end impunity at a global level.70 As mentioned earlier, there is a possibility of bringing the nationals of non-state parties within the purview of the court, but it requires an authorisation by the UN Security Council that famously has five permanent members holding veto-power over its decisions.71 These members are – in large part – the very same ‘key’ players that have not ratified the Rome Statute in the first place. Turning to custom, Hans Kelsen noted back in the 1950 the self-fulfilling prophecy nature of this source of international law: it can hardly constitute ‘evidence’ of state practice because it is in itself a qualified practice of the states.72 There are historical reasons why custom is important in international law – customary law of nations replaced natural law as a form of applied philosophy with the expansion of the European worldview starting with the period of Enlightenment.73 Custom imposes constraints on competing interests of states and peoples74 but it is has limitations when it comes to responding to truly global concerns, especially in times of the enhanced fragmentation of narratives in the field of international justice.75

67  Burgis-Kasthala, supra note 64. 68  S. Besson, ‘Theorizing the Sources of International Law’ in S. Besson and J. Tasioulas (eds) The Philosophy of International Law (Oxford University Press, 2010), 163–85. 69  R. Howse and R. Teitel, ‘Beyond Compliance: Rethinking Why International Law Really Matters’ (2010) Global Policy Vol 1(2), 127. 70  See the list of ratifications on the ICC website, https://asp​.icc​-cpi​.int​/en​_menus​/asp​/states​ %20parties​/pages​/the​%20states​%20parties​%20to​%20the​%20rome​%20statute​.aspx 71  The Ukraine crisis once again powerfully demonstrated the limitations of the UN Security Council in maintaining peace and security. See UN Security Council 8979TH Meeting, SC/14808, 25 February 2022, https://www​.un​.org​/press​/en​/2022​/sc14808​.doc​.htm 72  H. Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (Stevens, 1950), 533. 73  P. Allott, ‘International Law as True Law: A New Approach to a Perennial Problem’ EJIL Talk, 12 January 2022, https://www​.ejiltalk​.org​/international​-law​-as​-true​-law​-a​-new​-approach​-to​ -a​-perennial​-problem/, last accessed 29 July 2024. 74  Ibid. 75  Aksenova and Marchuk, supra note 22.

12  Art, aesthetics and international justice Finally, the general principles of law recognised by civilised nations is an ambiguous resource because there is a lack of common agreement as to how it is to be adduced.76 Article 38(1)(c) of the ICJ Statute lists ‘general principles of law recognized by civilized nations’ as one of the sources of international law.77 This formulation is problematic for a variety of reasons: reference to ‘civilized’ nations implies non-examined colonial legacy of the sources of international law,78 while the expression ‘general principles of law’ has been given radically diverse meanings in the context of public international law.79 One viewpoint is that this phrase refers to the legal principles established across national law.80 The feature of transnational relevance arguably makes the general principles of law most adaptable to the reality of a heteropolar world in the twenty-first century. The process of establishing the existence of such a principle requires further methodological exploration, however. The purpose of this cursory treatment of the sources of international law is not to dwell on the type of reasoning based in the sources of law but to demonstrate some limitations of the system giving rise to these sources in the first place. State consent is encoded in the way international rules are created. Current threats to humanity are demonstrating that such a state-centric model of governance has limitations and can potentially trigger perilous identitypolitics leading to further polarisation and de-legitimisation of international justice. One of the biggest risks comes from the disintegration of factual narratives considering the exponential growth of technology. The way of relating to information is quickly changing with a side effect of informational ecochambers enabling indoctrination. Lack of agreement about humanity’s common trajectory then feeds nationalism and isolationism. The second layer of the same phenomenon is ever-increasing access to technology with immense destructive potential – from bioweapons to hacking software. These new challenges cannot be addressed within the traditional deterrence paradigm of international governance centred on states calculating risks with respect to other states and their own citizens. What is truly needed is compliance transcending

76  P. de Cruz, Comparative Law in a Changing World (3rd ed. Routledge-Cavendish 2007) 26. See for more discussion M. Aksenova, Complicity in International Criminal Law (Hart, 2016), 10–13. 77  Article 38(1)(c) of the ICJ Statute, emphasis added. 78  A. Anghie, ‘Rethinking International Law: A TWAIL Retrospective’ (2023) European Journal of International Law Vol 34(1), 7; See also M. Burgis-Kasthala and B. Sander, ‘Contemporary International Criminal Law After Critique: Towards Decolonial and Abolitionist (Dis-) Engagement in an Era of Anti-Impunity’ (2024) Journal of International Criminal Justice Vol mqae012, https://doi​.org​/10​.1093​/jicj​/mqae012 79  M. Shaw, International Law (Cambridge University Press, 2008), 99; B Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge University Press, 1987), 2; F. O. Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Martinus Nijhoff 2008), 1. 80  D. Anzilotti, Cours de Droit international (Hudson, 1920–42), 611.

Introduction  13 self-interest of individual actors.81 An alternative model of justice needs to shift focus from deterrence to cooperation as a guiding operational principle of international justice. The UN Charter helpfully provides a legal basis for building on this principle in Articles 1(3), 55(b) and 56.82 What would international justice 2.0 based on cooperation look like? New methodologies and instruments of inquiry are helpful in creating international justice 2.0 reflective of the current global landscape. Aesthetic contemplation is a powerful tool to explore the inherent biases of the system as well as its unseen dynamics. As will be explained in Chapter 2, theories of aesthetics can also strengthen the authority of international justice. Two reasons for choosing art and aesthetics to contemplate international justice 2.0 Aesthetic experience is a lens through which it is possible to deepen the engagement with international justice as a specific social practice in its dynamic form.83 This is particularly relevant at a time when this discipline is searching for new methodologies and instruments of inquiry.84 ‘Aesthetics’ is used here as a term referring to the study of art in its widest possible manifestation. As mentioned earlier, ‘art’ is both a representation of reality (through various mediums of expression) and an affective state in which the participants in judicial and law-making activity and the outside observers alike can interact with and experience justice directly.85 Following this broader understanding, art is already implicit in the process of administration of international justice.86 Art is visible in the rhetoric of international courts, their architectural design, and their commemorative practices articulated through symbolic reparations ordered by some international courts. There is an emerging field of study discussing these physical forms of art expression in conjunction with international law.87 This book explores

81  O’Connell, supra note 62, 19–20. 82  Articles 1(3), 55(b) and 56 of the UN Charter. 83  J. Alexander, ‘Cultural Pragmatics: Social Performance Between Ritual and Strategy’ in J. Alexander, B. Giesen and J. Mast (eds) Social Performance: Symbolic Action, Cultural Pragmatics and Ritual (Cambridge University Press, 2006). 84  I. Venzke, ‘International Law and Its Methodology: Introducing a New Leiden Journal of International Law Series’ (2015) Leiden Journal of International Law Vol 28, 185; See also works questioning the premises of international law such as A. Roberts, Is International Law International? (Oxford University Press 2017) and C. Schwöbel-Patel, Marketing Global Justice (Cambridge University Press, 2021). Van Den Meerssche, supra note 3. 85  S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125. 86  Dewey, supra note 4, 7. 87  See e.g. F. Gantheret, N. Guibert and S. Stolk, supra note 53; Drumbl and Fournet, supra note 43; S. Stolk and R. Vos, ‘International Legal Sightseeing’ (2020) Leiden Journal of International Law Vol 33(1), 1; M. B. McKenna, ‘Designing for international law: The archi-

14  Art, aesthetics and international justice the aesthetic qualities of some of these external dimensions of international justice,88 yet its primary focus is on discovering distinct aesthetic theories as new methodologies for international justice 2.0. How exactly does the integration of art and aesthetics in international justice contribute to the development of new intellectual paradigms supporting the vision of international justice 2.0? This inquiry is addressed from two distinct vantage points discussed below. Strengthening the authority of international justice through contemplation

First, engaging with aesthetic theories provides new avenues for strengthening the authority of international justice. Studying art and aesthetics fuels profound comprehension of the nature of judgment and cognition in the context of international rule setting.89 There is deeper significance encoded in the terms and concepts constituting the foundations of international justice. This meaning – tightly linked to the intention of the drafters – goes beyond words and phrases pointing to certain obligations and commitments to be interpreted by the stakeholders on a case-by-case basis. There is usually an underlying field of shared understanding that supports any verbal expression at the level of statutes. For instance, the idea of sovereign equality enshrined in the United Nations Charter90 may refer to the urge of its drafters to give voice to all states within the context of the UN, regardless of their economic or political power.91 Judicial impartiality in the framework of international trials is another example of a multilayered principle embodied in the constituent instruments of international courts.92 One way to look at this principle is through the lens of ethics that requires judges to apply the law without being influenced by personal convictions and biases.93 This is one of the fundamental elements of

tecture of international organizations 1922–1952’ (2021) Leiden Journal of International Law Vol 34(1), 1; L. Lixinski, Intangible Cultural Heritage in International Law (Oxford University Press, 2013). 88  See Chapter 5. 89  Immanuel Kant provided useful categorisation of the type of existing judgments that include those grounded in logic (determining judgments) and the ones stemming from aesthetic contemplation (reflective judgments). Broadly, Kant’s power of judgment splits into two parts: reflecting judgment finds the concept or universal for given particulars; determining judgment subsumes particulars under a given universal category. See I. Kant, Critique of Judgement, translated by Werner S. Pluhar (Hackett Publishing 1987). 90  Article 2.1 of the UN Charter states that: ‘The Organization is based on the principle of the sovereign equality of all its Members.’ 91  The Yearbook of the United Nations. UN Yearbook, 19, https://www​.unmultimedia​.org​/ searchers​/yearbook​/page​.jsp​?volume​=1946​-47​&bookpage=9 92  For example, Article 36(3)(a) of the Rome Statute of the ICC; Article 20 of the ICJ Statute. 93  M. Aksenova, ‘The Role of Aesthetics in Furthering Integrity’ in M. Bergsmo and V. E. Dittrich (eds) Integrity in International Justice (Torkel Opsahl Academic EPublisher, 2020).

Introduction  15 due process, which is widely codified both nationally and internationally.94 However, one may also see the application of the same principle as a process in each individual case. What are the elements of an international trial promoting judicial impartiality? There are characteristic procedures emphasising respect for the nature of judicial activity and reminding the judges of their role in upholding the principle of judicial independence.95 These include the swearing in of the judges as they pledge independence of state or any other interests, their professionally worn attire as well as formalised conduct in the courtroom, including public rising when the judges enter the room. All those elements are procedural in nature. They are reinforced through aesthetics of a judicial trial and are not trivial. Misalignment of inner guidance and the demands of justice can occur easily depending on the factual circumstances of the case, ‘triggering’ certain biases in a judge, which they may not even be conscious of.96 There may also be situations of a personal fatigue or general policy considerations of expediency of an international trial. All these factors may compromise judicial impartiality if it is only formulated as a general principle or a rule. The process whereby this rule is enforced in practice then exists as a constant reminder of the need to uphold this principle in each specific case. These examples demonstrate the significance of uncovering the deeper impulses of the discipline. Strengthening the authority of international justice 2.0 can occur through enhancing the narrative of cooperation and all its derivative concepts. Collective well-being is better achieved by adhering to the ‘win/win’ paradigm which refers to taking everyone’s interests as one’s own, as opposed to a more traditional ‘win/lose’ scenario based on the grammar of deterrence and calculated risk-taking.97 Cooperation is a more suitable unifying idea to respond to modern threats as it embraces human and other than human collective as a whole. This all-inclusive bird’s-eye view stands in sharp contrast with a more traditional piecemeal approach of a deterrent paradigm. The theories of aesthetics furnish a solid theoretical foundation for the idea of cooperation because creative contemplation best reflects the idea of universality, which is, arguably, at the core of international justice. The ability

94  Human rights instruments, such as the European Convention on Human Rights in its Article 6, ensure that this principle is observed at the domestic level. See European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5. 95  More on the symbolism of judicial performance: M. Aksenova, ‘Transformative Power of the International Criminal Tribunal for the Former Yugoslavia’ in M. Bergsmo and K. Lohne (eds) Power and International Criminal Justice (Torkel Opsahl Academic EPublisher, 2020), 381. 96  See, e.g. K. Heller, Judge Ozaki Must Resign – Or Be Removed, Opinio Juris, 29 March 2019, http://opiniojuris​.org​/2019​/03​/29​/judge​-ozaki​-must​-resign​-or​-be​-removed/, accessed 30 July 2024. 97  O’Connell, supra note 62, 51 et sq.

16  Art, aesthetics and international justice to perceive (beauty) is truly universal. In this regard, it is helpful to look for inspiration outside of the realm of Western philosophy. Kashmiri scholars in ninth- to eleventh-century India developed quite a sophisticated account of aesthetic theory. The aesthetic experience was understood as an act of immersing oneself in the ‘tasting’ of one of the fundamental mental states suggested by the creative context of a theatrical piece, for instance. These artistically induced mental states, or rasas in Sanskrit, resemble the fundamental feelings, instincts, emotions or mental states experienced in ordinary life (such as delight, anger, disgust, fear, wonder, etc.).98 Yet, rasas are distinct because they are experienced in an artistic play. Such framing allows for a temporary dissolution of a regular personal awareness of things and events associated with ‘I’ in practical life. Occurrences that would otherwise trigger rejection or pain are processed as pleasure in the context of an aesthetic experience (such as a theatrical performance or viewing of a painting). Aesthetic experience, therefore, frees individuals from personal investment and allows for the universality of perception.99 Indian theory of aesthetics was thus less focused on the object itself, but rather on the mode of engaging with creative reality.100 Interestingly, Immanuel Kant in his Critique of Judgement (1790) voiced similar approach to aesthetics.101 This work primarily concerned itself with the nature of judgment and how it is exercised. Kant argued that the power, or the faculty, of judgment is the capacity to think ‘particular as contained under the universal.’102 This power manifests itself either by determining or by reflecting. The former activity presupposes the existence of a predetermined rule or a principle that subsumes the particular when it arises. Kant felt that he dealt with these types of judgment sufficiently in his Critique of Pure Reason (1781).103 This seminal work has been a source of continuous inspiration for many generations of legal philosophers.104 The latter process of judgment – namely reflecting – refers to finding universal in particular without necessarily having a prior concept.105 The aesthetic judgment belongs exactly to this category. Kant described the judgment of beauty as ‘disinterested’ in a sense of not having a practical purpose aside from a free play of imagination.106 This

 98  Gnoli, supra note 4.  99  Ibid., XXII. 100  D. H. J. Ingalls et al. (eds), The Dhvanyaloka of Anandavardhana with the Locana of Abinavagupta (Harvard University Press, 1990). 101  Kant, supra note 89. 102  Ibid., Introduction IV, 5:179. 103  Stanford Encyclopedia of Philosophy, Kant’s Aesthetics and Teleology, revised 13 February 2013, https://plato​.stanford​.edu​/entries​/kant​-aesthetics/​#3.1 104  For example, J. Habermas, Moral Consciousness and Communicative Action, translated by Christian Lenhardt and Shierry Weber Nicholsen (MIT Press, 1996); J. Rawls, Theory of Justice (Harvard University Press, 1971). 105  Kant, supra note 89, Introduction IV, 5:179. 106  Ibid., § 10.

Introduction  17 judgment is based in feelings (in particular, the feeling of pleasure)107 and is making a claim to universal validity – a pre-conceptual agreement of everyone who judges the object as beautiful.108 This short exposition of the nature of judgment and perception establishes joint foundations for justice and aesthetics as resting on a premise of a bigger ‘I’ that transcends individual interests and paves way to a stronger cooperation paradigm in the ambit of international justice. It is possible to conceptualise justice as practical willingness to foster common good in the communities of varying geographical scope.109 This conception of justice ensures a ‘third person’ perspective on the matter by favouring communal good – such as, for instance, peace – above individual preferences of separate actors (states, individuals, corporations). The vantage point of a disinterested observer, akin to that created in the context of an aesthetic experience, is helpful in rethinking the authority of international justice along the lines of cooperation or ‘win/ win’ scenarios. Proliferation of imagery and the change of communication forms

The second reason for engaging with art and aesthetics to imagine international justice 2.0 revolves around the nature of the dominant forms of transmitting information.110 The vocabulary of international law is bound to adapt to the changing means of communication in all other areas of human activity. Richard Sherwin, a scholar of contemporary jurisprudence, argues that there is an urgent demand for exploring visual methodology in legal science. The overproduction of imagery in our modern life is what Richard Sherwin refers to as the age of ‘digital baroque.’111 The term ‘baroque’ emphasises the shifts in the core forms of interaction. The images and impressions collected through social media create new mediated reality.112 The original concept depicted by an image fade away with the unfolding of the infinite representational forms amply supplied by the internet. The cognitive frameworks are reshaped by the simulated environment.113 The line between the synthetic and the real is blurred. The digital baroque calls for new mindfulness, one that integrates the effects of these seismic shifts in visual content consumption on

107  Ibid., § 1. 108  Ibid., § 6. 109  J. Finnis, Natural Law and Natural Rights (Oxford University Press, 2011), 165. 110  See Drumbl and Fournet, supra note 43. 111  R. Sherwin, Visualizing Law in the Age of the Digital Baroque: Arabesques and Entanglements (Routledge, 2011), 187. 112  Ibid., 174. 113  P. Palusova, ‘Technology as a Life Form,’ 16 July 2024, https://petrapalusova​.com​/articles​ /technology​-as​-a​-life​-form

18  Art, aesthetics and international justice body’s senses. These senses also include the mind with its natural capacity to analyse and categorise.114 Sherwin argues for the exploration of the path of visual jurisprudence as a way to navigate the new forms of mediated reality.115 In this new state of affairs, where the visual shapes our perception of reality, law in its purely analytical form retains its validity, but loses significance.116 This is where Sherwin finds clear scope for developing new visual rhetoric, integrating ethics and aesthetics.117 One way to incorporate visual rhetoric in jurisprudence is to engage with creativity and legal imagination. These tools enliven multiple perspectives by embracing uncertainty and ‘an outsider’s observational standpoint.’118 Maks del Mar helpfully outlines four abilities involved in the exercise of ‘legal’ imagination: (1) the ability to suppose or to think in terms of possibilities; (2) the ability to relate or to take other’s perspective; (3) the ability to make mental images generative of insight; and, finally, (4) the ability to take on a perspective or the possibility of imagining several scenarios.119 It is clear from this classification that legal imagination is a way of working with multiple possibilities and giving rise to compassionate inquiry that takes into account other party’s views and interests. International criminal justice and aesthetics To illustrate the practical relevance of aesthetics in the field of international justice, it is helpful to zoom in on one of its subdisciplines – international criminal justice. This latter field is arguably very susceptible to the reception of visual rhetoric.120 International criminal justice was born in the aftermath of the Second World War with the purpose of individualising responsibility of the senior Nazi leadership in light of aggression. This happened in parallel with all other contemporaneous developments of international law. Few decades later, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) spearheaded the 1990s accountability movement. Their creation signified the rise of enthusiasm around anti-impunity project.121 Early 2000s, however, witnessed a shift

114  Sherwin, supra note 111, 113. 115  In this regard, TOEAP’s commitment to a wider use of the AV-recordings of conference lectures to support academic arguments in its publications is highly commendable. 116  Sherwin, supra note 111, 177. 117  Ibid., 174. 118  J. B. White, The Legal Imagination (University of Chicago Press, 1973). 119  M. del Mar, ‘Imagining by Feeling: A Case for Compassion in Legal Reasoning’ (2017) International Journal of Law in Context Vol 13(2), 143. See also M. del Mar, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (Hart, 2021). 120  For a critical account see Schwöbel-Patel, supra note 84. See also R. de Falco’s Invisible Atrocities: The Aesthetic Biases of International Criminal Justice (Cambridge University Press, 2022). 121  Sikking, supra note 1.

Introduction  19 towards a more critical perception of the field leading up to what we might now call a state of perpetual legitimacy crisis stemming from the awareness of the field’s inherent limitations.122 The ICC is currently a flagship institution of international criminal justice due to its permanent status. The court is engaged in an ongoing battle to garnish support at a state level so that it can fully exercise its enforcement powers over individuals.123 Immi Tallgren articulately explains the difficulties implicit in the project of international criminal law, such as the propensity to overstate its own claims.124 She refers to this field as ‘a truly illuminating package of ideas’ dealing with the existential questions of life and death and the choices between good and evil.125 At the same time, Tallgren notes that the focus on individual criminal responsibility obfuscates complexity and context. Instead of tackling nuclear weapons, the field centres on machete knives. Instead of examining state responsibility for aggression, the impulse is to prosecute individual war crimes, such as rape or murder.126 In other words, international criminal justice is myopic to the extent that it excludes from its purview structural factors breeding collective criminality, such as poverty or lack of security.127 The case of Dominic Ongwen illustrates this short-sightedness. In 2021, the ICC convicted Mr Ongwen of murder, rape and sexual slavery. He was sentenced to 25 years of imprisonment. The court rendered a guilty verdict despite the fact that Ongwen started as a child solider in the Lord’s Resistance Army in Uganda at the age of 10, subsequently rising up its ranks.128 The moral ambiguity of prosecuting someone socialised into atrocities as a child certainly received attention in the courtroom but it failed to get full expression

122  M. Aksenova, ‘Symbolism as a Constraint on International Criminal Law’ (2017) Leiden Journal of International Law Vol 30(2), 475–499; B. Sander, ‘The expressive turn of International Criminal Justice: A field in search of meaning’ (2019) Leiden Journal of International Law Vol 30(4), 851. 123  M. de Guzman and T. Lockwood Kelly, ‘The International Criminal Court Is Legitimate Enough to Deserve Support’ (2019) Temple International &Comparative Law Journal Vol 33(2), 397. 124  I. Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (2002) European Journal of International Law, Vol 3, 571. 125  Ibid., 593. 126  Ibid., 594. 127  See Sander and M. Burgis-Kasthala, supra note 78. 128  The Prosecutor v. Dominic Ongwen, Trial Judgment, Case No. ICC-02/04-01/15 (4 February 2021); The Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Sentence (6 May 2021); The Prosecutor v. Dominic Ongwen, Judgment on the appeal of Mr Ongwen against the decision of Trial Chamber IX of 4 February 2021 entitled ‘Trial Judgment’ and Judgment on the appeal of Mr Dominic Ongwen against the decision of Trial Chamber IX of 6 May 2021 entitled ‘Sentence,’ ICC-02/04-01/15 A and ICC-02/04-01/15 A2 (15 December 2022).

20  Art, aesthetics and international justice in the eventual legal judgment due to the inherent limitations of the legal process, both in its form and substance.129 The categories of victims and perpetrators are rather solid within the realm of international criminal law. It is true that Article 31 of the Rome Statute of the ICC lists grounds for excluding criminal responsibility, such as mental disease or qualified duress. Yet these grounds do not include prolonged suffering, such as lifelong traumatisation. The reality is more complex than what the current legislative framework permits:130 with time and consistent exposure to violence, child soldiers transition from the role of victims into the role of perpetrators.131 Some form of post-conviction adjustment may still have occurred. Mr Ongwen received his guilty verdict without much consideration given to his past, but he was subsequently transferred to Norway to serve his sentence. Norway is known for its penal leniency. Engaging with art and aesthetics – either through the practice of reparations or as a form of contemplation – contextualises law by adding a much needed experiential dimension. Augmenting one’s sense of empathy and positive sympathy may not only involve explaining the nature of an internationally recognised prohibition (of murder, for example) but also by creating a direct experience of what it means to be alive with all its nuances.132 In the Ongwen case, the ICC ordered, inter alia, community-based satisfaction and symbolic measures in the form of memorial centres, monuments, memorial prayers as well as reconciliation and cleansing ceremonies.133 The Chamber underlined that these measures are meant to be transformative in nature as they tackle structural issues and cultural understanding of violence.134 The viral Kony campaign at the ICC showcases another way of engaging aesthetics in the workings of the court. The ICC released an arrest warrant for Joseph Kony in 2005, charging him with war crimes and crimes against

129  M. Drumbl, ‘The Ongwen Trial at the ICC: Tough Questions on Child Soldiers’ Open Democracy, 14 April 2015, https://www​.opendemocracy​.net​/openglobalrights​/mark​ -drumbl​/ongwen​-trial​-at​-icc​-tough​-questions​-on​-child​-soldiers 130  S. Rigney, ‘Building An Abolition Movement for International Criminal Law?’ (2024) Journal of International Criminal Justice, Vol mqae008, https://doi​.org​/10​.1093​/jicj​/ mqae008 131  A. L. Nistor, A. Merrylees and B. Holá, ‘Spellbound at the International Criminal Court: The Intersection of Spiritualism and International Criminal Law’ in J. Fraser and B. McGonigle Leyh (eds) Intersections of Law and Culture at the International Criminal Court (Edward Elgar, 2020), 147–68. See also E. Baines, Buried in the Heart: Women, Complex Victimhood and the War in Northern Uganda (Cambridge University Press, 2016), 3. 132  M. Aksenova and A. N. Rieff, ‘Setting the Scene: The Use of Art to Promote Reconciliation in International Criminal Justice’ (2021) Leiden Journal of International Law Vol 33(2), 495. 133  The Prosecutor v. Dominic Ongwen, Reparations Order, Case No. ICC-02/04-01/15 (28 February 2024), para 635. 134  Ibid., para. 637.

Introduction  21 humanity committed across Central Africa.135 However, it was not until the wide circulation of the 2012 documentary entailing the details of Mr Kony’s actions,136 that the governments began to act.137 Joseph Kony remains at large but his name is recognised beyond international law circles. The ethics of instrumentalising the power of arts to gain support for the ICC is a separate question explored elsewhere.138 The Kony campaign revealed ways to amplify the intuitive appeal of the technical legal language through public media outreach. Creativity was crucial in this process. On 23 November 2023, the PreTrial Chamber of the ICC issued a decision permitting the prosecutor to move forward with trial in absentia in the case against Joseph Kony.139 One can speculate that such an extensive publicity campaign led prosecutor to settle for an exceptional measure of trial in absentia instead of choosing to drop the charges all together. In sum, there is a clear need for mediating noble claims of international criminal law as formulated in the Preamble of the Rome Statute of the ICC and what this field can realistically achieve.140 Artistic expression assists with this exercise by adding an experiential dimension to international criminal justice. Art serves as a medium for communicating complex truth(s). It is possible that re-orienting the rhetoric of international criminal justice towards visuality and other forms of embodied jurisprudence enhances its performance in the future to include more nuance. State of the art Art, aesthetics and international justice is an emerging field of study, which currently encompasses several thought streams crossing the boundaries of several disciplines. The scholarship within each domain gravitates, with some exceptions, towards a specific theme, form of art, geographical or cultural context. There is therefore ample room for building an overarching meta-level account of the theory of aesthetics within the field of international justice. Short literature overview below identifies six distinct takes on the subject. First, there are works examining the aesthetic dimension of legal argumentation. These works do not focus on international justice specifically. For instance, Adam Geary compellingly compares legal argument to a work of art, noting that it possesses intrinsic beauty in its reasoned rationality and

135  The Prosecutor v. Joseph Kony and Vincent Otti, (Warrant of Arrest) ICC-02/04-01/05-53, (27 September 2005). 136  ‘“Kony 2012” Documentary Becomes Most Viral Video in History’ Time, 23 March 2012. 137  US Senate, 112th CONGRESSm, 2nd Session, S. RES. 402. 138  Schwöbel-Patel, supra note 84. 139  The Prosecutor v. Joseph Kony, Decision on the Prosecution’s request to hold a confirmation of charges hearing in the Kony case in the suspect’s absence, ICC-02/04-01/05-466 (23 November 2023). 140  Akhavan, supra note 2.

22  Art, aesthetics and international justice structure. Both lawyers and artists work within the constraints of rules on the one hand and creativity on the other.141 James White further explains that a lawyer carefully chooses her rhetoric when presenting a case because the goal is to tell a story, which includes not only what is ‘expressed’ but also what is ‘unexpressed.’142 Martha Nussbaum advocates to that effect for the inclusion of more fiction-writing techniques in legal drafting. Her main point is that proper legal reasoning requires compassion to the nature of human condition. Novels can be a source of generally universalisable ideas about human flourishing and how that applies to a particular situation.143 Second, there is a growing field of literature dedicated to art and transitional justice.144 Works emanating from this stream tend to focus on distinct geographical contexts such as the Northern Ireland, Argentina, Rwanda and Uganda.145 These works approach artistic pursuits as instruments to shed light on the objectives of truth and reconciliation, which are the goals driving the process of restoration of communities broken down by war and unrest.146 This field may present itself as somewhat segmented and therefore calling for a more grounded conception of art and transitional justice, which is generally applicable across various case studies.147 Eliza Garnsey’s monograph The Justice of Visual Art: Creative State-Building in Times of Political Transition fills this vacuum in transitional justice studies to the extent that it bridges transitional justice and international relations.148 This volume makes an important contribution to the scholarship, especially in what pertains the role of art as a possible vehicle for acknowledging the subjective feelings of injustice.149 Garnsey’s work engages closely with the representational and the symbolic function of art in crafting an account of a sense of justice through architectural designs and art collections of the South African judiciary.150

141  A. Geary, Law and Aesthetics (Hart, 2001). 142  White, supra note 118. 143  M. Nussbaum, Poetic Justice (Beacon Press, 1997). 144  P. Rush and O. Simic ́ (eds), The Arts of Transitional Justice. Culture, Activism, and Memory after Atrocity (Springer, 2013); C. Ramírez-Barat (ed.), Transitional Justice, Culture, and Society: Beyond Outreach (International Centre Transitional Justice, 2014). 145  V. Bell, Art of Post-Dictatorship: Ethics and Aesthetics in Transitional Argentina (Routledge, 2014); V. Bell, ‘Contemporary Art and Transitional Justice in Northern Ireland: The Consolation of Form’ (2011) Journal of Visual Culture Vol 10(3), 324; Mani, supra note 53. 146  S. Shefik, ‘Reimagining Transitional Justice Through Participatory Art’ (2018) International Journal of Transitional Justice Vol 12, 314; A. M. Isasi-Díaz, La Lucha Continues: Mujerista Theology (2004), 203; N. Shnabel and A. Nadler, ‘A Needs-Based Model of Reconciliation: Satisfying the Differential Emotional Needs of Victim and Perpetrator as a Key to Promoting Reconciliation’ (2008) Journal of Personality and Social Psychology Vol 1, 116. 147  E. Garnsey, ‘Rewinding and Unwinding: Art and Justice in Times of Political Transition’ (2016) International Journal of Transitional Justice Vol 10, 471. 148  Garnsey, supra note 49. 149  Ibid., 12. 150  Ibid., Chapters 4 and 5.

Introduction  23 Third, there is scholarship zooming in a specific medium of art, such as film production or photography and international law. For instance, Wouter Werner explores documentaries on international criminal justice produced in the last ten years, arguing that they combine storytelling and emotion and hold immense didactic potential for legal scholars.151 In the same vein, Immi Tallgren critically assesses the central narratives perpetuated by international criminal lawyers and compares them to those highlighted by the historical series the ‘Tokyo Trial.’152 Aoife Duffy examines the role of photography in international law,153 Miriam Bak McKenna explores architecture of international organisations,154 while Sofia Stolk and Renske Vos look at various international law sights through the eyes of a visitor.155 All of these works contribute to the perception of international law as a collection of artefacts, each revealing a hidden angle, previously unacknowledged in the discussions about the institutions of global justice. Fourth, there are two excellent collections exploring the intersection between art, aesthetics and international justice more broadly. Mark Drumbl and Caroline Fournet curated an anthology focusing on the interplay between human senses – sight, smell, hearing, touch and taste – and the prosecution of mass atrocities in pursuit of justice. The goal is to expand the horizons of what is seen, understood and remembered as justice as well as to flag any potential failures in capturing the entirety of the moment with purely legal tools.156 The other edited volume – by Fiana Gatheret, Noulwen Guibert and Sofia Stolk – explores the intersection of art and human rights.157 This work features contributions by legal practitioners and academics and it dwells on the meaning of cultural heritage and cultural property, dancing as a form of reparation for human rights violations, cultural diplomacy, visualising war trauma and artistic freedom. Fifth, there is critical legal scholarship deploying aesthetics to showcase the limitations of the system of international justice and invite new ways of thinking about the discipline. Randle de Falco’s work examines implicit biases of international criminal justice as a discipline fascinated with the aesthetics of disgust and horror. The crimes such as genocide tend to shock the consciousness of humanity more than mundane manifestations of grave injustice, such as the denial of basic healthcare or systemic overworking.158 Another exam‑

151  W. Werner, ‘Justice on Screen – A Study of Four Documentary Films on the International Criminal Court’ (2016) Leiden Journal of International Law Vol 29, 1043; 152  I. Tallgren, ‘Watching Tokyo Trial’ (2017) London Review of International Law Vol 5, 291. 153  A. Duffy, ‘Bearing Witness to Atrocity Crimes: Photography and International Law,’ (2018) Human Rights Quarterly Vol 40, 776; 154  McKenna, supra note 87. 155  Stolk and Vos, supra note 87. 156  Drumbl and Fournet, supra note 43. 157  Gantheret, Guibert and Stolk, supra note 87. 158  De Falco, supra note 120, 4.

24  Art, aesthetics and international justice ple is Christine Schwöbel-Patel’s work on marketing global justice, in which she pairs her exploration of visuality in international justice with marketdriven dynamics underlying the field.159 The edited collection Aesthetics and Counter-Aesthetics of International Justice by Christine Schwöbel-Patel and Robert Knox further embed the aesthetic dimension of international justice into its operational political context, highlighting that representational art is not neutral.160 Finally, there are few works exploring the philosophical foundations of aesthetics in relationship to law.161 The volume curated by Oren Ben Dor is multilayered and eclectic as it features perspectives from scholars of various disciplines seeking to engage the aesthetic sensibility in the study of law. Mary E. O’Connell’s excellent The Art of Law in International Community also belongs to this category.162 This book connects the study of aesthetics and the philosophical dimension of international justice. O’Connell deploys the theory of aesthetics in quite a specific way: to revitalise the idea of peace and to support the jus cogens prohibition on the use of military force in international relations. Structure of the book This book builds a meta-narrative for the deployment of art and aesthetics in the study of international justice. It does so by shifting the focus from the objects of study to the lens of perception itself. Engaging with aesthetic ­theories uncovers the whole new way of perceiving international justice, which leads to transformative insights. This meta-narrative rests on the revised philosophical foundation of international justice (Chapter 2); the updated account of the nature of expression in international law (Chapter 3); the study of the legal form as a ritual with aesthetic components (Chapter 4); applied creativity in the practice of reparations by international courts (Chapter 5); and, finally, the methodology of engaging aesthetics in international justice (Chapter 6). The discussion moves from the inner most ideology of international justice ­(underlying premises) to its coarser manifestations in the form of language, legal rituals, reparations and practical philosophy of action. The book concludes with some observations on how to apply the insights derived from the

159  Schwöbel-Patel, supra note 84. 160  C. Schwöbel-Patel and R. Knox, Aesthetics and Counter-Aesthetics of International Justice (Counterpress, 2024). 161  This strand also includes works experimenting with the legal form as such using various creative methods. See, e.g. C. Reznikoff, Holocaust (Five Leaves, 2010), https://archive​ .org​/details​/holocaust0000rezn​_n2p0​/mode​/2up; V. Jeutner, ‘[L]ex Machina – Unlikely Encounters of International Law and Technology’ Media-Tryck, 2020, https://lucris​.lub​.lu​ .se​/ws​/portalfiles​/portal​/77873650​/2020​_Jeutner​_LexMachina​_e​.pdf​.pdf 162  O’Connell, supra note 62.

Introduction  25 theories of aesthetics to evolve our understanding of international justice. A more detailed description follows. Chapter 2 explores the role of natural law and aesthetics in strengthening the authority of international justice via the route of universality. Natural law theory finds universality in the shared impulse of all humans towards a limited set of basic goods that include life, play, practical reasonableness, sociability, and aesthetics.163 The logic of this collective pursuit of happiness and self-preservation transcends individuals and applies equally to larger institutions operating at different levels of society.164 Natural law acknowledges this shared core inherent in a human condition to discern what is just in all times and spaces based on the vantage point of a neutral observer. Various theories of aesthetics approach the same subject of universality from a slightly different, but related, angle. They connect to our shared ability to perceive (beauty). The object of contemplation is less important than the act of perception and they are interconnected. Transformation occurs through the mere act of observation. This chapter then finds correspondence between natural law and aesthetics as it engages with the works of John Finnis,165 Thomas Aquinas,166 Immanuel Kant167 and Abinavagupta, among many others. The latter is a Kashmiri critic, philosopher and scholar of the eleventh century who developed a highly sophisticated aesthetic theory that preceded much of the Western thought.168 Chapter 3 focuses on different levels of discourse within the field of international justice and beyond. This chapter invokes the theory of speech developed in the ancient Indian collection of philosophical texts known as the Rig Veda.169 This theory centres on the movement of speech from its most undifferentiated level of unity towards more pronounced manifestations in the form of collectively held beliefs, rituals charged with emotional energy, and, finally, written texts and oral speech.170 Imagination plays an important role in this discussion because it facilitates the process of tracing the speech back to its source. In other words, creative contemplation is a way to effectively deconstruct the vocabulary of international justice. Verbalised or written language is seen as a pointer, or a signifier, of the deeper processes underlying international justice, which are highly contextual. De-constructing the language is

163  The list is identified by Finnis, supra note 79, 85. 164  A. Giddens, The Constitution of Society: Outline of the Theory of Structuration (University of California Press, 1984), xxvi–xxxi. 165  Finnis, supra note 109. 166  T. Aquinas, Summa Theologiae I–II, q. 95, https://www​.newadvent​.org​/summa​/2094​.htm​ #article1 167  Kant, supra note 89. 168  Abhinavagupta’s approach is elaborated in his seminal commentary on Dhvanyāloka, which is translated as ‘The Light on the Doctrine of Suggestion.’ See Ingalls, supra note 100, 1. 169  See M. Müller (ed) Rig-Veda-Sanhita, The Sacred Hymns of the Brahmans; Together with the Commentary of Sayanacharya (London W.H. Allen, 1862). 170  R. Torella, ‘The Word in Abhinavagupta’s Bṛhad-vimarśinī’ (2012), https://vdocuments​ .site​/reader​/full​/torella​-raffaele​-the​-word​-in​-abhinavagupta​-s​-brihad​-vimarshini

26  Art, aesthetics and international justice also a doorway to re-conceptualising some of the outdated patterns of thought that no longer reflect collective consensus. Chapter 4 offers sociological and anthropological accounts of the role of art and aesthetics in contemplating international justice. This chapter argues that the whole field of justice can be seen as a set of rituals. Their procedural quality is not limited by the purely legal considerations of due process, technicalities of treaty negotiations or the rules stipulating the order of conducting international trials.171 If seen through the lens of aesthetics, international justice is a process charged with intense emotional energy.172 There are distinct manifestations of this process, such as international criminal trials, diplomatic conferences negotiating treaties, drafting of the reports by the UN bodies, and so on. What unites all of these activities is their implicit performativity, collectively set intention, and the direction of attention towards certain symbols (justice, unity, peace). The immediate participants of the process – such as state parties in treaty negotiations or defence and prosecution teams in international criminal trials – are the primary actors infusing each step of the way with their concentrated effort.173 Chapter 5 is an applied perspective on art and international justice. It examines the practice of symbolic reparations that specifically embrace the creative element in international criminal law and international human rights law. The chapter explores both the psychological and the expressive benefits of engaging with art in the context of these two fields of law.174 It also looks at some pitfalls, which include structural and philosophical limitations of these areas of law. Creative expression carries significant potential to contribute to reconciliation and facilitate positive societal transformations. It does so by engaging with personal and collective storytelling without the rigidity and dogmatism of a purely legalistic exercise.175 Finally, Chapter 6 draws different threads together by developing a method for viewing international justice through the perceptual lens inspired by the theories of aesthetics. The core objective of the last chapter is to offer practical ways of working with an imaginative approach to international justice. This chapter shows how to revisit or deconstruct the outdated concepts in international justice using playfulness. In this approach, art is not just a ‘tool’ in the process of discovery, rather it is a lens through which the whole exploration is performed. The method consists of non-engaged observation, theory

171  For example, ICC Rules of Procedure and Evidence (2019), ICJ Rules of Court (1978). 172  R. Collins, Interaction Ritual Chains (Princeton University Press, 2004). 173  J. Alexander, ‘Cultural Pragmatics: Social Performance Between Ritual and Strategy’ in J. Alexander, B. Giesen and J. Mast (eds) Social Performance: Symbolic Action, Cultural Pragmatics and Ritual, (Cambridge University Press, 2006). 174  For more on psychological benefits of engaging with art in the field of international criminal justice see Aksenova and Rieff, supra note 132. 175  Ibid.

Introduction  27 construction and testing the theory using creative means. The notions of citizenship and nationality serve as a case study. Conclusion There is an ongoing and recurring discussion about the crisis of international justice and governance.176 The legitimacy deficit,177 double standards allegations178 and the lack of enforcement abilities are just few examples of the types of criticisms levied against the field of international justice. Such (perceived) crisis mode is affecting not just the ability of international community to respond to global challenges but also the modus operandi of societies at the domestic level as disenchantment with international law principles percolates to the level of nation-states and local communities. There is a feeling of defiance stemming from polarising narratives. Such pressure coupled with our global interconnectedness and the proliferation of the new forms of communication powered by technology foster the development of a new paradigm of international justice. The vertical relationship between the state and its subjects is revolutionised by the creation of multiple horizontal networks operating across state borders. These shifts in global consciousness impact both the ethical and the structural foundations of international justice. The monograph offers a new way of looking at the discipline, shifting the focus towards its dynamic nature. Connecting international justice and aesthetics through theory and practice emphasises the transformative qualities of international law and its role in creating prosperity for all of humanity. This function exceeds the expectations of peaceful settlement of disputes. The book therefore lays down foundations for further explorations of justice as a creative and participatory process. Bibliography Literature T. Aalberts and S. Stolk, ‘The Peace Palace: Building (of) The International Community’ (2020) AJIL Unbound Vol 114, 117 D. Akande, ‘The Doctrine of “Humanitarian Intervention” and the Legality of the UK’s Air Strikes against the Assad Government in Syria,’ 16 April 2018 P. Akhavan, ‘The Rise, and Fall, and Rise, of International Criminal Justice’ (2013) Journal of International Criminal Justice Vol 11(3), 527

176  Allott, supra note 73. 177  See, for example, M. Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’ (2004) European Journal of International Law Vol 15(5), 907. 178  W. Kaleck, Double Standards: International Criminal Law and the West (Torkel Opsahl, 2015).

28  Art, aesthetics and international justice M. Aksenova, ‘Global Citizenship and the Right of Access to Justice: Adapting T.H. Marshall’s Ideas to the Interconnected World’ (2023) Humanity Journal Vol 14(2), 169 M. Aksenova, ‘The Role of Aesthetics in Furthering Integrity’ in M. Bergsmo and V. E. Dittrich (eds) Integrity in International Justice (Torkel Opsahl Academic EPublisher, 2020) M. Aksenova, ‘Symbolism as a Constraint on International Criminal Law’ (2017) Leiden Journal of International Law Vol 30(2), 475 M. Aksenova, Complicity in International Criminal Law (Hart, 2016) M. Aksenova and I. Marchuk, ‘Reinventing or Rediscovering International Law? The Russian Constitutional Court’s Uneasy Dialogue with the European Court of Human Rights’ (2018) International Journal of Constitutional Law Vol 16(4), 1343 J. Alexander, ‘Cultural Pragmatics: Social Performance Between Ritual and Strategy’ in J. Alexander, B. Giesen and J. Mast (eds) Social Performance: Symbolic Action, Cultural Pragmatics and Ritual (Cambridge University Press, 2006) K. Alter, L. Helfer, and M. Madsen (eds), International Court Authority (Oxford University Press, 2018) A. Anghie, ‘Rethinking International Law: A TWAIL Retrospective’ (2023) European Journal of International Law Vol 34(1) of International Criminal Justice Vol mqae012, https://doi​.org​/10​.1093​/jicj​/mqae012 T. Aquinas, Summa Theologiae I-II, q. 95, https://www​.newadvent​.org​/summa​ /2094​.htm​#article1 E. Baines, Buried in the Heart: Women, Complex Victimhood and the War in Northern Uganda (Cambridge University Press, 2016) ‘Beijing Rejects Tribunal’s Ruling in South China Sea Case’, The Guardian, 12 July 2016, https://www​.theguardian​.com​/world​/2016​/jul​/12​/philippines​-wins​ -south​-china​-sea​-case​-against​-china V. Bell, Art of Post-Dictatorship: Ethics and Aesthetics in Transitional Argentina (Routledge, 2014) V. Bell, ‘Contemporary Art and Transitional Justice in Northern Ireland: The Consolation of Form’ (2011) Journal of Visual Culture Vol 10(3), 324 K. Bennoune, ‘Dignifying, Restoring, and Re-Imagining International Law and Justice Through Connections with Arts and Culture’ (2020) AJIL Unbound Vol 114, 108 A. Bessi et al., ‘Trend of Narratives in the Age of Misinformation’ (2015) PLOS ONE Vol 10(8): e0134641. https://doi​.org​/10​.1371​/journal​.pone​.0134641 S. Besson, ‘Theorizing the Sources of International Law’ in S. Besson and J. Tasioulas (eds) The Philosophy of International Law (Oxford University Press, 2010) E. J. Buis, ‘Aristotle in The Hague: Artistic Pleading and Emotional Theatricality in International Criminal Proceedings’ (2020) AJIL Unbound Vol 114, 133 M. Burgis-Kasthala, ‘Entrepreneurial Justice: Syria, the Commission for International Justice and Accountability and the Renewal of International Criminal Justice’ (2019) European Journal of International Law Vol 30(4), 1165 M. Burgis-Kasthala and B. Sander, ‘Contemporary International Criminal Law After Critique: Towards Decolonial and Abolitionist (Dis-)Engagement in an Era of AntiImpunity’ (2024) Journal of International Criminal Justice Vol mqae012, https:// doi​.org​/10​.1093​/jicj​/mqae012 B. Çali, The Authority of International Law: Obedience, Respect, and Rebuttal (Oxford University Press, 2015)

Introduction  29 ‘Charging Israel with Genocide Makes a Mockery of the ICJ’, The Economist, 18 January 2024 B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge University Press, 1987) R. Collins, Interaction Ritual Chains (Princeton University Press, 2004) M. E. O’Connell, The Art of Law in the International Community (Cambridge University Press, 2019) P. de Cruz, Comparative Law in a Changing World (Routledge-Cavendish, 3rd edn, 2007) E. Cusato, R. Mignot-Mahdavi, S. Stolk, and R. Vos, ‘In Praise of Multiplicity: Suspending the Desire to Change the World’ (2023) Leiden Journal of International Law 1–5, doi:10.1017/S0922156523000638 M. del Mar, ‘Imagining by Feeling: A Case for Compassion in Legal Reasoning’ (2017) International Journal of Law in Context Vol 13(2), 143 M. del Mar, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (Hart, 2021) J. Dewey, Art As Experience 7 (Capricorn Books, 1958) (1934) M. Drumbl, ‘The Ongwen Trial at the ICC: Tough Questions on Child Soldiers’ (Open Democracy, 14 April 2015), https://www​.opendemocracy​.net​/openglobalrights​/ mark​-drumbl​/ongwen​-trial​-at​-icc​-tough​-questions​-on​-child​-soldiers A. Duffy, ‘Bearing Witness to Atrocity Crimes: Photography and International Law’ (2018) Human Rights Quarterly Vol 40, 776 R. de Falco’s, Invisible Atrocities: The Aesthetic Biases of International Criminal Justice (Cambridge University Press, 2022) J. Finnis, Natural Law and Natural Rights (Oxford University Press, 2011) F. Gatheret, N. Guibert, and S. Stolk, Art and Human Rights: A Multidisciplinary Approach to Contemporary Issues (Edward Elgar, 2023) E. Garnsey, ‘Rewinding and Unwinding: Art and Justice in Times of Political Transition’ (2016) International Journal of Transitional Justice Vol 10, 471 E. Garnsey, The Justice of Visual Art: Creative State-Building in Times of Political Transition (Cambridge University Press, 2019) A. Geary, Law and Aesthetics (Hart, 2001) A. Giddens, The Constitution of Society: Outline of the Theory of Structuration (University of California Press, 1984) R. Gnoli, The Aesthetic Experience According to Abinavagupta (Chowkhamba Sanskrit Series Office, 4th edn, 2015) J. Griffiths, ‘What is Legal Pluralism?’ (1986) Journal of Legal Pluralism and Unofficial Law Vol 24(1), 4 M. de Guzman and T. Lockwood Kelly, ‘The International Criminal Court Is Legitimate Enough to Deserve Support’ (2019) Temple International & Comparative Law Journal Vol 33(2), 397 J. Habermas, Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholsen (MIT Press, 1996) T. O. Hansen, ‘“Not All Scripts Come with One Voice”: Variations in State Responses to South Africa v Israel’, EJIL Talk, 19 February 2024, https://www​.ejiltalk​.org​/ not​-all​-scripts​-come​-with​-one​-voice​-variations​-in​-state​-responses​-to​-south​-africa​-v​ -israel/

30  Art, aesthetics and international justice K. Heller, ‘Judge Ozaki Must Resign — Or Be Removed’, Opinio Juris, 29 March 2019, http://opiniojuris​.org​/2019​/03​/29​/judge​-ozaki​-must​-resign​-or​-be​-removed/ R. Howse and R. Teitel, ‘Beyond Compliance: Rethinking Why International Law Really Matters’ (2010) Global Policy Vol 1(2), 127 D. H. J. Ingalls et al. (eds), The Dhvanyaloka of Anandavardhana with the Locana of Abinavagupta (Harvard University Press, 1990) A. M. Isasi-Díaz, La Lucha Continues: Mujerista Theology (Orbis Books, 2004), 203 V. Jeutner, [L]ex Machina - Unlikely Encounters of International Law and Technology (Media-Tryck, 2020), https://lucris​.lub​.lu​.se​/ws​/portalfiles​/portal​/77873650​ /2020​_Jeutner​_LexMachina​_e​.pdf​.pdf W. Kaleck, Double Standards: International Criminal Law and the West (Torkel Opsahl, 2015) I. Kant, Critique of Judgement, trans. Werner S. Pluhar (Hackett Publishing, 1987) H. Kelsen, General Theory of Law and State (Harvard University Press, 1949) H. Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (Stevens, 1950) M. Koskenniemi, To the Uttermost Parts of the Earth Legal Imagination and International Power 1300–1870 (Cambridge University Press, 2021) M. Koskenniemi and Martti L. Päivi, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) Leiden Journal of International Law Vol 15(3), 553 M. Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’ (2004) European Journal of International Law Vol 15(5), 907 H. Lauterpacht, The Function of Law in the International Community (Oxford University Press, 1933) M. Leiser, ‘AstroTurfing, “CyberTurfing” and Other Online Persuasion Campaigns’ (2016) European Journal of Law and Technology Vol 7(1), 1 L. Lixinski, Intangible Cultural Heritage in International Law (Oxford University Press, 2013) R. Mani, ‘Women, Art and Post-Conflict Justice’ (2011) International Criminal Law Review Vol 11, 543 M. B. McKenna, ‘Designing for International Law: The Architecture of International Organizations 1922–1952’ (2021) Leiden Journal of International Law Vol 34(1), 1 D. Van Den Meerssche, ‘The Multiple Materialisms of International Law’ (2023) London Review of International Law Vol 11(2), 197 T. Megiddo, ‘Beyond Fragmentation: On International Law’s Integrationist Forces’ (2019) Yale Journal of International Law Vol 44, 115 M. Müller (ed), Rig-Veda-Sanhita, the Sacred Hymns of the Brahmans; together with the Commentary of Sayanacharya (London W.H. Allen, 1862) A. L Nistor, A. Merrylees, and B. Holá, ‘Spellbound at the International Criminal Court: The Intersection of Spiritualism and International Criminal Law’ in J. Fraser and B. McGonigle Leyh (eds) Intersections of Law and Culture at the International Criminal Court (Edward Elgar, 2020) M. Nussbaum, Poetic Justice (Beacon Press, 1997) A. Orakhelashvili, Peremptory Norms in International Law (Oxford University Press, 2006) S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125

Introduction  31 P. Palusova, ‘Technology as a Life Form’, 16 July 2024, https://petrapalusova​.com​/ articles​/technology​-as​-a​-life​-form F. O. Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Martinus Nijhoff, 2008) C. Ramírez-Barat (ed), Transitional Justice, Culture, and Society: Beyond Outreach (International Centre Transitional Justice, 2014) J. Rawls, Theory of Justice (Harvard University Press, 1971) C. Reznikoff, Holocaust (Five Leaves, 2010), https://archive​.org​/details​/ holocaust0000rezn​_n2p0​/mode​/2up S. Rigney, ‘Building An Abolition Movement for International Criminal Law?’ (2024) Journal of International Criminal Justice, mqae008, https://doi​.org​/10​.1093​/ jicj​/mqae008 A. Roberts, Is International Law International? (Oxford University Press, 2017) P. Rush and O. Simic ́ (eds), The Arts of Transitional Justice. Culture, Activism, and Memory after Atrocity (Springer, 2013) B. Sander, ‘The Expressive Turn of International Criminal Justice: A Field in Search of Meaning’ (2019) Leiden Journal of International Law Vol 30(4), 851 C. Schwöbel-Patel, Marketing Global Justice (Cambridge University Press, 2021) C. Schwöbel-Patel and R. Knox, Aesthetics and Counter-Aesthetics of International Justice (Counterpress, 2024) M. Shaw, International Law (Cambridge University Press, 2008), 99. S. Shefik, ‘Reimagining Transitional Justice Through Participatory Art’ (2018) International Journal of Transitional Justice Vol 12, 314 R. Sherwin, Visualizing Law in the Age of the Digital Baroque: Arabesques and Entanglements (Routledge, 2011) N. Shnabel and A. Nadler, ‘A Needs-Based Model of Reconciliation: Satisfying the Differential Emotional Needs of Victim and Perpetrator as a Key to Promoting Reconciliation’ (2008) Journal of Personality and Social Psychology Vol 1, 116 K. Sikking, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (Norton, 2011) L. Silver et al., ‘Use of Smartphones and Social Media is Common across Most Emerging Economies’, Pew Research Center: Internet, Science & Technology (2019), https://www​.pewresearch​.org​/internet​/2019​/03​/07​/use​-of​-smartphones​-and​ -social​-media​-is​-common​-across​-most​-emerging​-economies/ E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford University Press, 2014) Stanford Encyclopedia of Philosophy, Kant’s Aesthetics and Teleology, revised 13 February 2013, https://plato​.stanford​.edu​/entries​/kant​-aesthetics/​#3.1 C. Steer, ‘Legal Transplants or Legal Patchworking? The Creation of International Criminal Law as a Pluralistic Body of Law’ in E. van Sliedregt and S. Vasiliev (eds) Pluralism in International Criminal Law (Oxford University Press, 2014) S. Stolk and R. Vos, ‘International Legal Sightseeing’ (2020) Leiden Journal of International Law Vol 33, 1 I. Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (2002) European Journal of International Law Vol 3, 571 I. Tallgren, ‘Watching Tokyo Trial’ (2017) London Review of International Law Vol 5, 291

32  Art, aesthetics and international justice R. Torella, ‘The Word in Abhinavagupta’s Bṛhad-vimarśinī’ (2012), https:// vdocuments​.site​/reader​/full​/torella​-raffaele​-the​-word​-in​-abhinavagupta​-s​-brihad​ -vimarshini E. B. Tylor, Primitive Culture: Researches into the Development of Mythology, Philosophy, Religion, Language, Art and Custom (John Murray, 1871) I. Venzke, ‘International Law and Its Methodology: Introducing a New Leiden Journal of International Law Series’ (2015) Leiden Journal of International Law Vol 28, 185 N. Walker and P. Zumbansen, ‘Legal Pluralism and Legal Universalism in a Global Context’ (2011) Legal Philosophy Between State and Transnationalism Seminar Series 14, https://digitalcommons​.osgoode​.yorku​.ca​/legal​-philosophy​/14 W. Werner, ‘Justice on Screen – A Study of Four Documentary Films on the International Criminal Court’ (2016) Leiden Journal of International Law Vol 29, 1043 J. B. White, The Legal Imagination (University of Chicago Press, 1973) ‘World Slams US Ceasefire Veto at UN Security Council on Israel’s Gaza War’, 21 February 2024, https://www​.aljazeera​.com​/news​/2024​/2​/21​/world​-condemns​ -uss​-latest​-un​-security​-council​-veto​-on​-gaza​-ceasefire

Legal Instruments and Judgments Charter of the United Nations, 1 UNTS XVI, 24 October 1945 Decision of the Constitutional Court of the Russian Federation on the Review of Constitutionality of Article 1 of Federal Law ‘‘On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and Additional Protocols Thereto’’, No. 21-П (July 14, 2015) European Convention for the Protection of Human Rights and Fundamental Freedoms, as Amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5 ICC Rules of Procedure and Evidence (2019), ICJ Rules of Court (1978) International Law Commission Study Group on Fragmentation, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group, Finalized by Martti Koskenniemi (13 April 2006, A/CN.4/L.682) (‘ILC Fragmentation Report’) Press Release Issued by the Registrar of the Court, ECHR 286 (2022), 16 September 2022 Republic of Philippines v. The People’s Republic of China, PCA Case No. 2013–19, Award Dated July 12, 2016 Resolution CM/Res (2022)2 on the Cessation of the Membership of the Russian Federation to the Council of Europe, Adopted by the Committee of Ministers on 16 March 2022 at the 1428ter Meeting of the Ministers’ Deputies South Africa v. Israel, Application Instituting Proceedings and Request for the Indication of Provisional Measures, 29 December 2023, https://www​.icj​-cij​.org​/ sites​/default​/files​/case​-related​/192​/192​-20231228​-app​-01​-00​-en​.pdf South Africa v. Israel, Order, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip, Request for the Modification of the Order of 28 March 2024, 24 May 2024, https://www​.icj​-cij​ .org​/sites​/default​/files​/case​-related​/192​/192​-20240524​-pre​-01​-00​-en​.pdf Statute of the International Court of Justice, 18 April 1946 (ICJ Statute);

Introduction  33 The Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Sentence (6 May 2021). The Prosecutor v. Dominic Ongwen, Judgment on the Appeal of Mr Ongwen against the Decision of Trial Chamber IX of 4 February 2021 Entitled ‘Trial Judgment’ and Judgment on the Appeal of Mr Dominic Ongwen against the Decision of Trial Chamber IX of 6 May 2021 Entitled ‘Sentence’, ICC-02/04-01/15 A and ICC02/04-01/15 A2 (15 December 2022) The Prosecutor v. Dominic Ongwen, Reparations Order, Case No. ICC-02/04-01/15 (28 February 2024) The Prosecutor v. Dominic Ongwen, Trial Judgment, Case No. ICC-02/04-01/15 (4 February, 2021); The Prosecutor v. Joseph Kony and Vincent Otti, (Warrant of Arrest) ICC-02/04-01/0553, (September 27, 2005) The Prosecutor v. Joseph Kony, Decision on the Prosecution’s Request to Hold a Confirmation of Charges Hearing in the Kony Case in the Suspect’s Absence, ICC02/04-01/05-466 (23 November 2023). UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, United Nations, Treaty Series, vol. 78, 9 December 1948 (Genocide Convention) UN General Assembly Resolution ES‑11/1, 2 March 2022 UN Human Rights Council, Cultural Rights: Tenth Anniversary Report - Report of the Special Rapporteur in the Field of Cultural Rights, A/HRC/40/53, 17 January 2019, para. 90 UN SC Resolution 2735 (2024), 10 June 2024, S/RES/2735 (2024) UN Security Council 8979TH Meeting, SC/14808, 25 February 2022, https://www​ .un​.org​/press​/en​/2022​/sc14808​.doc​.htm

2

Philosophical foundations of universality and the role of aesthetics in building international justice 2.0

Introduction There is a strong case for a revival of natural law theory as part of re-imagining international justice in the twenty-first century. The purpose is to rebuild the system of international justice around shared values, such as universality. The edifice of institutions and sources of international law developed in the aftermath of the Second World War is reaching its limits in the face of ongoing global challenges, such as territorial conquests, threats to energy security, health and biosafety, the climate emergency, and cyberspace vulnerability.1 All these problems call for a modified understanding of international justice and its formalised container. Given the fragmentation of narratives around current threats to humanity and how to respond to them, it is reasonable to search for a way to clearly define the values of international justice and align them with the activity of its agencies and actors. New consensus is sorely needed. The idea of universality has the potential to support the development of international justice in the twenty-first century. ‘Universality’ does not preclude the recognition of diverse historical, cultural and religious backgrounds of various regions around the world.2 The notion of cultural diversity is fully compatible with universality as national and regional particularities are celebrated simultaneously with the intention of upholding a shared commitment to the flourishing of humanity as a whole. The Special Rapporteur in the Field of Cultural Rights reinforced this point with respect to the aim of promoting and protecting human rights and fundamental freedoms in her 2016 report.3 This chapter is less concerned with formulating specific goals helpful in fostering collective well-being; it is rather focused on the lens of universality as such.4 The aesthetic experience facilitates human connection to what is common to

1  For more reasons to engage with aesthetics in re-imagining international justice, see Chapter 1. 2  Report of the Special Rapporteur in the Field of Cultural Rights, UN Doc. A/HRC/31/59, 3 February 2016 (2016 Report of the Special Rapporteur), para. 24. 3  Ibid., paras. 23–4. 4 See, for example, UN General Assembly, Transforming our World: The 2030 Agenda for Sustainable Development, A/RES/70/1, 21 October 2015. DOI: 10.4324/9781032628844-2

Aesthetics in international justice 2.0  35 all, namely the ability to perceive beauty.5 The object judged to be beautiful changes based on social conditioning, but the act of appreciation is universal. Natural law translates this universal ability to perceive – which is procedural in nature – into a shared impulse towards a limited number of goals that include life, knowledge, play and aesthetics.6 These goals are common to all humans. In this way, aesthetics is both a lens of perception opening a door to universality and one of the fundamental objectives for human striving. Thomas Jefferson famously included in his 1776 draft version of the US Declaration of Independence a reflection of this shared impulse – he formulated the inalienable rights belonging to every human, such as the preservation of life, liberty and the pursuit of happiness.7 The question remains as to the connection between individual pursuits and the collective functioning of institutions at a state and global level. Following Anthony Giddens’s theory of structuration, this chapter views ‘micro’ and ‘macro’ levels of operation of society as connected: individual actions and the interactional co-presence of human agents exist simultaneously with the systems spanning large sectors of time and space.8 Giddens helpfully acknowledges the limited agency of individuals operating on the basis of what they know and don’t know (what they are unconscious of).9 This activity is also reflected in the institutions on a macro level in a broader patterning of society.10 A shared drive towards basic goals is therefore present at all levels of society, including states and organisations. International justice 2.0 aims to establish such transversal integration of values across various agents operating in the field of international justice. There is a need for cross-fertilisation of ideas among diverse layers of actors on the global stage because states are losing their position as the sole subjects of international law. The starting premise of the centrality of the state as a major global ordering unit is also arguably the biggest obstacle to achieving an effective cross-sectoral integration of values. The following section explores two problems with the centrality of state in the old paradigm of international justice. The discussion then moves to some of the reasons why this moment is ripe for a quantum leap in the development of international justice 2.0. The next section discusses the relevance of aesthetic theory for re-imagining international justice. The penultimate section explores the core precepts of natural law with its focus on universality, while

 5  M. E. O’Connell, The Art of Law in the International Community (Cambridge University Press, 2019), 7.  6  J. Finnis, Natural Law and Natural Rights (2nd ed. Oxford University Press, 2011), 59–99.  7  T. Jefferson et al, July 4, Copy of Declaration of Independence, 07-04, 1776, Manuscript/ Mixed Material, https://www​.loc​.gov​/item​/mtjbib000159, emphasis added.  8  A. Giddens, The Constitution of Society: Outline of the Theory of Structuration (University of California Press, 1984), xxvi–xxxi.  9  Ibid. 10  Ibid.

36  Art, aesthetics and international justice the last part examines the possibilities of building a stronger bond between justice and aesthetics via the route of universality. Two problems with the centrality of state in global justice discourses There are many implications of this historically central position of states in the field of international justice, but two are most significant for the argument in this book. First, states assign national identities to individuals and thereby ‘shield’ them from the direct effects of international law. Secondly, state consent is fundamental for any significant international lawmaking. Focus on national identity

Re-imagining international justice starts with recognising what is shared beyond specific identities, such as nationality or allegiance. The background of the late 1940s to the early 1960s – when modern international justice institutions were formed – explains the core assumption pertaining to the need to assign fixed identities in international law, especially that of national identity. For instance, Article 15 of the 1948 Universal Declaration of Human Rights (UDHR) recognises the right to a nationality, which establishes the legal bond tying a person to a state.11 This provision ensures that no one is arbitrarily deprived of nationality. It was inspired, in part, by the policy of collectively stripping German Jews of their citizenship during the interwar period, leading the way to further discrimination.12 Citizenship is therefore recognised as a fundamental precondition for accessing rights, or the ‘the right to have rights,’ as Hannah Arendt famously quipped.13 The connection to the state, which is not freely chosen by most people, then generates rights and obligations based on national identity. The label of citizenship becomes seemingly inseparable from an individual and is a prerequisite for accessing the fruits of the global human rights movement. It is true that international law provides for the possibility of statelessness – this status is, however, largely contingent on being a refugee and carries a lot of liability for its holders.14 Individuals and corporations are therefore not subjects of international law and do not benefit from the direct protection of its norms. There are many caveats to this statement, including the direct effect of some regional norms, such as those developed in the European Union. There is also no illusion that any normative system produces both rights and ­obligations; 11  UN General Assembly, Universal Declaration of Human Rights, 217 A (III), 10 December 1948. 12  H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Viking Press, 1961). 13  H. Arendt, The Origins of Totalitarianism (Harcourt Brace & Co., 1979, originally published in 1951); M. Walzer, Spheres of Justice: A Defense of Pluralism and Equality (Basic Books, 1983). 14  A. Edwards and L. van Waas, Nationality and Statelessness under International Law (Cambridge University Press, 2014).

Aesthetics in international justice 2.0  37 hence the word ‘benefit’ is used here in the broadest possible way to denote expanded agency of individuals to determine their destiny irrespective of the constraints imposed by citizenship. Yet the field of international law is gradually expanding into the spheres conventionally viewed as states’ prerogative.15 There is a case to be made for reconsidering assumptions underlying the bond between states and individuals in light of the ongoing global shifts in time and space perception, which are powered by technology. Advances in artificial intelligence (AI) allow for building virtual spaces to be inhabited by humans through technology.16 Platforms such as UPWORK17 generate employment possibilities for freelance contractors on a global scale, transcending state borders and challenging the notion of territorial jurisdiction. In contrast, traditional citizenship firmly depends on one’s location. Messaging services, search engines and online social platforms ensure instant connectivity and immediate access to information. In contrast, citizenship uses the currency of time as it operates based on an intergenerational passage of title or a prolonged waiting time, in the case of naturalisation by residence.18 International law will inevitably reflect these shifts beyond merely addressing the regulatory implications of the diffusion of AI.19 International legal scholarship starts exploring what happens to international law as it becomes entrenched with AI.20 It is highly likely that international legal categories, such as ‘nationality’ (and its domestic law counterpart ‘citizenship’), will need to be reconsidered, taking into consideration these ongoing shifts.21 (Ir)relevance of state consent

Another reason to rethink international justice is its overall lack of coercive qualities that Hersch Lauterpacht – an early contributor to the modern system

15  I. Brownlie, Principles of Public International Law (7th ed. Oxford University Press, 2008); M. Shaw, International Law (6th ed. Cambridge University Press, 2008). 16  S. Shaw and D. Sui, Understanding the New Human Dynamics in Smart Spaces and Places: Toward a Spatial Framework (Routledge, 2021). 17  See https://www​.upwork​.com 18  N. Jain, ‘Manufacturing Statelessness’ (2022) American Journal of International Law Vol 116(2), 237; A. Shachar, The Birthright Lottery: Citizenship and Global Inequality (Harvard University Press, 2009). 19  M. Chinen, The International Governance of Artificial Intelligence (Edward Elgar, 2023); J. Lee, Artificial Intelligence and International Law (Springer, 2022). 20  M. Arvidsson and G. Noll, ‘Artificial Intelligence, Decision Making and International Law’ (2023) Nordic Journal of International Law Vol 92(1), 1; G. Dimitropoulos, ‘Artificial Intelligence and International Adjudication,’ Max Planck Encyclopedias of International Law, March 2023. 21  See Chapter 6.

38  Art, aesthetics and international justice of international law – considered essential for the functioning system of law.22 The authority is absent – in part – due to the fact that the modern international justice system is centred around state consent. This model is problematic for several reasons, including the complications of imposing standards on non-consenting states, the technical difficulties of locating the evidence of consent and the logical fallacy of there being no overarching norm that validates the law-creating effect of consent.23 It is for this reason that Martti Koskenniemi posited nearly two decades ago a core question for international justice: how to create a distance between state consent (with its inherent limitations) and the binding force of international law without having to assume a fully naturalistic position that renders consent irrelevant and opens the field to manipulation?24 There have been practical attempts to circumvent the problem of state consent by reliance on soft law. This approach is particularly relevant for the area of corporate regulation. Companies are not, strictly speaking, subjects of international law, yet it is impossible to ignore their global footprint. Soft law regulations are therefore embodying some of the global expectations of corporate conduct. These instruments are not formally binding on companies (and states), but they can be effective in generating limited compliance, which comes primarily from creating benchmarks for private decision-making.25 International law, by advancing its authority through binding and non-binding sources, creates some stepping stones that can be used by domestic officials in their deliberative practices when weighing different courses of action.26 For instance, one of the core standard-setting documents for sustainable corporate conduct is the UN Guiding Principles on Business and Human Rights.27 This document famously instructs corporations to avoid, prevent and mitigate adverse human rights impacts that are directly linked to their business activities, and in that respect, conduct human rights due diligence.28 Another prominent soft law example is the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights. This instrument expands the notion of territorial conception of responsibility

22  H. Lauterpacht, The Function of Law in the International Community (Oxford University Press, 1933), 437–8; O’Connell, supra note 5, 6. 23  M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press, 2005), 309–11. 24  Ibid., 313. 25  R. Howse and R. Teitel, ‘Beyond Compliance: Rethinking Why International Law Really Matters’ (2010) Global Policy Vol 1(2), 127. 26  B. Çali, The Authority of International Law: Obedience, Respect, and Rebuttal (Oxford University Press, 2015). 27  Office of the High Commissioner of Human Rights, ‘The Corporate Responsibility to Respect Human Rights: An Interpretive Guide’ (2012) HR/PUB/12/02, https://www​.ohchr​.org​/ documents​/publications​/gui​ding​prin​cipl​esbu​sinesshr​_en​.pdf 28  Ibid.

Aesthetics in international justice 2.0  39 by directing states to take measures to reduce the risk of impairing the enjoyment of rights extraterritorially.29 The Maastricht Principles have a strong universalist ambition in that they create an additional justificatory mechanism for the enforcement of human rights law in an extraterritorial fashion.30 More specifically, they identify states as universal duty bearers of human rights obligations. Such a designation, in turn, assists in establishing jurisdiction when it comes to the actual enforcement of the rights and guarantees referred to in the Maastricht Principles. The instrument ensures that states must adopt measures to protect rights when the corporation or its parent company is domiciled in the country or when there is a reasonable link between the state concerned and the conduct it seeks to regulate, even where relevant aspects of a non-state actor’s activities are carried out outside of the state.31 This provision facilitates regulatory action at a state level aimed at enhancing corporate compliance with measures preventing transboundary harm. While the soft law instruments desire to fill in the gaps left by the lack of the binding sources in international law, they still face the same challenges of enforcement and fragmentation that are characteristic of the general paradigm of international justice, which relies on vertical enforcement through states. This book suggests viewing the authority of international justice as being rooted in the same core of universality that is revealed through the universality of perception. This position does not purport to answer the question of how to modify or work around the idea of state consent in international law. Natural law theory and aesthetics can rather provide an alternative theoretical grounding for modern international justice. The intersection of the fields of justice inspired by natural law and aesthetics generates an authoritative centre of international justice 2.0, grounded in contemplation and neutrality of perception. The vantage point of an external observer or a third person is a first step in addressing global coordination challenges. Changing the observational standpoint leads to new ideas and required transformations. There is no contradiction between a consent-orientated model and a naturalistic position. They are complementary because natural law simply reflects what is already true but may not be fully articulated through positive law or the activity of specific institutions of international justice. The task is then to reveal the inherent authority through contemplation. This, in turn, results in bringing the idea of universality within the ambit of practice. The remaining question – prior to building a new authoritative account of

29  Principle 13 of the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2013) (Maastricht Principles), https://www​.fidh​ .org​/IMG​/pdf​/maastricht​-eto​-principles​-uk​_web​.pdf 30  A. Müller, ‘Justifying Extraterritorial Human Rights Obligations: An Ethical Perspective’ in M. Gibney et al. The Routledge Handbook on Extraterritorial Human Rights Obligations (Routledge, 2021), 62. 31  Principle 25(3) (c–d) of the Maastricht Principles.

40  Art, aesthetics and international justice international justice – is whether causes and conditions are ripe for imagining new structures. The moment of consensus Time is right for re-inventing the field of international justice. International law is habitually perceived in a linear fashion as a gradually evolving system of norms.32 Conventionally, legal professionals measure its achievements by assessing the existing sources of international law – treaties, customary international law and the general principles of law.33 As mentioned earlier, such a view is guided by the focus on outcomes rather than processes. If one prioritises dynamic approaches,34 however, it is possible to see the entire architecture of the international global order in a different light. International law is being shaped around critical moments in history conducive to consensus building. The three significant juncture points are presented below. There is no intention of being comprehensive, but rather the idea is to illustrate how the intense collective realisation of global interconnectedness inspires each moment of consensus. The first significant point of consensus in recent history occurred in the aftermath of the Second World War, when nations were prompted to tackle collectively a crisis perceived as a threat to humanity as a whole. The entire structure of the United Nations (UN) as a global institution was conceived precisely at this moment with the principal aim of preventing aggressive war.35 The drafting of the UN Charter began on 25 April 1945 in San Francisco. The document was adopted two months later and came into effect on 24 October 1945, a mere six months after work had started.36 With the memory of mass atrocities still fresh in the psyche of policymakers, the necessary momentum and motivation emerged for taking decisive and much-needed action. The process started in the 1940s and it gave rise to the UN human rights system, international criminal law, and the global economic order (the World Bank, International Monetary Fund, General Agreement on Tariffs and Trade). The second point of consensus initiating another wave of international institutions and instruments can be traced back to the late 1980s and early 1990s when Francis Fukuyama famously announced ‘the end of history’ – a time when the ideologies of fascism and communism appeared to have been

32  See, e.g. N. Arajärvi, The Changing Nature of Customary International Law: Methods of Interpreting the Concept of Custom in International Criminal Tribunals (Routledge, 2014). On the limits of linearity in studying social change more broadly, see Giddens, supra note 8, xxviii. 33  For example, H. Thirlway, ‘The Sources of International Law’ in M. D. Evans (ed.) International Law (3rd ed. Oxford University Press, 2010). 34  R. Collins, Interaction Ritual Chains (Princeton University Press, 2004). 35  A. Slaughter and W. Burke-White, ‘An International Constitutional Moment’ (2002) Harvard International Law Journal Vol 43(1), 1. 36  Charter of the United Nations, 24 October 1945, 1 UNTS XVI (UN Charter).

Aesthetics in international justice 2.0  41 defeated.37 The creation of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda through unanimous resolutions of the UN Security Council was one manifestation of this surge in internationalism. That said, one may object that their establishment was rather a sign of the inability of global actors to prevent mass atrocities from unfolding.38 Yet, the mere fact that enough support was garnered to create these institutions – an outcome that appeared far from certain to some circles at the time39 – was a sign that the international community agreed on at least some measure of collective response, however imperfect. The UN Security Council failed to exhibit similar solidarity in the 2000s with respect to the situations in Syria and North Korea.40 A constellation of current global challenges makes it possible to conclude that we are now living through a third wave of consensus building. The need for cooperation at all levels of national and supranational hierarchy is indispensable for tackling the problems of territorial conquests, global pandemics, lack of critical approaches to information and ensuing polarisation of societies, wealth inequality, climate crisis and increasingly interconnected cyberspace producing vulnerabilities on a global scale. All of these developments reveal once again the interconnected nature of humanity. At the same time, they also put the system of international law – conceived around state consent – to the test by exposing major lacunae in the discipline.41 The current ‘operating system’ of global governance based on a state-centric model is outdated because it does not account for the modern heteropolar world with various actors – states, corporations, non-governmental organisations and alliances shaping the global discourse. The original purpose of the institutions of international justice was to maintain peace and prevent war among nations in the context of the post-World War II world.42 Only a handful of nations dominated all the decision-making space in the 1940s when current system was conceived.43 This imbalance of power at the time of creation is – in

37  F. Fukuyama, ‘The End of History?’ (1989) The National Interest Vol 16, 3. 38  P. Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities? (2001) American Journal of International Law Vol 95(1), 7. 39  M. J. Matheson and D. Scheffer, ‘The Creation of the Tribunals’ (2016) American Journal of International Law Vol 110(2), 179. 40  Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution, 22 May 2014, Security Council SC/11407, Press Release, https://press​.un​.org​/en​/2014​/sc11407​.doc​.htm; L. Charbonneau, ‘U.N. Draft Urges ICC Referral for North Korea, but Pyongyang Fights Back,’ Reuters, 9 October 2014, https://www​.reuters​.com​/article​/us​-northkorea​-un​-idU​SKCN​0HY2​2P20​141009 41  P. Allott, ‘Beyond War and Diplomacy. A Giant Step for Mankind’ (2017) German Yearbook of International Law 60, 269. 42  Lauterpacht, supra note 22; O’Connell, supra note 5. 43  M. Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) Harvard Journal of International Law Vol 42, 201.

42  Art, aesthetics and international justice part – to blame for the current crisis of the model centred around states and their consent. One way to showcase the imbalance is to look at the inherently indeterminate nature of the sources of international law listed in Article 38(1) of the Statute of the International Court of Justice.44 Rosalyn Higgins correctly noted back in 1995 that international law is not just a set of rules but rather a normative system premised on consent and sovereignty.45 Higgins’s argument still stands to the extent that she viewed international law as a process for attaining common universal interests, namely human survival, and not merely a set of rules to be rigidly applied.46 Some flexibility around the sources is then permissible and even desirable. Thinking about international law as an elastic normative system is helpful in resolving queries relating to its fragmentation,47 but it does not settle the bigger concern relating to the inability of the key players currently constituting the decentralised system of governance to agree on common rules of engagement.48 The current challenge is that – unlike in the 1940s or the 1990s – there is no consensual ground for starting the discussion on how to tackle common threats because there exists no agreement on the very premises of our shared reality.49 The fragmentation of narratives is a shadow side of the global interconnectedness via technology. Populist governments seize on constantly emerging informational echo-chambers to score political advantages. Nationalism, identity politics and tribalism then thrive at the expense of coming together as a global community in appreciating our shared future. The film Don’t Look Up (2021) demonstrated this problem with utmost clarity. Enhanced mutual assistance in the form of cooperation seems to be the only way to secure the evolution of international justice. New institutions of global governance must be created to support the original ways of global engagement reflective of these ‘third wave’ challenges. In this period, the process of unlearning the old patterns of thought and unleashing imagination assists in

44  See critical discussion of the sources of international law in B. Simma and P. Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1988–1989) Australian Yearbook of International Law 12, 82; Arajärvi, supra note 32; B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge University Press, 1987); G. J. H. van Hoof, Rethinking the Sources of International Law (Kluwer, 1983). 45  R. Higgins, Problems and Process: International Law and How We Use It (Oxford University Press, 1995), 1–11. 46  Ibid., emphasis added. 47  International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682, 14 April 2006 (finalised by Martti Koskenniemi). 48  M. Aksenova and I. Marchuk, ‘Reinventing or Rediscovering International Law? The Russian Constitutional Court’s Uneasy Dialogue with the European Court of Human Rights’ (2018) International Journal of Constitutional Law Vol 16(4), 1343. 49  Ibid.

Aesthetics in international justice 2.0  43 crafting new pathways for building institutions and processes. Technological advancement offers an opening for greater self-empowerment of various actors and not just states. Theories of art and aesthetics The normative foundation of aesthetic theories is instrumental for re-thinking international justice around the idea of universality. In arguing for the integration of aesthetics in the process of contemplation when designing international justice 2.0, it is helpful to clarify some basic assumptions about the nature of art and aesthetics. These concepts are notoriously difficult to define because any framing depends on the philosophical or ideological school of thought from which it originates.50 Any definition is therefore ‘coloured’ by the larger context in which the discussion takes place. In addition to that, there is inherent subjectivity in the process of experiencing art. Mieke Bal, a cultural theorist, refers to this process as ‘focalisation’.51 Experiencing art is filled with unknowns, as the meaning that a piece of art carries may change with the passage of time and from person to person.52 This section does not purport to offer a comprehensive analysis of the definition of aesthetics and art but only focuses on a few accounts, sufficiently distributed across time and space. The intention is to discern common threads running through distinct philosophical traditions of aesthetics and connect them to the field of justice. Immanuel Kant

Immanuel Kant’s Kritik der Urteilskraft of 1790 – accurately translated as ‘The Critique of the Power of Judgment’ – is helpful in explaining aesthetics in the context of universality.53 This work primarily concerns itself with the nature of judgment and how it is exercised. Kant argues that the power or the faculty of judgment is the capacity to think ‘particular as contained under the universal.’54 This power manifests itself either by determining or by reflecting. The former process is ethical in nature as it presupposes the existence of a predetermined rule or principle that subsumes the particular when it arises. Kant expands on ‘determining’ types of judgment in his Kritik der reinen Vernunft or ‘The Critique of Pure Reason’ (1781).55 One can argue that the traditional legal method is primarily an expression of determining judgments:

50  S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125. 51  M. Bal, Reader (University of Chicago Press, 2006), 253. 52  Ibid. 53  I. Kant, Critique of Judgement, translated by Werner S. Pluhar (Hackett Publishing, 1987). 54  Ibid., Introduction IV, 5:179. 55  Stanford Encyclopedia of Philosophy, Kant’s Aesthetics and Teleology, revised 13 February 2013, https://plato​.stanford​.edu​/entries​/kant​-aesthetics/​#3.1

44  Art, aesthetics and international justice an abstract legal rule is engaged to solve a factual problem. This method is effective to the extent that the whole body of legal discourse is accepted as given, including all the implicit assumptions underlying it. Notions such as sovereignty, statehood or consent have little meaning independent of the structures that gave rise to these terms. The legal argument is then a movement between different argumentative positions based on a limited set of underlying assumptions. It oscillates between the rules and the processes that these rules are regulating.56 The second function of judgment discussed in Kritik der Urteilskraft – namely reflecting – refers to finding the universal in particular without necessarily having a prior concept.57 This is in contrast with determining judgments that need a higher organising principle to be operational. The aesthetic judgment is merely reflecting, and it often engages feelings, including the feeling of pleasure.58 The judgment of beauty is a subcategory of an aesthetic judgment. Kant describes the judgment of beauty as ‘disinterested’ in the sense of not having a practical purpose aside from the free play of imagination.59 This type of judgment makes a claim to universal validity – a pre-conceptual agreement of everyone who judges the object as beautiful.60 The basis for universality is to be found in our shared ability to appreciate beauty.61 Universality – for Kant – then manifests itself through the mode of perceiving rather than any specific object perceived.62 Abhinavagupta

The Kashmiri scholars of the ninth- to eleventh-century India, most prominently Abhinavagupta,63 produced a highly sophisticated account of aesthetic theory that precedes more well-known theories, such as the one formulated by Immanuel Kant in the late eighteenth century.64 There are, however, many parallels between the accounts developed in Kashmir and the ones later formulated by Kant and his successors.65 Abhinavagupta describes aesthetic experience as nothing but a capacity for wonder more elevated than an ordinary

56  Koskenniemi, supra note 23, 7. 57  Kant, supra note 53, Introduction IV, 5:17. 58  Ibid., § 1. 59  Ibid., § 10. 60  Ibid., § 6. 61  Kant, supra 53, §17; O’Connell, supra note 5. 62  Kant, supra note 53, Introduction IV, 179. 63  D. H. J. Ingalls et al. (eds), The Dhvanyaloka of Anandavardhana with the Locana of Abinavagupta (Harvard University Press, 1990); R. Gnoli, The Aesthetic Experience According to Abinavagupta (4th ed. Chowkhamba Sanskrit Series Office, 2015). 64  S. Pollock, A Rasa Reader: Classical Indian Aesthetics (Columbia University Press, 2016), 4. 65  Gnoli, supra note 63, XXX.

Aesthetics in international justice 2.0  45 one.66 This capacity for wonder, or camatkāra, is an act of immersing oneself in the ‘tasting’ of one of the fundamental mental states suggested by the creative context. These artistically induced mental states, or rasas, resemble the fundamental feelings, instincts, emotions or mental states experienced in ordinary life, such as, for instance, delight, anger, disgust, fear, and sorrow.67 Yet, rasas are distinct because they are experienced in an artistic play. Framing any aesthetic experience in terms of the ‘flavours of consciousness’ or rasas explains the process of the temporary dissolution of regular personal awareness. The context of art allows the observer of the artistic piece to leave behind – for the duration of the experience – all the events associated with ‘I’ in practical life.68 The idea of justice in a communitarian sense of the word, which is discussed in the following section, relies precisely on this neutral vantage point. The action is taken not from a regular individualised locus of awareness that denotes self-preference but rather it is based on the ‘third-person’ point of view.69 The neutral stance induced by the context of an aesthetic experience (such as a theatrical performance) allows occurrences that would otherwise trigger rejection or pain to be experienced as pleasure. Aesthetic experience, therefore, frees individuals from personal investment and allows for the universality of perception.70 Theodor Adorno

Theodor Adorno is one of the most prominent philosophers of aesthetics within the Marxist school of thought of the 1960s.71 Adorno, in the famous Aesthetic Theory, acknowledges the difficulty of defining art and chooses to describe it through dialectical exercises by resorting to contradictions while simultaneously upholding the limit to these contradictions. Art has two elements: ‘import’ – art’s form and content – and ‘function’ – the work’s purpose.72 He then dwells extensively on the contradiction between the components of import – the form and content – emphasising the essential nature of the ‘truth content’ of art, or the way in which artwork simultaneously challenges the way things are and suggests how they could be.73 The aesthetic process unveils hidden potentiality inherent in any moment of conscious experiencing. Human thought then conceals it again by superimposing the existing analytical categories aiming to describe the experience or give it form.

66  Ibid., XLVII. 67  Ibid., XV. 68  Ibid. 69  Finnis, supra note 6, 143. 70  Gnoli, supra note 63, XXII. 71  L. Zuidervaart, ‘Theodor W. Adorno’ The Stanford Encyclopedia of Philosophy, Winter 2015 Edition, https://plato​.stanford​.edu​/archives​/win2015​/entries​/adorno/ 72  T. Adorno, Aesthetic Theory (Continuum, 1997, originally published 1970), 100, 227. 73  Ibid., 132.

46  Art, aesthetics and international justice Importantly, Adorno underlines the fluidity of art, which exists in relation to what it is not – the historical origins of its production. In Adorno’s words, ‘art’s servitude to kings and amusement’ is not to be held against it as its original sin because ‘truth exists exclusively as that which has become.’74 This statement underlines the distinction between the purpose of art (created for amusement) and possible revelations it produces. The sets of contradictions identified by Adorno illuminate the effects of art without necessarily providing a comprehensive definition. The ‘truth content’ of art is an inalienable part of the art object and the aesthetic experience of the art. Art reveals truth that is not so easily captured by formalised knowledge because experiences, such as suffering, remain foreign to knowledge.75 Knowledge can subordinate them conceptually and provide means for improving certain conditions – the amelioration of suffering – but it cannot express through its own means the experience without becoming itself irrational.76 Art and knowledge are thus complementary in revealing truth. Art cannot be reduced to rationalistic determinations, but it contains an implicit need for interpretation.77 By demanding such interpretation, it invites philosophical reflections. According to Adorno, this alone is the justification of aesthetics.78 The ‘truth content’ of art is yet another helpful pointer to the universal nature of human experience. It pivots in the same direction as Kant’s reflective judgments finding the universal in particular and Abhinavagupta’s theory of rasas. One can say that the mere fact of experiencing in the context of an aesthetic contemplation allows for a deeper internalisation of suffering.79 For instance, international criminal justice frequently faces the limitations of ‘knowledge’ categories when it comes to addressing immense collective suffering and difficult moral dilemmas accompanying mass atrocities. Prosecuting former child soldiers is one such example.80 There are limits to ethical judgment when it comes to deciding on the guilt or innocence of someone brought into the war as a child. In these or similar conditions of human frailty, desisting from criminality in the culture of obedience requires extraordinary courage.81

74  Ibid., 3. 75  Ibid., 18. 76  Ibid. 77  Ibid., 128. 78  Ibid. 79  The pitfall in this process that Adorno identified in his other work is the challenge of aesthetic representation glamourising the horrors by reducing them to an image or a depiction. See T. Adorno, Can One Live after Auschwitz? A Philosophical Reader (Stanford University Press, 2003), 252. 80  The Prosecutor v. Dominic Ongwen (Judgment), ICC-02/04-01/15, (6 May 2021); see also Chapter 1. 81  See more generally S. Milgram, Obedience to Authority: An Experimental View (Tavistock, Pinter & Martin, 1974).

Aesthetics in international justice 2.0  47 John Dewey

John Dewey – a twentieth-century art historian and philosopher – also focuses on the nature of art as an experience. He builds a theory of aesthetics contending that creativity is governed by the laws of nature and is not separate from the ongoing human striving to find meaning.82 The truth content of art is exposed not by logic but through revelation. In other words, art is an aesthetic experience imbued with certain qualities illuminating the deeper nature of things.83 Dewey saw art as a form of purposeful communication. This position may first appear at odds with Kant’s emphasis on the disinterested nature of beauty.84 While it is not fundamental for the argument in this chapter to bring coherence to various accounts of aesthetics, it is helpful to outline the points of intersection supporting the overall idea of the universality of human perception. It is true that Kant’s Kritik der Urteilskraft separates aesthetics and teleology into two strands of thought. This distinction is particularly clear when Kant describes how beautiful objects are produced. They are not produced by learning and then applying rules to achieve certain outcomes; rather, there is artistic ‘genius’ by which ‘nature gives rise to art.’85 The judgments of beauty are based on the feeling of pleasure, which is distinctive as it is disinterested.86 Kant discusses teleology and purposiveness in the second part of his work, where he explains the algorithms governing all living beings in nature as well as human cognitive processes. Furthermore, Kant distinguishes between pure judgments of beauty and those motivated in part by their conceptual appeal. He thereby draws a distinction between a purpose and concept-driven notion of beauty and the ‘free’ kind.87 These multiple categories reveal Kant’s own uneasiness with the idea of true beauty not having a purpose. Despite different approaches to the role of purposiveness in art, Kant’s and Dewey’s positions are not fully incompatible. One of Dewey’s core concerns about Kant’s view of aesthetics is Kant’s over-intellectualisation of the process of creation.88 It is therefore understandable that these two thinkers approach art at different levels of abstraction: Dewey focuses on the relational aspect of an aesthetic experience as accompanying all human rituals with its capacity to bring certain order to the chaos of life. This capacity distinguishes it from an ordinary experience, which lacks the same aesthetic framing. Kant reasons from a different level of abstraction as he rather dwells on the specific qualities

82  J. Dewey, Art As Experience 7 (Capricorn Books, 1958) (1934). 83  Ibid. 84  R. Shusterman, ‘Dewey’s art as experience: The psychological background’ (2010) The Journal of Aesthetic Education Vol 44(1), 26. 85  Kant supra note 53, §46, 307. 86  Ibid, §§1–5. 87  Ibid., § 16. 88  Shusterman, supra note 84.

48  Art, aesthetics and international justice of the experience of beauty. The disinterestedness of pleasure that stems from the judgment of beauty refers to the universality of perception as there is no prior concept setting out the evaluative framework for such judgment. This account is not relational. Simon O’Sullivan

Finally, the postmodernist accounts of art and aesthetics attempt to distance themselves from any ideological baggage and simply capture the functional aspect of an aesthetic experience.89 ‘Function’ in this context goes beyond Adorno’s understanding of art’s function as its social purpose and beyond art’s communicative capacity as a meaning-making tool.90 The work of Simon O’Sullivan is helpful in explaining this specific vision. O’Sullivan observes that art is not merely an object of knowledge to be studied from the perspective of representation but something that produces affects.91 O’Sullivan explains that seeing art from the ‘representational’ angle traditionally means one of two things: either one speaks of the moment of art’s production, which entails adopting the historical lens through which the object of art is viewed, or, alternatively, it means that one foregoes the historical explanation and resorts to the framework of deconstructivism. This latter position still refers to art as an object, which forms part of the representational discourse.92 But even after the deconstruction exercise, the object of art remains and continues to produce affects. Affects are moments of intensity and a reaction in the body at the level of matter.93 Affects and tasting of the rasas – or induced mental states – are comparable terms to discuss art’s capacity to produce transformation through observation. O’Sullivan’s complex vision of art exposes art’s dual function: to represent and interpret reality and to create direct human experience, connecting us to ourselves through aesthetics. Art goes beyond language and even beyond the representation of meaning by creating direct experience. It facilitates the channel of communication between the observer and the observed, dispensing with the dimensions of time and space.94 In other words, art creates room in which the attention of the observer is redirected in a way that he or she perceives the world in an unfamiliar way. This capacity to shift the focus of attention is a

89  C. Owens, ‘The Allegorical Impulse: Towards a Theory of Postmodernism’ (1980) The MIT Press Vol 12, 67; W. Benjamin, ‘The Work of Art in the Age of Mechanical Reproduction’ in H. Arendt (ed.) Illuminations: Essays and Reflections, translated by Harry Zohn (Schocken Books, 1968). 90  Dewey, supra note 82. 91  O’Sullivan, supra note 50. 92  Ibid., 125–6. 93  Ibid. 94  Ibid.

Aesthetics in international justice 2.0  49 universal attribute of humanity, regardless of the object towards which or away from which the attention is shifting. Pierre Bourdieu

Various definitions of art and aesthetics discussed in this section shed light on art’s capacity to shift gears of perception and expose truths that cannot not be expressed in a purely conceptual language. These features are universal in the sense of being available to any person regardless of their social conditioning. Aesthetic judgment allows anyone to step into the shoes of a disinterested observer not involved in the drama of everyday life. Pierre Bourdieu, a French sociologist of the twentieth century, introduces a powerful critique of the latter statement in his observation that the ‘pure gaze’ of an aesthetic judgment, which indeed implies a break with the ordinary attitudes towards the world, is no longer available in popular culture.95 This critique deserves a short elaboration here. Bourdieu’s thesis is that the Kantian aesthetics distinguishing that which pleases from that which gratifies does not hold when it comes to the ‘working class’ people engaging with art on a functional basis. Bourdieu describes this process as seeking ‘facile’ involvement and ‘vulgar’ enjoyment based on taste preferences.96 Bourdieu then draws a distinction between intellectuals invested in representation itself in theatre, literature and paining, and ordinary people who chiefly expect gratification from things represented.97 The former category takes an elective distance from the necessities of the social and natural world – they preserve the sacred space of culture by engaging in a refined and disinterested pleasure.98 This stance is, however, only possible in a life of ease predicated on favourable economic conditions. The latter group engages in a ‘vulgar’ enjoyment by either rejecting or praising any given piece of art, depending on conditioning. This way, every image explicitly performs a function as a reference point for an ethical judgment.99 Bourdieu then concludes that art and culture are not fully ‘disinterested’ as they are predisposed to fulfil a function of legitimating social differences.100 Walter Benjamin

Bourdieu’s point echoes in Walter Benjamin’s essay ‘The Work of Art in the Age of Mechanical Reproduction,’ in which he explores the effects of the

 95  P. Bourdieu, Distinction: A Social Critique of the Judgement of Taste, transl. by R. Nice (Harvard University Press, 1984), original French edition published in 1979.  96  Ibid., 4.  97  Ibid., 5, emphasis added.  98  Ibid., 7.  99  Ibid., 4–5. 100  Ibid., 7.

50  Art, aesthetics and international justice culture of reproduction on traditional aesthetic values.101 Benjamin argues that mechanical reproduction of art – especially in the form of films and photographs – changes the reaction of the ‘masses’ toward art.102 Art loses its authenticity in reproduction, and it becomes prone to criticism by the general public. Collective viewing detached from the original then reduces the scope for a more individualised contemplation invited by an authentic piece of art. The processes of receptivity and criticism (judgment) are thus happening simultaneously when it comes to reproducible art.103 Intermediate conclusion – an aesthetic lens of perception

The starting point of aesthetic philosophy developed by Kant, Abhinavagupta, Dewey and O’Sullivan is, however, quite distinct from the one guiding Bourdieu and Benjamin. The latter two philosophers engaged with aesthetics to craft broader arguments about society’s relation to wealth, class, and tyranny. Bourdieu, in his unravelling of the idea of ‘disinterested’ pleasure, focuses too narrowly on the individual locus of awareness by linking it to conditioning. It is implausible that our shared capacity for wonder – camatkāra – is obfuscated in persons applying their preferences to the work of art. Rather, as Benjamin noted in his piece, the processes of receiving the work of art and criticising it are happening all at once. Abhinavagupta sees nothing wrong in individual identification with the characters of a play. He does not view it as ‘vulgar’ but rather as part of our shared capacity for wonder. The spectators allow themselves to be fully immersed in the ‘tasting’ of the aesthetic experience without the burdens of everyday life.104 The agency of the observer, which includes the totality of his or her life conditioning, is therefore less crucial in the process of switching the register of perception. This process of camatkāra remains equally intact regardless of whether the medium of art is authentic or reproduced. It is rather the creative context that invites the ‘disinterested’ gaze. There is therefore no problem with applying judgment to the work of art as wider understanding of appreciation includes its rejection or approval. In other words, by choosing to associate with characters, ‘ordinary’ people – in Bourdieu’s terms – get a break from regular consciousness and exercise contemplation even when it is coloured by their attractions and aversions. This section discusses the quality of art as being indeterminate and a vehicle for inducing contemplation. This quality stands in sharp contrast with the way international law operates. For instance, international trials result in judgments

101  Benjamin, supra note 89. 102  Ibid., 229–31. 103  Ibid. 104  Gnoli, supra note 63.

Aesthetics in international justice 2.0  51 – legal outcomes expressly signalling finality.105 This ‘finality’ may be elusive as it frequently fails to bring closure to the conflict giving rise to the judgment in the first place.106 Nonetheless any law, including international law, makes a claim to determinacy.107 The idea of justice is – in contrast – infinite and irreducible because it is owed to the other prior to any contract or arrangement.108 Jacque Derrida helpfully points out that to be just, the decision of a judge must not only follow a rule of law but must also assume it and interpret it anew: each exercise of justice through law constitutes a ‘fresh judgment.’109 Justice is then a form of an operational principle that informs the legal process. The following section explores the idea of universality of justice from the perspective of natural law. Natural law theory in a nutshell Natural law theory offers a pathway to connect to the universal core of (international) justice, thereby fostering a stronger sense of authority within the discipline. It does so by focusing on what is just in all times and places, independent of people’s interpretations of it.110 One of the earliest statements on natural law proper can be found in the works of Thomas Aquinas in the thirteenth century.111 Aristotle’s philosophy can be seen as giving rise to the assumptions underlying the theory of natural law later developed by Aquinas.112 Aristotle draws a core distinction between what is just in itself – by nature or in its idea – and what derives its sole title to be just from convention and enactment.113 This distinction resembles the modern division between natural law and positive law, but Aristotle did not necessarily view it as such, since the Greek philosophical thinking at that time

105  M. Aksenova and A. N. Rieff, ‘Setting the Scene: The Use of Art to Promote Reconciliation in International Criminal Justice’ (2021) Leiden Journal of International Law Vol 33(2), 495. 106  M. Tripkovic, ‘Not in our Name! Visions of Community in International Criminal Justice’ in M. Aksenova, E. van Sliedregt and S. Parmentier, Breaking the Cycle of Mass Atrocities: Criminological and Socio-Legal Approaches in International Criminal Law (Hart, 2019). 107  J. Derrida, ‘Force of Law: The “Mystical Foundation of Authority,”’ in Deconstruction and the Possibility of Justice in D. Cornell, M. Rosenfeld and D. Carlson (eds) Deconstruction and the Possibility of Justice (Routledge, 1992), 251. 108  Ibid., 254. 109  Ibid., 251. 110  Aristotle (384–322 BCE) holds that what is ‘just by nature’ is not always the same as what is ‘just by law,’ that there is a natural justice valid everywhere with the same force and ‘not existing by people’s thinking this or that,’ and that appeal can be made to it from positive law. See ‘Natural Law’ Encyclopaedia Britannica, https://www​.britannica​.com​/topic​ /natural​-law 111  T. Aquinas, Summa Theologiae I–II, q. 95, https://www​.newadvent​.org​/summa​/2094​.htm​ #article1 112  R. Pound, An Introduction to the Philosophy of Law (Yale University Press), 25–6. 113  Ibid.

52  Art, aesthetics and international justice did not differentiate law and morals.114 The relevance of the distinction was rather to stress the universal validity of justice and its more contained manifestation as a rule of law.115 Interestingly, what is ‘just by nature’ in Greek philosophy is independent of evolution – the ‘natural object’ is not the one going back in time but the one most accurately expressing ‘the idea of the thing’ in the moment.116 By that logic, natural law is that which perfectly expresses the idea of law, and a specific rule is a perfect expression of natural law applied to the subject in question.117 Thomas Aquinas in the Middle Ages lays down the foundations of natural law by expressly acknowledging the common impulse inherent in all humans. Aquinas distils an algorithm based on reason that all people strive towards good and seek to avoid evil.118 The power of this simple formula lies in transcending the superficial distinctions related to status and identity. Natural law then reflects the most fundamental inclinations of the human condition and outlines a conception of justice as a vehicle directing men in their relations to others according to some kind of equality or rightness.119 Importantly, the terms ‘just,’ ‘right,’ or ‘equal’ are only meaningful in relation to something else. They refer to the process of seeking good and avoiding evil in a communal sense. Accordingly, that which is ‘just’ is that which provides for a certain form of equality or consideration in relational terms – a man’s work is ‘just’ if payment for his service is offered.120 Natural law philosophy is thus an adequate starting point in building a thicker account of international justice as a system orientated towards the values of cooperation in a community and human flourishing. John Finnis – a twentieth-century natural law philosopher – brings more specificity to the theory as he identifies an exhaustive list of seven basic goods pursued by all humans: life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness and religion.121 It is significant that the aesthetic experience is expressly acknowledged as one of the goods.122 The underlying premise of this approach is the existence of a common core uniting everyone. People universally share the same objectives when it comes to pursuing a limited set of goods – the scale of pursuits and the list of priorities may shift depending on the external conditions, but the essential drive remains

114  Ibid., 26–7. 115  Ibid., 26. 116  Ibid., 31. 117  Ibid., 32. 118  T. Aquinas, Summa Theologiae I–II, q. 95, https://www​.newadvent​.org​/summa​/2094​.htm​ #article1 119  T. Aquinas; Summa Theologiae II–II, 57, 1, https://www​.newadvent​.org​/summa​/3057​ .htm​#article1 120  Ibid. 121  Finnis, supra note 6, 59–99. 122  Ibid, 87.

Aesthetics in international justice 2.0  53 uniform. As mentioned in the introduction to this chapter, it is possible to locate the same shared inclinations not just in individuals but also in institutions and states as patterns of behaviour are reflected at different levels of society.123 Focusing on what is shared invites a welcome shift from tribalism and identity politics – a trend amplified by social media and populism that plagued the second decade of the twenty-first century. The elements listed by Finnis thus comprise the notion of good and well-being. The list is closed because, according to Finnis, the other goods will c­ onstitute the ways of pursuing or realising one of the basic goods.124 The idea of ‘good’ in formulating this list stems from man’s (or institution’s) natural inclination – a feature he or she shares with all the substances in nature – with the ultimate goal being self-preservation.125 One seeks to attain these elements as an individual, but also as a member of the community. As Thomas Aquinas wrote:126 since every part is ordained to the whole, as imperfect to perfect; and since one man is a part of the perfect community, the law must regard properly the relationship to universal happiness. Justice, then, provides a framework for the realisation of these goods in community, and law is a coercive instrument for such distribution.127 John Finnis conceptualises justice as a quality of character in the sense that it embodies the practical willingness to favour and foster the common good of one’s communities. The theory of justice developed by Finnis outlines the way in which this can be achieved.128 This process includes becoming conscious of a network of actors operating in any society (individuals, families, specialised associations) and the need to coordinate them in an impartial way.129 The objective of collective flourishing – ascertained from the vantage point of a neutral observer (and not of a beneficiary) – guides the distribution of resources.130 Detachment from advocating for an interested party as well as prioritising one moment of time over any other moment cultivates a stance conducive

123  Giddens, supra note 8, xxvi–xxxi. 124  Ibid., 90. 125  T. Aquinas, Summa Theologiae (ST II.I.94:2), http://www​.newadvent​.org​/summa​/2094​ .htm 126  Ibid., ST I.II.90:2. 127  Robert Nozick conceptualises the state as a dominant protective association that reserves for itself the right to judge any procedure of justice to be applied to its clients. He understands justice in a procedural sense as a moral restriction on the use of force by the dominant association, i.e. state. According to this reasoning, only the minimal state can be justified, for any state that is more extensive violates people’s rights. See R. Nozick, Anarchy, State and Utopia (Blackwell, 1974), 101, 149. 128  Finnis, supra note 6, 165. 129  Ibid., 149, emphasis added. 130  Ibid., 166.

54  Art, aesthetics and international justice to overcoming self-preference in the distribution of communal goods.131 This version of justice is referred to as ‘commutative justice’ – a term first coined by Thomas Aquinas.132 Law serves to back up the system of justice. The starting point of natural law as deriving from a higher order of principles inherent in human nature does not mean that this theory rejects the idea of law as a social fact altogether. Thomas Aquinas posits that law consists in part of rules which are derived as conclusions from the general principles of natural law, and in part of determinations, or implementations of the general directives.133 For instance, ‘one shall not kill’ is a conclusion derived from the general principle of doing no harm, while punishing the evildoer is rather a determination of the law of nature.134 The second rule is fully man-made and thus has no other force than that of human law.135 Law is then an instrument of coercion, and its authority largely depends on its ability to secure justice.136 It responds to collectively conceived human needs and functions through the vivid drama of apprehension, trial and sanctions.137 The coercive qualities of law are well-documented and extensively discussed.138 Take, for instance, the work of Thomas Hobbes on the coercive powers of law in the context of a state. He argues that law coerces us by arousing fears about the evil consequences of disobedience.139 The will to obey the law is thus the result of reasoned reflection on the implications of one’s actions. The social contract is enforced without impeding on the individual’s freedom, which, according to Hobbes, is only taken away by the identifiable acts of interference by external agents. We cannot be said to act without freedom when obeying the law because reasoned reflection produces the will to obey the law.140

131  Ibid., 110. 132  Ibid., 179; T. Aquinas, Summa Theologiae I–II, q. 61, https://www​.newadvent​.org​/summa​ /3061​.htm 133  T. Aquinas, Summa Theologiae I–II, q. 95, 2, 2, https://www​.newadvent​.org​/summa​ /2095​.htm; See also Finnis, supra note 6, 284. 134  Aquinas, Summa Theologiae I–II, q. 95, 2, https://www​.newadvent​.org​/summa​/2095​.htm 135  Ibid. 136  Finnis, supra note 6, 260. 137  Ibid., 261. 138  H. Kelsen, The Pure Theory of Law, trans. M. Knight (University of California Press, 1967, original German first edition 1934), 34; D. Lloyd, The Idea of Law (Penguin Books Ltd., 1970), 35 (first published in 1964). 139  T. Hobbes, Leviathan (Cambridge University Press, 1996); R. Tuck (ed.) as cited by Q. Skinner in B. Stråth (eds) States and Citizens: History, Theory, Prospects (Cambridge University Press, 2003), 15–16. 140  Ibid.

Aesthetics in international justice 2.0  55 The universal source of authority and natural law theory International justice relies – in large part – on persuasion or ‘soft’ coercion, as states can still evade compliance with binding obligations if they possess sufficient resources. The ongoing fragmentation of narratives discussed earlier in this chapter detracts from such persuasive authority of international justice. Authority is understood here in a normative sense as the compliance pull of international law coming from a sense that the law and its institutions are legitimate.141 Focusing on shared values, especially those that transcend typically assigned identities such as nationality, can reverse the trend of noncompliance. There are two fundamental ways in which natural law and aesthetics can strengthen the authority of international justice 2.0. First, it is possible to see international law as a direct reflection of international justice. As discussed earlier, natural law views justice as an equaliser of common goods in society, while law is a coercive force supporting this process. The formal ‘bite’ of international law is, however, limited by states’ consent and their ability to generate ad hoc enforcement mechanisms in the absence of a global police force. The lens of aesthetics invites contemplation and reflection as opposed to subsuming concepts under prior categories. It is then possible to view international law as a direct reflection of the idea of justice. It is argued that in the context of international justice, law and justice are approximated as international law directly mirrors universal values and thereby creates causes of action through persuasion. International law is then seen as a more direct embodiment of justice than domestic law. Second, the lens of aesthetics, or insightful contemplation, allows one to view international justice as both a process and an outcome simultaneously. It puts into question the system’s orientation towards results conditioned by the traditional view of the sources of international law and reveals its deeper urge to find a common ground for cooperation. The current moment of consensus requires express recognition of basic needs shared by all, regardless of national, religious or any other affiliations. Natural law theory acknowledges the universal nature of a human drive towards pleasure and away from pain.142 This unifying feature inherent in the human condition at all levels of an institutional structure supports the system of international justice 2.0. Approximation of ‘law’ and ‘justice’ in search of universality

In contrast with domestic law, international law lacks coercive powers and systematically applicable sanctions akin to those imposed by national states on their subjects. The same will to obey discussed by Hobbes may thus not

141  K. Alter, L. R. Helfer and M. R. Madsen, ‘International Court Authority in a Complex World’ in Authority of International Law (Oxford University Press, 2018), 3. 142  T. Aquinas, Summa Theologiae I–II, q. 95, https://www​.newadvent​.org​/summa​/2094​.htm​ #article1

56  Art, aesthetics and international justice necessarily arise with the same strength when it comes to the norms of international law because the threat of sanctions is not as pronounced as in domestic legal orders. The enforcement deficit characteristic of public international law is acutely felt in all its sub-areas. Take, for instance, the subfield of international criminal law. One way to present the struggle of modern international criminal justice is through the ongoing undulation between the universal sense of morality imbued in its core and its high degree of dependence on political processes at international, state and individual levels.143 For example, there is no international consensus on whether to bring the situation in Syria to the attention of the UN Security Council for its subsequent referral to the ICC.144 Equally, the ICC Prosecutor’s request to issue arrest warrants against the two Israeli top officials for crimes within the ICC jurisdiction committed in Gaza since 8 October 2023 caused deep political rifts globally,145 arguably explaining significant delays in the judicial determination of the request.146 Given this lack of enforcement in international law, the key question is whether – in addition to supporting the distributive forces in societies through (very limited) coercion – international law can also embody the essence of the human goods themselves and serve as a direct reflection of those goods. There is a powerful call to uphold the universal value of cooperation within the discipline. If international law seeks to regulate human conduct for the benefit of the entire global community, then why not see it as a force capable of upholding the values more directly through its own (persuasive) authority? Many international legal instruments already contain implicit or explicit evidence of their overall aspiration towards universality. For instance, Article 1 of the UN Charter mentions ideals such as the cooperation of nations in attaining universal peace and harmonising their actions in order to achieve shared objectives.147 It is significant that the preamble of the UN Charter starts with the following address: ‘we the peoples of the United Nations.’148 The phrase ‘we the peoples’ – borrowed from the US Declaration of Independence – signifies the intention of the drafters to highlight agency beyond nation-states,

143  F. Megret, The Politics of International Criminal Justice (2002) European Journal of International Law Vol 13, 1261. 144  UN Security Council Press Release, ‘Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution’ SC/11407, 22 May 2014. 145  T. Obel Hansen, ‘State Objections to the ICC Prosecutor’s Request for Arrest Warrants in the Palestine Investigation’ EJIL Talk, 27 May 2024, https://www​.ejiltalk​.org​/state​-objections​-to​-the​-icc​-prosecutors​-request​-for​-arrest​-warrants​-in​-the​-palestine​-investigation/ 146  S. Vasiliev, ‘Friendly Feast during the Plague: Is the Pre-Trial Chamber Losing its Way on the Palestine Arrest Warrant Proceedings?’ EJIL Talk, 1 August 2024, https://www​.ejiltalk​.org​ /friendly​-feast​-during​-the​-plague​-is​-the​-pre​-trial​-chamber​-losing​-its​-way​-on​-the​-palestine​ -arrest​-warrant​-proceedings/ 147  Article 1 of Charter of the United Nations, 1 UNTS XVI, 24 October 1945. 148  Ibid., emphasis added.

Aesthetics in international justice 2.0  57 which are traditionally seen as the key subjects of international law. This intention becomes clear if one examines the preparatory works underlying the UN Charter.149 The seeds of the transcendence of state consent were planted at the conception of the current paradigm of international justice. Similarly, the preamble of the Rome Statute of the International Criminal Court (ICC) starts with the following words: ‘[c]onscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time.’150 The same preamble affirms that the most serious crimes are ‘of concern to the international community as a whole.’151 The Inter-American Convention on Human Rights recognises in its preamble ‘that the essential rights of man are not derived from one’s being a national of a certain state, but are based upon attributes of the human personality.’152 Finally, the Universal Declaration on Human Rights announces itself to be ‘a common standard of achievement for all peoples and all nations.’153 These inspiring formulations sit in stark contrast with fragmenting narratives that tribalise domestic politics and international relations in equal measure. They remind us of the need to rediscover and re-frame the discipline of international justice to better reflect the universalist ideals already encoded in its foundation.154 The visible lack of enforcement mechanisms is only part of the problem. It is true that traditional legal scholarship commonly views the authority of international justice as deriving from its binding sources.155 There are, however, limitations to such thinking because it largely ignores the context in which this authority is applied. Context is something that the lens of contemplation reveals with great clarity. Alter, Helfer and Madsen helpfully observe this tendency to obscure the background in their study of the authority of international courts, noting that most legal scholarship focuses on the technical facts

149  President’s remarks, Verbatim Minutes of First Meeting of Commission I, 14 June 1945, Doc 1006, I/6, 15 June 1945, in Documents of the United Nations Conference on International Organization, San Francisco, 1945, Volume VI, General Provisions (Documents of the UN Conference, Vol VI) (United Nations Information Organizations, London, New York, 1945), 13. 150  Preamble, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998. 151  Ibid., emphasis added. 152  Preamble, Organization of American States (OAS), Statute of the Inter-American Court of Human Rights, 1 October 1979. 153  Preamble, UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III). 154  For more discussion on the language of international justice, see Chapter 3. 155  For instance, Hugh Thirlway argues: ‘The question of the authority for the rule as a rule of law, binding on States, is determined by the formal source of the rule. The generally recognized sources are identified in Article 38 of the International Court of Justice (ICJ).’ See Thirlway, supra note 33, 97.

58  Art, aesthetics and international justice of interpretative choices and legal attributes without paying due attention to the institutional designs and political structures underlying these processes.156 Robert Howse and Ruti Teitel note – along similar lines – an overemphasis on compliance in international legal scholarship.157 They argue that states, as well as other actors such as corporations, bargain in light of the rules of international law instead of simply complying with them.158 International law creates benchmarks for a wide range of private decision-making, thereby influencing the outcomes of transactions (for instance, to whom firms lend) without even being explicitly referred to.159 Howse and Teitel thus stress the effects of international law on the behaviour of a wide range of actors (diplomats, foreign policy analysts, military planners, lawyers, judges, and law professors).160 In most cases, these actors are not vested with formal authority to effectuate compliance with international law. The authority of international law is thus persuasive and largely includes the capacity of law to impose duties or to confer powers on state officials and private individuals.161 This is done by establishing agreed reference points or standards (for instance, in the area of human rights law). Basak Çali explains that in practice it means state officials engage in a deliberative exercise comparing and contrasting the weight of domestic law and international law when responding to authority claims made by international law.162 This is a manifestation of the persuasive power of international law when it contributes to the decision-making process of domestic actors by reducing arbitrariness. In this way, the system protects common values not so much through coercion but rather through bestowing additional causes of action on those in power. Is it then possible to conceptualise international law as a direct reflection of these basic goods towards which each person is striving? The answer to this question is ‘yes’ if one acknowledges the underlying urge of international law to foster cooperation and mutual peaceful coexistence. This fundamental principle can be viewed as an ‘authoritative custom’ of international law, giving rise to the whole system. John Finnis observes that specific customs become authoritative not because a ‘framework custom’ authorised their existence but rather because both the framework custom and the specific rule solve certain coordination problems.163 In other words, common good requires certain collective action.164

156  Alter, Helfer, Madsen, supra note 141. 157  Howse and Teitel, supra note 25. 158  Ibid. 159  Ibid. 160  Ibid. 161  Çali, supra note 26, 11. 162  Ibid., 64. 163  Ibid., 244. 164  Ibid.

Aesthetics in international justice 2.0  59 Underlying all coordination efforts is a deeper urge common to all of humanity – the pursuit of basic goods is not limited to individuals but can be attributed to states and non-state actors alike. All the entities currently engaged in global affairs can be seen as striving towards self-preservation and the attainment of core public goods. A change in perception from self-preference to coordination then assists in re-inventing international justice to better reflect the value of universality. All actors must expressly acknowledge this shared drive to effectuate the perceptual shift. The lens of aesthetics strengthening international justice by supporting its claim to universality

Aesthetic theories reveal that our ability to appreciate this moment is universal and transcends tribalism and identity politics. The deterrent paradigm of the ‘win/lose’ characteristic of the Cold War era of international governance exposes deep fracturing around the interests of individual states and stakeholders.165 The way of designing international justice institutions and decisionmaking around competitive advantage is showing its inherent limitations as it is unable to tackle current global challenges – the ongoing wars in Ukraine and Gaza being just the most recent examples of the failures of international justice.166 The lens of aesthetics offers a possibility of finding a ‘win/win’ paradigm that would instead centre around the common core of humanity.167 This is not to suggest that all conflicts would cease when one inhabits the thirdperson perspective. The perceptual shift in perspective rather kickstarts the process of coordination around common goods, which eventually leads to a resolution. The ‘outcome-orientated’ view of (international) justice sees it as a ‘distributor’ of goods in any given society, while the ‘process-orientated’ view conceptualises justice as a reflection of higher-order principles, including human striving towards gratification and the avoidance of pain. The former view is grounded in the application of a set of rigid ethical principles. This starting position largely propelled the design of a modern international justice system centred around state consent and sovereignty; its core identity reflecting a list of rules that states can choose to adopt for regulating their relations among each other and with their citizens.168 There is some exception to the consent-based paradigm of international justice. Peremptory – or jus cogens – norms of international law are formally

165  R. N. Lebow and J. G. Stein, We All Lost the Cold War (Princeton University Press, 1994). 166  UN General Assembly Resolution ES‑11/1, 2 March 2022; UN Security Council 8979TH Meeting, SC/14808, 25 February 2022, https://www​.un​.org​/press​/en​/2022​/sc14808​ .doc​.htm 167  See O’Connell, supra note 5. 168  For more detail on the consent-based model of international justice, please consult Chapter 1.

60  Art, aesthetics and international justice binding on all states regardless of their consent. These norms have innate resonance with natural law theory. They serve as a bridge connecting positive and natural law. This is when the requirement that a state must agree to be bound by the obligation loses some of its relevance. The Vienna Convention on the Law of Treaties defines jus cogens as a peremptory norm of general international law accepted and recognised by the international community of states and from which no derogation is permitted.169 The content of jus cogens norms is, however, subject to academic debate and their enforcement is patchy.170 The latter ‘process-orientated’ vantage point suggested in this volume refocuses our attention on insightful observation – it is less concerned with specific outcomes but more interested in how international justice is administered. There is no requirement to seek immediate solutions tailored for competitive advantage; the purpose of this mode of viewing is rather to gain deeper insight into the actors and practices of international justice. The perceptual lens of aesthetics is particularly relevant for re-imagining international justice through contemplation. As mentioned earlier, natural law theory includes ‘aesthetic experience’ in the list of basic goods,171 making aesthetic contemplation of international justice both a reflection of a basic good and a way to engage with the discipline on a deeper level. Aesthetic contemplation activates an external observer’s perspective as no specific outcome is sought. Mere observation without self-preference can then lead to a transformation, as poignantly explained by O’Sullivan in his theory of affects.172 Furthermore, this alternative way of examining international justice creates a foundation for a renewed sense of authority around the idea of universality. Our shared pursuit of happiness and our ability to perceive beauty (regardless of its form) then serves as a foundation for shaping international justice 2.0. Arguably, such a starting point enables renewed inquiry into the types of institutions, actions and actors constituting the discipline of the future. The outcome-oriented vision of international justice complements rather than opposes the process-orientated view. As discussed earlier, the study of law organically brings ethics to mind.173 This is because ethics is habitually seen as a branch of philosophy that deals with human actions and the general principles guiding these actions. The logic of ethics is based on outcomes as generalised principles are applied to specific scenarios, and the result is then measured against a certain moral yardstick. In contrast, the logic of aesthetics is process-orientated. It is less concerned with outcomes and places emphasis on contemplating the unfolding of each experience. The focus is not on

169  Article 53 of the Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Vol 1155. 170  A Verdross, ‘Jus Dispositivum and Jus Cogens in International Law’ (1966) American Journal of International Law Vol 60, 57 171  Finnis, supra note 6, 87. 172  O’Sullivan, supra note 50, 125–6. 173  See the discussion on Immanuel Kant’s work earlier in this chapter.

Aesthetics in international justice 2.0  61 the general principles but rather on the uniqueness of each occurrence.174 In essence, these two traditions approach the same event using distinct measurement tools. Ludwig Wittgenstein produces an account of ethics broad enough to encompass aesthetics.175 In his famous ‘Lecture on Ethics’ delivered in 1929, he argues that the core question at the heart of ethics is ‘what makes life worth living?’. He continues that this question cannot be answered in relative terms due to the limitations of language,176 but what underpins this query is an absolute value existing in life or a wonder at existence itself. Both ethics and aesthetics develop a way of seeing helpful in exploring this absolute value. In an ethical contemplation, the multiplicity of the world is seen as a whole – the ideas are contrasted with each other in one unified logical space identified by the ‘observer’ or the ‘self.’ In contrast, in an aesthetical contemplation, the object contemplated becomes ‘the whole world’ and the ‘observer’ or the ‘self’ disappears into the object contemplated.177 Wittgenstein thus argues that essentially ethics and aesthetics are distinct paths to the identical goal. Each theoretical lens simply focuses on different aspects of the same action (generality versus specificity; outcome versus process; acting versus experiencing), but it does not imply a different set of underlying values. In other words, the same process is discussed from different vantage points.178 It follows then that natural law captures what is already true in all times and places, and the lens of aesthetics reveals these universal aspects with greater clarity. Conclusion The theories of aesthetics are plentiful, yet they share in common the contemplative and perceptual dimensions. These aspects are not directly dependent on discussions of art’s inherent purpose (or lack thereof) and its contextual embedment in social structures. An aesthetic lens generates space for shifting our focus from specific outcomes to processes through which these outcomes are sought. It offers a way out of linear thinking and into creative contemplation. It is true that legal thought is traditionally governed by ethics, which is both principle- and outcome-orientated. In contrast, aesthetics invites reflection on the process itself by examining the ‘universal in particular.’ Changing the lens of analysis alters the nature of questions asked and the type of answers provided. The purpose of this exercise is to discover ways to re-imagine

174  D. Collinson, ‘Ethics and Aesthetics are One’ (1985) The British Journal of Aesthetics Vol 25(3), 266. 175  L. Wittgenstein, ‘A Lecture on Ethics’ (1965) Philosophical Review Vol. 74, 3. 176  For the analysis of linguistics, see Chapter 3. 177  Collinson, supra note 174, 269. 178  Ibid.

62  Art, aesthetics and international justice international justice so that it echoes the shared core of humanity beyond assigned identities and all the other roles played consciously or unconsciously. International justice 2.0 is destined to drift away from the traditional statecentric model of compromise and deterrence. The revised version of international justice is likely to have the universality of human experience as its core foundation. Technological advances are speeding up the process of such reinvention because they exacerbate the need to define what makes us truly human. The intellectual power of artificial intelligence is also testing the limits of any global engagement models organised around fear-based calculus and prediction. In natural law theory, universality plays out as the acknowledgement of a common drive to achieve a closed list of basic goods. This striving towards a meaningful life is what unites people regardless of the scale and context of their endeavours. Universality in aesthetics is a shared lens of perception – the ability to appreciate the beauty of the moment regardless of the object that facilitates this experience. Both the natural law conception of justice and the theory of aesthetics invite a third-person perspective on any situation, thereby making a ‘win/win’ scenario possible. Bibliography Literature T. Adorno, Aesthetic Theory (Continuum, 1997, originally published 1970) T. Adorno, Can One Live after Auschwitz? A Philosophical Reader (Stanford University Press, 2003) P. Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities? (2001) American Journal of International Law Vol 95(1), 7 M. Aksenova and I. Marchuk, ‘Reinventing or Rediscovering International Law? The Russian Constitutional Court’s Uneasy Dialogue with the European Court of Human Rights’ (2018) International Journal of Constitutional Law Vol 16(4), 1343 M. Aksenova and A. N. Rieff, ‘Setting the Scene: The Use of Art to Promote Reconciliation in International Criminal Justice’ (2021) Leiden Journal of International Law Vol 33(2), 495 P. Allott, ‘Beyond War and Diplomacy. A Giant Step for Mankind’ (2017) German Yearbook of International Law Vol 60, 269 K. Alter, L. R. Helfer, and M. R. Madsen, ‘International Court Authority in a Complex World’ Authority of International Law (Oxford University Press, 2018) T. Aquinas, Summa Theologiae I-II, q. 95, https://www​.newadvent​.org​/summa​ /2094​.htm​#article1 T. Aquinas, Summa Theologiae II-II, 57, 1, https://www​.newadvent​.org​/summa​ /3057​.htm​#article1 T. Aquinas, Summa Theologiae I-II, q. 94, 2, http://www​.newadvent​.org​/summa​ /2094​.htm T. Aquinas, Summa Theologiae I-II, q. 61, at https://www​.newadvent​.org​/summa​ /3061​.htm

Aesthetics in international justice 2.0  63 N. Arajärvi, The Changing Nature of Customary International Law: Methods of Interpreting the Concept of Custom in International Criminal Tribunals (Routledge, 2014) H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Viking Press, 1961) H. Arendt, The Origins of Totalitarianism (Harcourt Brace & Co., 1979, originally published in 1951 M. Arvidsson and G. Noll, ‘Artificial Intelligence, Decision Making and International Law’ (2023) Nordic Journal of International Law Vol 92(1), 1 M. Bal, Reader (University of Chicago Press, 2006) W. Benjamin, ‘The Work of Art in the Age of Mechanical Reproduction’ in H. Arendt (eds) trans. Harry Zohn Illuminations: Essays and Reflections (Schocken Books, 1968) P. Bourdieu, Distinction: A Social Critique of the Judgement of Taste, trans. R. Nice (Harvard University Press, 1984), original French edition published in 1979 I. Brownlie, Principles of Public International Law (Oxford University Press, 7th edn, 2008) B. Çali, The Authority of International Law: Obedience, Respect, and Rebuttal (Oxford University Press, 2015) L. Charbonneau, ‘U.N. Draft Urges ICC Referral for North Korea, but Pyongyang Fights Back’, Reuters, 9 October 2014, https://www​.reuters​.com​/article​/us​ -northkorea​-un​-idU​SKCN​0HY2​2P20​141009 B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge University Press, 1987) M. Chinen, The International Governance of Artificial Intelligence (Edward Elgar, 2023) R. Collins, Interaction Ritual Chains (Princeton University Press, 2004) D. Collinson, ‘Ethics and Aesthetics are One’ (1985) The British Journal of Aesthetics Vol 25(3), 266 J. Derrida, ‘Force of Law: The ‘Mystical Foundation of Authority’ in D. Cornell, M. Rosenfeld and D. Carlson (eds) Deconstruction and the Possibility of Justice (Routledge, 1992) J. Dewey, Art As Experience 7 (Capricorn Books, 1958) (1934) G. Dimitropoulos, ‘Artificial Intelligence and International Adjudication’, Max Planck Encyclopedias of International Law, March 2023 A. Edwards and L. van Waas, Nationality and Statelessness under International Law (Cambridge University Press, 2014) J. Finnis, Natural Law and Natural Rights (Oxford University Press, 2nd edn, 2011) F. Fukuyama, ‘The End of History?’ (1989) The National Interest Vol 16, 3 A. Giddens, The Constitution of Society: Outline of the Theory of Structuration (University of California Press, 1984) R. Gnoli, The Aesthetic Experience According to Abinavagupta (Chowkhamba Sanskrit Series Office, 4th edn, 2015) T. O. Hansen, ‘State Objections to the ICC Prosecutor’s Request for Arrest Warrants in the Palestine Investigation’, EJIL Talk, 27 May 2024, https://www​.ejiltalk​.org​/ state​-objections​-to​-the​-icc​-prosecutors​-request​-for​-arrest​-warrants​-in​-the​-palestine​ -investigation/ R. Higgins, Problems and Process: International Law and How We Use It (Oxford University Press, 1995)

64  Art, aesthetics and international justice T. Hobbes, Leviathan (Cambridge University Press, 1996); R. Tuck (ed) as cited by Q. Skinner in B. Stråth (eds) States and Citizens: History, Theory, Prospects (Cambridge University Press, 2003) G. J. H. van Hoof, Rethinking the Sources of International Law (Kluwer, 1983) R. Howse and R. Teitel, ‘Beyond Compliance: Rethinking Why International Law Really Matters’ (2010) Global Policy Vol 1(2), 127 D. H. J. Ingalls et al. (eds), The Dhvanyaloka of Anandavardhana with the Locana of Abinavagupta (Harvard University Press, 1990) N. Jain, ‘Manufacturing Statelessness’ (2022) American Journal of International Law Vol 116(2), 237 T. Jefferson et al., July 4, Copy of Declaration of Independence. -07-04, 1776, Manuscript/Mixed Material, https://www​.loc​.gov​/item​/mtjbib000159 I. Kant, Critique of Judgement, trans. Werner S. Pluhar (Hackett Publishing, 1987) H. Kelsen, The Pure Theory of Law, trans. M. Knight (University of California Press, 1967), original German first edition 1934 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press, 2005) H. Lauterpacht, The Function of Law in the International Community (Oxford University Press, 1933) R. N. Lebow and J. G. Stein, We All Lost the Cold War (Princeton University Press, 1994) J. Lee, Artificial Intelligence and International Law (Springer, 2022) D. Lloyd, The Idea of Law (Penguin Books Ltd., 1970), 35 (first published in 1964) M. J. Matheson and D. Scheffer, ‘The Creation of the Tribunals’ (2016) American Journal of International Law Vol 110(2), 179 F. Megret, ‘The Politics of International Criminal Justice’ (2002) European Journal of International Law Vol 13, 1261 S. Milgram, Obedience to Authority: An Experimental View (Pinter & Martin, 1974) A. Müller, ‘Justifying Extraterritorial Human Rights Obligations: An Ethical Perspective’ in M. Gibney et al. (eds) The Routledge Handbook on Extraterritorial Human Rights Obligations (Routledge, 2021) M. Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) Harvard Journal of International Law Vol 42, 201 Natural Law, Encyclopaedia Britannica, https://www​.britannica​.com​/topic​/natural​ -law R. Nozick, Anarchy, State and Utopia (Blackwell, 1974) M. E. O’Connell, The Art of Law in the International Community (Cambridge University Press, 2019) S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125 C. Owens, ‘The Allegorical Impulse: Towards a Theory of Postmodernism’ (1980) The MIT Press Vol 12, 67 S. Pollock, A Rasa Reader: Classical Indian Aesthetics (Columbia University Press, 2016) R. Pound, An Introduction to the Philosophy of Law (Yale University Press, 1921) A. Shachar, The Birthright Lottery: Citizenship and Global Inequality (Harvard University Press, 2009) M. Shaw, International Law (Cambridge University Press, 6th edn, 2008)

Aesthetics in international justice 2.0  65 S. Shaw and D. Sui, Understanding the New Human Dynamics in Smart Spaces and Places: Toward a Spatial Framework (Routledge, 2021) R. Shusterman, ‘Dewey’s Art as Experience: The Psychological Background’ (2010) The Journal of Aesthetic Education Vol 44(1), 26 B. Simma and P. Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1988–89) Australian Yearbook of International Law Vol 12, 82 A. Slaughter and W. Burke-White, ‘An International Constitutional Moment’ (2002) Harvard International Law Journal Vol 43(1), 1 Stanford Encyclopedia of Philosophy, Kant’s Aesthetics and Teleology, revised 13 February 2013, https://plato​.stanford​.edu​/entries​/kant​-aesthetics/​#3.1 H. Thirlway, ‘The Sources of International Law’ in M. D. Evans (eds) International Law (Oxford University Press, 3rd edn, 2010) M. Tripkovic, ‘Not in Our Name! Visions of Community in International Criminal Justice’ in M. Aksenova, E. van Sliedregt and S. Parmentier (eds) Breaking the Cycle of Mass Atrocities: Criminological and Socio-Legal Approaches in International Criminal Law (Hart, 2019) S. Vasiliev, ‘Friendly Feast during the Plague: Is the Pre-Trial Chamber Losing its Way on the Palestine Arrest Warrant Proceedings?’, EJIL Talk, 1 August 2024, https:// www​.ejiltalk​.org​/friendly​-feast​-during​-the​-plague​-is​-the​-pre​-trial​-chamber​-losing ​ -its​-way​-on​-the​-palestine​-arrest​-warrant​-proceedings/ A Verdross, ‘Jus Dispositivum and Jus Cogens in International Law’ (1966) American Journal of International Law Vol 60, 57 M. Walzer, Spheres of Justice: A Defense of Pluralism and Equality (Basic Books, 1983) L. Wittgenstein, ‘A Lecture on Ethics’ (1965) Philosophical Review Vol 74, 3 L. Zuidervaart, ‘Theodor W. Adorno’, The Stanford Encyclopedia of Philosophy (Winter 2015 Edition), https://plato​.stanford​.edu​/archives​/win2015​/entries​/adorno/ Legal instruments and judgments Charter of the United Nations, 24 October 1945, 1 UNTS XVI (UN Charter) International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682, 14 April 2006, (finalized by Martti Koskenniemi) The Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2013) (Maastricht Principles), https:// www​.fidh​.org​/IMG​/pdf​/maastricht​-eto​-principles​-uk​_web​.pdf Office of the High Commissioner of Human Rights, ‘The Corporate Responsibility to Respect Human Rights: An Interpretive Guide’ (2012) HR/PUB/12/02, https:// www​.ohchr​.org​/documents​/publications​/gui​ding​prin​cipl​esbu​sinesshr​_en​.pdf President’s Remarks, Verbatim Minutes of First Meeting of Commission I, 14 June 1945, Doc 1006, I/6, 15 June 1945, in Documents of the United Nations Conference on International Organization, San Francisco, 1945, Volume VI, General Provisions (Documents of the UN Conference, Vol. VI) (United Nations Information Organizations, London, New York, 1945) The Prosecutor v. Dominic Ongwen, (Judgement), ICC-02/04-01/15, (May 6, 2021)

66  Art, aesthetics and international justice Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution, 22 May 2014, Security Council SC/11407, Press Release, https://press​.un​.org​/en​/2014​/sc11407​.doc​.htm Report of the Special Rapporteur in the Field of Cultural Rights, UN Doc. A/ HRC/31/59, 3 February 2016, (2016 Report of the Special Rapporteur) The Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998 UN General Assembly Resolution ES‑11/1, 2 March 2022 UN General Assembly, Transforming Our World: The 2030 Agenda for Sustainable Development, A/RES/70/1, 21 October 2015 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) UN General Assembly, Universal Declaration of Human Rights, 217 A (III), 10 December 1948 UN Security Council 8979TH Meeting, SC/14808, 25 February 2022, https://www​ .un​.org​/press​/en​/2022​/sc14808​.doc​.htm UN Security Council Press Release, ‘Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution’, SC/11407, 22 May 2014 The Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155

3

Re-thinking the mode of expression in international justice

Introduction Legal texts and judgments in the field of international justice form part of the discourse accepted as default by all participants in the process.1 Judicial pronouncements and treaty formulations serve as terms of reference in an international playing field as they mediate interactions among various stakeholders. The list of binding sources of international law, embedded in Article 38(1) of the Statute of the International Court of Justice (ICJ), is a clear starting point for an international lawyer who desires to construct a legal argument advancing a specific position.2 This chapter seeks to go beyond the surface language of the legal documents and expose the general aspirations of the discipline from the perspective of a neutral observer. The purpose is to distance oneself from the role of an active participant in the discourse formation and reflect on the type of expression aligned with the ideals of natural law and commutative justice discussed in Chapter 2. Language is one of the tools of international justice. It has great capacity to express collective sentiments by creating discursive fields.3 The aim of such spaces is to point all the stakeholders in the same direction when it comes to attributed meaning. Having a shared understanding of the starting premises of the discussion then allows different parties to enter negotiations and ultimately achieve cohesive outcomes, even if an international dispute resolution body must get involved. Legal vocabulary allows for the formation of the ‘pockets of consensus’ that serve as a springboard for any further action. This is an essential feature of international justice as an instrument of global ordering. Take, for instance, the United Nations Convention on the Law of the Sea (UNCLOS), which establishes international control over the seabed and the ocean floor.4 Malta’s enthusiastic proposal for such a document was met with

1  M. Koskenniemi, From Apology to Utopia (Cambridge University Press, 2005), 12 2  Article 38(1) of the Statute of the International Court of Justice, 18 April 1946. 3  M. Foucault, Archaeology of Knowledge (Pantheon Books, 1969); J. L. Austin, How to Do Things with Words (Oxford University Press, 1962). 4  UN Convention on the Law of the Sea, U.N. Doc. A/CONF.62/122, 7 October 1982. DOI: 10.4324/9781032628844-3

68  Art, aesthetics and international justice a lot of suspicion back in 1967. Many states believed the general rules of international law were sufficient to govern the oceans. The fear was that regulation of this area would impede investment and exploration.5 The UNCLOS treaty was nonetheless adopted in 1982, and it included an intricate web of opt-outs to mitigate sovereignty concerns. Despite these opt-out mechanisms, the treaty evolved to be a true constitution of the sea over time precisely because it offered a shared space for the discussion of issues related to maritime regulation.6 The 2016 Philippines v. China arbitration ruling based on UNCLOS is a good illustration of the ongoing process of dissolution of the ‘pockets of consensus’ in international legal discourses. This ruling declared China to be in violation of the treaty because it established the so-called nine-dash line enveloping the South China Sea. This action interfered with the Philippines’ exclusive economic zone and endangered the marine environment.7 The award invoked commonly agreed terms from the UNCLOS to denounce China’s claims that it has historical rights to living and non-living resources within the contested area of the South China Sea.8 Shortly after the judgment in Philippines v. China was released, China issued a statement asserting that the award was null and void.9 More specifically, China insisted that the arbitral tribunal applied the UNCLOS in a subjective and speculative manner and erred in ascertaining the facts and law.10 China then affirmed that it would resolve any disputes in the South China Sea on the basis of respecting historical facts and in accordance with international law.11 This statement undermines the authority of the arbitral tribunal in interpreting the UNCLOS and reaffirms China’s commitment to its historical claims thesis. Interestingly, this document mentions historical claims in conjunction with international law. Such dismissal of the award by China reveals a broader problem of international justice, namely that consensus over the shared understanding of terms is waning. This lack of uniform adherence to the common terms of reference leads to the fragmentation of narratives within the discipline. International law is becoming ‘nationalised’ by being

 5  See UN General Assembly, 22nd Session 1515th meeting, U.N. Doc. A/C.1/PV.1515, 1 November 1967, para. 4.  6  M. Aksenova and C. Burke, ‘The Chagos Islands Award: Exploring the Renewed Role of the Law of the Sea in the Post-Colonial Context’ Wisconsin International Law Journal, 2017, Vol 35(1), 1.  7  In re the South China Sea (Philippines v. China), PCA Case No. 2013–19, Award, 2016, para. 1203.  8  Ibid.  9  Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines, https://www​.fmprc​.gov​.cn​/mfa​_eng​/wjdt​ _665385​/2649​_665393​/201607​/t20160712​_679470​.html 10  Ibid., para. 3. 11  Ibid., para. 5.

Re-thinking the mode of expression   69 interpreted differently by distinct legal traditions.12 The core issue is not the disagreement itself but the increased divergence of the starting assumptions.13 This example demonstrates the need to look deeper at the language of international justice to better identify the areas where new consensus may reside or – at the very least – to expose the rifts that lead to the fragmentation of narratives. The following section delves into the specific reasons for engaging with the theories of speech in building new accounts of international justice. The chapter then explores the role of imagination in examining the dominant language structure and offers an introduction to the theory of speech developed in the ancient Indian epos of Rig Veda. The next section connects the four levels of the word discussed in the Rig Veda and the language of international justice. The aim is to demonstrate how the initial universality impulse engrained in international justice finds its expression in the actual treaty provisions. The chapter continues by exploring practical manifestations of the levels of speech by examining the origins of the creation of the UN International Criminal Tribunal for the Former Yugoslavia (ICTY). Some conclusions are drawn at the end. Three reasons language matters in building international justice 2.0 There are at least three reasons why exploring theories of speech is productive in the process of re-imagining international justice in the twenty-first century. The first reason relates to the nature of language as being devoid of any meaning in the absence of context.14 Words are a shorthand pointing towards certain occurrences. These pointers are meaningless without contextualisation. The call here is to reassess the legal vocabulary to create more accurate signifiers to address the urgent need for cooperation. As humanity undergoes a moment of consensus propelled by global challenges – such as the collective ‘restart’ button pressed by the pandemics in 2020 and the effects of the ongoing wars in Ukraine and Gaza15 – there is an opening to redesign the language structure of international justice to better reflect the heteropolar nature of the world and the multiplicity of actors engaged in global affairs. This vision includes corporations and non-governmental organisations. The renewed focus on vocabulary assists in both exploring current challenges (e.g. the growth in weapons

12  See A. Roberts, International Law International? (Oxford University Press, 2017), 280–320. 13  M. Aksenova and I. Marchuk, ‘Reinventing or rediscovering international law? The Russian Constitutional Court’s uneasy dialogue with the European Court of Human Rights’ (2018) International Journal of Constitutional Law Vol 16 (4), 1322. 14  See, for example, P. Simmons, ‘Meaning and Language’ in B. Smith and D. Woodruff Smith (eds) The Cambridge Companion to Husserl (Cambridge University Press, 1995), 109. 15  For the effects of the wars in Ukraine, Yemen and Gaza on weapons trade, see M. Aksenova, ‘The Arms Industry and International Criminal Liability: Challenging the Status Quo?’ (2024) Business and Human Rights Journal, forthcoming.

70  Art, aesthetics and international justice trade, the climate crisis, the radical fragmentation of narratives, the inadequacy of cyberspace hygiene, and the growing accessibility of deadly technology) and introducing new actors in the domain of international justice 2.0. Second, creatively exploring the language of international justice invites all participants in the process to adopt a more flexible perspective on the subject matter of the dispute. Fluidity and adaptability are likely to become key characteristics of all the stakeholders engaging with international justice 2.0. Creativity fosters one’s ability to hold competing views simultaneously, which is a sign of true intelligence. This vision aligns with Richard Sherwin’s invitation to cultivate visual literacy and retrieve the core humanist ideals of creative intuition and eloquence in the service of ethical wisdom.16 In his work, Sherwin paints a portrait of a lawyer of the future: it is a wise being combining the features of a lawyer, poet, and statesman. This person cares about making civic life both secure and just. He or she knows how to balance ‘unruly passions and deceits’ cultivated in the age of visual baroque with the ‘tyranny of the rational systems of knowledge.’17 ‘Visual baroque’ is a term central to Sherwin’s work as he discusses the modern-day flowering of the graphic representations of reality amplified by social media. Sherwin’s philosophical and jurisprudential stance is a testament to the timeliness of creative inquiries into international justice and exploring what lies underneath its textual expressions. Finally, there is an additional motivation to explore the role of language grounded in the view of aesthetics as a process of contemplation.18 Language can be conceived in two ways: as a practical means of communicating ideas (functionally) and as an expressive tool enabling self-expression (aesthetically).19 The second paradigm refers to the fact that language merely reflects the subjectivity of the one who uses it. Speech is thus a medium in which (not through which) the mental being of men expresses itself.20 This is the conception of language advanced by Walter Benjamin in his 1916 text ‘On Language as Such and on the Language of Man.’21 Benjamin’s view of language was further developed by Theodor Adorno in his book Aesthetic Theory.22 Adorno viewed impulses that motivate the artwork as fragile and speechless expression. They

16  R. Sherwin, Visualizing Law in the Age of the Digital Baroque: Arabesques and Entanglements (Routledge, 2011), 187. 17  Ibid., 188. 18  For the discussion of aesthetic theory, see Chapter 2. 19  R. Duarte, ‘Benjamin’s Conception of Language and Adorno’s Aesthetic Theory’ (2006) Kriterion: Revista de Filosofia Vol 46 (112), 321. 20  Ibid., 322. 21  W. Benjamin, On Language as Such and on Language of Man in One-Way Street and Other Writings (NLB 1979), 111. 22  T. Adorno, Aesthetic Theory (Continuum, 1997, originally published in 1970); Duarte, supra note 19, 322.

Re-thinking the mode of expression   71 become language through the process of the objectification of art.23 In other words, artistic form allows for the transformation of essentially a mental state of the artist’s being into a ‘thing’ – an art object.24 This object then ‘speaks.’ The invitation is therefore to contemplate the language of international justice as a form of art in its own right and to gather insights that arise out of this contemplation. The Rig Veda and the role of imagination in exploring the language of international justice It is true that words and phrases only point towards certain outcomes but do not necessarily capture reality in all its complexity.25 Yet this limitation of language may also present opportunities for creative expression if seen through the lens of aesthetic perception. Language is thus key to unleashing legal imagination, and it gives rise to a variety of forms. According to Maks Del Mar, imagination belongs to a group of the neglected dimensions of legal thought.26 Imagination is a valuable tool on the three planes of legal activity – it is relevant to (1) the work of individual agents representing the legal profession, (2) the epistemic community of lawyers as a collective and (3) the legal language itself. On the first personal plane, imagination is a form of inquiry that allows an individual mind to take ‘breathing spaces’ between the stream of pre-conditioned thoughts. On a community level, the exercise of imagination enables judges and other legal professionals to communicate via metaphors, hypothetical scenarios and tests thereby effectuating better resonance of ideas.27 Finally, the legal language itself becomes richer and more corpulent in the presence of hypothetical characters and scenarios.28 How do we approach the language of international justice when prompting an imaginative exercise? One way to do so is to explore it through the lens of the theories of speech. Understanding how the language ‘works’ enables more plasticity and creativity in (legal) expression. The following discussion,

23  Adorno, supra note 22, 184. 24  Ibid., 167. 25  Koskenniemi, supra note 1, 9; L. Wittgenstein, ‘A Lecture on Ethics’ (1965) Philosophical Review, Vol 74(1), 3f; J. Dewey, Art as Experience (Capricon Books 1958), 12 26  M. Del Mar, ‘Imagination in Legal Thought: Abilities, Devices and their Comparative History’ in G. Samuel and S. Glanert (eds) Comparative Legal Reasoning: Essays in Honour of Geoffrey Samuel (Wildy, Simmonds and Hill Publishing, 2018). 27  Late Cançado Trindade, who served as a judge at the ICJ and the Inter-American Court of Human Rights, was renowned for his ability to introduce metaphors in his judgments. See, for instance, his opinion in Miguel Castro-Castro Prison v. Peru, Merits, Reparations, and Costs, Judgment, Concurring Opinion of Judge A.A. Cançado Trindade, Inter-Am. Ct. H.R. (ser. C) No. 160, 2 August 2008; see also M. Nussbaum, Poetic Justice (Beacon Press, 1997). 28  Del Mar, supra note 26.

72  Art, aesthetics and international justice

I m a g i n a t i o n

UnityParā vāk

ConceptualisationPaśyantīvāk Verbalisation Madhyamā vāk

L o g i c

Communication - Vaikharī vāk

Figure 3.1  L  evels of speech in the Rig Veda.

therefore, explores the proposition that the faculty of legal imagination propels the process of expression. There are several distinct frameworks for analysing speech and discourse within the context of international justice. I chose the framework of analysis based on the philosophy of speech first articulated in the ancient Indian texts collectively known as the Rig Veda. The Vedas are a venerable collection of philosophical hymns formulating, among many other things, the theory of speech, which is understood broadly as any form of expression (see Figure 3.1).29 The Vedas have been orally transmitted since the second millennium BCE with the help of elaborate mnemonic techniques. They have been recorded and subjected to commentaries over time. One of the prominent commentators on the levels of speech in the Rig Veda was a Kashmiri scholar Abhinavagupta (flourished in 975–1025 AD), already mentioned earlier in relation to his work on aesthetics.30 Abhinavagupta offered a nuanced interpretation of the theory of speech contextualised by his own philosophical lineage – the non-dual Śaiva tantra.31 This chapter does not make a claim to a comprehensive treatment of the topic of speech as it would require a separate volume. The intention is rather to offer a suitable structure for exploring the vocabulary of international justice – an exercise that has the potential to generate new forms of expression through imagination. The Rig Veda was chosen as a primary source of inspiration to honour and celebrate non-Western philosophical traditions that can enrich international justice 2.0. The discussion nonetheless connects some concepts from

29  R. Torella, ‘The Word in Abhinavagupta’s Bṛhad-vimarśinī’ (2012), available at https:// vdocuments​.site​/reader​/full​/torella​-raffaele​-the​-word​-in​-abhinavagupta​-s​-brihad​-vimarshini 30  See Chapter 2; D. H. J. Ingalls et al. (eds) The Dhvanyaloka of Anandavardhana with the Locana of Abinavagupta (Harvard University Press, 1990). 31  Torella, supra note 29, 2.

Re-thinking the mode of expression   73 the Rig Veda with their counterparts in the Western philosophical tradition (such as, for instance, discourse analysis by Michel Foucault or the theory of speech by John Austin).32 There is no need to find the exact equivalence; rather, such cross-temporal and cross-cultural connections demonstrate the plethora of frameworks suitable for re-inventing the vocabulary of international justice 2.0. Direct correspondence with the ideas developed later and elsewhere is often impossible because the concepts discussed in the Rig Veda are often to be understood metaphorically and not literally. Metaphors create sufficient distance between the phrase and what it points to, allowing for a greater nuance of interpretation in each specific context. The Rig Veda discusses the distinct levels of speech personified as Vāk, or the Goddess of divine speech.33 Vāk has four manifestations corresponding to various stages of expression. The symbolisation of speech in the form of deities ensures that the text makes a sufficiently strong impression on the reader. In this sense, the Rig Veda effectively incorporates the aesthetic element in its philosophical discussion by engaging the reader’s imagination and merging it with conceptual discussion. Appealing to imagination and symbolism is a distinct feature of ancient Indian philosophy.34 Parā vāk in this paradigm represents the most abstract level of unity – an undifferentiated opening that gives rise to every creation; Paśyantī vāk, which descends one notch, refers to the space in which rules and conditions for expression are formed; below is Madhyamā vāk – the level of thought and internal discourse; and, finally, at the bottom of the hierarchy is Vaikharī vāk, which is expressed speech including all languages.35​ The figure shows these various levels of speech and the movement of legal rhetoric along the vertical axis of the speech planes. The traditional legal method – symbolised by the arrow ‘logic’ – proceeds based on the generalised categories applied to the specific facts in each individual case. The argumentative movement in this trajectory happens between legal rules and processes denoting real-life situations.36 Progression driven by logic occurs as the most abstract non-concept of unity ‘descends’ first to the level of core beliefs shared by the collective as a whole. The primary intuition of natural law regarding justice applying equally in all times and places points precisely to this initial movement from the highest level of abstraction to the space of initial individuation at the community level.37 This level of ‘conceptualisation’ gives rise to consensus informing more specific developments of international justice.38

32 Foucault, supra note 3; Austin, supra note 3. 33 C. D. Wallis, Tantra Illuminated: The Philosophy, History, and Practice of a Timeless Tradition (Mattamayura Press, 2013), 163–74; Torella, supra note 29, 9–10. 34 M. Hiriyanna, Outlines of Indian Philosophy (Motilal Banarsidass Publishers, 1993), 37. 35 See the following sections for an extended discussion of each level of speech. 36 Koskenniemi, supra note 1, 7. 37 For the discussion of natural law theory, see Chapter 2. 38 For more discussion on consensus see Chapter 2.

74  Art, aesthetics and international justice Such advances – or the quantum shifts in consensus – then become distinguishable at the level of ‘verbalisation.’ Significant emotional energy typically accompanies the process of expression at this stage as concepts find their more concrete manifestation in the dominant forms of thinking and performing legal rituals. The building of the institutions (physically and in the form of treaties) of international justice in the late 1940s is a good example of the verbalisation of the concepts conceived in the aftermath of the Second World War. There was sufficient collective impulse to co-create. This level of discourse also translates into the accepted legal rituals (e.g. international trials at the ICJ), human rights informed discourse, and all the other highly symbolic expressions of international justice, traditionally reflected in the preambles of the legal instruments.39 The Preamble of the Rome Statute of the ICC, for instance, makes it clear that the fight against impunity for the most serious crimes concerning humanity as a whole is a universally shared task. The charge of intense emotional energy supports this specific goal, transforming the ICC into a powerful symbol of justice.40 Importantly, emotional energy collectively invested in certain symbolic representations of ideas or institutions does not only give rise to them but also allows these bodies to continue their operation over time even with curtailed enforcement powers.41 Anthropological studies reveal that repeated patterns of conduct across societies are sustained precisely through symbols and symbolic action.42 Finally, aspirations take the form of written legal documents, such as statutes and judgments at the level of ‘communication.’ The judgments represent the most ‘individualised’ instances of international justice as they contain both the rules and the specific facts of the case. The oral speeches of legal professionals and any other verbalised discourse in the sphere of international justice would also belong to this category. The traditional understanding of international law – as being rooted in its written sources formulated in Article 38(1) of the ICJ Statute – focuses primarily on this last surface level of speech.43 The argument here is that all sources of law can be traced back to the highest level

39  For more discussion on the symbolic component of international justice, see Chapter 4. 40  M. Aksenova, ‘Symbolism as a Constraint on International Criminal Law’ (2017) Leiden Journal of International Law Vol 30(2), 475. 41  R. Collins, Interaction Ritual Chains (Princeton University Press, 2004). See also M. Aksenova, ‘Symbolic Expression at the International Criminal Tribunal for the Former Yugoslavia’ in C. Stahn et al. (eds) Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Account (Oxford University Press, 2020). 42  A. Cohen, Two-Dimensional Man: An Essay on the Anthropology of Power and Symbolism in Complex Societies (University of California Press, 1976); M. Bloch, Prey into Hunter: The Politics of Religious Experience (Cambridge University Press, 1992). See Chapter 4 for more discussion on legal rituals. 43  Article 38(1) of the United Nations Statute of the International Court of Justice, 18 April 1946 (ICJ Statute).

Re-thinking the mode of expression   75 of abstraction, and it is worth exploring the structures of beliefs underlying the sources. The lens of aesthetics, symbolised by the arrow ‘imagination’ moving upwards, provides an opening to explore core assumptions underlying the field of international justice. This movement is applicable to individual lawyers and legal practitioners, the epistemic community of international justice and the legal language in its entirety.44 The upward flow of imagination aligns with the aspiration of Indian philosophy to go beyond pure logic and towards an algorithmic revelation.45 The invitation is to reverse the order of perception by adopting a more contemplative or imaginative frame of reference in approaching legal texts. Instead of moving from abstract to specific in a linear fashion, the proposition is ‘to find universal in particular.’46 How to do this practically? One can start at the level of ‘communication’ or written expression and then move upwards towards the symbology underlying such an expression.47 This can be done by inquiry. The following questions are relevant: what is the essential message this statement tries to convey? Is there a pattern of similar messages carrying the same meaning? What symbols (broadly understood) stand for this conceptual framework? The suggestion is to go deeper to the level of ‘conceptualisation’ and discourse formation and explore the primary impetus driving more individualised forms of expression in international justice. The aesthetic contemplation supports this activity through intuitive insight, which occurs in the moments of recognition of each specific pattern of thought. The shifting of perceptual gears happens during such creative investigations.48 Thus, the idea is not to abandon ‘determining judgments’ rooted in logic altogether.49 It is rather to engage with an openended imaginative inquiry that supports less linear views of international justice and complements the traditional legal method. Four levels of speech and international justice This section offers an in-depth exploration of the levels of speech and their relation to international justice. Parā vāk (‘unity’)

The first level of speech is called Parā vāk (‘unity’ at the top of the pyramid), and it refers to the deepest level of understanding of reality, which is

44  Del Mar, supra note 26. 45  Hiriyanna, supra note 34, 22, emphasis added. 46  I. Kant, Critique of Judgement, translated by Werner S. Pluhar (Hackett Publishing, 1987; originally published in 1790). 47  C. Stahn, Justice as Message (Oxford University Press, 2020). 48  See Chapter 2(5). 49  Kant, supra note 46. For the discussion of the aesthetic theories, see Chapter 2.

76  Art, aesthetics and international justice beyond any distinction. It can be roughly equated to logos or the supreme word in Greek philosophy.50 The other way to present Parā vāk is to view it as a vibratory essence from which language, thought, feeling and perception originate.51 This is also the level of speech frequently pointed at by aesthetic theory, explaining perception outside of any conceptual framework. Arguably the search for unity is at the heart of international justice despite its resurfacing biases that are historically and culturally pre-determined.52 It is true that the system of international justice – as we know it today – suffers from a Eurocentric focus, which undermines its claim to universality.53 The founders of modern international law did not fully incorporate essential concerns in the edifice of treaties and institutions, such as wealth inequality among states and the horrors of colonialism.54 There is therefore a possibility of a ‘blindspot’ bias in the individual minds even when they act collectively.55 Yet one can still speak of the unitary impetus behind the creation of the field that is referred to as ‘international justice.’56 This level of speech, therefore, corresponds to the ‘third-person’ perspective on international justice.57 Neutrality results naturally from the lack of any differentiation. Parā vāk is a pointer to the underlying function of (international) justice as a tool for ensuring the distribution of the basic human goods. The core feature of justice as being ‘other-directed’ gets highlighted at this level of discourse.58 According to John Finnis, justice is always a practical willingness to favour the common good of one’s community, and the theory of justice is a theory of what is required for that common good.59 The ‘common good’ is understood as extending beyond any individual beneficiary. It is rather a state of affairs in which balance exists outside of time and space limitations. In other words, this state of affairs does not give preference to a particular moment in the lifetime of a person (or a state), and it does not prioritise any particular geographical region over any other one. Finnis’s view of the ‘other-directedness’ of justice is not unique to natural law theory. Kashmiri philosophy offers

50  W. K. C. Guthrie, A History of Greek Philosophy: Volume 2. The Presocratic Tradition from Parmenides to Democritus, Vol II (Cambridge University Press, 1965), 214–5. 51  Wallis, supra note 33, 163–74; Torella, supra note 29, 5. 52  See e.g. M. Burgis-Kasthala and B. Sander, ‘Contemporary International Criminal Law After Critique: Towards Decolonial and Abolitionist (Dis-)Engagement in an Era of Anti-Impunity’ (2024) Journal of International Criminal Justice Vol mqae012, https://doi​.org​/10​.1093​/ jicj​/mqae012 53  See, for example, M. Mutua, ‘Savages, Victims, and Saviors: the metaphor of human rights’ (2001) Harvard International Law Journal Vol 42, 201. 54  Ibid. See also Burgis-Kasthala and Sander, supra note 52. 55  M. R. Banaji and A. J. Greenwald, Blindspot: Hidden Biases of Good People (Bantam, 2016). 56  See Chapter 2, which explains how natural law theory and aesthetics help with strengthening the universality dimension, giving rise to more specific manifestations of justice. 57  J. Finnis, Natural Law and Natural Rights (2nd ed. Oxford University Press, 2011). 58  Ibid., 165. 59  Ibid.

Re-thinking the mode of expression   77 an equivalent notion. Paratva – or ‘otherness’ – is a way of perceiving limitations in the unitary field of existence.60 Notable Kashmiri thinkers Utpaladeva (flourished in 925–950 AD) and his commentator Abhinavagupta focus on the central question of what constitutes an identity or the ‘self.’ They ultimately conclude that all phenomena are nothing more than the limited aspects of consciousness. Liberation from the bondage of saṃsāra is then a mere recognition that the ‘I’ or the ‘self’ is not the limited subject affected by time and space that the ‘I’ has so far believed itself to be.61 Utpaladeva then explains: Otherness (paratva) only comes from limiting conditions such as the body, and these [limiting conditions themselves], as soon as they are investigated, [turn out] not [to be] different [from the universal self]; therefore the entire multiplicity of the subjects is in reality one single subject, and this [subject] alone exists.62 This monistic starting point is therefore reflective of the deepest level of understanding of reality at Parā vāk. This level of speech holds the key to the connection between commutative justice and aesthetics at a pre-conceptual level: both approaches to reality aim at escaping ordinary cognitive constraints. The theory of aesthetics as articulated by Kant sees the judgment of beauty as preconceptual in nature – the pleasure of the beautiful depends on the ‘free play’ of the faculty of imagination, which is not subordinate to a prior concept.63 It is important to note that ‘pleasure’ is understood as ‘awareness’ in this context.64 The judgment of beauty makes a claim to universal validity precisely because of the universal communicability of the free play of the faculties. Such inter-communicability is only possible if one accepts an extended view of the ‘self’ as transcending the limitations of identity. Commutative justice, per Finnis, is about favouring the common good by adopting a third person perspective on the situation.65 Finnis observes that modern vocabulary and the grammar of rights very often assert the position of justice from the perspective of an agent that benefits from the situation. It provides a framework for talking about ‘what is just’ from a specific angle.66 Commutative justice offers an expanded view from a neutral position

60  I. Ratié, ‘Otherness in the Pratyabhijñā Philosophy’ (2007) Journal of Indian Philosophy Vol 35(4), 313. 61  Ibid., 314. 62  Īśvarapratyabhijñāvimarśinī Vol I, p. 48, as cited and translated from Sanskrit by I. Ratie, 315, ft. 2. 63  Kant, supra note 46, para. 9, emphasis added. 64  Ibid. 65  Finnis, supra note 57, 184. 66  Ibid., 205.

78  Art, aesthetics and international justice of coordinated action towards a common purpose.67 Losing an individualistic point of reference by adopting the lens of aesthetics or by resorting to the idea of a neutral observer allows one to enter a transpersonal awareness that transcends any limiting pre-determined cognitive categories.68 This is the core of universality. Paśyantī vāk (‘conceptualisation’)

The second level of speech is Paśyantī vāk (‘conceptualisation’), which denotes the ground upon which all discourse is formed. This level does not contain distinctions between subjects and objects, but rather it holds the impressions of the pattern or the ‘templates’ for our mental engagement with reality. One can say that it is the place from which one’s perception of the world is formed. This level of speech holds the very first iteration of knowledge in a ‘seed’ form.69 It is a promise of further articulation or an initial impulse to express.70 Unlike the ‘unity’ at the Parā vāk level of speech, the Paśyantī vāk enables the ‘I’ in the form of subjective awareness, but the subjects and the objects are not clearly differentiated as they are just ‘conceptualised’ as a pattern. This level of speech can be roughly equated to the fields of discourse formation in the theory of discourse analysis developed, among others, by Michel Foucault in his Archaeology of Knowledge. The fields essentially generate ‘rules and conditions’ making certain statements possible and not others.71 Foucault helpfully distinguishes two sets of questions: inquiries about the rules that allowed for some statements to appear and would facilitate similar statements in the future, and discourse examinations revealing the process through which one particular statement appeared and not another.72 The latter form of inquiry – discourse analysis – goes to the level of causes and conditions that give rise to an utterance, whereas the former exercise – language analysis – is a more superficial linguistic and grammatical investigation. Some historical events culminated in points of consensus around certain sets of values that gave rise to the system of laws and institutions we call international justice today.73 For instance, the intensity of the events occurring in the first half of the twentieth century gave rise to a certain ‘framing’ of international justice as being focused on deterrence and nuclear non-proliferation. For most of history, peace only meant the temporary absence of war.74 This

67  Ibid., 232. 68  Ingalls, supra note 30, 36. 69  Torella, supra note 29, 9. 70  Ibid. 71  Foucault, supra note 32, 26–7. See also P. Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) Hastings Law Journal Vol 38, 814. 72  Foucault, supra note 3, 26–7. 73  See Chapter 2. 74  Y. N. Harari, ‘By Invitation: Russia and Ukraine,’ The Economist Vol 9 February 2022.

Re-thinking the mode of expression   79 changed in the middle of the twentieth century with the creation of a web of mutually binding commitments to ensure the implausibility of war and its decline as an instrument regulating inter-state affairs. The conditions at the time of the adoption of the UN Charter allowed for the existence of the statements contained in this document.75 The idea of ‘collective measures’ to prevent ‘threats to peace and security’ – as stipulated in Article 1(1) of the UN Charter – triggers the shared understanding about the need to prevent aggressive wars.76 This sentiment is premised on the historical context within which this statement appeared. It is then well understood that certain actions may arise in the future upon the appearance of similar conditions. The specific language in the UN Charter is thus a vehicle for carrying forward meaning coloured by the context. This type of utterance would be understood by the theory of discourse analysis as a ‘discursive statement’ or an ‘event’ that neither the language nor the meaning can exhaust.77 It would be wrong, however, to approach the UN Charter as a uniform discourse field, designed to produce near-automated responses to the specific conditions detailed in the document prepared at the United Nations Conference on International Organization, also known as the San Francisco Conference.78 The drafting process of the UN Charter was rife with ideological ruptures. For instance, the degree to which various countries prioritised the role of fundamental human rights and the principles of justice as a precondition for peaceful co-existence varied significantly. While the spirit of respect for human rights was certainly present during the drafting process,79 it was most prominently advocated by the smaller powers, and it was never fully embodied in the final text of the UN Charter.80 The four governments co-sponsoring the San Francisco Conference – the United States of America, the United Kingdom, the USSR, and the Republic of China – strongly leaned

75  Charter of the United Nations, 24 October 1945, 1 UNTS XVI (UN Charter). 76  Article 1(1) of the UN Charter reads as follows: ‘The Purposes of the United Nations are: … to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.’ 77  Foucault, supra note 3, 28. 78  K. Månsson, ‘Reviving the “Spirit of San Francisco”: The Lost Proposals on Human Rights,’ Justice and International Law to the UN Charter (2007) Nordic Journal of International Law Vol 76, 217. 79  Verbatim Minutes of First Plenary Session, 26 April 1945, Doc. 10 P/1 reproduced in Documents of the United Nations Conference on International Organization, San Francisco, 1945, Vol 1, United Nations Information Organizations, London, New York, 1945, 123. 80  Månsson, supra note 78.

80  Art, aesthetics and international justice towards the core mission of the new organisation being international security coordination, political and economic tasks.81 In contrast, India, the Union of South Africa, and Panama voiced specific proposals regarding the role of human rights in the new organisation.82 Panama even appended a list of specific human rights to be included in the UN Charter as a ‘Declaration of Essential Human Rights.’83 These proposals never made it to the final text (although human rights are mentioned in passing), but the seeds were planted for an expanded vision of the document in the future. Farid Zeineddine, the Ambassador of Syria and the Rapporteur on the Preamble, Purposes and Principles of the UN Charter at the San Francisco Conference, commented on the fluidity of the document by noting that it only represents the most basic agreements: the Charter cannot be amplified to include all the major Purposes and Principles that cover international behaviour but should include the essential ones, which, being basic, can and should serve the Organization and its Members.84 Specific formulations used in international treaties are therefore incisions on the body of discourse, creating certain modes of engagement with reality. These events are not merely linguistic formulations but rather are setting out a blueprint for a collective response. The discourse paradigms agreed upon and birthed as international treaties are not set in stone, however, as they contain causes and conditions for their own re-invention in the future. The Paśyantī vāk level of speech reveals itself when approaching international legal documents as ‘living instruments,’ requiring reinterpretation in light of the presentday circumstances. Madhyamā vāk (‘verbalisation’)

The third level of speech is Madhyamā vāk (‘verbalisation’), which is the level of thought and internal discourse. The thought at this level is highly symbolic and may come in a variety of forms, including images and signs. Madhyamā vāk presupposes a clear distinction between the subject (the cogniser) and the

81  Ibid., 221. 82  Verbatim Minutes of First Meeting of Commission I, 11 May 1945, Doc. 215, I/1/10, in Documents of the United Nations Conference on International Organization, San Francisco, 1945, Volume VI, General Provisions, United Nations Information Organizations, London, New York, 1945, 527. 83  Ibid., 545. 84  Report of the Rapporteur, Subcommittee I/1/A, (Farid Zeineddine, Syria), to Committee I/1, 1 June 1945, Doc. 723, I/1/A/19, 1 June 1945, in Documents of the UN Conference, Vol. I, United Nations Information Organizations, London, New York, 1945, 700.

Re-thinking the mode of expression   81 object (what is being cognised).85 The initial embryonic perception at Paśyantī vāk is processed here into fully differentiated and successive concepts. Yet, at this level, the process of cognition is still more dominant than its object. This level underpins collective rituals (including legal rituals) as it corresponds to identity formation on any individual or collective level, with distinct symbols powerfully representing the recurring psychic states.86 This level of discourse emphasises the overall context of cognition and the subject perceiving the objects. Madhyamā vāk can be contrasted with the following level of discourse exclusively focused on the object itself. Madhyamā vāk has strong resonance with the theory of speech developed by John Austin in his seminal work How to Do Things with Words.87 Austin explained that some utterances are not descriptive but rather operational, or, as he calls them ‘performative.’88 Their function is to ‘do’ rather than to reflect what is. How does one determine whether a statement is indeed performative? What is important is that the words must be uttered in accordance with the established procedure by persons vested with certain authority.89 This is precisely why context matters and why international trials may be perceived as legal rituals.90 For instance, the declaration ‘I do’ may amount to an act of getting married if uttered in the context of a wedding ceremony by the one who is getting married. Importantly, the intent of the party pronouncing the statement does not attest to its performativity as such but rather indicates whether it is a ‘happy statement,’ meaning it is aligned with the subsequent action.91 The crucial element in determining the ‘power’ of the statement is context. One of the problems of modern human rights law can be explained from the perspective of Madhyamā vāk. It is possible to view current human rights discourse as both empowering and limiting at the same time. The Universal Declaration of Human Rights (UDHR) is a milestone document that was adopted by the UN General Assembly on 10 December 1948, shortly after the end of the Second World War. This document embodies common understandings reached by the representatives from different countries and cultures drafting it. It is the first document in history to list fundamental human rights subject to universal protection. The Declaration consists of the Preamble and 30 articles, each dealing with a specific right or freedom, including, for instance, the right to life, the right to an effective legal remedy, freedom from torture and arbitrary detention. The UDHR served as a basis for subsequent

85  Torella, supra note 29, 6. 86  Bourdieu, supra note 71, 828; Cohen, supra note 42, 4; Collins, supra note 41, 83. 87  Austin, supra note 3. 88  Ibid. 89  Ibid., 26. 90  M. Aksenova, ‘The Role of International Criminal Tribunals in Shaping the Historical Accounts of Genocide’ in U. Belavusau and A. Gliszczyńska-Grabias (eds) Law and Memory: Towards Legal Governance of History (Cambridge University Press, 2017), 29–47. 91  Austin, supra note 3, 39–40.

82  Art, aesthetics and international justice human rights treaties and is thus fundamental for understanding modern international human rights law.92 Human rights discourse based on the UDHR is empowering because of the possibilities of a better quality of life that the list of human rights offers to the rights bearers. It is also limiting because it largely leaves the enforcement phase to individual states. Hannah Arendt eloquently referred to this problem as the ‘right to have rights’ – effective implementation of rights depends on the type of citizenship (or absence thereof) held by the person.93 Arendt referred to the situation of statelessness, but the same logic applies to citizenship disparity, with some countries more invested in the cause of protecting the human rights of their citizens than others, while formally proclaiming a comparable list of rights in their respective constitutions.94 Thus citizenship in a wealthy democracy can be referred to as a precondition to exercising most human rights.95 This is a somewhat unseen dynamic of the human rights law discourse. Another disempowering aspect of the human rights discourse is the seeming opposition between a state that bears the duties and an individual who passively receives grace in the form of basic human rights. There is an implicit power imbalance between the state and the individual, which is not remedied by the human rights treaties. The global human rights movement arguably overfocused in the past on the content of specific rights, while overlooking the fundamental differences in their implementation and enforcement. This tilt can be seen in the migration and refugee crisis of the second decade of the twenty-first century. The exponential growth of interpersonal connectivity powered by technology, as well as climate-related shifts in global migration, will only amplify the need for the productive unsettling of belonging and identity based in citizenship. This re-alignment of conceptual categories motivated by the need to facilitate the universal access to rights will be a crucial step towards adapting the system of international justice to better serve current and future global challenges.96 Is there scope to re-imagine the language of human rights from a neutral observer perspective? Martha Nussbaum and Amartya Sen moved in this ­direction by reframing human rights as human capabilities that are critical to

92  Such as the International Covenant on Civil and Political Rights, 16 December 1966; the International Covenant on Economic, Social and Cultural Rights, 16 December 1966; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984; the Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979; the International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965. 93  H. Arendt, The Origins of Totalitarianism (Harcourt Brace & Co., 1979, originally published in 1951). 94  See M. Aksenova, ‘Global Citizenship and the Right of Access to Justice: Adapting T.H. Marshall’s Ideas to the Interconnected World’ (2023) Humanity Journal Vol 14(2), 169. 95  Ibid. 96  See Chapter 6.

Re-thinking the mode of expression   83 full human functioning. Nussbaum and Sen shifted the focus from the end goal, such as ‘life’ in the ‘right to life,’ to the process that allows human flourishing.97 The list of capabilities includes being able to have attachments; being able to live with concern for the world of nature; and being able to laugh and play, among many others.98 This is just one example of how human rights discourse can be reframed in a more empowering language, which also makes enforcement less state-dependent. Vaikharī vāk (‘communication’)

Finally, the fourth level of speech is Vaikharī vāk (‘communication’), which is everyday articulate speech expressed in writing or orally. It is the level of all languages as they denote the distinction between the subject and the object.99 It is also the level of a purely legal discourse conducted in binary language – guilty/innocent; perpetrator/victim; fair/unfair; binding/non-binding; and so on. This level of speech corresponds to the function of ‘communication’ because the words are externalised and made into audible sounds or visible letters. In the Kashmiri philosophical framework, Vaikharī vāk is the coarsest form of expression as the initial impulse is externalised by virtue of negating all other possibilities (if I call something a ‘pink vase,’ I automatically omit to say that it is round, made out of clay and so on). This level of speech can also be viewed as the surface of the ocean – it is the most superficial expression of a complex and inter-related process giving rise to a particular form of expression. It is for this reason that Walter Benjamin rejected spoken language as a means of communication, for it only reflects the ‘mental being of men.’ Benjamin instead preferred to view spoken language as a medium in which the mental being expresses itself.100 There is therefore a clear fallacy exposed at the Vaikharī vāk level. It is wrong to believe that any linguistic concept can ever capture the fullness of the experience. At this express level of speech, words often fail to provide an accurate label to the dynamic nature of reality. There is a mismatch caused by the fact that words are taken to be ‘truths’ as opposed to being viewed merely as ‘tools’ to be approached contextually. Judith Butler, in her recent 2021 lecture at Ashoka University, offered an excellent example of how the UN language related to reproductive and sexual rights can be seen as being ‘out of context’ in various parts of the world.101 Some communities in Brazil,

 97  A. Sen, ‘Capability and Well-Being’ in M. Nussbaum and A. Sen (eds) The Quality of Life (Oxford Clarendon, 1993).  98  Ibid.  99  Torella, supra note 29, 5. 100  Duarte citing Benjamin, supra note 19, 322. 101  J. Butler and R. Kapur ‘Lecture: Is Sexuality a Right?’ Online Lecture at The Centre for Studies in Gender and Sexuality (CSGS) at Ashoka University, 18 June 2020, available at https://www​.youtube​.com​/watch​?v​=P1bTXwvN9v0

84  Art, aesthetics and international justice for instance, reject the UN human rights discourse on this issue as irrelevant due to the country’s history and culture.102 This is so because the UDHR provides for a rather restrictive understanding of sexual rights as being heterosexual in nature. The urge is therefore to adapt and translate the formulaic language of human rights into vocabulary that would resonate with various communities.103 The Vaikharī vāk level of speech points towards effective communication, which is impossible without considering the deeper processes underlying each verbal expression. For instance, the Preamble of the UN Charter discussed earlier mentions ‘conditions’ for ensuring justice and respect for the obligations under international law.104 This statement is indicative of Paśyantī vāk as it forms certain expectations. These conditions are then framed as specific but aspirational goals of the organisation – created at Madhyamā vāk – which include developing friendly relations among nations, maintaining peace and security, and achieving international cooperation in solving international problems.105 Communication at Vaikharī vāk is then fundamental in bringing these goals to life in various specific contexts. Effective communication is an essential vehicle for maintaining the persuasive authority of international justice. Communication is key because – as discussed earlier – the field of international justice often operates not through enforcement but by establishing discursive benchmarks, creating a compliance pull.106 Domestic and global actors consider the rules set out by international institutions and treaties not merely from the perspective of being formally bound by them but also through the lens of effective deliberative practices. The significance of the notions of judicial fairness or the prohibition against torture extends well beyond the actual legal enforceability of these provisions. Coordination and observance happen because international law shapes future expectations, and various actors regard it as a standard for decision-making.107 Successful communication is then fundamental to the attainment of the goals mentioned in Article 1 of the UN Charter.108 Case study: the origins of the ICTY It is helpful to apply the theoretical framework outlined in the previous section to a concrete example with the view of exploring how understanding different

102  Ibid. 103  Ibid. 104  UN Charter. 105  Article 1 UN Charter. 106  B. Çali, The Authority of International Law: Obedience, Respect, and Rebuttal (Oxford University Press, 2015). 107  R. Howse and R. Teitel, ‘Beyond Compliance: Rethinking Why International Law Really Matters’ (2010) Global Policy Vol 1(2), 127. 108  Article 1 UN Charter.

Re-thinking the mode of expression   85 levels of expression in international justice can assist in re-imagining its 2.0 version. I examine the origins of the creation of the International Criminal Tribunal for the former Yugoslavia to demonstrate the fact that the words used in its constitutive resolutions adopted by the UN Security Council in 1992 and 1993 are just surface-level manifestations of deeper processes catalysing drastic developments in the field of international criminal justice at that time. The ICTY was created as the first of its kind in the 1990s – an institution of the universal condemnation of evil embodied in the form of a criminal court.109 Inception

To understand the surface-level origins of the ICTY, it is worth comparing the express wording of the three UN Security Council resolutions leading to its creation.110 This exercise would correspond to the most superficial level of speech, namely Vaikharī vāk. The first relevant resolution passed in 1992 established the Commission of Experts to analyse information pertaining to the violations of international humanitarian law on the territory of the former Yugoslavia (‘Commission of Experts’).111 In October 1992, over a year after the atrocities had erupted in the region, the Security Council expressed ‘grave alarm’ at continuing reports about widespread crimes in the region, in particular mass killings and ‘ethnic cleansing.’ The wording of the rest of the document was rather restrained and technical, focusing on states’ obligation to comply with international humanitarian law and calling on them to compile information on the infringements with a view to submitting it to the newly established investigative body. The Commission of Experts issued its interim report less than five months later.112 Having considered it, the Security Council used stronger language to express, once again, ‘grave alarm over continuing reports of widespread violations,’ and to stress the need to put an end to those crimes and bring to justice persons responsible for them. Thus, just a few days following the interim report, the UN Security Council members swiftly decided on the establishment of the tribunal to further those aims. The new institution was also called to contribute to loftier goals, such as the restoration and maintenance of peace.113 Finally, Resolution 827 establishing the tribunal in May 1993 under Chapter

109  Aksenova, supra note 41. 110  Ibid. 111  UN SC Resolution 780, 6 October 1992. 112  Letter dated 9 February 1993 from the Secretary-General addressed to the President of the Security Council, transmitting the interim report of the Commission of Experts established pursuant to resolution 780 (1992) to provide the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia (S/25274). 113  UN SC Resolution 808, 22 February 1993.

86  Art, aesthetics and international justice VII of the UN Charter adopted even more aspirational language, adding it to the pragmatic discussion of the future tribunal’s operation. This document listed specific crimes committed on the territory of the former Yugoslavia, including organised and systematic detention and rape of women, and emphasised the belief of the Council members that the new tribunal ‘will contribute to ensuring that such violations are halted and effectively redressed.’114 Intensity

There are two angles from which to view the increase in the intensity of language in the resolutions mentioned in the previous section. From a linguistic point of view, one may observe enhanced performativity of the statements made by the Security Council. It is clear from the language of these documents that all the conditions were present to make the statements of the Security Council operational, and the alarming tone attested to the strength of the intention of the parties to take some action about the unfolding atrocities in the Balkans. The second angle for explaining the language in the resolutions is that of symbolic power. It is through the invocation of the juridical power of law that the UN Security Council attempted to do something about the ongoing crimes.115 The decision of the stakeholders to direct their outrage through the channel of law was not coincidental. The legal avenue was the most available path at that point in time.116 It was clear that something needed to be done at an international level, and, as a result, the tribunal was instituted on behalf of the community of nations with one overarching aim – condemnation of evil deemed universal. The language of the Security Council resolutions demonstrates an intensifying worldwide concern over offences committed in the course of the Balkan War. In other words, the time was right to bring those matters to the attention of the tribunal mandated to conduct prosecutions in the name of universal values. In this sense, the overarching purpose of the ICTY was symbolic – to uphold the value of human dignity through the ritual of criminal prosecutions in light of the inability of local actors to prevent further escalation of atrocities.117 Symbolic power – characteristic of the processes at the level Madhyamā vāk – was deployed to attain this objective. The following Chapter 4 further engages with the conceptualisation of criminal trials as legal rituals. It suffices to mention here that the ICTY was not just an institution created to produce

114  UN SC Resolution 827, 25 May 1993, emphasis added. 115  Bourdieu, supra note 71, 823. 116  M. J. Matheson and D. Scheffer, ‘The Creation of the Tribunals’ (2016) American Journal of International Law Vol 110(2), 179. 117  For more on the symbolism of international criminal law, see Aksenova, supra note 40; see also Aksenova, supra note 41.

Re-thinking the mode of expression   87 judgments, but it was also seen by the stakeholders as a symbol of justice118 and a way to restore peace and security in the region.119 This fact gets revealed as one examines the documents that led to the tribunal’s creation.120 Consensus

The conditions were ripe for bringing into being the ICTY. The beginning of the 1990s denoted the enhanced interest in human rights and accountability following the perceived end of the Cold War.121 In 1989, Francis Fukuyama famously declared the end of history, marking the seeming demise of communist ideology.122 There appeared to be a moment in which humanity saw possibilities of coming together to create international institutions. The ICTY was therefore conceived in a moment of consensus – an astounding achievement of international cooperation when all the members of the UN Security Council put their ideological differences aside and agreed upon its establishment. Matheson and Scheffer – the contemporaries of the process of creating the ICTY – observed that it was far from certain at the outset that using the UN Charter Chapter VII authority to conceive a criminal tribunal and to impose penalties on individuals would be acceptable to international community as a whole.123 The report of the Secretary General containing the draft statute of the tribunal indicated that in the ordinary course of events a treaty would underlie the establishment of such a tribunal, but in the present circumstances, creation by the Security Council was legally justified and more effective.124 This move was only possible due to an overwhelming international agreement reached at the point of the ICTY’s establishment. Common ground

The Parā vāk level of expression is most difficult to describe as it is by definition beyond any conceptual categories. One can suggest, however, with respect to the question of the origins of the ICTY, that the tribunal was created to

118  Matheson and Scheffer, supra note 116; M. C. Bassiouni, ‘The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780’ (1994) American Journal of International Law 88, 794. 119  Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, 3 May 1993, para. 22. 120  See M. Aksenova, ‘Transformative Power of the International Criminal Tribunal for the Former Yugoslavia’ in M. Bergsmo and K. Lohne (eds) Power and International Criminal Justice (Torkel Opsahl Academic EPublisher, 2020). 121  This trend is skillfully discussed by Kathryn Sikkink. See K. Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (Norton, 2011). 122  F. Fukuyama, ‘The End of History?’ (1989) The National Interest Vol 16, 3. 123  Matheson and Scheffer, supra note 116, 179. 124  Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, 3 May 1993, paras. 18–30.

88  Art, aesthetics and international justice be a unifying cohesive force upholding the universal value of human dignity through ‘claiming, naming and blaming.’125 The language of universality is evident in the text of the UN SC Resolution 827 that mentions goals such as the restoration and maintenance of peace and ensuring that violations of international humanitarian law are halted and effectively redressed.126 The same document calls on all states to cooperate fully with the tribunals. These are very high-octane statements made by the representatives of an international community. The ICTY was later criticised for not fully delivering on its stated objectives.127 This does not undermine the original impulse towards unity that underlies its conception. David Luban describes the process of honouring human dignity as a way of allowing someone to tell their story, insisting that it is told and assuming it is told in good faith.128 The tribunal was meant to do just that (considering the limitations of a criminal process aimed at establishing individual criminal responsibility). In this regard, it can be counterpoised with the divisive rhetoric stirring the ethnic tensions leading up to the escalation of violence. The work of the ICTY could be seen as countering the split by appealing to common ground – the shared sense of humanity and universal values.129 Conclusion This chapter offered an overview of the four levels of speech developed in the ancient Rig Veda and later commented upon by the Kashmiri scholars of the eleventh century. This exercise revealed the existence of a surface-level speech and deeper conditions giving rise to what appears in the written form in legal judgments and international treaties. The key to re-imagining international justice is to unlock the potential of these underlying processes. It is important to identify the moments initiating a sense of consensus and later producing specific language and patterns of thought. The institutional structures then follow. Universality resides at the highest level of abstraction in the form of the ultimate unexpressed unity. It informs both international justice and aesthetics and is best explored by stepping outside of the ‘I’ and adopting a third person perspective. There thus exists a strong correspondence with the theories of aesthetics discussed in Chapter 2 when it comes to art’s function in creating moments of experience, taking one outside of their habitual thought

125  D. Luban, Legal Ethics and Human Dignity (Cambridge University Press, 2007), 147. 126  UN SC Resolution 827 (1993). 127  E.g. M. Tripkovic, ‘Not in our name! Visions of community in international criminal justice’ in M. Aksenova, E. van Sliedregt and S. Parmentier, Breaking the Cycle of Mass Atrocities: Criminological and Socio-Legal Approaches in International Criminal Law (Hart, 2019). 128  Luban, supra note 125, 88. 129  Aksenova, supra note 41.

Re-thinking the mode of expression   89 pattern.130 An aesthetic lens of ‘seeing’ creates room in which the attention of the observer is manipulated in a way that he or she perceives the world in an unfamiliar way.131 It takes the stance of an external observer to challenge the habitual conceptual frames of reference. Just like the theory of aesthetics, the theory of the levels of speech challenges linearity as it focuses on the general pattern viewed from outside of time, space and the individuated locus of awareness. Any expression is seen as a descent from the unitary impulse into more individuated forms. Such a perspective reveals the process of formation of the dominant discourse forms in the field of international justice. It also shows their malleability. The expressive forms are not set in stone, and this is precisely when (legal) imagination comes into play and can bear fruits in the task of designing international justice 2.0. Which concepts can be re-invented considering the present-day challenges? Which discursive fields are outdated? The strong emphasis on aesthetics in this process is merited not just because of the philosophical correspondence with the theory of speech but also because of the practical significance of imagery in the twenty-first century. The enhanced visualisation culture resulting from the proliferation of social media and other visual means of communication plays a role in revisiting imagination in crafting international justice 2.0.132 The legal rhetoric will adjust to these new forms of expression. Bibliography Literature T. Adorno, Aesthetic Theory (Continuum, 1997, originally published 1970) M. Aksenova, ‘The Arms Industry and International Criminal Liability: Challenging the Status Quo?’ (2024) Business and Human Rights Journal, forthcoming M. Aksenova, ‘Global Citizenship and the Right of Access to Justice: Adapting T.H. Marshall’s Ideas to the Interconnected World’ (2023) Humanity Journal Vol 14(2), 169 M. Aksenova, ‘The Role of International Criminal Tribunals in Shaping the Historical Accounts of Genocide’ in U. Belavusau and A. Gliszczyńska-Grabias (eds) Law and Memory: Towards Legal Governance of History (Cambridge University Press, 2017) M. Aksenova, ‘Symbolic Expression at the International Criminal Tribunal for the Former Yugoslavia’ in C. Stahn et al. (eds) Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Account (Oxford University Press, 2020) M. Aksenova, ‘Symbolism as a Constraint on International Criminal Law’ (2017) Leiden Journal of International Law Vol 30(2), 475

130  S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art Beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125. 131  Ibid. 132  Sherwin, supra note 16, 187.

90  Art, aesthetics and international justice M. Aksenova, ‘Transformative Power of the International Criminal Tribunal for the Former Yugoslavia’ in M. Bergsmo and K. Lohne (eds) Power and International Criminal Justice (Torkel Opsahl Academic EPublisher, 2020) M. Aksenova and C. Burke, ‘The Chagos Islands Award: Exploring the Renewed Role of the Law of the Sea in the Post-Colonial Context’ (2017) Wisconsin International Law Journal Vol 35(1), 1 M. Aksenova and I. Marchuk, ‘Reinventing or Rediscovering International Law? The Russian Constitutional Court’s Uneasy Dialogue with the European Court of Human Rights’ (2018) International Journal of Constitutional Law Vol 16(4), 1322 H. Arendt, The Origins of Totalitarianism (Harcourt Brace & Co., 1979, originally published 1951) J. L. Austin, How to Do Things with Words (Oxford University Press, 1962) M. R. Banaji and A. J. Greenwald, Blindspot: Hidden Biases of Good People (Bantam, 2016) M. C. Bassiouni, ‘The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780’ (1994) American Journal of International Law Vol 88, 794 W. Benjamin, On Language as Such and on Language of Man in One-Way Street and Other Writings (NLB, 1979), 111 M. Bloch, Prey into Hunter: The Politics of Religious Experience (Cambridge University Press, 1992) P. Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) Hastings Law Journal Vol 38, 814 M. Burgis-Kasthala and B. Sander, ‘Contemporary International Criminal Law After Critique: Towards Decolonial and Abolitionist (Dis-)Engagement in an Era of AntiImpunity’ (2024) Journal of International Criminal Justice, mqae012, https://doi​ .org​/10​.1093​/jicj​/mqae012 J. Butler and R. Kapur lecture, Is Sexuality a Right?, Online Lecture at The Centre for Studies in Gender and Sexuality (CSGS) at Ashoka University, 18 June 2020, available at https://www​.youtube​.com​/watch​?v​=P1bTXwvN9v0 B. Çali, The Authority of International Law: Obedience, Respect, and Rebuttal (Oxford University Press, 2015) A. Cohen, Two-Dimensional Man: An Essay on the Anthropology of Power and Symbolism in Complex Societies (University of California Press, 1976) R. Collins, Interaction Ritual Chains (Princeton University Press, 2004) M. Del Mar, ‘Imagination in Legal Thought: Abilities, Devices and their Comparative History’ in G. Samuel and S. Glanert (eds) Comparative Legal Reasoning: Essays in Honour of Geoffrey Samuel (Wildy, Simmonds and Hill Publishing, 2018) J. Dewey, Art as Experience (Capricon Books, 1958) R. Duarte, ‘Benjamin’s Conception of Language and Adorno’s Aesthetic Theory’ (2006) Kriterion: Revista de Filosofia Vol 46(112), 321 J. Finnis, Natural Law and Natural Rights (Oxford University Press, 2nd edn, 2011) M. Foucault, Archaeology of Knowledge (Pantheon Books, 1969) F. Fukuyama, ‘The End of History?’ (1989) The National Interest Vol 16, 3 W. K. C. Guthrie, A History of Greek Philosophy: Volume 2. The Presocratic Tradition from Parmenides to Democritus, Vol II (Cambridge University Press, 1965) Y. N. Harari, ‘By Invitation: Russia and Ukraine’, The Economist, 9 February 2022 M. Hiriyanna, Outlines of Indian Philosophy (Motilal Banarsidass Publishers, 1993)

Re-thinking the mode of expression   91 R. Howse and R. Teitel, ‘Beyond Compliance: Rethinking Why International Law Really Matters’ (2010) Global Policy Vol 1(2), 127 D. H. J. Ingalls et al. (eds), The Dhvanyaloka of Anandavardhana with the Locana of Abinavagupta (Harvard University Press, 1990) M. Koskenniemi, From Apology to Utopia (Cambridge University Press, 2005) D. Luban, Legal Ethics and Human Dignity (Cambridge University Press, 2007) K. Månsson, ‘Reviving the “Spirit of San Francisco”: The Lost Proposals on Human Rights,’ Justice and International Law to the UN Charter (2007) Nordic Journal of International Law Vol 76, 217 M. J. Matheson and D. Scheffer, ‘The Creation of the Tribunals’ (2016) American Journal of International Law Vol 110(2), 179 M. Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) Harvard International Law Journal Vol 42, 201 M. Nussbaum, Poetic Justice (Beacon Press, 1997) S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125 I. Ratié, ‘Otherness in the Pratyabhijñā Philosophy’ (2007) Journal of Indian Philosophy Vol 35(4), 313 A. Roberts, International Law International? (Oxford University Press, 2017) A. Sen, ‘Capability and Well-Being’ in M. Nussbaum and A. Sen (eds) The Quality of Life (Oxford Clarendon, 1993) R. Sherwin, Visualizing Law in the Age of the Digital Baroque: Arabesques and Entanglements (Routledge, 2011) K. Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (Norton, 2011) P. Simmons, ‘Meaning and Language’ in B. Smith and D. Woodruff Smith (eds) The Cambridge Companion to Husserl (Cambridge University Press, 1995) C. Stahn, Justice as Message (Oxford University Press, 2020) R. Torella, ‘The Word in Abhinavagupta’s Bṛhad-vimarśinī’ (2012), available at https://vdocuments​.site​/reader​/full​/torella​-raffaele​-the​-word​-in​-abhinavagupta​ -s​-brihad​-vimarshini M. Tripkovic, ‘Not in Our Name! Visions of Community in International Criminal Justice’ in M. Aksenova, E. van Sliedregt and S. Parmentier (eds) Breaking the Cycle of Mass Atrocities: Criminological and Socio-Legal Approaches in International Criminal Law (Hart, 2019) C. Wallis, Tantra Illuminated: The Philosophy, History, and Practice of a Timeless Tradition (Mattamayura Press, 2013) L. Wittgenstein, ‘A Lecture on Ethics’ (1965) Philosophical Review Vol 74(1), 3 Legal Instruments and Judgments Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979 International Covenant on Civil and Political Rights, 16 December 1966; International Covenant on Economic, Social and Cultural Rights, 16 December 1966; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965.

92  Art, aesthetics and international justice Letter Dated 9 February 1993 from the Secretary-General Addressed to the President of the Security Council, Transmitting the Interim Report of the Commission of Experts Established Pursuant to Resolution 780 (1992) to Provide the SecretaryGeneral with its Conclusions on the Evidence of Grave Breaches of the Geneva Conventions and other Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (S/25274) Miguel Castro-Castro Prison v. Peru, Merits, Reparations, and Costs, Judgment, Concurring Opinion of Judge A.A. Cançado Trindade, Inter-Am. Ct. H.R. (ser. C) No. 160, 2 August 2008 Report of the Rapporteur, Subcommittee I/1/A, (Farid Zeineddine, Syria), to Committee I/1’, 1 June 1945, Doc. 723, I/1/A/19, 1 June 1945, in Documents of the UN Conference, Vol. I, United Nations Information Organizations, London, New York, 1945, 700 Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, 3 May 1993 The South China Sea (Philippines v. China), PCA Case No. 2013-19, Award, 2016 Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines, https://www​.fmprc​ .gov​.cn​/mfa​_eng​/wjdt​_665385​/2649​_665393​/201607​/t20160712​_679470​ .htm The Statute of the International Court of Justice, 18 April 1946 UN Convention on the Law of the Sea, U.N. Doc. A/CONF.62/122, 7 October 1982 UN General Assembly, 22nd Session 1515th Meeting, U.N. Doc. A/C.1/PV.1515, 1 November 1967 UN SC Resolution 780, 6 October 1992 UN SC Resolution 808, 22 February 1993 UN SC Resolution 827, 25 May 1993 Verbatim Minutes of First Plenary Session, 26 April 1945, Doc. 10 P/1 Reproduced in Documents of the United Nations Conference on International Organization, San Francisco, 1945, Volume 1, United Nations Information Organizations, London, New York, 1945, 123. Verbatim Minutes of First Meeting of Commission I, 11 May 1945, Doc. 215, I/1/10, in Documents of the United Nations Conference on International Organization, San Francisco, 1945, Volume VI, General Provisions, United Nations Information Organizations, London, New York, 1945, 527

4

International justice as a ritual Anthropological and sociological accounts

Introduction International justice can be seen as a form of ritual. Such a view is distinct from the theoretical models of authority and the theory of speech discussed earlier. International justice can be conceptualised in its procedural form, which is not limited by the legal considerations of due process and the technicalities of treaty drafting. If seen through the perceptual lens inspired by the theories of aesthetics, international justice is a process charged with intense emotional energy.1 The immediate participants in the process and the public are collectively partaking in legal rituals by investing the focus of their directed attention into consciously creating and following the developments.2 International justice research traditionally prioritises describing, categorising and making sense of the most superficial manifestations of expression at Vaikharī vāk (tangible legal output in the form of treaties, judgments, and other documents). There are good reasons to shift the direction of research in the field of international justice towards understanding the symbology and deeper structural processes at Madhyamā vāk.3 Seeing justice as a ritual corresponds directly to this third level of speech. Viewing international justice in its context and assessing the elements that constitute its performative power are key to unlocking the deeper layers of the discipline. The field of sociology grants a perspective on the potency of legal rituals. It is based on viewing them as coherent shared collective psychic states.4 For 1  R. Collins, Interaction Ritual Chains (Princeton University Press, 2004). 2  J. Alexander, ‘Cultural Pragmatics: Social Performance Between Ritual and Strategy’ in J. Alexander, B. Giesen and J. Mast (eds) Social Performance: Symbolic Action, Cultural Pragmatics and Ritual (Cambridge University Press, 2006). 3  See Chapter 3 for the explanation of each level of speech. Carsten Stahn and Randle de Falco explore the level of speech at Madhyamā vāk level. See C. Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice (Oxford University Press, 2020); R. de Falco, Invisible Atrocities: The Aesthetic Biases of International Criminal Justice (Cambridge University Press, 2022). 4  P. Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) Hastings Law Journal Vol 38, 814; A. Cohen, Two-Dimensional Man: An Essay on the Anthropology of Power and Symbolism in Complex Society (Routledge, 1977), 4; Collins, supra note 1, 83. DOI: 10.4324/9781032628844-4

94  Art, aesthetics and international justice instance, an international trial is perceived as a ‘success’ if it carries the quality of social legitimacy. The term ‘legitimacy’ is a useful pointer to the deeper aspects of legal rituals and it has several accepted meanings. Christopher Thomas suggests there are three types of legitimacy – social, legal and moral. Social legitimacy is a belief projected onto the actor, rule or system that they are legitimate.5 This is in contrast to the other two types of legitimacy – legal and moral. Legal legitimacy refers to a legal obligation to submit to the rule, actor or system, and moral legitimacy refers to moral justifications for these rules, actors or systems.6 Social legitimacy – or a belief – is then a shorthand for a convincing social performance generating a shared narrative accepted by a wider audience.7 The lens of perception inspired by the theories of aesthetics construes justice as a ritual or a social performance in its dynamic form. Chapters 2 and 3 argued for inviting imagination and openness in studying international justice. This is done by shifting the perceptual gears and moving away from strictly adhering to some fixed knowledge categories, such as, for instance, the concept of sovereignty. This new approach induces contemplation by inviting the observer to release their habitual thought patterns and fixed pre-determined classifications.8 Perception is at the heart of this process. This chapter addresses the context for such perception – viewing something as art is contextual and depends on the environment.9 The purpose of the chapter is to reveal procedural and ritualistic aspects of international justice, which are often overlooked in the outcome-oriented endeavour of achieving legal results, such as judgments. Focusing on the design of a courthouse or the robes worn by the judges brings attention back to the context within which justice is happening.10 Equally important is the collective psychic – or affective – state of all the participants in the process.11 International justice may therefore be conceived as a shared co-creative process, or a ritual, rather than merely a deterministic legal occurrence resulting in a treaty or a judgment. In other words, international

5  C. A. Thomas, ‘Uses and Abuses of Legitimacy in International Law’ (2014) Oxford Journal of Legal Studies Vol 34(4), 729. 6  Ibid., 736–9. 7  See Alexander, supra note 2. 8  See Chapter 2 on aesthetic theories. See also S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125. 9  D. H. J. Ingalls et al. (eds), The Dhvanyaloka of Anandavardhana with the Locana of Abinavagupta (Harvard University Press, 1990); R. Gnoli, The Aesthetic Experience According to Abinavagupta (4th ed. Chowkhamba Sanskrit Series Office, 2015). 10  M. Bak McKenna, ‘Designing for International Law: The Architecture of International Organisations 1922–1952’ (2021) Leiden Journal of International Law Vol 34(1), 1; S. Stolk and R. Vos, ‘International Legal Sightseeing’ (2020) Leiden Journal of International Law Vol 33(1), 1. 11  O’Sullivan, supra note 8.

International justice as a ritual  95 justice can be viewed as a material externalisation of a collectively shared intention to uphold certain values (e.g. bringing to justice those most responsible for mass atrocities). Seeing international justice and its specific manifestations as rituals does not preclude giving significance to its legal outputs and methods. These approaches are complementary. The next section explains how the two identities of international justice – social and legal – mutually reinforce each other. The social identity is deeply rooted in the idea of communal solidarity, as it is based on a system of shared beliefs supported by symbolic rituals. The following section further investigates the social identity by dwelling on the nature of legal rituals. It shows how powerful symbology strengthens and perpetuates the collective energy needed to maintain distinct institutions of international justice. Some conclusions are drawn at the end. Legal and social identities of international law and solidarity When delving into the sociological accounts of justice, it is instructive to depart from the premise that international justice assumes two identities – social and legal.12 These identities are interconnected yet distinct. One may object that there is nothing new to this conceptualisation – international justice is known to be a communal endeavour, which involves many actors occupying themselves with matters of shared concern. While this is certainly true, there is a strong tilt towards prioritising the legal identity of international justice in practice and research. Traditional outcome-oriented visions of international law highlight the conflicting interests of its agents: defence versus prosecution in international criminal law, state versus individual complainant in international human rights law, single states winning concessions motivated by sovereignty concerns during treaty negotiations, and so on.13 These pairs of opposites reinforce the ‘win/lose’ paradigm of international justice.14 The starting point favouring outcomes leads to a narrow perceptual vantage point: legitimacy is linked to expecting certain results beneficial for one (or both) of the parties. In contrast, a view that is more dynamic focuses on the situation itself as opposed to its singular constituent elements.15 It aligns with natural law perspective inviting the gaze of a neutral ‘disinterested’ observer.16 Concentrating on the process,

12  T. Kelly and M. Dembour, Paths to International Justice: Social and Legal Perspectives (Cambridge University Press, 2007). 13  For instance, via the route of reservations. See Articles 19–23 of the United Nations, Vienna Convention on the Law of Treaties, United Nations, Treaty Series, Vol 1155, p. 331, 23 May 1969. 14  See M. E. O’Connell, The Art of Law in the International Community (Cambridge University Press, 2019), 14–15. 15  Ibid., 38–9. See also Collins, supra note 1, xiii. 16  J. Finnis, Natural Law and Natural Rights (Oxford University Press, 2011).

96  Art, aesthetics and international justice or the ritual, in equal measure with the legal objectives, denounces purely linear approaches to international justice by rewiring the default way of taking the field to be a zero-sum game. International criminal trials and their social identity

An example of international criminal trials is fitting to demonstrate the two identities of international justice. As a legal event, an international criminal trial pronounces on the individual guilt or innocence of the alleged perpetrator of mass atrocities. In a legal sense, it pursues traditional criminal law objectives of retribution and deterrence, and, at least in theory, adheres to the liberal principles of legality and due process.17 Simultaneously these trials are social events. They fulfil an important communicative function in modern societies by actively reflecting consensus about the values agreed upon internationally.18 The crux of the matter is in the interaction between the legal and the social identities of an international criminal trial. The legal identity provides a basis for establishing the credibility of its social counterpart. As mentioned in the introduction, the legal (and moral) legitimacy of any international legal process signifies an obligation to submit to an action, rule, or system. This solid positivistic foundation then contributes to the collective belief that the process is legitimate.19 Shared belief produces communal solidarity, which – in turn – perpetuates the existence of an institution in time and space.20 There is thus interdependence between the legal and the social identities of legal institutions – the movement between the two identities is circular in nature. Solidarity is a key ‘ingredient’ in supporting international justice because it facilitates continuity. Solidarity is produced and strengthened not just by collectively focusing on the specific legal outcome but also through the symbolic action reflective of the deeper levels of (legal) discourse. International law anchors certain values imprinted in the global collective consciousness through legal rituals.21

17  For an extensive discussion of sentencing rationales, see A. von Hirsch, A. Ashworth, J. V. Roberts, Principled Sentencing: Readings on Theory and Policy (Hart, 2009). 18  Stahn, supra note 3; M. Damaška, ‘What is the Point of International Criminal Justice?’ (2008) Chicago-Kent Law Review Vol 83(1), 329; M. Aksenova, ‘Symbolism as a Constraint on International Criminal Law’ (2017) Leiden Journal of International Law Vol 30(2), 475. 19  See Thomas, supra note 5. 20  R. Cotterrell, Emile Durkheim: Law in a Moral Domain (Stanford University Press, 1999), 117. 21  M. Aksenova, ‘Solidarity as a Legal and Moral Basis of Crimes against Humanity: A Durkheimian Perspective’ in M. Aksenova et al. (eds) Breaking the Cycle of Mass Atrocities: Criminological and Socio-Legal Approaches to International Criminal Law (Hart Publishing, 2018), 73–94.

International justice as a ritual  97 Solidarity: a Durkheimian perspective

The work of Émile Durkheim is most enlightening in explaining the social identity of international justice as being grounded in solidarity. This interpretation helps with transcending some polarising narratives en route to reimagining international justice in the twenty-first century. Durkheim was one of the founders of the discipline of sociology and a functionalist in his stride. His primary purpose was to explain the way society operates and what ‘glues’ people together. Durkheim’s ideas are deeply resonant today because he achieves high level of generalisation in his discourse, enabling the applicability of his theories to a multitude of scenarios across time and space. Durkheim worked at the cusp of the nineteenth and twentieth centuries, which prompted him to significantly modify his ideas at the dawn of the First World War. Initially, the author was strongly influenced by industrialisation and political struggles between labour and capital of the late nineteenth century; later in life, his thinking was captured by the horrors of the First World War, in which he lost his son.22 Durkheim saw the nascent modern society’s darker sides flourish before his eyes – the events leading up to the First World War strongly affected his later work. Émile Durkheim observes in his seminal work The Division of Labour in the Society that society affirms itself and becomes conscious of itself through common action.23 In this book, Durkheim identifies two distinct consciousnesses that exist within each individual: one is personal and characterises each one of us separately, and the other is collective to the extent it comprises states common to society as a whole. The two coexist in every person and give rise to solidarity, which binds the individual to society.24 In Durkheim’s view, the so-called mechanical solidarity stems precisely from the idea of collective consciousness. Law – and more specifically criminal law – is instrumental in building mechanical solidarity. What defines a crime, according to Durkheim, is the antagonism between the act and the wider interests of society. A crime disturbs feelings that in any one type of society are to be found in every ‘healthy’ consciousness. The sentiment is not only strongly held, but also precise.25 It is for this reason that ignorance of the law is usually not a criminal law defence: any potential offender is expected to know and share the values collectively held in the community.26 George Fletcher – a prominent criminal law thinker – argues against strict enforcement of this maxim in modern times, however. He notes that there is a general disintegration of values as societies are no longer held together by the

22  Cotterrell, supra note 20, 182. 23  E. Durkheim, The Division of Labour in Society (Free Press 1984, originally published in 1893). 24  Ibid., 61. 25  Ibid., 38. 26  Ibid., 34.

98  Art, aesthetics and international justice tight Judeo-Christian moral consensus. Such pluralism is especially visible in the field of regulatory offences, abortion law, and some other quickly evolving topics.27 Despite this caveat, the purpose of the governmental authority in its traditional understanding is to defend beliefs commonly held. In other words, the authority to create crimes and impose penalties grows out of the need to preserve collective consciousness and defend it from the enemy, internal or external.28 The society then ‘outsources’ the tasks of defining crimes and the administration of punishment to an organised entity acting on its behalf (for example, legislators, juries, and judges).29 This structure ensures that any crime is an attack not only on the collective interests but also on the authority itself. In The Division of Labour in the Society, Durkheim further argues that modern societies subsist on interdependence stemming not so much from mechanical solidarity centred around the value system of criminal law, but rather from the allocation of functions to different actors. Durkheim calls this process of diversification organic solidarity. His view is premised on the idea of the nineteenth-century world moving towards greater specialisation of tasks that are divided among its members.30 He argues that this process is visible not only in the area of industrial relations, where the division of labour boosts productivity, but also in other walks of life such as art and science.31 As the activity of various participants becomes more concentrated and focused, social cohesion becomes instrumental for sustaining political equilibrium. Members of the society need to interact effectively with each other in order to exchange the results of their work. Thus, the division of labour becomes the source of social solidarity.32 In both types of solidarity – mechanical and organic – law is fundamental for maintaining order. Durkheim makes an obvious distinction placing legal rules into two big groups: purely restitutory, or civil, rules and repressive, or penal, sanctions. The latter group is administered on behalf of society and seeks to cause harm to the offender to express the sentiment felt at the level of collective consciousness. This helps in building mechanical solidarity. Durkheim hints at the great diversity of acts prohibited by penal sanctions across different societies and yet certain degree of universality of values that underlie the notion of crime.33 Durkheim intuits in this conclusion the existence of deeper layers of discourse leading to some form of unity. He proceeds to argue that the essence of a crime is not in the intrinsic properties of acts prohibited by penal sanctions because they display great diversity, but in the relationship they

27  G. Fletcher, Rethinking Criminal Law (Little Brown, 1978), 732. 28  Durkheim, supra note 23, 43. 29  Ibid., 37. 30  Durkheim, supra note 23, 4. 31  Ibid., 14. 32  Ibid., 23. 33  Cotterrell, supra note 20, 55, 75.

International justice as a ritual  99 entertain with some condition outside themselves.34 There is a strong unifying force in the idea of ‘expelling evil’ from the community.35 In the case of organic solidarity, law serves to organise relationships either with one another or with a group collectively. Law is the glue holding social life together in an organised and precise way. It cements the relationships that exist in society; new relationships cannot subsist without being consolidated into law. Solidarity within any particular group may arise from a diverse core, and can be national, professional or domestic. What is important is a shared understanding in society that law is an instrument of maintaining and regulating links between different actors. Durkheim later modifies his view to account for a more complex picture rooted in value systems that are expressed by religious or quasi-religious practices.36 This updated view integrates a broader vision of law as an organising principle and the idea of a collective consciousness. Durkheim comes to realise that the division of labour and the distribution of tasks are insufficient to facilitate the processes of integration, thus he turns to religion. Religion consists of acts, which have the object of perpetually making and remaking the soul of the collective and of individuals, thus its function is to strengthen the bonds attaching the individual to the society.37 There is a sense of ‘collective effervescence’ or sacredness in communal worship that enables a transition from the self to a group.38 Durkheim argues that religion has a social function both as a system of communication of ideas and sentiments and as a means of specifying and regulating social relationships.39 Religion thus affirms the social identity of those engaged in the process of expressing beliefs – religious ritual is then a method for society to renew itself and tie together its members.40 Durkheim’s later work is instructive in understanding modern international justice as a system of beliefs akin to religion. For Durkheim, religion consists of acts, which contribute to building and re-building of the identity of the collective and of individuals by creating mutually reinforcing bonds.41 This approach makes it possible to perceive the discipline of international justice as a quasi-religious endeavour at a global level. Since the time when Durkheim observed the existence of the two levels of consciousness in The Division of Labour in the Society, a new additional type of consciousness emerged – the

34  Durkheim, supra note 23, 25–32. 35  J. Feinberg, ‘The Expressive Function of Punishment’ (1965) The Monist Vol 49(3), 397. 36  Cotterrell, supra note 20, 49–51. 37  E. Durkheim, The Elementary Forms of the Religious Life (Free Press, 1995, originally published in 1912). 38  Ibid. 39  S. Lukes, Emile Durkheim: His Life and Work: A Historical and Critical Study (Stanford University Press, 1973), 471. 40  Durkheim, supra note 37. 41  Ibid., 98.

100  Art, aesthetics and international justice global one, which exists in every individual, along with personal and collective consciousness. This level of awareness embraces a set of characteristics not unique to a particular society, but common to all in the interconnected world, therefore promoting a sense of solidarity through upholding a shared value system.42 This is not to deny societal pluralism and a plethora of dominant beliefs across the globe. International justice does not aim to reject such pluralism but rather grounds itself in the level of consciousness that transcends these divisions. The ritualistic aspect often, but not always, expresses itself through legal procedures, which is a way to establish the connection of all stakeholders to this unified level of consciousness. To conclude, the international legal process, although secular in nature, promotes a value-based system and serves as a glue for individuals across countries. International justice as a framework allows for solidarity that goes beyond any specific identities. Solidarity and performance studies

The concept of a ‘ritual’ is a useful container for building solidarity. Jeffrey Alexander offers a contemporary take on rituals by drawing on the field of performative studies.43 He acknowledges that all societies are permeated by symbolic, ritual-like activities.44 The key word is ‘ritual-like’ because for Alexander rituals proper are mostly present in societies with ‘simpler’ organisation, characterised by a shared belief system. Thus, the participants in the ritual nearly automatically identify with the symbolic objects of interaction.45 Religious rituals are examples of social performances where the audience does not need to be convinced because it already shares the beliefs that the actors are transmitting. With increasing social complexity, the elements of any social performance, or a ritual, become de-fused. There is a scattering of ideas and dissipation of collective emotional energy. The conversation between the actors in the performance and the audience is no longer convincing because the audience is distracted by conflicting narratives. The successful social performance – according to Alexander – then re-fuses the elements by bringing them together in a coherent fashion.46 Failure to do so may render the performance unconvincing, obstructing the delivery of the symbolic message intended by the cultural practice in question. International justice viewed as a process is a form of social performance per Alexander. Let us take an example of international prosecutions of genocide at

42  Aksenova, supra note 21. 43  Alexander, supra note 2, 29. 44  See also J. Dewey, Art as Experience (Capricon books 1958). 45  Alexander, supra note 2. 46  Ibid., 32.

International justice as a ritual  101 the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The Akayesu and Krstić trials were undoubtedly social performances conveying reprobation and giving effect to the values agreed upon internationally.47 The Krstić judgment, for instance, delivers a powerful message of condemnation of this crime, pointing to its particular heinousness: ‘[a]mong the grievous crimes this Tribunal has the duty to punish, the crime of genocide is singled out for special condemnation and opprobrium.’48 Unlike war crimes or crimes against humanity, genocide was not prosecuted at Nuremberg. Thus, this crime only technically came within the purview of international criminal law in the 1990s with the creation of the ICTY and ICTR. It is understandable that both tribunals grappled with the enormity of the crimes in question and with the immense responsibility of internationally trying genocide for the first time in history. While there is no formal hierarchy of the gravity of international crimes, genocide is widely seen as being at the apex of the list of crimes. This offence denotes an attack on human diversity. There is something particularly heinous about the underlying rationale of eliminating a group in whole or in part based on superficial characteristics such as race, religion, nationality or ethnicity.49 The ICTY and ICTR genocide trials therefore drew the attention of broader audiences.50 It is fair to say that genocide has the strongest potential for capturing popular imagination.51 Adjudicating genocide is the most vivid example of the general mission of international criminal law, which carries a sentiment of extrapolating ‘evil’ and restoring the value of human life affected by the conflict.52 The actors in a social performance of a criminal trial at the ICTY and ICTR are all the parties to the legal process – the judges, the defence, the prosecution and the registry. These actors were tasked with ensuring the delivery of the sentiment to a highly fragmented audience.53 As mentioned earlier, Alexander explains that a social performance in a complex society is successful when different elements are ‘fused’ – this means that diverse audiences identify with actors and cultural scripts despite having different identities and cultural qualities. This fusion, or a state of coherence, allows actors to communicate the

47  Prosecutor v. Akayesu, ICTR Case No 96-4-T, Trial Chamber Judgment, 2 September 1998; Prosecutor v. Krstić, ICTY Case No. IT-98-33-T, Trial Judgment, 2 August 2001. 48  Prosecutor v. Krstić, Case No. IT-98-33-A, Appeals Chamber, Judgement, 19 April 2004, para. 36 49  Article II of the UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, United Nations, Treaty Series, Vol 78, p. 277, 9 December 1948. 50  P. Akhavan, Reducing Genocide to Law (Cambridge University Press, 2012). 51  De Falco, supra note 3. 52  M. Aksenova, ‘Symbolic Expression at the International Criminal Tribunal for the Former Yugoslavia’ in C. Stahn et al. (eds) Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Approach (Oxford University Press, 2020) 53  Alexander, supra note 2, 29.

102  Art, aesthetics and international justice meaning of their actions successfully and pursue their interests effectively.54 The problem of fusion is less pronounced with simple religious rituals where a sense of shared identity and mutual belief holds the performance together.55 The core challenges for the ICTY and ICTR actors included ‘speaking’ to national stakeholders and the international community alike, while also ensuring that each party to the trial received sufficient resources to present its position.56 The judges led the performance. They affirmed the identity of an international community through a variety of practices, sentencing being one of the ‘heavyweights.’ This aspect of judicial activity can be seen as one of the most transformative in terms of rhetoric because there is a strong expressive dimension in the condemnatory message framed as a specific penalty. The audience understands this message easily due to prior retributive conditioning. Following Durkheim’s logic, the punishment is a manifestation of societal solidarity responding to an act offending its collective consciousness; it is an emotional reaction, graduated in its intensity and depending on the interests harmed.57 The practice of criminal punishment is particularly aggressive and exclusionary, yet it produces solidarity.58 At the ICTY, the condemnatory component of punishment carried strong emotional appeal, which often went beyond each individual case. For instance, the following citation from Aleksovski is sometimes invoked in support of the broader expressive function of international criminal law:59 Accordingly, a sentence of the International Tribunal should make plain the condemnation of the international community of the behaviour in question and show that the international community was not ready to tolerate serious violations of international humanitarian law and human rights.60 Interestingly, sentencing was largely left to judicial discretion at the ICTY and the ICTR as the statutes provided minimum guidance.61 Article 24 of the ICTY Statute only suggested that in imposing sentences, the judges should

54  Ibid. 55  Ibid., 29–30. 56  M. Tripkovic, ‘Not In Our Name! Visions of Community in International Criminal Justice’ in M. Aksenova, E. van Sliedregt and S. Parmentier, Criminological and Socio-Legal Approaches in International Criminal Law (Hart, 2019). 57  Durkheim, supra note 23, 48. 58  G. H. Mead, ‘The Psychology of Punitive Justice’ (1918) American Journal of Sociology, Vol 23(5), 577. 59  H. van der Wilt, ‘Joint Criminal Enterprise: Possibilities and Limitations’ (2007) Journal of International Criminal Justice Vol 5(1), 91; Damaška, supra note 18. 60  ICTY, Prosecutor v. Aleksovski, Appeals Chamber, Judgement, 24 March 2000, IT-95-14/1A, para. 185; See also ICTY, Prosecutor v. Kunarać et al., Trial Chamber, Judgement, 22 February 2001, IT-96-23-T & IT-96-23/1-T, para. 841. 61  A. Cassese, International Criminal Law (2nd ed. Oxford University Press, 2008), 51.

International justice as a ritual  103 take into account such factors as the gravity of the offence, the individual circumstances of the convicted person, as well as mitigating and aggravating circumstances.62 This flexibility enabled a wide margin of appreciation to determine precise sanctions and engage in condemnatory discourse. The judicial rhetoric shaped the international community around certain values that were examined during trials and then upheld and finalised through sentencing. The international community was the core addressee of the words of the ad hoc tribunals and can therefore qualify as ‘public’ for ritualistic purposes. The message was less successful with the local communities.63 The ICTY and ICTR could therefore be seen as quasi-religious forums tasked with facilitating transition from the state of violence to the state of peace through assigning individual criminal responsibility to those most responsible for the atrocities.64 A criminal trial itself can be seen as an intermediate transformative process whereby the guilt or innocence of the accused is established.65 It is an ‘external drama’ of assigning individual blame for collective wrongdoing. In this sense, the trial can be compared to a complex religious ritual whereby emotions are mediated by virtue of finding an external point of focus.66 Sentencing and other legal tools enable a degree of fusion to make the performance convincing, at least to some audiences. Symbolic rituals International justice can be visualised as a quasi-ritualistic activity relying on symbolic action (for instance, ‘extrapolating evil’ in an international criminal trial). Such actions perpetuate institutions of international justice across time and space, charging them with intense emotional energy generated during the ritual. It is helpful to briefly outline the theoretical framework for understanding how rituals operate in practice and how they rely on symbolic action. The fields of anthropology and sociology offer convincing accounts of rituals across different societies. The divide between these two fields of study is rather arbitrary and historically motivated. Sociology was traditionally seen as a discipline explaining more ‘complex’ societies and anthropology occupied itself with the ‘primitive’ ones.67 Viewing societies as ‘complex’ or ‘primitive’ is, however, dependent on the conditioning and a system of beliefs of the

62  Article 24 of the UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17 May 2002), 25 May 1993; M. Aksenova, Complicity in International Criminal Law (Hart, 2016), 210. 63  Tripkovic, supra note 56. 64  M. Aksenova, ‘The Role of International Criminal Tribunals in Shaping the Historical Accounts of Genocide’ in U. Belavusau and A. Gliszczyńska-Grabias (eds) Law and Memory: Towards Legal Governance of History (Cambridge University Press, 2017), 29–47; 65  Aksenova, supra note 52. 66  Cohen, supra note 4, 72. 67  Ibid., 12–13.

104  Art, aesthetics and international justice observer. Yet these two fields of study historically prioritised slightly different methodological routines. Anthropology, with its intense focus on participatory observation, is a natural fit for explaining how rituals and symbols function in practice across distinct societies, thereby bringing spatial awareness to the study of rituals. In contrast, sociology furnishes useful theoretical frameworks to make sense of social performances across time. Symbols as a foundation for ritual

Abner Cohen – an anthropologist – examines the concepts of ‘symbols’ and ‘rituals.’ He defines ‘symbols’ as objects with functions to impel people to certain actions or a pattern of activities.68 A ritual is then a symbolic action, which is objective in nature.69 ‘Objectivity’ is understood here as an act of surpassing the subjective self and connecting to the community. In other words, it is a form of transcending the self by participating in a group activity while focusing the attention on a shared icon. Symbols are often representations of collective beliefs, and they serve to anchor the public’s attention.70 In this way, the representation of a thing is more important than the thing itself.71 Cohen explains that rituals fulfil an important function – they facilitate the resolution in an individual’s mind of profound unresolvable questions, such as life and death, good and evil, etc. This is done by creating an identity that extends beyond the individual self and connects a person to the greater environment (for instance, by worshipping nature, ancestors, gods, democracy, justice, and so on). A ritual is an ultimate way to externalise and give voice to collective anxieties that are existential in nature. While it is true that a symbol recreates certain internal psychological states in each individual, the action that it induces is collective.72 This action is not a spontaneous co-creation by a group of separate persons but is organised in the context of a predetermined social significance. The symbols structure a sense of significance for the specific group. For instance, religious rituals draw their support from centuries of joint practice and a number of shared objects of worship. Thus, the collective emotional energy invested in an action pattern takes on a life of its own and becomes a symbol to which society attaches certain meaning.73 This shared understanding, or meaning, stems from the conditions in which the symbol originated and the function of this symbol, or, in other words, the task it fulfils. The assigned meaning then transcends the individual’s internal subjective perception of a situation. The collective emotional energy that flows into a ritual strengthens the joint meaning-making. 68  Ibid., 34. 69  Ibid. 70  Durkheim (1912), supra note 37. 71  Ibid. 72  Collins, supra note 1, 62. 73  Ibid., 60.

International justice as a ritual  105 This energy takes the shape of an institution, which continues to carry its intended meaning over time. The transformative power of a ritual depends on the amount and intensity of collective emotional energy invested in it. A shared perception of a symbol creates a shared reality organised around it. This happens on a continuous basis if sufficient emotional energy flows into the process of joint perception. It is for this reason that many rituals have dramatic components (sentencing, sacrifice, consumption of sacred substances, etc.). Are rituals common to all societies? If it is so, then the paradigm of a ritual is helpful in constructing international justice 2.0 in a complex and interdependent world. Abner Cohen contends that the patterns of symbolic behaviour are indeed characteristic of all societies – rituals are not a type of action but rather aspects of any action across different communities.74 What matters is the lens through which one looks at the action. Some empirical support for this statement can be found in the work of Maurice Bloch. Rituals common across societies

In his seminal work Prey into Hunter, anthropologist Maurice Bloch observed the quasi-universality of minimal religious structures across different societies.75 After having studied various rituals performed by different cultures, he noted the irreducible structures underlying these rituals. Bloch explained this common core by the urge, found in all societies, to overcome the dichotomy between the transience of human life and the permanence of institutions. Rituals are ways to extend human existence beyond the natural biological process of birth, growth and death. The heart of the book Prey into Hunter is an extended analysis of the initiation ritual practiced by the Orokaiva, the indigenous people of Papua New Guinea. In Orokaiva tradition, as in many others, initiation signifies the beginning of life as a full moral person. The ritual is performed on children when they reach a certain age. Bloch describes this progression as a person’s transition from a ‘homegrown native vitality’ to the ‘transcendental’ and back to manifest reality, having incorporated features that defy the impermanence of an individual life. The ritual accompanying this journey serves as a symbolic representation of such transformation. The initiation ritual consists of several stages. First, children, who are being initiated, are chased by a group of threatening outsiders wearing feather masks. The strangers are actually adults from the village playing the part of spirits. Children in their native vitality represent a form of prey, thus the whole process resembles a pig hunt. The children experience intense emotions, such as fear and despair. Afterwards, the initiated are taken to the huts outside of

74  Cohen, supra note 4, 34, emphasis added. See also Dewey, supra note 44. 75  M. Bloch, Prey into Hunter: The Politics of Religious Experience (Cambridge University Press, 1992).

106  Art, aesthetics and international justice the village where they are not permitted to eat normal food, wash or speak out loud, during which time they are considered to be symbolically dead. In this period, the children learn various secrets about the world of spirits. After some time in seclusion, the children return to the village as transformed individuals – partially human and partially spirit. They come back as hunters and end the ritual with a symbolic slaughter of pigs, followed by the victorious consumption of meat.76 Bloch offers the following interpretation of a ritual: the children conquered their native vitality of pigs and replaced it with an external or consumed vitality. They underwent a symbolic transformation from prey into hunter. By engaging in such an intense process, they extended their existence beyond the constraints of a single life. They joined the transcendental and then returned to their ordinary village life as transformed and morally mature individuals.77 This rite of passage consisted of several elements. Essential to Bloch’s analysis is the idea of ‘rebounding violence.’ In the first part of the ritual, the transcendental (performed by the elders) uses violence to drive out native vitality through an external drama (spirits hunting children). The children are terrified when taken to the huts. The violence then returns at the end of the ritual when vitality is re-introduced from external sources (feasting on the meat of killed pigs). After having experienced transcendental, it is through an act of violence that the individual takes control of his human finite nature. The whole ritual process can therefore be understood as a transformation occurring through ‘rebounding violence,’ which is publicly demonstrated and collectively experienced by all the participants. It is not a concept but an experience.78 The end result is building communal association with permanent institutional structures (village, ‘the spirit world,’ etc.). This short explanation of the way ritual works sheds light on some deeper processes underlying the concept of international justice if it is viewed as a form of ritual activity. There are two core observations following from the above discussion. First, the idea of rebounding violence in international justice is symbolised by law itself.79 Jacques Derrida famously drew a distinction between law and justice. Law can be deconstructed, and it is founded in textual documents that are historically shaped. Justice cannot be deconstructed as the demand for justice is infinite and not limited to time and space.80 Law contains in itself the idea of violence because it needs to be enforced – this violence can be physical or symbolic, direct or indirect.81

76  Ibid., 8–23. 77  Ibid., 19. 78  Ibid., 5–6. 79  As discussed in Chapter 2, the veil between international law and international justice is particularly thin. 80  J. Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’ in D. Cornell, M. Rosenfeld and D. Carlson (eds) Deconstruction and the Possibility of Justice (Routledge, 1992), 243. 81  Ibid., 241–2.

International justice as a ritual  107 The concept of violence belongs to the symbolic order of law, politics and morals – all forms of authority developed by people.82 Yet law cannot be justified merely by external forces – its performativity stems from within.83 To be just, the decision of the judge must not only follow the rule of law but must also assume it.84 The judge reinvents justice every time, which illustrates the point of justice not being limited by time and space. Violence is then present in international justice through the idea of international law. Its reach is often symbolic, as international law suffers from the enforcement deficit discussed in detail earlier in the book. There is no universal police force. Yet it is fair to say that international law creates causes of action for domestic and international actors alike while simultaneously carrying a degree of reprobation for non-compliance.85 The second observation, based on Bloch’s discussion of the Orokaiva initiation ritual, is that the context is highly significant for deconstructing a ritual, especially its deeper layers. The context defines the shared interpretative framework within which meaning-making occurs. While the participants in the ritual change over time, the matrix within which it happens, including its transformative qualities, remains the same. International justice occurs within a similar paradigm. The content of the container changes over time (for instance, there is a shift in what is collectively perceived to be topical legal issues or successful institutions). Yet the key outcome is the transformative process itself. The international community reinvents itself through the vehicle of international justice. Its symbols serve as anchors for the shared agreement. For instance, various institutions of international justice (such as the Peace Palace in The Hague) serve as symbols of justice – or the anchor points for grounding the attention of the actors and observers involved in the field.86 Situational analysis of rituals

The significance of a ritualistic context is at the heart of the situational analysis by the historical sociologist Randall Collins, who illustrates the way rituals work from a third person perspective.87 Collins develops a theory of interaction rituals, which is focused not on individuals but rather on situations in which these individuals partake.88 The theory of interaction rituals is thus – to

82  Ibid., 265. 83  Ibid., 241–2. 84  Ibid., 251. 85  For more discussion on international law and its authority, see Chapter 2. See also B. Cali, The Authority of International Law: Obedience, Respect, and Rebuttal (Oxford University Press 2015), 80. 86  T. Aalberts and S. Stolk, ‘The Peace Palace: Building (of) The International Community’ (2020) AJIL Unbound Vol 114, 117. 87  Collins, supra note 1. 88  Ibid.

108  Art, aesthetics and international justice some extent – a sociological equivalent of a commutative justice perspective advocated by natural law proponents such as John Finnis.89 Focusing on the situation allows one to escape the first-person perspective and see a bigger picture. What is particularly innovative in Collins’s approach is his starting premise – power and privilege (core concepts in sociology) are not merely the outcomes of an unequal distribution of resources but they also stem from the directed flow of collective emotional energy to certain activities but not others.90 Interaction theory looks at situations as momentary encounters among individuals charged with emotions and considers the nature of consciousness created as a result of such encounters.91 When the encounters reach a certain level of intensity based on the input of collective emotional energy, they generate commonly shared symbols, manifested in the material world (houses of worship, slogans, fixed associations, institutions of justice). These symbols acquire charge or emotional significance precisely through such interactions.92 A ritual, then, is a mechanism of mutually focused emotion and attention producing momentarily shared reality, which thereby generates symbols of group membership.93 Symbols allow for the recreation of similar states in the future. This is one explanation for the persistence of some institutions over time and not others. Symbols, therefore, support continuity that goes far beyond specific events or institutions. In other words, they produce transcendence. There is resonance of this idea of continuity with the work of Maurice Bloch, mentioned earlier. Bloch explains the endurance of institutions beyond specific individuals with reference to traditional rituals practised across different cultures. For instance, the cattle sacrifice rituals of the Dinka in southern Sudan are strikingly similar to those practised by the Orokaiva in Papua New Guinea. The cattle for the Dinka are highly valuable and are often compared to young men in their inherent vitality. The cattle are also distinct from humans because they cannot speak. By killing the cattle and offering prayers to higher powers, humans are able to reconnect with their own transcendence. Vitality is then regained through meat consumption during the feast. The rebounding violence is a rite of passage from victimhood to empowerment, or from prey into hunter.94 The same effect of transcendence can be observed with reference to rituals practised in what we understand as modern societies. For instance, political campaigns or religious activities draw in and motivate large crowds of people

89  Finnis, supra note 16, 179. For more discussion, see Chapter 2. 90  Collins, supra note 1, xiii. 91  Ibid. 92  Ibid. 93  Ibid., 7. 94  Bloch, supra note 75, 33 et seq.

International justice as a ritual  109 by directing focused emotional energy to the symbols of worship or to an agenda of a political party. Individual attention and energy invested in a group activity is the sacrifice required for the transcendence. Emotional validation experienced through belonging is the modern equivalent of a feast, celebrating a return to the native vitality. The symbols continue to carry meaning for the crowds beyond the specific rally or religious service; the emotional energy arising out of these events perpetually strengthens the objects of focused attention.95 Various activities of international justice can be viewed as a form of ritual. There is a lot of directed emotional energy invested in the work of various UN agencies, such as UNESCO. The International Criminal Court is another example of a highly ritualised institution. Legal instruments are also symbols of international justice if viewed through the lens of their overarching mission. For instance, the Arms Trade Treaty is quintessentially an accumulation of will to reach the highest possible standard for regulating the arms trade. It does so by requiring exporting countries to carry out a thorough and comprehensive risk assessment before engaging in such activity.96 The vision of a document as a symbol does not attempt to sidestep practical enforcement and credibility challenges; rather, it examines the impulse driving the creation and maintenance of certain forms of international justice, be it treaties, institutions or methods. The process of international adjudication is a prime example of an intense social ritual producing a shared reality for its participants. The contentious nature of legal proceedings ensures that such encounters are charged with emotional energy. Their focus on issues of universal concern amplifies the moral significance of such rituals as well as their relevance to outside observers. Emiliano Buis demonstrates how control over shared experience in an international courtroom is achieved precisely through rhetoric charged with emotion. His call is to reveal and carefully examine the traditionally concealed affective dynamics of international adjudication.97 The work of international criminal tribunals, such as the ICTY, is illustrative of the functioning of legal rituals in the field of international justice. There is an intensity of emotion, the visibility of rebounding violence through sentencing, the aspiration of transcendence by punishing ‘evil,’ and, finally, regaining vitality by reaffirming humanistic values. The UN Resolution 827 establishing the ICTY mentions goals, such as putting an end to crimes and

95  For more discussion on the role of culture in transitional justice, see L. Lixinski, Legalised Identities: Cultural Heritage Law and the Shaping of Transitional Justice (Cambridge University Press, 2021) 96  Arms Trade Treaty, New York, 24 December 2014, United Nations Treaty Series, Vol 3013, No. 52373. 97  E. J. Buis, Aristotle in The Hague: Artistic Pleading and Emotional Theatricality in International Criminal Proceedings (2020) AJIL Unbound Vol 114, 133.

110  Art, aesthetics and international justice

Figure 4.1  The ICTY crimes against humanity as a collective identity-building tool.

taking effective measures to bring to justice the persons who are responsible for them.98 The humanistic undertone can be traced, for instance, in the way the ICTY judges expressed their understanding of crimes against humanity as a legal category. There is a lot of emotion in such statements. Unlike war crimes and genocide, crimes against humanity as a group of offences have not been codified in a treaty, leaving its legal basis somewhat unclear.99 Customary international law provided sufficient proof to satisfy the basic requirements of the principle of legality but also left space for further development of the essence of this category of crimes as an attack on humanity as a whole. Figure 4.1 presents a few excerpts from the ICTY judgments dealing with crimes 98  UN Security Council, Security Council Resolution 827 (1993), S/RES/827 (1993), 25 May 1993. 99  L. N. Sadat, ‘A Contextual and Historical Analysis of the International Law Commission’s 2017 Draft Articles for a New Global Treaty on Crimes Against Humanity’ (2018) Journal of International Criminal Justice Vol 16(4) 683.

International justice as a ritual  111 against humanity. These statements demonstrate the level of identity-building discourse that transcends any individual cases and (re)connects the audience to the broader values of the field.​ To conclude, it is possible to view distinct aspects of international justice – such as international criminal trials – as rituals producing shared reality. An argument can also be made that the whole field of international justice, with its core norms and values, can be perceived as a symbol of shared international consensus in and of itself.100 Placing the work of the institutions of international justice in this theoretical framework invites deeper engagement with its specific tangible representations and its procedural qualities. Such an approach differs from the analysis of the normative outcomes of the discipline of international justice that manifest as, for instance, legal judgments. There is a new way to examine international justice, which reveals collective dynamics in the field by studying its symbols. The lens of perception grounded in aesthetic theories assists in this new form of investigation as it prioritises contemplation and a process-oriented view. Aesthetics and rituals The theories of aesthetics are crucial for interpreting rituals pervading international justice and its various subfields. The insight coming from viewing aesthetics as a science of perception explains how seemingly unrelated elements are fused together to produce convincing legal rituals. It also sheds light on how the standards of behaviour are reinforced through the vehicle of international justice. Perceiving legal processes as rituals also reveals the effectiveness of some measures against the yardstick of social legitimacy.101 The aesthetic theories are helpful in refining the faculty of perception, which is crucial for discerning and interpreting rituals. John Dewey observes that art traditionally accompanied daily rituals, such as worship, hunting or lawmaking, thereby highlighting the role of art and aesthetics as an essential part of any (civic) ritual.102 For instance, the Greek Parthenon, which is regarded today as an art masterpiece, was originally designed and built as a place of civic commemoration.103 Dewey observes that it was only much later – through the processes linked to industrialisation and the creation of market societies – that art was confined to specific places, such as museums or opera houses. ‘Consuming’ art became a privilege available only to the educated elites with free time on their hands. Isolating art from daily life strengthened its representational quality and concealed some of its experiential dimension in popular discourses. Treating art as experience means shifting perceptual gears

100  Aksenova, supra note 21. 101  Thomas, supra note 5. 102  Dewey, supra note 44. 103  Ibid.

112  Art, aesthetics and international justice by connecting to oneself and the world from a different angle. It also implies safely working with emotions.104 The artefact itself then serves as a conduit for the experience. The message intended by the creator (of an artistic piece or a co-creator of a ritual) gets internalised by the observer through the lens of their subjective life experience. John Dewey engages with the terms ‘art’ and ‘aesthetics’ as being closely connected. Art is understood broadly to encompass different forms of expression (visual, auditory, sensual) employed for the purpose of transmitting a certain message coloured by emotions. Aesthetics is the study of these processes. Perception is the capacity to (re)frame an experience as having an artistic quality. It is therefore possible to assert that art is already implicit in international justice and merely needs to be revealed through changing the perspective. This shift often requires relaxing the gaze of the observer to embrace the legal opposites (the prosecution versus the defence, the winning state versus the losing state, those who ratified the treaty versus those who did not, and so on) and embracing the totality of the experience in its refined beauty. This process-oriented feature of art invites contemplation and enriches any exploration of international justice. Art and creative expression have the capacity to go beyond firm analytical structures and surpass cognitive biases and other ‘mental defences.’ Clear perception leads to a better view of the areas calling for attention. Dewey’s distinction between the ‘thinker’ and the ‘artist’ in the context of life cycles illustrates this point. Life, according to Dewey, goes in cycles reflective of an adaptation to the environment by any living creature. There is constant adjustment and transformation of imbalance happening (for instance, satisfying hunger). Dewey calls this process ‘the rhythm of loss of integration with the environment and recovery of union with it.’ This rhythm produces both intellectual and aesthetic work; the former is more concerned with the conflict or the situation in which the discord arose, while the latter focuses on the phase of experience where union is achieved.105 Looking at international legal trials as rituals charged with intense and directed emotional energy reveals that within the dichotomy of intellect and aesthetics, an international trial can be seen as an expression of both simultaneously. Conclusion The word ‘process’ – when applied to international justice – is not limited to a legal procedure administered in accordance with the rule of law, which is in and of itself an essential contributor to the perceived legitimacy of international institutions.106 The material result of the work of international courts – in the form of a judgment or an order for reparations – is as important as the

104  See Chapter 2. 105  Ibid. 106  Thomas, supra note 5.

International justice as a ritual  113 method through which this outcome was generated. This method includes traditional legal categories such as due process and fairness, but it also encompasses deeper manifestations of justice underlying what is explicitly mentioned at the level of Vaikharī vāk (fully articulated speech). A shared impulse towards resolution and peaceful co-existence finds its practical expression in the rituals of international justice, which are collective practices creating a commonly shared reality. Sociological inquiry informed by the perceptual lens grounded in aesthetics is helpful in challenging more static conceptions of international justice as a discipline solely rooted in and inspired by the sources of international law.107 Bibliography Literature T. Aalberts and S. Stolk, ‘The Peace Palace: Building (of) The International Community’ (2020) AJIL Unbound Vol 114, 117 P. Akhavan, Reducing Genocide to Law (Cambridge University Press, 2012) M. Aksenova, ‘Solidarity as a Legal and Moral Basis of Crimes against Humanity: A Durkheimian Perspective’ in M. Aksenova et al. (eds) Breaking the Cycle of Mass Atrocities: Criminological and Socio-Legal Approaches to International Criminal Law (Hart Publishing, 2018) M. Aksenova, ‘Symbolism as a Constraint on International Criminal Law’ (2017) Leiden Journal of International Law Vol 30(2), 475 M. Aksenova, ‘The Role of International Criminal Tribunals in Shaping the Historical Accounts of Genocide’ in U. Belavusau and A. Gliszczyńska-Grabias (eds) Law and Memory: Towards Legal Governance of History (Cambridge University Press, 2017) M. Aksenova, Complicity in International Criminal Law (Hart, 2016) J. Alexander, ‘Cultural Pragmatics: Social Performance Between Ritual and Strategy’ in J. Alexander, B. Giesen and J. Mast (eds) Social Performance: Symbolic Action, Cultural Pragmatics and Ritual (Cambridge University Press, 2006) M. Bak McKenna, ‘Designing for International Law: The Architecture of International Organizations 1922–1952’ (2021) Leiden Journal of International Law Vol 34(1), 1 M. Bloch, Prey into Hunter: The Politics of Religious Experience (Cambridge University Press, 1992) P. Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) Hastings Law Journal Vol 38, 814 E. J. Buis, Aristotle in The Hague: Artistic Pleading and Emotional Theatricality in International Criminal Proceedings (2020) AJIL Unbound Vol 114, 133 B. Cali, The Authority of International Law: Obedience, Respect, and Rebuttal (Oxford University Press, 2015) A. Cassese, International Criminal Law (2nd edition, Oxford University Press, 2nd edn, 2008)

107  Article 38(1) of the Statute of the ICJ.

114  Art, aesthetics and international justice A. Cohen, Two-Dimensional Man: An Essay on the Anthropology of Power and Symbolism in Complex Society (Routledge, 1977) R. Collins, Interaction Ritual Chains (Princeton University Press, 2004) R. Cotterrell, Emile Durkheim: Law in a Moral Domain (Stanford University Press, 1999) M. Damaška, ‘What is the Point of International Criminal Justice?’ (2008) ChicagoKent Law Review Vol 83(1), 329 J. Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’ in D. Cornell, M. Rosenfeld and D. Carlson (eds) Deconstruction and the Possibility of Justice (Routledge, 1992) J. Dewey, Art as Experience (Capricon Books, 1958) E. Durkheim, The Division of Labour in Society (orig. pub. 1893, Free Press, 1984) E. Durkheim, The Elementary Forms of the Religious Life (orig. pub. 1912, Free Press, 1995) R. de Falco, Invisible Atrocities: The Aesthetic Biases of International Criminal Justice (Cambridge University Press, 2022) J. Feinberg, ‘The Expressive Function of Punishment’ (1965) The Monist Vol 49(3), 397 J. Finnis, Natural Law and Natural Rights (Oxford University Press, 2011) G. Fletcher, Rethinking Criminal Law (Little Brown, 1978) R. Gnoli, The Aesthetic Experience According to Abinavagupta (Chowkhamba Sanskrit Series Office, 4th edn, 2015) D. H. J. Ingalls et al. (eds), The Dhvanyaloka of Anandavardhana with the Locana of Abinavagupta (Harvard University Press, 1990) T. Kelly and M. Dembour, Paths to International Justice: Social and Legal Perspectives (Cambridge University Press, 2007) L. Lixinski, Legalised Identities: Cultural Heritage Law and the Shaping of Transitional Justice (Cambridge University Press, 2021) S. Lukes, Emile Durkheim: His Life and Work: A Historical and Critical Study (Stanford University Press, 1973) G. H. Mead, ‘The Psychology of Punitive Justice’ (1918) in American Journal of Sociology Vol 23(5), 577 M. E. O’Connell, The Art of Law in the International Community (Cambridge University Press, 2019) S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125 L. N. Sadat, ‘A Contextual and Historical Analysis of the International Law Commission’s 2017 Draft Articles for a New Global Treaty on Crimes Against Humanity’ (2018) Journal of International Criminal Justice Vol 16(4) 683 C. Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice (Oxford University Press, 2020) S. Stolk and R. Vos, ‘International Legal Sightseeing’ (2020) Leiden Journal of International Law Vol 33(1), 1 C. A. Thomas, ‘Uses and Abuses of Legitimacy in International Law’ (2014) Oxford Journal of Legal Studies Vol 34(4), 729 M. Tripkovic, ‘Not in Our Name! Visions of Community in International Criminal Justice’ in M. Aksenova, E. van Sliedregt and S. Parmentier (eds) Criminological and Socio-Legal Approaches in International Criminal Law (Hart, 2019)

International justice as a ritual  115 H. van der Wilt, ‘Joint Criminal Enterprise: Possibilities and Limitations’ (2007) Journal of International Criminal Justice Vol 5(1), 91 A. von Hirsch, A. Ashworth, and J. V. Roberts, Principled Sentencing Readings on Theory and Policy (Hart, 2009) Legal Instruments and Judgments Arms Trade Treaty, New York, 24 December 2014, United Nations Treaty Series, vol. 3013, No. 52373 Prosecutor v Akayesu, ICTR Case No 96-4-T, Trial Chamber Judgment, 2 September 1998 Prosecutor v. Krstić, Case No. IT-98-33-A, Appeals Chamber, Judgement, 19 April 2004 Prosecutor v. Krstić, ICTY Case No. IT-98-33-T, Trial Judgment, 2 August 2001 Prosecutor v. Aleksovski, ICTY Appeals Chamber, Judgement, Case No. IT-95-14/1-A, 24 March 2000 Prosecutor v. Kunarać et al., Trial Chamber, Judgement, Case IT-96-23-T & IT-9623/1-T, 22 February 2001 UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17 May 2002), 25 May 1993 UN Security Council, Security Council Resolution 827 (1993), S/RES/827 (1993), 25 May 1993 The UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, United Nations, Treaty Series, vol. 78, p. 277, 9 December 1948 The United Nations, Vienna Convention on the Law of Treaties, United Nations, Treaty Series, vol. 1155, p. 331, 23 May 1969

5

The role of art and aesthetics in the practice of symbolic and creative reparations at the ICC and IACtHR

Introduction Symbolic reparations in the practice of international courts are a great case study for demonstrating both the representational and the experiential dimension of art in international justice. As discussed earlier, art – in addition to representing reality – enables individuals to experience life more deeply.1 Symbolic reparations ordered by international courts expressly embrace the aesthetic quality of justice, while simultaneously upholding its legal component. The discussion until this point centred around the relevance of aesthetic insight to construing philosophical and sociological accounts of international justice. This chapter is dedicated to exploring the actual legal output resulting from the view informed by aesthetics, namely the practice of symbolic reparations.2 The chapter draws on the empirical examples from the two specific international courts mandated with the power to order symbolic reparations with creative component: the International Criminal Court (ICC) and the InterAmerican Court of Human Rights (IACtHR).3 The study of symbolic reparations of these two courts reveals some pitfalls of engaging with the field beyond strict positive law application. Ordering reparations with creative value can stretch the comfort zone of an international lawyer. The discussion also demonstrates the limited impact of merely using aesthetics as a tool to attain legal objectives. Shifting the observer’s gaze itself is a distinct significant task to master. The example of reparations is not meant to be exhaustive of the

1  S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125. 2  Parts of this chapter appear in M. Aksenova, ‘Creative Potential of Reparations at the InterAmerican Court of Human Rights and the International Criminal Court’ (2020) Suffolk Journal of Transnational Law Vol 43(1), 1. 3  For more comparisons of the two courts, please see J.P. Perez-Leon-Acevedo, ‘Reparations in environmental cases: should the International Criminal Court consider the Inter-American Court of Human Rights’ jurisprudence?’ (2024) Journal of International Dispute Settlement Vol 15(3), 377.

DOI: 10.4324/9781032628844-5

Art and aesthetics at the ICC and IACtHR  117 ways in which new approaches, inspired by the theories of aesthetics, are relevant to international justice. It is rather a sampling of what might be possible in the field with the new level of insight arising out of creative contemplation. Due to a number of historical factors the IACtHR is quite innovative when it comes to the form and intended meaning of its reparation orders. One of the ‘vehicles’ the court uses to express itself creatively is its elaborate practice of symbolic reparations. Symbolic reparations can be seen as an ‘expressive tool’ in the field of international law because they allow courts to empathetically transmit an intended message.4 Tangible objects ordered as symbolic reparations solidify the event in collective memory, signalling to future generations the devastating effects of abuse suffered by the victims. In contrast, intangible objects, such as commemoration ceremonies or artistic performances, work more with the present moment by invoking art’s healing potential to bring to the surface, relive, and let go of trauma.5 The IACtHR is quite skilled at measures aimed at public commemoration to honour both individual victims and groups of victims, especially in cases of violations against a large number of persons, such as massacres. Throughout the last 20 years, the court has been ordering the construction of monuments,6 churches, and parks as a form of reparation to memorialise traumatic events, such as the massacre by the Guatemalan Army of the indigenous Mayan people7 and the forced disappearance of children in El Salvador, perpetrated by the armed forces in the course of counter-insurgency operations.8 The reception of these measures has been somewhat mixed, but this does not detract from their importance as a form of acknowledgement. At times, the respondent states displayed significant delays in the construction of monuments.9 Other

4  UN Office of the High Commissioner for Human Rights (OHCHR), Rule of Law Tools for Post-Conflict States: Reparations Programmes, HR/PUB/08/1, 2008 (OHCHR Rule of Law Report). 5  M. Aksenova and A. N. Rieff, ‘Setting the Scene: The Use of Art to Promote Reconciliation in International Criminal Justice’ (2021) Leiden Journal of International Law Vol 33(2), 495. 6  For example, Barrios Altos v. Peru, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 87, para. 44(f), 30 November 2001, http://www​.corteidh​.or​.cr​/docs​/casos​/ articulos​/seriec​_87​_ing​.pdf; Mapiripán Massacre v. Colombia Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 134, 15 September 2005, para. 315, http://www​ .corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_134​_ing​.pdf; Moiwana Community v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 124, 15 June 2005, para. 218, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​ _124​_ing​.pdf 7  Plan de Sánchez Massacre v. Guatemala, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 105, 29 April 2004, para. 49, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_105​ _ing​.pdf 8  Rochac Hernández v. El Salvador, para. 49. 9  Barrios Altos v. Peru, para. 9–11.

118  Art, aesthetics and international justice times, segments of the local population expressed negative sentiment towards the symbolic measure.10 The table at the end of this chapter lists tangible symbolic reparations with artistic value ordered by the IACtHR. This table is the result of a comprehensive search of the reparation orders by the court. It provides information on 20 of the most relevant cases by including the name of the case, type of violation, state acceptance or non-acceptance of responsibility, the type of tangible reparation ordered, and status of its construction. The focus of the table is on tangible objects for illustrative purposes only. It must be mentioned, however, that it is difficult to disentangle the purpose driving the order to commemorate from its physical manifestation. The form – physical or non-physical – is thus not of the essence for the argument made in this chapter. Both types of reparations of this kind are designed to fulfil the duty to remember.11 An artistic component can accordingly be found in orders relating to intangible forms of reparation, such as an apology. As will be seen in the following sections, by arriving at a later stage in legal proceedings, reparations aim to repair the damage caused by the violation. Creative expression is one way that allows shaping reparations to reflect the circumstances of a particular case and the collective interests of victims as an injured group. However, to espouse the creative potential of certain forms of reparations means to balance the law’s analytical and formulaic structure, with the need to embrace complexity and trauma.12 While certain legal outcomes, such as the final judgements attributing responsibility, operate in strict dualistic categories of ‘guilty’/‘not guilty’ or ‘responsible’/‘not responsible,’ other legal tools, such as reparations, are more remedial in nature and seek to embrace the multitude of perspectives in an attempt to bring some form of relief or closure, admittedly limited in nature, to the individual victims or larger communities they target.13 The eyes are now on the ICC as it develops its unique approaches to reparations in the context of its fight against impunity and the mandate to assign individual criminal responsibility for mass atrocities. Based on the available case law, one may cautiously conclude that the ICC’s reparation orders so far

10  Miguel Castro-Castro Prison v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 160, 25 November 2006, para. 142, https://www​.corteidh​.or​.cr​/docs​/ casos​/articulos​/seriec​_160​_ing​.pdf 11  Miguel Castro-Castro Prison v. Peru, Merits, Reparations, and Costs, Concurring Opinion of the Judgment of Judge A.A. Cançado Trindade, Inter-Am. Ct. H.R. (ser. C) No. 160, 25 November 2006, para. 8 http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_160​_ing​ .pdf 12  Christoph Sperfeldt observes that contestation is at the heart of the reparation’s regime at the ICC. See C. Sperfeldt, Practices of Reparations in International Criminal Justice (Cambridge University Press, 2022). 13  OHCHR Rule of Law Report, supra note 4, para. 9.

Art and aesthetics at the ICC and IACtHR  119 are examples of a broader vision of justice encompassing symbolisation and creativity.14 In Prosecutor v. Lubanga Dyilo15 – the case dealing with the recruitment of child soldiers – the judges expressly upheld the value of symbolic reparations.16 In particular, the ICC ruled that ‘rehabilitation measures ought to include the means of addressing the shame that child victims may feel,’ and may take the form of ‘commemorations and tributes.’17 These measures can only be implemented through creative means. In Prosecutor v. Onwgen, the judges expressly embraced symbolic reparations, such as the memorial centres, monuments, human rights trainings, community memorial ceremonies, memorial prayers, and reconciliation and cleansing ceremonies.18 The practice and experience of the IACtHR is helpful in addressing some of the constraints naturally flowing from the current victim reparation and assistance regime pursuant to the Rome Statute of the ICC.19 The most pressing one is, arguably, the discrepancy between the process of attribution of individual criminal responsibility and the need to rectify larger collective wrongs through reparations.20 A close second is the limited scope of reparations that can be ordered by the ICC due to financial and institutional constraints.21 The latter concern may be somewhat alleviated by Prosecutor v. Dominic Ongwen – the case resulted in the largest reparations award at the ICC to date. On 28 February 2024, the ICC judges ordered over 52 million euros as collective community-based reparations focused on rehabilitation and symbolic satisfaction measures.22 In sum, it is argued that symbolic reparations with creative value have capacity to connect legal findings with the broader emotional landscape of the

14  Prosecutor v. Al Mahdi, Case. No. ICC-01/12-01/15, Reparations Order, 17 August 2017, para. 70–71, https://www​.icc​-cpi​.int​/CourtRecords​/CR2017​_05117​.PDF. See also Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06-3129-AnxA, Order for Reparations, 3 March 2015, para. 46 (Lubanga Reparations Order), https://icc​-cpi​.int​/RelatedRecords​ /CR2015​_02633​.PDF 15  Lubanga, Reparations Order, paras. 67–9. 16  Ibid. 17  Ibid. 18  Prosecutor v. Dominic Ongwen, Reparations Order, Case No. ICC-02/04-01/15, 28 February 2024, para. 635 (Ongwen Reparations Order), https://www​.icc​-cpi​.int​/sites​/default​/ files​/CourtRecords​/0902ebd18078e195​.pdf 19  Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 3 (Rome Statute). For an empirical overview of the ICC reparations regime see Sperfeldt, supra note 12; C. McCarthy, Reparations and Victim Support in the International Criminal Court (Cambridge University Press, 2012). 20  F. Mégret, ‘Of Shrines, Memorials and Museums: Using the International Criminal Court’s Victim Reparation and Assistance Regime to Promote Transitional Justice’ (2010) Buffalo Human Rights Law Review Vol 16, 1. 21  Ibid., 11–12. 22  Ongwen, Reparations Order, para. 613.

120  Art, aesthetics and international justice specific case at issue. Next, the chapter briefly outlines the legal framework for reparations at the ICC and the IACtHR, respectively. It also highlights trends common to both regimes, thereby justifying cross-comparisons. The following section examines distinctive features of symbolic reparations with creative value ordered by the IACtHR. It draws parallels with the work of the ICC and presents arguments supporting a more expansive conception of reparations. This section also shows how the ICC could rely on some of the experiences of the IACtHR in its unfolding reparations practice. The last section concludes that symbolic reparations have enhanced capacity, compared to a deterministic legal judgment, to embrace the complexity arising out of a conflict.23 Legal frameworks for reparations at the ICC and IACtHR contrasted The ICC legal framework

While the old generation of international criminal courts and tribunals placed little emphasis on reparations and victim participation, the ICC together with the Extraordinary Chambers in the Courts of Cambodia (ECCC) is pioneering the idea of inclusivity of victims’ concerns in international criminal proceedings.24 Pursuant to Article 75(1) of the Rome Statute of the ICC, the court may order reparations to victims in the form of ‘restitution, compensation, and rehabilitation.’ Additionally, the court may impose reparations with symbolic, preventative and transformative value.25 The nature of reparations is thus to be defined on a case-by-case basis. For this reason, the court is not limited to ordering a specific type of reparations expressly mentioned in the Rome Statute, such as financial compensation.26

23  See, for example, K. J. Fisher, ‘The Barlonyo Massacre, Ongwen’s Trial, and ICC Reparations: Reflections on the Dynamics of Expectations and Disappointment’ (2024) Journal of International Criminal Justice Vol mqae007, https://doi​.org​/10​.1093​/jicj​/mqae007 24  Sperfeldt, supra note 12. 25  Prosecutor v. Katanga, Case No. ICC 01/04-01/07, Order for Reparations Pursuant to Article 75 of the Statute, 24 March 2017, para. 297 (Katanga Reparations Order), https://www​ .icc​-cpi​.int​/CourtRecords​/CR2017​_05121​.PDF 26  Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeals Against the ‘Decision Establishing the Principles and Procedures to be Applied to Reparations’ of 7 August 2012 with Amended Order for Reparations (Annex A) and Public Annexes 1 and 2, 3 March 2015, para. 216 (Lubanga Reparations Judgment), https://www​.icc​-cpi​.int​/ CourtRecords​/CR2015​_02631​.PDF. See also Prosecutor v. Bemba Gombo, Case No. ICC01/05-01/08-3444, Submission by QUB Human Rights Centre on Reparations Issues Pursuant to Article 75 of the Statute, 17 October 2016, para. 41, https://www​.icc​-cpi​.int​/ CourtRecords​/CR2016​_17743​.PDF

Art and aesthetics at the ICC and IACtHR  121 Where appropriate, the ICC may order that the award for reparations be made through the Trust Fund for Victims (TFV).27 Article 79 of the Rome Statute describes the TFV as a body established by the Assembly of State Parties with a mandate to serve as an intermediary between victims and the ICC. This particularly applies to matters relating to accumulating fines or forfeiture ordered by the ICC to be later used for reparations.28 While the ICC orders symbolic reparations in abstract terms, it is up to the implementing body – the TFV – to ensure the practical execution of the order. Rule 98 of the ICC Rules of Procedure and Evidence further specifies that the ICC may order reparations to be deposited with the TFV when it ‘is impossible or impracticable to make awards directly to each victim,’ or when ‘the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate.’29 As is clear from the case law, the precise role of the TFV in managing reparations is still in the process of being refined. For instance, in Prosecutor v. Al Mahdi,30 the Appeals Chamber fully upheld the discretion of trial chambers under Article 75(1) of the Rome Statute when making reparations orders.31 Furthermore, the judges confirmed their supervisory role over the TFV.32 This discretion was fully exercised in Ongwen, when the Trial Chamber took the lead in establishing the priority of implementing various reparations considering the limitations of the TVF and the nature of victims’ requests. The judges prioritised paying symbolic monetary awards of 750 euros over rehabilitation and other symbolic measures, which are scheduled to follow later.33 It is important to note that besides processing formal reparations, the TFV has the mandate of victims’ assistance.34 This feature significantly expands TFV’s ability to respond creatively to victims’ needs. The Rome Statute of the ICC clarifies that ‘[a]ctivities undertaken under the assistance mandate are distinct from the judicial proceedings of the court and do not require the

27  Article 75(2) of the Rome Statute of the ICC. 28  Article 79 of the Rome Statute of the ICC. 29  Articles 98(2) and 98(3) of the ICC Rules of Evidence and Procedure (2019), https://www​. icc​-cpi​.int​/iccdocs​/PIDS​/legal​-texts​/Rul​esPr​oced​ureE​vide​nceEng​.pdf 30  Prosecutor v. Al Mahdi, Case No. ICC-01/12-01/15 A, Judgment on the Appeal of the ­Victims Against the ‘Reparations Order,’ 8 March 2018, para. 60 (Al Mahdi Reparations Judgment), https://www​.icc​-cpi​.int​/CourtRecords​/CR2018​_01623​.PDF 31  Ibid. 32  Ibid., para. 34. 33  Ongwen Reparations Order, para. 638. 34  Regulations of the Trust Fund for Victims, ASP Res. ICC-ASP/4/Res.3, 3 December 2005, para. 50, https://www​.icc​-cpi​.int​/NR​/rdonlyres​/0CE5967F​-EADC​-44C9​-8CCA​7A7E9AC89C30​/140126​/ICCASP432Res3​_English​.pdf

122  Art, aesthetics and international justice conviction or even the identification of the perpetrator(s) of the harms suffered by victims.’35 The IACtHR legal framework

In human rights law, the term ‘reparations’ is rather generic, covering the various ways in which a state can address the international responsibility it has incurred.36 The IACtHR specified that the purpose of reparation for damage caused by a breach of an international obligation requires, wherever possible, full restitution.37 It includes ‘compensation, satisfaction, and assurances that the violations will not be repeated.’38 In the Americas, the IACtHR may order reparations in cases where the state charged with the violation of the Inter-American Convention on Human Rights (Convention) accepts responsibility or when the court attributes responsibility for the violation.39 Article 63(1) of the Convention provides the following: If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.40 The legislative history of this provision reveals that the drafters expressly intended to give the court broad powers to order reparations.41 If one looks at the initial draft of the article, it becomes clear that the original thought was to provide only for compensatory damages.42 These wide powers of the IACtHR in awarding reparations distinguish it from its European counterpart. The European Court of Human Rights (ECtHR) can only afford just satisfaction

35  Letter from Motoo Noguchi to President Kwon, Chair of Board of Directors of the Trust Fund for Victims, 13 June 2018, https://www​.icc​-cpi​.int​/iccdocs​/TFV​/180603​_TFV​_letter​.pdf. See also Article 75(1) of the Rome Statute of the International Criminal Court. 36  Blake v. Guatemala, Reparations and Costs, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 48, 22 January 1999, para. 31, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_48​_ing​ .pdf. 37  J. M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Right (Cambridge University Press, 2003), 239 (citing Barios Altos, Reparations, Judgment, InterAm. Ct. H.R. (ser. C) No. 87, 30 November 2001, para. 25). 38  Ibid. 39  Ibid. 40  Article 63(1) of the American Convention on Human Rights, 22 November 1969, 4477 U.N.T.S. 123 (American Convention on Human Rights). 41  Pasqualucci, supra note 37, 233. 42  Ibid., 233.

Art and aesthetics at the ICC and IACtHR  123 to the injured party if necessary and when the internal law of the concerned state allows for a partial reparation.43 Furthermore, the ECtHR limits itself to ordering reparations only in the form of financial compensation because ‘it is for the State to choose the means to be used in its domestic legal system to redress the situation that has given rise to the violation of the Convention.’44 One explanation for this divergence in the reparation systems of the two courts, is the distinctive historical paths of these two institutions. Alexandra Hunneus dwells on this difference: the ECtHR, she observes, was tasked with ‘overseeing a group of well-functioning democracies,’ whereas the IACtHR was confronted with mass human rights violations, often sanctioned by the state.45 In the American context, it rapidly became apparent that monetary compensation alone would not satisfy the families of victims of those who disappeared, while the state continues to perpetrate atrocities and cover them up.46 The IACtHR thus began to innovate by, for instance, ordering prosecutions and investigations of particular violations.47 The court holds that a duty to investigate the facts of the violation and to punish those responsible is part of repairing the consequences.48 This duty includes responsibility to publish the results of investigations.49 The purpose of this act is to restore victims’ reputation by allowing the truth to be public. Furthermore, the court started closely monitoring those prosecutions and other measures at the supervisory stage.50 This tight oversight function of the IACtHR even led Hunneus to the conclusion that the court does in fact assume some of the functions of criminal jurisdictions and can well be compared to international criminal courts and tribunals.51 This historical feature brings the IACtHR closer to the ICC in terms of their intended outcomes and the scope of their work and is therefore one of the arguments for comparing the two reparations systems.

43  See Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights], art. 41, opened for signature Nov. 5, 1994, 2061 U.N.T.S. 7 (entered into force 1 November 1998), https://treaties​.un​.org​/doc​ /Publication​/UNTS​/Volume​%202061​/v2061​.pdf 44  Pasqualucci, supra note 37, 234–35 (quoting Zanghì v. Italy, 194-C ECHR (ser. A) para. 26 (1991)). In this quotation, the term ‘Convention’ refers to the European Convention on Human Rights. 45  A. Huneeus, International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts (2013) American Journal of International Law Vol 107(1), 1. See also C. Medina-Quiroga, The Battle of Human Rights: Gross, Systematic Violations and the Inter-American System (Martinus Nijhoff Publishers, 1988), 58. 46  Huneeus, supra note 45, 5. 47  El Amparo v. Venezuela, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 28, 14 September 1996, para. 61, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_28​_ing​.pdf 48  Velásquez Rodríguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4, 29 July 1988, para. 34, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_04​_ing​.pdf 49  Barrios Altos v. Peru, para. 5. 50  Hunneus, supra note 45, 9. 51  Ibid., 40–1.

124  Art, aesthetics and international justice The similarities between the two regimes

The difference between the two regimes appears quite clear – the ICC deals with the individual criminal responsibility; its formal reparations are linked to the finding of guilt and are primarily responding to the offending by an individual.52 In contrast, the IACtHR addresses states’ responsibility for the violations of the Convention and orders the state in question to furnish reparations to remedy the infringement.53 However, if one looks beyond the core structural differences, one finds a number of significant convergences between the two regimes, especially when it comes to the specific form of symbolic reparations. These similarities attest to the fact that the practice of the IACtHR discussed in further detail in the following section can serve as an inspiration for the evolving case law of the ICC. Firstly, both the IACtHR and the ICC have a rather narrow conception of victimhood. The ICC grants reparations to direct victims, indirect victims, individuals who are family members of the direct victims, or those who suffered personal harm as a result of the offences.54 For the purposes of reparations, there needs to be a causal link between the crime within the jurisdiction of the ICC and the harm suffered by the victim.55 It is peculiar that the IACtHR, despite being a court vested with power to declare violations by a much larger entity, the state, has also refused to expand the principle of injured party beyond that of a victim’s next of kin and dependents.56 This is despite some attempts to include the notion of community in the conception of ‘victim.’ For instance, in Aloeboetoe v. Suriname,57 the court did not recognise that the members of the tribe constitute a family in a broader sense despite the tribal culture upholding the existence of strong bonds within the tribe.58 This formal limitation does not prevent both courts from acknowledging the value of collective reparations, which work with the shared interests of victims. Secondly, both courts approach culture and art not just as a tool for reparations, but also as a protected value in its own right. The Al Mahdi case at the ICC offers a unique perspective on this point. In this case, the ICC employed symbolic rehabilitative measures to repair the harm caused by the destruction of cultural heritage.59 The reparations order, issued in August 2017, found 52  Lubanga Reparations Judgment, para. 216. 53  American Convention on Human Rights. 54  Lubanga Reparations Judgment, para. 6. 55  Ibid., para. 81. 56  La Cantuta v. Peru, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 17, 30 November 2007, para. 61, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_162​ _ing​.pdf 57  Aloeboetoe v. Suriname, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 15, 4 December 1991, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_15​_ing​.pdf 58  Ibid., para. 83. 59  See Prosecutor v. Al Mahdi, Case No. ICC-01/12-01/15, Reparations Order, 17 August 2017, para. 67 (Al Mahdi Reparations Order), https://www​.icc​-cpi​.int​/CourtRecords​/ CR2017​_05117​.PDF

Art and aesthetics at the ICC and IACtHR  125 Mr Al Mahdi, who orchestrated the demolition of ten shrines of historical and cultural significance in Timbuktu, Mali,60 liable for 2.7 million euros for the damage caused by the attack.61 The ICC emphasised the emotional distress that the Timbuktu community suffered as a whole following the destruction of the shrines.62 The ICC further stressed that ‘[b]ecause of their purpose and symbolism, most cultural property and cultural heritage are unique and of sentimental value.’63 Thus, the mental anguish caused by its obliteration was to be addressed on an individual level by compensation and on a collective level by symbolic rehabilitative measures, ‘such as a memorial, commemoration or forgiveness ceremony.’64 The aim was to grant ‘public recognition of the moral harm suffered by the Timbuktu community.’65 Thus, the judges reaffirmed that artistic expression is not only an instrument for reparations, but also a value protected by the principles of international criminal law.66 The IACtHR also maintains a consistent practice of protecting harmed cultural values. In such cases, art is both a protected value and a way of restoring what has been harmed. For instance, in Sawhoyamaxa Indigenous Community v. Paraguay,67 the IACtHR recognised artistic and cultural value of certain objects as influencing the lives and identities of vulnerable groups.68 The judges in this case established that the expropriation of ancestral lands from the members of an indigenous community could result in irreparable damage to their cultural heritage.69 As a result, the court ordered reparations, including educational and commemorative activities, for the benefit of the entire community.70 Finally, both courts resorted to apology as a non-tangible form of symbolic reparations. An official apology satisfactorily serves as a form of remedy in the framework of the IACtHR because it provides acknowledgement of the state’s responsibility for the human rights violation. An apology may be ordered by the court or voluntarily extended when the state accepts its

60  See M. Aksenova, ‘The Al Mahdi Judgment and Sentence at the ICC: A Source of Cautious Optimism for International Criminal Justice’ EJIL Talk, 13 October 2016, https://www​.ejiltalk​.org​/the​-al​-mahdi​-judgment​-and​-sentence​-at​-the​-icc​-a​-source​-of​-cautious​-optimism​-for​ -international​-criminal​-justice/ 61  Al Mahdi Reparations Order, para. 134. 62  Ibid., para. 90. 63  Ibid., para. 22. 64  Ibid., para. 90. 65  Ibid. 66  Ibid., para. 15. 67  Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 146, 29 March 2006, http://www​.corteidh​.or​.cr​/docs​/ casos​/articulos​/seriec​_146​_ing​.pdf 68  Ibid., para. 222–4. 69  Ibid. 70  Ibid.

126  Art, aesthetics and international justice international responsibility. Likewise, the ICC in the Al Mahdi case strongly endorsed Mr Al Mahdi’s apology because he ‘genuine[ly], categorical[ly], and empathetic[ally]’ expressed his remorse to his victims.71 As a symbolic measure with potential reconciliatory impact, the judges ordered the excerpt from the trial containing the apology to be put on the ICC’s website accompanied by ‘the corresponding transcript translated into the primary [local] languages.’72 From the perspective of reason, an apology is the acknowledgement of responsibility (albeit without the retributive element normally attached to this finding in criminal law)73 and from the emotional perspective an apology directly supports human capacity to forgive and move forward, thereby promoting healing and reconciliation.74 Distinctive features of symbolic reparations at the IACtHR Ability to address collective interests

There is a clear potential for symbolic reparations to transcend some of the inherent limitations of international criminal law.75 An award that speaks to a group of persons has more power to transmit a message going beyond individual monetary compensation.76 The ICC’s resources are indeed limited when it comes to ordering individual reparations.77 When the number of individual victims is large, collective awards pursuant to Rule 98(3) of the ICC Rules of Procedure and Evidence leave more wiggle room for designing an appropriate remedy at the community level.78 This modality of reparations overcomes to some extent limitations posed by a rather narrow conception of ‘victim.’ The case law of the IACtHR provides some examples of orders that aimed to address the interests of a protected ‘group’ as a collective. For instance,

71  Al Mahdi, Reparations Order, paras. 70–1. 72  Ibid., para. 71. 73  See P. de Greiff, ‘The Role of Apologies in National Reconciliation Processes: On Making Trustworthy Institutions Trusted’ in M. Gibney et al. (eds) The Age of Apology: Facing Up to the Past (University of Pennsylvania Press, 2008). 74  For moving beyond punitive international criminal law see S. Rigney, ‘Building An Abolition Movement for International Criminal Law?’ (2024) Journal of International Criminal Justice Vol 22(1), 211. 75  Mégret, supra note 20, 20. 76  Even the monetary compensation can be awarded as a community-based measure. In Ongwen, the Trial Chamber ordered symbolic awards of EUR 750 based on considerations of victims belonging to a group, thereby treating individualised payments as a form of collective award. See Ongwen, Reparations Order, para. 631. 77  Mégret, supra note 20, 14–15. 78  Article 98(3) of the ICC Rules of Evidence and Procedure (2019), https://www​.icc​-cpi​.int​ /iccdocs​/PIDS​/legal​-texts​/Rul​esPr​oced​ureE​vide​nceEng​.pdf. See also Ongwen, Reparations Order, para. 663.

Art and aesthetics at the ICC and IACtHR  127 in Vargas-Areco v. Paraguay,79 the court stressed the need to uphold children’s rights.80 This case concerned a 15-year-old, who was recruited into military service and later shot dead upon trying to flee the military grounds.81 As a result of finding state responsibility for murder, torture, and other cruel, inhumane and degrading treatment, the IACtHR ordered installation of a plaque ‘to keep his memory alive and prevent repetition of events such as those occurred in the instant case.’82 In the follow-up monitoring judgment, the IACtHR expressly acknowledged a clear healing value of the plaque for the next of kin and its contribution to a greater preservation of the historical memory.83 Additionally, the court in Rochac Hernández et al. v. El Salvador84 dealt with crimes against children after El Salvadoran state forces perpetrated the forced disappearance of five children during counter-insurgency operations.85 In this case, the court ordered the construction of the memorial space ‘Jardin Museo’ to honour children who were victims of forced disappearance during the armed conflict.86 Finally, another case centring on children’s rights – Case of the ‘Street Children’ (Villagrán-Morales) v. Guatemala87 – concerned the murder by police forces of five street children in Guatemala City in June 1990.88 In this case, the court ‘order[ed] the State to designate an educational center with a name allusive to the young victims and to place in this center a plaque with the names’ of the victims.89 Other categories of protected groups include women and indigenous populations. In González v. Mexico,90 the judges ordered the construction of ‘a 79  Vargas Areco v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 155, 26 September 2006, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/ seriec​_155​_ing​.pdf 80  Ibid. 81  Ibid., para. 2. 82  Vargas-Areco v. Paraguay, Merits, Reparations and Costs Judgement, para. 158. 83  Vargas-Areco v. Paraguay, Monitoring Compliance with Judgment, Inter-Am. Ct. H.R. (ser. C) No. 155, 20 July 2010, para. 10–11, http://www​.corteidh​.or​.cr​/docs​/supervisiones​/ vargas​_20​_07​_10​_ing​.pdf 84  Rochac Hernández v. El Salvador, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 285, 14 October 2014, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​ /seriec​_285​_esp​.pdf 85  Ibid., para. 122. 86  Ibid., para. 232. 87  Case of the ‘Street Children’ (Villagrán Morales) v. Guatemala, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C), No. 63, 19 November 1999, http://www​.corteidh​.or​.cr​/docs​/casos​/ articulos​/seriec​_63​_ing​.pdf 88  Ibid., para. 5. 89  Case of the ‘Street Children’ (Villagrán Morales) v. Guatemala, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 77, 26 May 2001, para. 103, http://www​.corteidh​.or​ .cr​/docs​/casos​/articulos​/seriec​_77​_ing​.pdf 90  González (‘Cotton Field’) v. Mexico, Preliminary Objection, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 205, 16 November 2009, http://www​.corteidh​.or​.cr​/docs​ /casos​/articulos​/seriec​_205​_ing​.pdf

128  Art, aesthetics and international justice monument to commemorate women victims of gender-based murder[s].’91 In Plan de Sánchez Massacre v. Guatemala,92 the court ordered the state to pay sums of money to maintain and improve the chapel to ‘pay homage to those who were executed in the Plan de Sánchez massacre,’ which specifically targeted the indigenous Mayan population.93 In this case, the court did not order Guatemala to construct a new monument since Mayan people had already erected the memorial chapel, and it would have been more reasonable to order the state to help maintain it.94 This space was specifically dedicated to honouring local victims of indigenous descent.95 Interestingly, the state was reluctant in fulfilling this obligation, claiming, for instance, that it ‘had not been informed about the names of the persons responsible for receiving the money and implementing the project.’96 The reparation practice of the ICC is still at its relatively early stages. It is therefore impossible to make generalised claims about the potential of symbolic reparations ordered in specific cases to reflect group interests. It is peculiar that the Ntaganda order on reparations expressly highlighted victims’ wish not to be granted any form of memorialisation or other forms of symbolic reparations unless they serve practical purposes.97 There is an important qualification as to how ‘symbolic’ is understood in the context of Ntaganda. The Chamber noted that reparations must be effective and meeting victims’ needs in order to be truly transformative instead of simply being ‘symbolic’ or ‘charitable’ in nature.98 In line with this argument, the Chamber instructed the TFV to consider building a community centre as a memorialisation effort and to serve the practical purpose of reconciliation between the different sectors of community.99 It is therefore clear that Ntaganda does not rule out creative reparations but rather stresses the need for effectiveness and victim participation in designing the measure. The earlier Lubanga Dyilo reparations order expressly demonstrates the value and importance of collective reparations in addressing the interests of

91  Ibid., para. 471. 92  Plan de Sánchez Massacre v. Guatemala, Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 116, 19 November 2004, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​ _116​_ing​.pdf 93  Ibid., para. 104. 94  Ibid. 95  Ibid., para. 101. 96  Plan de Sánchez Massacre v. Guatemala, Monitoring Compliance with Judgment, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 116, 28 November 2007, para. 23, http://www​.corteidh​.or​ .cr​/docs​/supervisiones​/sanchez​_28​_11​_07​_ing​.pdf 97  Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, Order for Reparations, 8 March 2021, para. 9 (Ntaganda Reparations Order), https://www​.icc​-cpi​.int​/CourtRecords​/ CR2021​_01889​.PDF 98  Ibid., para. 91. 99  Ibid., para. 208.

Art and aesthetics at the ICC and IACtHR  129 protected groups.100 It also exemplifies the practical challenges of finding a suitable form for collective reparations. It is worthwhile to examine Lubanga Dyilo in depth. The Lubanga Dyilo order on reparations explicitly stated that ‘reparations should aim at reconciling the victims with their families and the affected communities.’101 In particular, reparations should address the ‘shame that child victims may feel.’102 The TFV, tasked with implementing the order, faced a real challenge in explaining how reconciliation and reintegration should be understood for the purposes of symbolic reparations initiatives in the specific context of this case. This explains why its implementation plan submitted to the Trial Chamber was rejected due to lack of specificity.103 In its original ‘Draft Implementation Plan, the Trust Fund proposed memorialization projects that would be community-driven and “take a range of forms, including written, audio, artistic, events or other mediums.”’104 Furthermore, it suggested ‘symbolic reparations include public condemnation of the crimes of enlisting’ children as soldiers.105 The Chamber, while being supportive of TFV’s proposals for programmes aimed at the ‘reintegration of former child soldiers into society’ demanded more details.106 Based on this prompt, the TFV experts undertook additional research in the affected regions and concluded in their revised plan that crimes against children are often committed with the ‘acceptance of the broader community.’107 Thus, they suggested, what is really needed in terms of ‘memorialization or symbolic initiative’ is to raise awareness ‘within the broader community’ about the harm inflicted on children as a result of their inscription in the armed forces.108 This is, in part, to fight the social stigma attached to the former child soldiers.109 Consequently, the TFV suggested that activities and events ‘may include … a combination of community dialogue, artistic, cultural, and theatrical activities to promote awareness-raising about the convicted crimes and

100  Lubanga Reparations Order. 101  Ibid., para. 46. 102  Ibid., para. 67. 103  Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Order Instructing the Trust Fund for Victims to Supplement the Draft Implementation Plan, 9 February 2016, para. 10, https://www​.icc​-cpi​.int​/CourtRecords​/CR2016​_01895​.PDF 104  Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Filing Regarding Symbolic Collective Reparations Projects with Confidential Annex: Draft Requests for Proposals, 19 September 2016, para. 10, https://www​.icc​-cpi​.int​/CourtRecords​/CR2016​_06684​.PDF 105  Ibid. 106  Ibid., para. 17. 107  Ibid., para. 15. 108  Ibid. 109  Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Filing Regarding Symbolic Collective Reparations Projects with Confidential Annex: Draft Requests for Proposals, 19 September 2016, para. 23 https://www​.icc​-cpi​.int​/CourtRecords​/CR2016​_06684​.PDF

130  Art, aesthetics and international justice the harms suffered by child soldiers.’110 When it comes to a more permanent structure, the TFV proposed the building of three community centres that serve as a ‘“living” space … for symbolic activities.’111 For example, [t]he interior of the building could … be utilized to exhibit pictures and artwork created by former child soldiers that depicts the past, present, and their hopes for the future. The structures may also host music, dance, drama, and cultural events.112 In addition, the TFV came up with a plan to launch a mobile programme featuring activities to reduce stigma and discrimination that former child soldiers continue to face in the communities where they reside.113 The Trial Chamber approved this revised plan for symbolic reparations and requested updates every three months on its implementation.114 It is interesting to note that this point in time marked the division in the jurisprudence of the ICC of reparations into two parts: symbolic reparations and collective service-based reparations, meant to complement each other.115 Both types of reparations were viewed as tenets of a comprehensive response to the harms suffered by the victims. For the service-based collective reparations, the Trial Chamber approved the Trust Fund’s plan to provide physical and psychological rehabilitation, as well as vocational training and income-generating activities.116 A more recent Ntaganda order adopted a slightly different classification distinguishing between symbolic reparations with transformative value, such as a community centre, and rehabilitative measures aimed at helping victims with dealing with emotions such as shame.117 Finally, the Ongwen Trial Chamber strongly gravitated towards collective and community-based reparations.118 The terminology used was ‘collective community-based reparations focused on rehabilitation and symbolic/ satisfaction measures.’119 The judges highlighted considerations of timing,

110  Ibid., para. 41. 111  Ibid., para. 35. 112  Ibid. 113  Ibid., para. 63. 114  Prosecutor v. Lubanga Dylio, Case No. ICC-01/04-01/06, Order Approving the Proposed Plan of the Trust Fund for Victims in Relation to Symbolic Collective Reparations, 17 October 2016, para. 17, 81, 117, https://www​.icc​-cpi​.int​/CourtRecords​/CR2016​_22094​.PDF 115  Ibid., para. 12. 116  Prosecutor v. Lubanga Dylio, Case No. ICC-01/04-01/06, Information Regarding Collective Reparations with Three Public Annexes, One Confidential Annex, and One Confidential Ex-Parte Annex, 13 February 2017, para. 22, https://www​.icc​-cpi​.int​/CourtRecords​/ CR2017​_00768​.PDF 117  Ntaganda Reparations Order, paras. 203 and 208. 118  Ongwen, Reparations Order, para. 663. 119  Ibid., para. 613.

Art and aesthetics at the ICC and IACtHR  131 efficiency and transformative value of collective reparations.120 Transformative value was explained as an ambition to tackle the cultural meaning of violence and structural barriers leading to victims’ stigmatisation. Furthermore, the judges expressly recognised the mammoth Ongwen conviction and sentencing judgments of 2021,121 convicting Mr Ongwen of 61 counts of crimes against humanity and war crimes committed in Northern Uganda between 2002 and 2005, as its own satisfaction measure. These documents acknowledge and publicly recognise the harms resulting from Mr Ongwen’s crimes.122 In line with the efficiency goal, the Ongwen reparations judgment expressly rejected costly infrastructure projects, such as museums or hospitals, noting that it is the responsibility of the Government of Uganda. In contrast, the judges instructed the TVF to consider – in consultation with the victims – smaller scale endeavours, such as memorials and reconciliation ceremonies, as possible forms of symbolic measures.123 The practice of the IACtHR can be seen as an inspiration in further developing the jurisprudence on reparations at the ICC, especially in what pertains their collective and transformative dimensions. Filling in the gap between formal acceptance of responsibility and other forms of acknowledgement

The practice of symbolic reparations at the IACtHR helps to remedy to some extent the problem of states’ non-acceptance of responsibility for the unlawful act. The table at the end demonstrates that a state’s acceptance of international responsibility during the proceedings is not directly related to its willingness to construct memorials. The practice of reparations therefore helps to fill in the space between responsibility and acknowledgement. For instance, in the case of Moiwana Community,124 Suriname expressed ‘no objections to establish a memorial to point out the occurrences that took place in the village of Moiwana,’ although it had never accepted its responsibility for what happened.125 During the country’s civil war, members of the armed forces of Suriname attacked a village of indigenous Maroons (named N’djuka) of Moiwana.126 The armed forces ‘massacred over forty men, women, and

120  Ibid., paras. 613, 637. 121  Prosecutor v. Dominic Ongwen, Trial Judgment, Case No. ICC-02/04-01/15, 4 February 2021, https://www​.icc​-cpi​.int​/sites​/default​/files​/CourtRecords​/CR2021​_01026​ .PDF; Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Sentence, 6 May 2021, https://www​.icc​-cpi​.int​/sites​/default​/files​/CourtRecords​/CR2021​_04230​.PDF 122  Ongwen, Reparations Order, para. 636. 123  Ibid., paras. 619, 635. 124  Moiwana Community v. Suriname. 125  Ibid., paras. 36, 218. 126  Ibid., para. 3.

132  Art, aesthetics and international justice children,’ and demolished the village itself.127 As a result, N’djuka people were ‘unable to return to their traditional way of life.’128 The court found that Suriname had violated various articles of the Convention, and ordered, among other things, the construction of the memorial to serve as ‘a reminder to the whole nation of what happened and what may not repeat itself in the future.’129 The monument was duly constructed.130 This practice is instructive for the ICC where reparations pursuant to Article 75(1) of the Rome Statute must be directly linked to the conviction of a responsible person.131 To narrow it down even further, formal acceptance of individual responsibility in criminal proceedings is associated with a guilty plea. Al Mahdi was the only case at the ICC where a guilty plea occurred. It is therefore uncommon. Such lack of formal acknowledgement of responsibility by the convicted person may be detrimental to reconciliation, as it may feed divisive narratives even after the judgment of the court has entered into force. It appears, however, that the practice of symbolic reparations may remedy to some extent the lack of acceptance of responsibility by expressly acknowledging the traumatic event and its detrimental consequences for the community and individual victims. In Ongwen, the judges took a step precisely in this direction by treating the sentencing and conviction judgments as a formal acknowledgement of the harm suffered by the victims.132 The Trial Chamber correctly left apologies by Mr Ongwen or the Government of Uganda to remain voluntary and subject to victims’ acceptance.133 It is also plausible to apply the same reasoning to the cases when the ICC renders a ‘non-guilty’ verdict: certain forms of symbolic acknowledgement may be facilitated under the TFV’s assistance mandate in case of acquittal. For instance, the ICC judges in the Bemba Gombo134 case observed that while the acquittal leads to the end of the formal reparations proceedings, it by no means prevents the TFV from taking measures under the assistance mandate.135 Moreover, the judges actively encouraged the TFV to ‘accelerate the launch of a programme under its assistance mandate for the benefit of victims

127  Ibid. 128  Ibid. 129  Ibid., para. 200(d). 130  Moiwana Community v. Suriname, Monitoring Compliance with the Judgment, Inter-Am. Ct. H.R. (ser. C) No. 124, 22 November 2010, paras. 41–2, http://www​.corteidh​.or​.cr​/ docs​/supervisiones​/moiwana​_22​_11​_10​_ing​.pdf 131  Article 75(1) Rome Statute of the International Criminal Court. 132  Ongwen, Reparations Order, para. 636. 133  Ibid., para. 635. 134  Prosecutor v. Bemba Gombo, Case No. ICC-01/05-01/08-3444, Submission by QUB Human Rights Centre on Reparations Issues Pursuant to Article 75 of the Statute, 17 October 2016, para. 41, https://www​.icc​-cpi​.int​/CourtRecords​/CR2016​_17743​.PDF 135  Prosecutor v. Bemba Gombo, Case No. ICC-01/05-01/08, Final Decision on the Reparations Proceedings, 3 August 2018, para. 3, https://www​.icc​-cpi​.int​/CourtRecords​/CR2018​ _03967​.PDF

Art and aesthetics at the ICC and IACtHR  133 and their families in the situation of the Central African Republic.’136 Thus, the TFV’s assistance mandate does not depend on the finding of individual guilt and ensuing reparation proceedings. It therefore opens an alternative path to acknowledging collective harms suffered by the community, especially in cases when the trial chamber enters the judgment of acquittal. Embracing multiple narratives

One of the crucial features of symbolic reparations at the IACtHR is their capacity to embrace multiple narratives and reflect the complexity of the social conflict accompanying violations of the Convention rights. This trait is both a strength and a weakness of reparations with creative components. On the one hand, art has the capacity to hold divergent views and be provocative, which helps bridge the divide between different groups involved in societal conflict. On the other hand, the same ambiguity inherent in art may lead to unpredictable reactions. It is almost as if the monuments or memorials embody the social ill that led to the original violation, instead of being a mere reminder of its dangers. Attacking or destroying the monuments ordered by the IACtHR as a form of symbolic reparations is one way in which this controversy surfaces. For instance, in 2005, the IACtHR ordered a construction of the monument to commemorate the torture and murder of civilians in Mapiripán, Colombia.137 This monument – a symbol of justice – was indeed constructed, but subsequently destroyed in 2017.138 It is not clear who destroyed it or why, but the implication is traumatic: such acts may lead to revictimisation, stir discontent, and cause polarisation instead of reconciliation. Likewise, in 19 Tradesmen v. Colombia,139 the court ordered Colombia to erect a monument in memory of the 19 tradesmen executed by the local paramilitary group.140 Furthermore, a plaque with the names of the tradesmen was to be placed on the monument.141 Victims’ representatives rejected the initial place suggested for the monument since it was under the control of the paramilitary responsible for the killing of the tradesmen.142 The monument was nevertheless constructed according to

136  Ibid., para. 11. 137  Mapiripán Massacre v. Colombia, para. 291. 138  See Justicia, ‘Destruyen el monumento de las víctimas de la masacre de Mapiripán,’ El Tiempo, 12 October 2017, http://www​.eltiempo​.com​/justicia​/investigacion​/ataque​-a​ -monumento​-de​-las​-victimas​-de​-la​-masacre​-de​-mapiripan​-140566 139  19 Tradesmen v. Colombia, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 109, 5 July 2004, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​ _109​_ing​.pdf 140  Ibid., para. 273. 141  Ibid. 142  Ibid.

134  Art, aesthetics and international justice the original plan but suffered an assault in 2016, when the plaque was stolen, and the monument was painted in graffiti.143 Controversy about symbolic reparations may surface in ways not limited to physical attacks. To illustrate this point, it is instructive to explore the public debates and social disagreement surrounding symbolic reparations ordered in Miguel Castro-Castro Prison v. Peru.144 This case serves as a powerful testament to the ability of art to embrace multiple narratives. The case dealt with a deliberate and unprovoked attack by the Peruvian military and police on the prison, where several members of the radical communist group Sendero Luminoso were detained.145 As a result, dozens of inmates were killed and hundreds were injured or subjected ‘to a cruel, inhuman, and degrading treatment.’146 The IACtHR found that Peru violated numerous provisions of the Convention, including the general obligation to respect the right to life, the right to humane treatment and the right to a fair trial.147 The court ordered various reparations in this case: pecuniary damages for the loss of income as a result of death or handicap,148 non-pecuniary damages for the suffering as a result of the attack,149 and other forms of reparations (dubbed as measures of satisfaction and non-repetition guarantees).150 It is within this latter category that the court ordered Peru to investigate and prosecute the attack,151 publicly acknowledge its responsibility for the benefit of the victims and their next of kin,152 provide the victims with medical and psychological support,153 introduce human rights educational programmes for police,154 and build a monument and a park to provide the victims and their kin a space for commemoration.155 Peru claimed it had already erected the monument and it was called the ‘Eye that Cries.’156 The monument was constructed in 2005 to commemorate thousands of victims who died in the 1980s and 1990s as a result of violence committed both by the Peruvian government

143  S. Gamboa, ‘Frenarán grafitis en monumento a comerciantes de Bucaramanga’ Vanguardia, 27 February 2016, http://www​.vanguardia​.com​/area​-metropolitana​/bucaramanga​ /348940​-frenaran​-grafitis​-en​-monumento​-a​-comerciantes​-de​-bucaramanga. 144  Miguel Castro-Castro Prison v. Peru, paras. 8–24. 145  Ibid., para. 197(13). 146  Ibid., para. 2. 147  Ibid., para. 25. 148  Ibid., paras. 423–9. 149  Miguel Castro-Castro Prison v. Peru, 430–4. 150  Ibid., paras. 410(h), 435–54. 151  Ibid., para. 439. 152  Ibid., para. 445. 153  Ibid., para. 449. 154  Ibid., paras. 451–2. 155  Ibid., paras. 453–4. 156  Ibid.

Art and aesthetics at the ICC and IACtHR  135 and radical guerrilla groups (including Sendero Luminoso) attempting to fight the government.157 From that moment onward, the events developed in an unexpected fashion. The court’s order to engrave the names of inmates who had served sentence for guerrilla warfare on the monument caused popular controversy.158 The artist who originally created the monument also spoke against this order.159 It turned out, however, that the names of 41 victims who died in the Miguel Castro-Castro Prison had already been inscribed on the monument at the time of its creation, but it was the order of the IACtHR that brought this information to light.160 The story did not end there. In 2007, there was an attack on the monument when it was sprayed with orange paint.161 This act of vandalism was perpetrated on the day Alberto Fujimori, the former President of Peru who oversaw the fight against the guerrilla movements, was extradited from Chile to Peru to stand trial for the crimes committed by his government.162 It is believed that his supporters organised the act of vandalism.163 In light of these developments, Peru asked the court to clarify whether, in the course of its compliance efforts, it could distinguish in a ‘respectful and reflexive’ manner between victims who were prosecuted or sentenced for the crime of terrorism and all other victims.164 In response, the court acknowledged that ‘the suffering caused to Peruvian society by Sendero Luminoso was widely and publicly known.’165 The judges then took a conciliatory route mentioning that the state had already acknowledged its international responsibility for the violations in the Miguel CastroCastro Prison and it must now make such acknowledgements within its own domestic jurisdiction.166 This way the IACtHR deferred the question of distinguishing between various categories of victims to domestic law.167 Due to the ongoing controversy, the judges specifically referred to the situation with

157 P. Drino, ‘For Whom The Eye Cries: Memory, Monumentality, and the Ontologies of Violence in Peru’ (2009) Journal of Latin American Cultural Studies Vol 18(1), 15. See also D. Collyns, ‘Peru Attempts to Address Years of Violence with Tolerance Museum’ Guardian, 20 June 2014, https://www​.theguardian​.com​/world​/2014​/jun​/20​/peru​-museum​-place​ -of​-memory​-shining​-path 158  Miguel Castro-Castro Prison v. Peru, para. 463. 159  Drino, supra note 157. 160  Miguel Castro-Castro Prison v. Peru, para. 453. 161  Drino, supra note 157. 162  Ibid. 163  Ibid. 164  Miguel Castro-Castro Prison v. Peru, Interpretation of the Judgment on the Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 181, 2 August 2008, para. 29, http://www​ .corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_181​_ing​.pdf 165  Ibid., para. 41. 166  Ibid., paras. 48–50. 167  Ibid., paras. 49–50.

136  Art, aesthetics and international justice the monument, although it was outside of the formal request. The court reiterated its order for the creation of a park or construction of a monument ‘that can satisfy the sense and purpose of the reparation measure ordered by the Tribunal in its Judgment.’168 This was an implicit acknowledgement of non-suitability of the ‘Eye That Cries’ for that purpose. This new monument, however, has yet to be constructed.169 Judge Trindade submitted a powerful concurring opinion in this case.170 He argued that the law always protects the victim, and there can be no legal vacuum in this regard.171 The distinction can only be made between the bodies of law responsible for either domestic criminal law in cases when perpetrators are tried locally or international human rights law, as in the case of Miguel Castro-Castro Prison.172 The IACtHR had to become involved in this instance precisely because the convicted people who suffered an attack were not able to get protection and recognition locally.173 What this case illustrates is that no matter how well-meaning the symbolic reparations with creative value may appear, there is an implicit risk that the reparations act as a ‘trigger’ in society for they serve as a reminder of the issues that have not yet been fully processed at the communal level. Creative symbolic reparations may bring to the surface uneasy questions and complexities that an outcome-driven judgment may not be able to capture. It is well-established that people come to conclusions based on a number of cognitive biases, namely pre-established ideas about certain events.174 This is particularly true of events with strong traumatic connotations.175 It may thus prove insufficient to try and overcome someone’s cognitive bias with a legal judgment. One may argue then, that art allows contextualisation of law by adding an experiential dimension. This consideration is relevant in equal measure to the work of ICC, dealing with cases of extreme complexity. Take, for instance, the problem of child soldiers. The ICC convicted a former child soldier Dominic Ongwen of crimes against humanity and war crimes and sentenced him to 25 years of imprisonment.176 This is despite the fact he

168  Ibid., para. 57. 169  Miguel Castro-Castro Prison v. Peru, Monitoring Compliance with Judgment, Order of the Court, Inter-Am. Ct. H.R. (ser. C) No. 160, 9 February 2017, para. 35, http://www​.corteidh​.or​.cr​/docs​/supervisiones​/penal​_miguel​_castro​_09​_02​_17​.pdf 170  Miguel Castro-Castro Prison v. Peru, Concurring Opinion of Judge A.A. Cançado Trindade. 171  Ibid., para. 82. 172  Ibid., paras. 83–5. 173  Ibid., paras. 102–3, 133–8. 174  M. Milanovíc, ‘Establishing the Facts about Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences’ (2016) Georgetown Journal of International Law Vol 47, 1321. 175  Ibid., 1329–30. 176  Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Final Decision on the Reparations Proceedings, 4 February 2021, para. 3116, https://www​.icc​-cpi​.int​/CourtRecords​/ CR2021​_01026​.PDF

Art and aesthetics at the ICC and IACtHR  137 started as a child solider in the Lord’s Resistance Army (LRA) in Uganda at the age of 10, subsequently rising up in the ranks of the LRA.177 There was moral ambiguity of prosecuting someone conditioned into atrocities as a child and this nuance was not fully reflected in the final judgment.178 The prosecutorial strategy of vilifying Mr Ongwen by amplifying the narrative of brutality took precedence during trial. Conscious downgrading of Mr Ongwen’s childhood trauma fulfilled the need for a symbolic figure collectively representing atrocities of the LRA, especially in the absence of more senior figures standing trial.179 The emphasis on the perpetrator status of Mr Ongwen largely cancelled out his status as a victim of child abuse, despite the impact of early victimisation on offending later in life.180 The categories of victims and perpetrators are fixed in international criminal law to the degree of being mutually exclusive. This leaves little room for acknowledging the fact that, with time, child soldiers transition from the role of victims into the role of perpetrators.181 Symbolic reparations may be able to reflect this complexity in a more refined way, thereby complementing the judgment pronouncing on the guilt of Mr Ongwen. A monument or a memorial dedicated to the victims of the LRA’s army may be crafted in a way that allows room for grieving the tragedy of both victims and perpetrators. Posterity value (past, present and future)

The remaining significant feature of symbolic reparations at the IACtHR is their ability to engage with collective memory. By ordering the construction of a certain monument, the court often instructs the state to keep the memory of the violation alive and to ensure future generations learn the lesson.

177  Case Information Sheet: Situation in Uganda: The Prosecutor v. Dominic Ongwen, https:// www​.icc​-cpi​.int​/Cas​eInf​orma​tion​Sheets​/OngwenEng​.pdf 178  L. G. Minkova, ‘Expressing What? The Stigmatization of the Defendant and the ICC’s Institutional Interests in the Ongwen Case’ (2021) Leiden Journal of International Law Vol 34(1), 223; R. Viswanath, and F. Li ‘Constructing a Sensory Alternative to the Ongwen Judgment’ (2023) International Criminal Law Review Vol 23(5–6), 804; Rigney, supra note 74. 179  Minkova, supra note 178; Viswanath, and Li, supra note 178. 180  See, e.g. S. Green, ‘Crime, Victimisation and Vulnerability’ in S. Walklate (eds) Handbook of Victims and Victimology (Routledge, 2007). 181  E. Baines, Buried in the Heart: Women, Complex Victimhood and the War in Northern Uganda (Cambridge University Press, 2016); See also M. Aksenova, ‘Introduction’ in M. Aksenova et al (eds) Breaking the Cycle of Mass Atrocities: Criminological and Socio-Legal Approaches to International Criminal Law (Hart Publishing, 2018), 3.

138  Art, aesthetics and international justice For instance, Kawas-Fernández v. Honduras182 concerned the murder of Ms Blanca Jeannette Kawas-Fernández, who served as the president of the local environmental organisation.183 In her capacity as a local environmental activist, Ms Kawas-Fernández protested against ‘the contamination of the lakes and the depredation of the forests in the region.’184 Ms Kawas-Fernández also denounced ‘attempts by private individuals and entities to illegally appropriate’ natural resources.185 The court held the state directly responsible for her death and for the failure to apply due diligence to subsequent investigations.186 Significantly, the court ordered the state to erect a memorial monument for the victim as well as to mount signs at a national park named after her.187 The judges further explained that the monument would serve the purpose of keeping the memory of Ms Kawas-Fernández alive and preventing future reoccurrence of the facts, such as those that occurred in the case at issue.188 Memory and law have a complex relationship.189 The so-called ‘memory laws’ passed to commemorate the victims of dictatorial regimes, outlawed the denial of the Holocaust and the Soviet occupation.190 In pursuing an important objective to honour the victims and prevent recurrence of violence, they caused some controversy. These laws frequently encroached on the freedom of speech and stirred divisive political debates.191 Symbolic reparations connect law and memory in a more coherent fashion: law preserves its neutrality and regulatory function by ordering reparations aimed at restoring or acknowledging violated rights pursuant to a treaty but it does not dwell on the concrete substance of the measure. Monuments constructed in accordance with court’s orders in turn ‘capture the moment’ in a more universal and inclusive way than any formulaic legal provision ever can. The polarisation inherent in these attempts is outsourced to art. This ‘division of labour,’ however, does not shield a piece of art produced as a form of reparation from attacks, as Miguel Castro-Castro Prison demonstrates. 182  Kawas-Fernández v. Honduras, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 196, 3 April 2009, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/ seriec​_196​_ing​.pdf. 183  Ibid., para. 2. 184  Ibid. 185  Ibid. 186  Ibid., para. 6. 187  Kawas-Fernández v. Honduras, para. 204. 188  Ibid., para. 206. See also Mapiripán Massacre v. Colombia, para. 326. 189  U. Belavusau and A. Gliszczyńska-Grabias (eds), Law and Memory: Towards Legal Governance of History (Cambridge University Press, 2017), 13. 190  Ibid. 191  P. Lobba, ‘Testing the “Uniquenes”: Denial of the Holocaust vs Denial of Other Crimes Before the European Court of Human Rights’ in U. Belavusau and A. Gliszczyńska-Grabias (eds), supra note 189.

Art and aesthetics at the ICC and IACtHR  139 Certain tension between symbolic reparations and some shared beliefs held at the societal level should not, however, discourage the development of such measures. The opposite is true. In this regard, it is important to mention the second crucial point made by Judge Trindade in his concurring opinion in Miguel Castro-Castro Prison: that the rationale behind symbolic reparations was the need to comply with the duty to remember, which has both individual and social dimensions.192 For Judge Trindade, the search for justice also covers the preservation of the memory.193 In his view, memory is significant for collective healing.194 Thus, the practice of the IACtHR reveals the dual purpose of symbolic reparations: to serve as a reminder of the established violation and to prevent reoccurrence of similar events in the future. It is clear that the acts of vandalism directed at the monuments in Peru and Colombia, were motivated by desire to control the past – respect for the dead victims of violence – and the future – the search for peace through justice.195 Thus, the mere existence of such monuments and their interaction with the environment, including becoming an object of an attack in most extreme cases, attest to their effectiveness as measures aimed at memorialisation. This reasoning is equally valid for the ICC that stipulates in its Preamble to the Rome Statute that putting an end to impunity of perpetrators of mass atrocities contributes to the prevention of such crimes.196 This provision can be read as relating to a more traditional understanding of criminal law that links deterrence to punishment – if the potential perpetrator perceives punishment as inevitable, they are deterred from offending in the first place.197 As has been noted elsewhere, the expectations stemming from this traditional view of deterrence in international criminal justice are largely overstated.198 The structural limitations of the discipline of international criminal law make it difficult for punishment to be meted out to each and every perpetrator. In these circumstances, more creative approaches to deterrence should be sought. Symbolic reparations in the form of artistic memorialisation projects may partially fulfil this function.

192  Miguel Castro-Castro Prison v. Peru, Concurring Opinion of Judge A.A. Cançado Trindade, paras. 22–3. 193  Ibid., para. 6. 194  Ibid., paras. 5–10. 195  Ibid., para. 19. 196  Preamble of the Rome Statute of the International Criminal Court. 197  C. Beccaria, On Crimes and Punishments and Other Writings, translated by A Thomas and J. Parzen (University of Toronto Press 2009) (1764), 49–50. 198  K. Cronin-Furman, ‘Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity’ (2013) International Journal of Transitional Justice Vol 7(3), 434.

140  Art, aesthetics and international justice Conclusion This chapter examined and contrasted the practice of reparations with creative value at the IACtHR and the ICC. The IACtHR is quite skilled at innovating through its reparations practice. Artistic measures ordered by the court allow for an alternative way to acknowledge responsibility when a state does not formally accept legal responsibility but nonetheless commits to installing a monument or a church. Symbolic reparations prove capable of upholding and reflecting divergent narratives, thereby contributing to reconciliation.199 Various creative measures ordered by the court serve as a reminder of the vulnerability of individual groups affected by the violation of the fundamental rights enshrined in the Convention. Symbolic reparations naturally extend their reach beyond the strict confines of the case. The specific facts appear as a setting for a deeper reflection on the root causes of violence. In this way, symbolic reparations also memorialise an event for the future generations.200 These features of symbolic reparations with creative value at the IACtHR may inspire the unfolding reparations practice at the ICC. This is not to overlook some complexities characteristic of the process at the IACtHR. Difficulties include the lack of compliance with the court’s orders, the potential for the monument to be attacked or physically destroyed, and occasional spurring of popular discontent with the chosen creative form. Nevertheless, the capacity of such measures to engage with local communities at a profound level and complement the legal judgment may add value to the ICC as it keeps developing its own reparations practice within the structural and budgetary constraints. Furthermore, there is a broader argument to be made about the value of art and creative expression in the context of transitional justice. Mass atrocities result from diverse underlying causes, such as ideological beliefs, racial and religious differences, and economic disparity. There are also multiple response routes to these crimes – tribunals, courts, truth commissions, international development aid, etc. For these reasons, interventions must be contextualised depending on the countries involved, the nature of the conflict, country’s culture(s), the perspective of international intervention and the perception of what is needed at a local level.201 Symbolic reparations with creative potential are an essential facet through which these distinct responses could be channelled. Art has a chance of meeting some of the broader objectives of transitional justice, which include reconciliation and restoring communities after the surge of violence.​

199  Aksenova and Rieff, supra note 5, at 27. 200  The table at the end of this chapter provides a more structured overview of the creative measures ordered by the IACtHR. 201  L. E. Fletcher and H. M. Weinstein, ‘Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective’ (2009) Human Rights Quarterly Vol 31(1), 163.

8. Anzualdo Castro v. Peru (2009)42

7. 19 Tradesmen v. Colombia (2004)36

5. Pueblo Bello Massacre v. Colombia (2006)25 6. ‘Street Children’ (Villagrán Morales) v. Guatemala (2001)30 ​

Environmental activist9 Indigenous Maroons15 Civilians21

Assassination and murder8 Massacre14

Street children32

Threats, persecution, torture, forced disappearances, homicide31 Forced disappearances, extrajudicial killing37 Forced disappearances, extrajudicial killing43 University student44

Tradesmen38

Civilian men27

Massacre26

Massacre20

Unarmed civilians3

Massacre2

1. Ituango Massacres v. Colombia (2006)1 2. Kawas-Fernández v. Honduras (2009)7 3. Moiwana Community v. Suriname (2005)13 4. ‘Mapiripán Massacre’ v. Colombia (2005)19

Victim(s)

Type of crime

Case name

Table 5.1 Symbolic reparation orders at the IACtHR

Not accepted29

Not accepted40

Plaque in the Museum Not accepted46 of Memory45

Monument with a plaque39

Educational centre and Accepted34 plaque33

Monument28

Partially accepted23

Not accepted17

Memorial16 Monument22

Partially accepted11

Partially accepted5

Acceptance of responsibility

Memorial10

Plaque4

Type of reparation

(Continued)

Constructed47

Constructed41

Constructed35

Constructed and then destroyed (in 2017)24 No information

In progress (as of 2013)6 In progress (as of 2017)12 Constructed18

Progress

Art and aesthetics at the ICC and IACtHR  141

12. Plan de Sánchez Massacre v. Guatemala (2004)66 13. Servellón-García v. Honduras (2006)72

Memorial space ‘Museo Jardín’51 Plaque57

Type of reparation

Indigenous Mayan people68 Plaque and naming a street or a square75

Maintenance of the memorial chapel69

‘Disloyal’ members of Plaque63 the Air Force62

Falsely convicted56

Children50

Victim(s)

Forced Civilians, two of disappearances, whom were extrajudicial minors74 killing, torture, and other cruel, inhumane and degrading treatment73

Forced disappearances49 Arbitrary arrest and detention, torture, cruel, inhumane and degrading treatment55 Torture, arbitrary detention and forced disappearances61 Massacre67

9. Rochac Hernández v. El Salvador (2014)48 10. Ruano Torres v. El Salvador (2015)54

11. Maldonado Vargas v. Chile (2015)60

Type of crime

Case name

Table 5.1 (Continued)

Partially accepted76

Accepted70

Accepted64

Accepted58

Accepted52

Acceptance of responsibility

Installed a plaque and constructed a bridge in the memory of the victims77

Obligation fulfilled71

Installed65

Installed59

Constructed53

Progress

142  Art, aesthetics and international justice

17. Huilca Tecse v. Peru (2005)94 18. Goiburú v. Paraguay (2006)100 ​

16. Barrios Altos v. Peru (2001)89

15. Miguel Castro-Castro Prison v. Peru (2006)84

14. Vargas-Areco v. Paraguay (2006)78 ​

Murder, torture and other cruel, inhumane and degrading treatment79 Terrorism, torture and other cruel, inhumane and degrading treatment85 Massacre, extrajudicial killing90 Extrajudicial killing95 Forced disappearance, abduction, extrajudicial killing, torture and other cruel, inhumane and degrading treatment101 A Peruvian trade union leader96 Civilians102

Civilians (crowd)91

Prison inmates86

Minor child80

Partially accepted82

Accepted98 Partially accepted104

Bust97 Monument with a plaque103

Adding names to the Partially accepted88 existing monument; building a new monument or creating a park87 Memorial monument92 Accepted93

Plaque81

(Continued)

Erected105

Erected99

Not completed (as of 2012)

New monument not constructed

Installed83

Art and aesthetics at the ICC and IACtHR  143

Type of crime Monument109

Monument115

Civilians114

Type of reparation

A woman and two minor girls108

Victim(s)

Partially accepted116

Partially accepted110

Acceptance of responsibility

Has not been erected (as of 2012)117

Constructed111

Progress

1  Ituango Massacres v. Colombia, Merits, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 148, 1 July 2006, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_148​_ing​.pdf 2 Ibid., para. 2. 3 Ibid. 4 Ibid., para. 408. 5 Ibid., paras. 20, 67. 6  Ituango Massacres v. Colombia, Monitoring Compliance with the Judgment, Order Inter-Am. Ct. H.R. (ser. C) No. 148, 21 May 2013, para. 65(1)(b) http://www​.corteidh​.or​.cr​/docs​/supervisiones​/ituango​_21​_05​_13​_ing​.pdf 7  Kawas-Fernández v. Honduras 8 Ibid., para. 2. 9 Ibid. 10 Ibid., paras. 204–6. 11 Ibid., para. 7. 12  Kawas-Fernández v. Honduras, Monitoring Compliance with the Judgment, Order Inter-Am. Ct. H.R. (ser. C) No. 196, 30 August 2017, para. 54(4)(b), http://www​.corteidh​.or​.cr​/docs​/supervisiones​/casoskawas​_lunalop​_30​_08​_17​.pdf 13  See Moiwana Community v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 124, 15 June 2005, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_124​_ing​.pdf 14 Ibid., para. 3. 15 Ibid., para. 86(1).

Murder, forced disappearances, torture and other cruel, inhumane and degrading treatment107 20. ‘Las Dos Erres’ Massacre Massacre113 v. Guatemala (2009)112

19. González (‘Cotton Field’) v. Mexico (2009)106

Case name

Table 5.1 (Continued)

144  Art, aesthetics and international justice

(Continued)

16 Ibid., para. 197(d). 17 Ibid., para. 34. 18  Moiwana Community v. Suriname, Monitoring Compliance with the Judgment, Inter-Am. Ct. H.R. (ser. C) No. 124, 22 November 2010, paras. 41–2, http://www​.corteidh​.or​.cr​/docs​/supervisiones​/moiwana​_22​_11​_10​_ing​.pdf. See also L. Kuipers, ‘Marowijne, Suriname’s North-east’ OZ Outback, 12 January 2016, https://ozoutback​.com​.au​/Suriname​/marowijne​/slides​/20160112011​.html (displaying photograph of monument to victims). 19  Mapiripán Massacre v. Colombia. 20 Ibid., para. 2. 21 Ibid. 22 Ibid., para. 315. 23 Ibid., para. 13. 24 Justicia, ‘Destruyen el monument de las victimas de la massacre de Mapiripan: La denuncia la hizo el Colectivo de Abogados “Jose Alvear Restrepo”’ El Tiempo, 12 October 2017, https://www​.eltiempo​.com​/justicia​/investigacion​/ataque​-a​-monumento​-de​-las​-victimas​-de​-la​-masacre​-de​-mapiripan​ -140566 (providing more information on destruction). 25  Pueblo Massacre v. Colombia, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 140, 31 January 2006, http://www​.corteidh​.or​ .cr​/docs​/casos​/articulos​/seriec​_140​_ing​.pdf 26 Ibid., para. 2. 27 Ibid. 28 Ibid., para. 278. 29 Ibid., para. 232(a). 30  Case of the ‘Street Children,’ Merits Judgment. 31 Ibid., para. 2–3. 32 Ibid., para. 188. 33  Case of the ‘Street Children,’ Reparations and Costs, para. 31. 34  Case of the ‘Street Children,’ Merits Judgment, para. 67. 35  Case of the ‘Street Children,’ Reparations and Costs, para. 31. See also Directorio de Escuelas, Colegios Guatemala, http://www​.colegiosguatemala​.com​/ colegios​/guatemala​/escuela​-oficial​-urbana​-mixta​-laboratorio​-no​-2​-grupo​-escolar​-centroamericano​-nios​-de​-la​-esperanza/ 36  See 19 Tradesmen v. Colombia, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 109, 5 July 2004, http://www​.corteidh​.or​.cr​ /docs​/casos​/articulos​/seriec​_109​_ing​.pdf 37 Ibid., para. 3, 5. 38 Ibid., para. 2. 39 Ibid., para. 273. 40  19 Tradesmen v. Colombia, para. 9.

Art and aesthetics at the ICC and IACtHR  145

Type of crime

Victim(s)

Type of reparation

Acceptance of responsibility

Progress

41 ‘Colombia inaugura un monumento en memoria de 19 víctimas de los paramilitares’ Diario Extra, 20 September 2013, http://www​.diarioextra​.com​/ Noticia​/detalle​/194117​/colombia​-inaugura​-un​-monumento​-en​-memoria​-de​-19​-victimas​-de​-los​-paramilitares 42  Anzualdo Castro v. Peru, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 202, 22 September 2009, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_202​_ing​.pdf 43 Ibid., para. 2. 44 Ibid., para. 4. 45 Ibid., para. 201. 46 Ibid., para. 171. 47 ‘Ministerios de Justicia y Derechos Humanos y de Cultura colocaron placa de Kenneth Anzualdo en el Lugar de la Memoria,’ Lugar de la Memoria, la Tolerancia y la Inclusión Social, 18 March 2016, https://lum​.cultura​.pe​/noticias​/ministerios​-de​-justicia​-y​-derechos​-humanos​-y​-de​-cultura​-colocaron​ -placa​-de​-kenneth​-anzualdo 48  Rochac Hernández v. El Salvador, para. 49. 49 Ibid. 50 Ibid. 51 Ibid. 52 Ibid. 53 ‘Inauguran Jardín Memorial en el parque Cuscatlán’ Ministerio de Cultura, Gobierno de El Salvador, https://www​.cultura​.gob​.sv​/inauguran​-jardin​ -memorial​-en​-el​-parque​-cuscatlan/ 54  Ruano Torres y otros vs. El Salvador, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 303, 5 October 2015, http://www​ .corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_303​_esp​.pdf 55 Ibid., para. 266 (2–8). 56 Ibid., para. 266 (2–8). 57 Ibid., para. 266 (16). 58 Ibid., para. 266 (1). 59  ‘Develan placa a campesino torturado por ESA’ Equilibrium, 4 October 2016, http://www​.per​iodi​coeq​uilibrium​.com​/develan​-placa​-a​-campesino​ -torturado​-por​-esa/, for information on opening of the plaque. 60  Maldonado Vargas y Otros v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 300, 2 September 2015, http://www​ .corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_300​_esp​.pdf 61 Ibid. 62 Ibid. 63 Ibid. 64 Ibid.

Case name

Table 5.1 (Continued)

146  Art, aesthetics and international justice

(Continued)

65 V. Vargas, ‘Bachelet asiste a acto reparatorio por ex oficiales FACH que dijeron no al régimen de Pinochet’ Elciudadano.Com, 10 July 2018, https://www​ .elciudadano​.cl​/justicia​/bachelet​-asiste​-a​-acto​-reparatorio​-por​-ex​-oficiales​-fach​-que​-dijeron​-no​-al​-regimen​-de​-pinochet2016​/10​/07 (providing updated information on recognition of international responsibility and picture of plaque behind Michelle Bachelet). 66 Plan de Sánchez Massacre v. Guatemala. 67 Ibid., para. 2. 68 Ibid. 69 Ibid., para. 104. 70 Ibid., paras. 34–7. 71 Plan de Sánchez Massacre v. Guatemala, Monitoring Compliance with Judgment, Inter-Am. Ct. H.R. (ser. C) No. 105, 21 February 2011, http://www​ .corteidh​.or​.cr​/docs​/supervisiones​/sanchez​_21​_02​_11​_ing​.pdf, para. 3(b). 72 Servellón-García v. Honduras, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 152, 21 September 2006, http://www​.corteidh​ .or​.cr​/docs​/casos​/articulos​/seriec​_152​_ing​.pdf 73 Ibid., para. 2. 74 Ibid. 75 Ibid., para. 199. 76 Ibid., para. 54. 77 ‘Puente “Cuatro puntos cardinales”: una obra para recordar víctimas de violaciones a los DDHH’ Proceso Digital, 12 November 2007, http://www​ .proceso​.hn​/component​/k2​/item​/84070​.html 78  Vargas-Areco v. Paraguay, Merits, Reparations and Costs Judgment. 79 Ibid., para. 2. 80 Ibid. 81 Ibid., para. 158. 82 Ibid., para. 56. 83  ‘Piden perdón por muerte de soldado’ ABC, 14 December 2008, http://www​.abc​.com​.py​/edicion​-impresa​/politica​/piden​-perdon​-por​-muerte​-de​ -soldado​-1129757​.html, (announcing public apology event). 84  Miguel Castro-Castro Prison v. Peru. 85 Ibid., para. 2. 86 Ibid., para. 3. 87 Ibid., paras. 453–4. 88 Ibid., para. 56. 89  Barrios Altos v. Peru, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 75, 14 March 2001, https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​ _75​_ing​.pdf 90 Ibid., para. 2. 91 Ibid. 92  Barrios Altos v. Peru, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 87, 30 November 2001, para. 44(f), http://www​.corteidh​.or​ .cr​/docs​/casos​/articulos​/seriec​_87​_ing​.pdf 93  Altos v. Peru, Merits Judgment, para. 34.

Art and aesthetics at the ICC and IACtHR  147

Type of crime

Victim(s)

Type of reparation

Acceptance of responsibility

Progress

94 Huilca-Tecse v. Peru, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 121, 3 March 2005, http://www​.corteidh​.or​.cr​/docs​ /casos​/articulos​/seriec​_121​_ing​.pdf 95 Ibid., para. 3. 96 Ibid. 97 Ibid., para. 115. 98 Ibid., para. 15. 99 Huilca-Tecse v. Peru , Monitoring Compliance with Judgment, Inter-Am. Ct. H.R. (ser. C) No. 121, 22 September 2006, http://www​.corteidh​.or​.cr​/ docs​/supervisiones​/huilca_​%2022​_09​_06​_ing​.pdf, para. 2(f). 100  Goiburú v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 153 22 September 2005, http://www​.corteidh​.or​.cr​ /docs​/casos​/articulos​/seriec​_153​_ing​.pdf 101 Ibid., para. 2. 102 Ibid. 103 Ibid., para. 171. 104 Ibid., para. 17. 105 Goiburú y otros vs. Paraguay, Monitoring Compliance with the Judgment, Order Inter-Am. Ct. H.R. (ser. C) No. 153 14 May 2019, para. 21, http:// www​.corteidh​.or​.cr​/docs​/supervisiones​/goiburu​_14​_05​_19​.pdf 106  González (‘Cotton Field’) v. Mexico, Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 205, 16 November 2009, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_205​_ing​.pdf 107 Ibid., para. 2. 108 Ibid. 109 Ibid., para. 471. 110 Ibid., para. 20. 111 Redaccion DJ MX, ‘Develan elemento central de Memorial para Mujeres Víctimas de Homicidio por Razones de Género’ Diariojuridico​.com​​.mx, 31 August 2012, http://diariojuridico​.com​.mx​/actualidad​/noticias​/develan​-elemento​-central​-de​-memorial​-para​-mujeres​-victimas​-de​-homicidio​-por​ -razones​-de​-genero​.html 112 ‘Las Dos Erres’ Massacre v. Guatamala, Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 211, 24 November 2009, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_211​_ing​.pdf 113 Ibid., para. 2. 114 Ibid. 115 Ibid., para. 265. 116 Ibid., para. 6. 117 ‘Las Dos Erres’ Massacre v. Guatemala, Monitoring Compliance with the Judgment, Order Inter-Am. Ct. H.R. (ser. C) No. 211 4 September 2012, para. 6, http://www​.corteidh​.or​.cr​/docs​/supervisiones​/doserres​_04​_09​_12​_ing​.pdf

Case name

Table 5.1 (Continued)

148  Art, aesthetics and international justice

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150  Art, aesthetics and international justice S. Gamboa, ‘Frenarán grafitis en monumento a comerciantes de Bucaramanga’, Vanguardia, 27 February 2016, http://www​.vanguardia​.com​/area​-metropolitana​ /bucaramanga ​ / 348940 ​ - frenaran ​ - grafitis ​ - en ​ - monumento​ - a​ - comerciantes​ - de​ -bucaramanga S. Green, ‘Crime, Victimisation and Vulnerability’ in S. Walklate (eds) Handbook of Victims and Victimology (Routledge, 2007) P. de Greiff, ‘The Role of Apologies in National Reconciliation Processes: On Making Trustworthy Institutions Trusted’ in M. Gibney et al. (eds) The Age of Apology: Facing Up to the Past (University of Pennsylvania Press, 2008) A. Huneeus, ‘International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts’ (2013) American Journal of International Law Vol 107(1), 1 ‘Inauguran Jardín Memorial en el parque Cuscatlán’, Ministerio de Cultura, Gobierno de El Salvador, https://www​.cultura​.gob​.sv​/inauguran​-jardin​-memorial​-en​-el​ -parque​-cuscatlan/ Justicia, ‘Destruyen el monumento de las víctimas de la masacre de Mapiripán’, El Tiempo, 12 October 2017, http://www​.eltiempo​.com​/justicia​/investigacion​/ ataque​-a​-monumento​-de​-las​-victimas​-de​-la​-masacre​-de​-mapiripan​-140566 L. Kuipers, ‘Marowijne, Suriname’s North-east’, OZ Outback, 12 January 2016, https://ozoutback​.com​.au​/Suriname​/marowijne​/slides​/20160112011​.html (displaying photograph of monument to victims) P. Lobba, ‘Testing the “Uniquenes”: Denial of the Holocaust vs Denial of Other Crimes Before the European Court of Human Rights’ in U. Belavusau and A. Gliszczyńska-Grabias (eds) Law and Memory: Towards Legal Governance of History (Cambridge University Press, 2017) C. McCarthy, Reparations and Victim Support in the International Criminal Court (Cambridge University Press, 2012) C. Medina-Quiroga, The Battle of Human Rights: Gross, Systematic Violations and the Inter-American System (Martinus Nijhoff Publishers, 1988) F. Mégret, ‘Of Shrines, Memorials and Museums: Using the International Criminal Court’s Victim Reparation and Assistance Regime to Promote Transitional Justice’ (2010) Buffalo Human Rights Law Review Vol 16, 1 M. Milanovíc, ‘Establishing the Facts about Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences’ (2016) Georgetown Journal of International Law Vol 47, 1321 ‘Ministerios de Justicia y Derechos Humanos y de Cultura colocaron placa de Kenneth Anzualdo en el Lugar de la Memoria’, Lugar de la Memoria, la Tolerancia y la Inclusión Social, 18 March 2016, https://lum​.cultura​.pe​/noticias​/ministerios​-de​ -justicia​-y​-derechos​-humanos​-y​-de​-cultura​-colocaron​-placa​-de​-kenneth​-anzualdo L. G. Minkova, ‘Expressing What? The Stigmatization of the Defendant and the ICC’s Institutional Interests in the Ongwen Case’ (2021) Leiden Journal of International Law Vol 34(1), 223 S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125 J. M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Right (Cambridge University Press, 2003) J. P. Perez-Leon-Acevedo, ‘Reparations in Environmental Cases: Should the International Criminal Court Consider the Inter-American Court of Human

Art and aesthetics at the ICC and IACtHR  151 Rights’ Jurisprudence?’ (2024) Journal of International Dispute Settlement Vol 15(3), 377 ‘Piden perdón por muerte de soldado’, ABC, 14 December 2008, http://www​ .abc​.com​.py​/edicion​-impresa​/politica​/piden​-perdon​-por​-muerte​-de​-soldado​ -1129757​.html ‘Puente ‘Cuatro puntos cardinales’: una obra para recordar víctimas de violaciones a los DDHH’, Proceso Digital, 12 November 2007, http://www​.proceso​.hn​/ component​/k2​/item​/84070​.html Redaccion DJ MX, ‘Develan elemento central de Memorial para Mujeres Víctimas de Homicidio por Razones de Género’, Diariojuridico​.com​.m​x, 31 August 2012, http://diariojuridico​.com​.mx​/actualidad​/noticias​/develan​-elemento​-central​-de​ -memorial​-para​-mujeres​-victimas​-de​-homicidio​-por​-razones​-de​-genero​.html S. Rigney, ‘Building An Abolition Movement for International Criminal Law?’ (2024) Journal of International Criminal Justice Vol 22(1), 211 C. Sperfeldt, Practices of Reparations in International Criminal Justice (Cambridge University Press, 2022) V. Vargas, ‘Bachelet asiste a acto reparatorio por ex oficiales FACH que dijeron no al régimen de Pinochet’, Elciudadano.Com, 10 July 2018, https://www​.elciudadano​ .cl​/justicia​/bachelet​-asiste​-a​-acto​-reparatorio​-por​-ex​-oficiales​-fach​-que​-dijeron​-no​ -al​-regimen​-de​-pinochet2016​/10​/07 R. Viswanath and F. Li, ‘Constructing a Sensory Alternative to the Ongwen Judgment’ (2023) International Criminal Law Review Vol 23(5–6), 804 Legal Instruments and Judgments The American Convention on Human Rights, 22 November 1969, 4477 U.N.T.S. 123 (American Convention on Human Rights). The ICC Rules of Evidence and Procedure (2019), https://www​.icc​-cpi​.int​/iccdocs​/ PIDS​/legal​-texts​/Rul​esPr​oced​ureE​vide​nceEng​.pdf Letter from Motoo Noguchi to President Kwon, Chair of Board of Directors of the Trust Fund for Victims (13 June 2018), available at https://www​.icc​-cpi​.int​/ iccdocs​/TFV​/180603​_TFV​_letter​.pdf Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights], art. 41, November 5, 1994, 2061 U.N.T.S. 7 (entered into force Nov. 1, 1998), https:// treaties​.un​.org​/doc​/Publication​/UNTS​/Volume​%202061​/v2061​.pdf Regulations of the Trust Fund for Victims, ASP Res. ICC-ASP/4/Res.3, 3 December 2005, para. 50, available at https://www​.icc​-cpi​.int​/NR​/rdonlyres​/0CE5967F​ -EADC​-44C9​-8CCA​-7A7E9AC89C30​/140126​/ICCASP432Res3​_English​.pdf Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3 (Rome Statute) UN Office of the High Commissioner for Human Rights (OHCHR), Rule of Law Tools for Post-Conflict States: Reparations Programmes, HR/PUB/08/1, 2008 (OHCHR Rule of Law Report)

152  Art, aesthetics and international justice IACtHR Cases 19 Tradesmen v. Colombia, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 109, 5 July 2004, http://www​.corteidh​.or​.cr​/docs​/casos​/ articulos​/seriec​_109​_ing​.pdf Aloeboetoe v. Suriname, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 15, 4 December 1991, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​ /seriec​_15​_ing​.pdf Anzualdo Castro v. Peru, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 202, 22 September 2009, http://www​ .corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_202​_ing​.pdf Barrios Altos v. Peru, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 87, 30 November 2001, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/ seriec​_87​_ing​.pdf Barrios Altos v. Peru, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 75, 14 March 2001, https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_75​_ing​.pdf Blake v. Guatemala, Reparations and Costs, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 48, 22 January 1999, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​ _48​_ing​.pdf La Cantuta v. Peru, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 17, 30 November 2007, para. 61, http://www​.corteidh​.or​.cr​/docs​/casos​/ articulos​/seriec​_162​_ing​.pdf Case of the ‘Street Children’ (Villagrán Morales) v. Guatemala, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C), No. 63, 19 November 1999, http://www​.corteidh​.or​ .cr​/docs​/casos​/articulos​/seriec​_63​_ing​.pdf Case of the ‘Street Children’ (Villagrán Morales) v. Guatemala, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 77, 26 May 2001, http://www​ .corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_77​_ing​.pdf El Amparo v. Venezuela, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 28, 14 September 1996, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_28​ _ing​.pdf Goiburú y otros vs. Paraguay, Monitoring Compliance with the Judgment, Order Inter-Am. Ct. H.R. (ser. C) No. 153 14 May 2019, http://www​.corteidh​.or​.cr​/ docs​/supervisiones​/goiburu​_14​_05​_19​.pdf Goiburú v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 153 22 September 2005, http://www​.corteidh​.or​.cr​/docs​/casos​/ articulos​/seriec​_153​_ing​.pdf González (‘Cotton Field’) v. Mexico, Preliminary Objection, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 205, 16 November 2009, http://www​ .corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_205​_ing​.pdf Huilca-Tecse v. Peru, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 121, 3 March 2005, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​ /seriec​_121​_ing​.pdf Huilca-Tecse v. Peru, Monitoring Compliance with Judgment, Inter-Am. Ct. H.R. (ser. C) No. 121, 22 September 2006, http://www​.corteidh​.or​.cr​/docs​/supervisiones​ /huilca_​%2022​_09​_06​_ing​.pdf Ituango Massacres v. Colombia, Merits, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 148, 1 July 2006, http:// www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_148​_ing​.pdf

Art and aesthetics at the ICC and IACtHR  153 Kawas-Fernández v. Honduras, Monitoring Compliance with the Judgment, Order Inter-Am. Ct. H.R. (ser. C) No. 196, 30 August 2017, http://www​.corteidh​.or​.cr​ /docs​/supervisiones​/casoskawas​_lunalop​_30​_08​_17​.pdf Kawas-Fernández v. Honduras, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 196, 3 April 2009, http://www​.corteidh​.or​.cr​/docs​/casos​/ articulos​/seriec​_196​_ing​.pdf ‘Las Dos Erres’ Massacre v. Guatemala, Monitoring Compliance with the Judgment, Order Inter-Am. Ct. H.R. (ser. C) No. 211 4 September 2012, http://www​ .corteidh​.or​.cr​/docs​/supervisiones​/doserres​_04​_09​_12​_ing​.pdf ‘Las Dos Erres’ Massacre v. Guatamala, Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 211, 24 November 2009, http://www​ .corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_211​_ing​.pdf Maldonado Vargas y Otros v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 300, 2 September 2015, http://www​.corteidh​.or​ .cr​/docs​/casos​/articulos​/seriec​_300​_esp​.pdf ‘Mapiripán Massacre v. Colombia’, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 134, 15 September 2005, http://www​.corteidh​ .or​.cr​/docs​/casos​/articulos​/seriec​_134​_ing​.pdf Miguel Castro-Castro Prison v. Peru, Interpretation of the Judgment on the Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 181, 2 August 2008, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_181​_ing​.pdf Miguel Castro-Castro Prison v. Peru, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 160, 25 November 2006, https://www​.corteidh​ .or​.cr​/docs​/casos​/articulos​/seriec​_160​_ing​.pdf Miguel Castro-Castro Prison v. Peru, Merits, Reparations, and Costs, Concurring Opinion of the Judgment of Judge A.A. Cançado Trindade, Inter-Am. Ct. H.R. (ser. C) No. 160, 25 November 2006, http://www​.corteidh​.or​.cr​/docs​/casos​/ articulos​/seriec​_160​_ing​.pdf Miguel Castro-Castro Prison v. Peru, Monitoring Compliance with Judgment, Order of the Court, Inter-Am. Ct. H.R. (ser. C) No. 160, 9 February 2017, http://www​ .corteidh​.or​.cr​/docs​/supervisiones​/penal​_miguel​_castro​_09​_02​_17​.pdf Moiwana Community v. Suriname, Monitoring Compliance with the Judgment, Inter-Am. Ct. H.R. (ser. C) No. 124, 22 November 2010, http://www​.corteidh​ .or​.cr​/docs​/supervisiones​/moiwana​_22​_11​_10​_ing​.pdf Moiwana Community v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 124, 15 June 2005, http:// www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_124​_ing​.pdf Plan de Sánchez Massacre v. Guatemala, Monitoring Compliance with Judgment, Inter-Am. Ct. H.R. (ser. C) No. 105, 21 February 2011, http://www​.corteidh​.or​ .cr​/docs​/supervisiones​/sanchez​_21​_02​_11​_ing​.pdf Plan de Sánchez Massacre v. Guatemala, Monitoring Compliance with Judgment, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 116, 28 November 2007, http://www​ .corteidh​.or​.cr​/docs​/supervisiones​/sanchez​_28​_11​_07​_ing​.pdf Plan de Sánchez Massacre v. Guatemala, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 105, 29 April 2004, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/ seriec​_105​_ing​.pdf Plan de Sánchez Massacre v. Guatemala, Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 116, 19 November 2004, http://www​.corteidh​.or​.cr​/docs​/casos​/ articulos​/seriec​_116​_ing​.pdf

154  Art, aesthetics and international justice Pueblo Massacre v. Colombia, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 140, 31 January 2006, http://www​.corteidh​.or​.cr​/docs​/casos​/ articulos​/seriec​_140​_ing​.pdf Rochac Hernández v. El Salvador, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 285, 14 October 2014, http://www​.corteidh​.or​.cr​/docs​/ casos​/articulos​/seriec​_285​_esp​.pdf Ruano Torres y otros vs. El Salvador, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 303, 5 October 2015, http://www​.corteidh​.or​.cr​ /docs​/casos​/articulos​/seriec​_303​_esp​.pdf Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 146, 29 March 2006, http://www​ .corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_146​_ing​.pdf Servellón-García v. Honduras, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 152, 21 September 2006, http://www​.corteidh​.or​.cr​/docs​ /casos​/articulos​/seriec​_152​_ing​.pdf Vargas-Areco v. Paraguay, Monitoring Compliance with Judgment, Inter-Am. Ct. H.R. (ser. C) No. 155, 20 July 2010, http://www​.corteidh​.or​.cr​/docs​/supervisiones​/ vargas​_20​_07​_10​_ing​.pdf Vargas Areco v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 155, 26 September 2006, http://www​.corteidh​.or​.cr​/docs​/ casos​/articulos​/seriec​_155​_ing​.pdf Velásquez Rodríguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4, 29 July 1988, http://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_04​_ing​ .pdf

ICC Cases Prosecutor v. Bemba Gombo, Case No. ICC-01/05-01/08, Final Decision on the Reparations Proceedings, 3 August 2018, https://www​.icc​-cpi​.int​/CourtRecords​ /CR2018​_03967​.PDF Prosecutor v. Bemba Gombo, Case No. ICC-01/05-01/08-3444, Submission by QUB Human Rights Centre on Reparations Issues Pursuant to Article 75 of the Statute, 17 October 2016, https://www​.icc​-cpi​.int​/CourtRecords​/CR2016​_17743​.PDF Prosecutor v. Katanga, Case No. ICC 01/04-01/07, Order for Reparations Pursuant to Article 75 of the Statute, 24 March 2017, (Katanga Reparations Order), https://www​.icc​-cpi​.int​/CourtRecords​/CR2017​_05121​.PDF Prosecutor v. Lubanga Dylio, Case No. ICC-01/04-01/06, Information Regarding Collective Reparations with Three Public Annexes, One Confidential Annex, and One Confidential Ex-Parte Annex, 13 February 2017, https://www​.icc​-cpi​.int​/ CourtRecords​/CR2017​_00768​.PDF Prosecutor v. Lubanga Dylio, Case No. ICC-01/04-01/06, Order Approving the Proposed Plan of the Trust Fund for Victims in Relation to Symbolic Collective Reparations, 17 October 2016, https://www​.icc​-cpi​.int​/CourtRecords​/CR2016​ _22094​.PDF Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Filing Regarding Symbolic Collective Reparations Projects with Confidential Annex: Draft Requests for Proposals, 19 September 2016, https://www​.icc​-cpi​.int​/CourtRecords​/CR2016​ _06684​.PDF

Art and aesthetics at the ICC and IACtHR  155 Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Order Instructing the Trust Fund for Victims to Supplement the Draft Implementation Plan, 9 February 2016, https://www​.icc​-cpi​.int​/CourtRecords​/CR2016​_01895​.PDF Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeals Against the ‘Decision Establishing the Principles and Procedures to be Applied to Reparations’ of 7 August 2012 with Amended Order for Reparations (Annex A) and Public Annexes 1 and 2, 3 March 2015, (Lubanga Reparations Judgment), https://www​.icc​-cpi​.int​/CourtRecords​/CR2015​_02631​.PDF Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06-3129-AnxA, Order for Reparations, 3 March 2015, para. 46 (Lubanga Reparations Order), https://icc​ -cpi​.int​/RelatedRecords​/CR2015​_02633​.PDF Prosecutor v. Al Mahdi, Case No. ICC-01/12-01/15 A, Judgment on the Appeal of the Victims Against the ‘Reparations Order’, 8 March 2018, para. 60 (Al Mahdi Reparations Judgment), https://www​.icc​-cpi​.int​/CourtRecords​/CR2018​_01623​ .PDF Prosecutor v. Al Mahdi, Case No. ICC-01/12-01/15, Reparations Order, 17 August 2017, para. 67 (Al Mahdi Reparations Order), https://www​.icc​-cpi​.int​/ CourtRecords​/CR2017​_05117​.PDF Prosecutor v. Al Mahdi, Case. No. ICC-01/12-01/15, Reparations Order, 17 August 2017, https://www​.icc​-cpi​.int​/CourtRecords​/CR2017​_05117​.PDF Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, Order for Reparations, 8 March 2021, para. 9 (Ntaganda Reparations Order), available at https://www​.icc​ -cpi​.int​/CourtRecords​/CR2021​_01889​.PDF Prosecutor v. Dominic Ongwen, Reparations Order, Case No. ICC-02/04-01/15, 28 February 2024, para. 635 (Ongwen Reparations Order), https://www​.icc​-cpi​.int​/ sites​/default​/files​/CourtRecords​/0902ebd18078e195​.pdf Prosecutor v. Dominic Ongwen, Trial Judgment, Case No. ICC-02/04-01/15, 4 February 2021, https://www​.icc​-cpi​.int​/sites​/default​/files​/CourtRecords​/ CR2021​_01026​.PDF Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Sentence, 6 May 2021, https://www​.icc​-cpi​.int​/sites​/default​/files​/CourtRecords​/CR2021​_04230​.PDF

6

Observe – build – play – repeat The new method of international justice 2.0

Introduction: going beyond the instrumentalisation of art This book establishes the relevance of aesthetic theories to modern international justice, which is an assemblage of institutions, documents and methods, arising primarily out of consensus following the Second World War.1 The insights distilled from various aesthetic theories are applied to the distinct components of the global justice architecture, such as its foundations of authority,2 the legal process3 and diverse material forms of expression (judgments, reparation orders, treaties).4 The ultimate quest is to discover a path to reinvent international justice in line with the new consensus generated by current challenges. While there is some literature exploring how the representational dimension of art interacts with the field of justice,5 there are fewer intellectual endeavours interrogating the state of perception itself and its effects on the way international justice is construed in the first place.6 This is a missed opportunity. Aesthetic theories provide insight into the nature of human perception that extends beyond transactional relationships between the creator and the creation, as well as the observer and the observed.7 The whole idea of agency collapses as the quality of perception is investigated at its deepest level. Admittedly, aesthetic theories are plentiful, but they all have in common an extended focus on the nature of perception, which is fundamental for developing the space of non-engaged observation.8

1  See Chapter 2. 2  See Chapter 2 3  See Chapter 4 4  See Chapters 3 and 5. 5  See Chapter 1. 6  Randle de Falco’s work can be seen as a step in this direction. R. de Falco’s Invisible Atrocities: The Aesthetic Biases of International Criminal Justice (Cambridge University Press, 2022). See, more generally, M. Merleau-Ponty, Phenomenology of Perception (Routledge, 2005, originally published in 1945). 7  See Chapter 2. 8  Merleau-Ponty, supra note 6. DOI: 10.4324/9781032628844-6

Observe – build – play – repeat  157 In other words, presenting art merely as a ‘tool’ in the toolbox of skilled legislators or policymakers is only part of the process of re-articulating international justice.9 Such a mechanistic approach is still rooted in the old paradigm of extraction, in which art serves as a medium of communication, subordinate to the agenda of those who engage it. Subjecting art to policy and reducing it to an instrument then creates a relationship of agency in the hierarchy of values. While there are benefits to expanding communication forms in international law,10 such endeavours often lack transparency. This, in turn, risks perpetuating the same biases that led to the original concern treated by an art form.11 Conceptualising art as a tool is not inherently problematic, but it requires careful contextualisation of any creative activity accompanied by scrupulous self-reflection. This book develops a broader – meta-level – vision whereby the relationship of agency is revealed and examined by first focusing on perception itself. In other words, the medium of creative expression is less important than the mode of perceiving. Furthermore, what is required for re-thinking the old paradigm of international justice is to shift our conventional lens of perception and inhabit the view of a neutral observer prior to engaging with any outward expressions of creativity – be it legal treaties or staged performances. This kind of contemplation avoids some of the instrumentalisation pitfalls and connects us to the universality of perception.12 Human perceptual faculties thereby get purified from an expectation of a certain outcome. Paradoxically, such freedom to observe without anticipating a solution creates its own transformative scenarios. Art is therefore not just a ‘tool’ in the process of discovery, rather it is a lens through which an exploration can be performed. International justice 2.0 is then a shorthand for a new vision of justice, which autocorrects misalignments implicit in the old paradigm. The core problem of the outdated version is its over-reliance on the principle of deterrence and the resulting ‘win/lose’ dynamics in international relations. This overall fear-inducing calculus then manifests itself in specific difficulties, such as the visible lack of enforcement powers of international institutions, limiting the subjects of international law to states only, and thereby divesting other actors of their ability to directly engage in the formation of global norms (also relevant locally), and an overemphasis on distinct identities, such as national

 9  See, e.g., D. Ekzarova, ‘Using Arts to Navigate Democratic Storms’ Florence School of Transnational Governance, 1 August 2024, https://www​.eui​.eu​/news​-hub​?id​=using​-arts​-to​-navigate​-democratic​-storms 10  Furthermore, such a process is inevitable. See R. Sherwin, Visualizing Law in the Age of the Digital Baroque: Arabesques and Entanglements (Routledge, 2011). 11  C. Schwöbel-Patel, Marketing Global Justice (Cambridge University Press, 2021); C. Schwöbel-Patel and R. Knox, Aesthetics and Counter-Aesthetics of International Justice (Counterpress, 2024). 12  See e.g. R. Gnoli, The Aesthetic Experience According to Abinavagupta (4th ed. Chowkhamba Sanskrit Series Office, 2015).

158  Art, aesthetics and international justice citizenship, as opposed to forging a shared sense of unity in the face of pressing global crises.13 In sum, the well-known problems of international justice are the symptoms of a deeper lack of common direction. They result from the implicit deficiency of betting on deterrence as a core operational principle of international justice. It is also true that the Preamble of the UN Charter sets out collective objectives for humanity from a place of neutrality as it refers to our shared heritage. The very first phrase of the UN Charter is an invocation of this common identity – ‘[w]e the peoples of the United Nations …’ is a statement of inclusivity.14 It blends the creators of the new system with their creation, the drafters of the UN Charter with its addressees. This powerful invocation in the Preamble requires urgent reinforcement. The proposition of the book is not to overwrite the previous structure altogether but rather to start addressing some misalignments at the level of cause rather than at the level of symptoms. This exercise is timely because of the nature of challenges faced by humanity.15 The constraints of the current system of international justice will only amplify with the growth of transnational corporate influence, the entrenchment of technology in our lives, and the proliferation of horizontal networks connecting individuals and groups across state borders via new communication channels.16 These alternative communication channels – reinforced by technology – facilitate personal, communal and corporate empowerment due to the possibility of having one’s voice heard and enjoying wider access to information. The shadow side of this development is complete loss of any common narrative, with even fewer visible enforcement and authoritative powers available to the institutions of global justice.17 This concluding chapter develops a method of inquiry into the field of international justice aimed at its productive unsettling. The next section provides an overview of the method grounded in aesthetics, while the following section offers a case study. It applies the method grounded in aesthetics to the concept of citizenship as a core identity-building instrument, which is still largely obscured in the field of international justice. The aim is not to arrive at conclusive findings but rather to offer some ideas on how to apply the method in practice.

13  See Chapter 2. 14  United Nations, Charter of the United Nations, 1 UNTS XVI, 24 October 1945 (UN Charter). 15  See Chapters 1 and 2. 16  M. Aksenova, ‘Global Citizenship and the Right of Access to Justice: Adapting T.H. Marshall’s Ideas to the Interconnected World’ (2023) Humanity Journal Vol 14(2), 169. 17  In other words, social legitimacy, or the belief of being bound by a norm, can be further diluted by the exponential growth of multiple, often conflicting, narratives. See C. A. Thomas, ‘Uses and Abuses of Legitimacy in International Law’ (2014) Oxford Journal of Legal Studies Vol 34(4), 729.

Observe – build – play – repeat  159

Figure 6.1  C  reative method grounded in theories of aesthetics.

The method grounded in aesthetics: overview There are three core tenets in the method of inquiry into international justice grounded in aesthetic theories. To be clear, ‘aesthetic theories’ are referred to collectively not to brush over any individual differences among distinct philosophical traditions but to stress some common features, such as the emphasis on the quality of perception, as well as their interest in the process and purpose of creation. The three tenets of the method are to be engaged in a nonlinear fashion, meaning that the exercise is to be repeated until sufficient clarity ensues. The approach is thus cyclical in nature (see Figure 6.1).​ Stage 1 – observation

The first stage is dedicated to observation. The invitation is to observe the assumptions shaping the field of international justice, using specific concepts or established procedures as a case study. The gaze of neutrality, or a thirdperson perspective, is crucial during this phase.18 In practice, this observational posture translates into a ‘non-solutionist’ mindset. The process of revealing assumptions also becomes an object of inquiry as it champions innovative ways of engaging with international justice.19 Perception comes to the forefront of exploration by supplementing traditional outcome-oriented activity of finding solutions using pre-existing legal categories or explanatory theories. Maurice Merleau-Ponty – a French phenomenological philosopher – offers an excellent distinction between ‘perception’

18 See Chapter 2. 19 A. Abbott, Methods of Discovery: Heuristics for the Social Sciences (University of Chicago Press, 2004).

160  Art, aesthetics and international justice and ‘remembering,’ which is helpful to clarify the process. He explains that ‘remembering’ is bringing past data into the present moment and reliving it. In contrast, the act of ‘perceiving’ is stepping back from the empirical contents and focusing on the action of cognising itself.20 There is also space between remembering and perceiving.21 Remembering is at the heart of a traditional legal method that relies on interpreting the sources to suit each arising factual scenario. To be clear, the traditional legal method is not at all excluded from the first phase; rather, it is integrated into a wider observational standpoint. The existence of the linearity of law is acknowledged, but there is no fixed attachment to the legal method of interpreting and analysing the sources for generating answers.22 The elements significant to the linear approach are thus considered, be it the negotiation history of the relevant treaties, state practice, or potential points of contingency where the legal development ‘could have’ taken a different route. Thinking in contingencies animates the legal method as it puts legal sources in a critical context and prevents the untimely solidification of a single fixed narrative.23 In addition to that, the sources of international law can be assessed in terms of their impact, binding nature, and enforceability. This activity cumulatively falls under the umbrella of ‘remembering.’ Perception, on the other hand, is about stepping back from the details and taking stock of all the processes contributing to the moment of observation simultaneously. The space between remembering and perceiving opens doors to legal imagination, which is helpful in creating new legal hierarchies.24 Aesthetic theories refer to that place as a space of a ‘disinterested observer,’ who is not invested in a particular outcome and perceives from a state of wonder and non-attachment.25 The movement between remembering and perceiving is greatly aided by the sociological inquiry into the nature of discourse formation. Traditional legal construction oscillates naturally between different argumentative positions based on a limited set of assumptions.26 Discourse analysis uncovers some of these propositions accepted as given by

20 Merleau-Ponty, supra note 6. 21 Ibid. 22 See Chapter 1. 23 I. Venzke and K. Heller, Contingency in International Law: On the Possibility of Different Legal Histories (Oxford University Press, 2021). 24  M. Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300–1870 (Cambridge University Press, 2021); M. Del Mar, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (Hart, 2021). 25  I. Kant, Critique of Judgement, translated by Werner S. Pluhar (Hackett Publishing, 1987; or. 1790); J. Dewey, Art as Experience (Capricon books 1958); S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125; Gnoli, supra note 12. 26 M. Koskenniemi, From Apology to Utopia (Cambridge University Press, 2005).

Observe – build – play – repeat  161 the participants.27 For instance, notions such as statehood or nationality have little meaning independent of the structures that gave rise to these terms. Such deconstruction paves the way to disengagement, which is essential for observation. Stage 2 – building a new model

The second phase of the process is building a new theory around the studied phenomena. This stage refines the existing conceptual categories based on insights generated through prior observation. Theory construction leaves room for contextualising findings. For instance, the exponential growth of technology inevitably affects our thinking about most legal categories. Technology, especially artificial intelligence (AI), is remodelling human interaction with the environment, time and space.28 Technology can no longer be understood simplistically as something that is ‘made’ or ‘used’ by humans. It is rather a life form reshaping individual cognitive frameworks and societal expectations.29 The expansion of technology then reforms moral frameworks underlying all fields of law. This technological unfolding must therefore be accounted for when building new theoretical models. The phase of building is best understood using concrete examples. Stage 3 – engaging in a play

Finally, the third stage enables a free play of imagination. This phase loosens up and re-assembles the constructions of the second stage. This overall approach is inspired by Andrew Abbott’s work on methods of discovery (heuristics), viewed as a process of creatively tapping into different methodologies to facilitate a paradigm shift or a new way of thinking about the problem.30 The third element of the method is distinct from the first one, dedicated to observation, or the second one, aimed at contextualised theory formulation. ‘Play’ involves active engagement with creative mediums. As mentioned earlier, prior observation and contextualisation are essential to avoid instrumentalising the arts. The primary characteristic of the playful stage is its non-linearity, which implies consecutive switching between the perceiving and the thinking mind. Such commitment to circularity distinguishes the method of inquiry grounded in aesthetics from a more traditional sequential way of processing legal sources. Playfulness and non-linearity in perception encourage the discipline of international justice to unfold in quantum leaps rather than through gradual

27  P. Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) Hastings Law Journal 38, 814; M. Foucault, Archaeology of Knowledge (Pantheon Books, 1969). 28  P. Palusova, ‘Technology as a Life Form,’ 16 July 2024, https://petrapalusova.com/articles /technology-as-a-life-form 29  Ibid. 30  Abbott, supra note 19.

162  Art, aesthetics and international justice evolution.31 The idea is to treat the present moment as a point of consensus building, thereby inviting legal imagination.32 Openness to new forms of inquiry grants necessary flexibility in approaching dominant legal discourses.33 Embracing the outsider’s perspective – also crucial in the observational phase – is fundamental to sustain productive uncertainty, or simply ‘not knowing,’ required for creativity.34 In addition to generating refined perception, artistic mediums open pathways to processing difficult emotions and rewiring the brain towards more cognitive coherence.35 From a neurobiological perspective, emotional digestion is known to facilitate the movement from the limbic part of the brain, responsible for survival, to the neocortex brain of problem solving.36 If art mediums are involved, they can enable more emotional and intellectual clarity due to the quality of aesthetic perception that is free from personal investment – subjects unreservedly experience wonder at existence (camatkāra in Sanskrit) without the constraints of ordinary life.37 The objective of the third phase is thus to integrate imagination as an active and visible component of legal and policy research in international law. As mentioned earlier, imagination is understood here as a state in which participants abandon for a moment certainty about the existing categories of legal knowledge.38 It is true that legal imagination is already implicit in the field by virtue of international lawyers constructing arguments.39 The goal here is to make this process explicit and scientifically relevant for generating new perspectives and new vocabularies. The theories of aesthetics highlight the significance of becoming aware of perception in structuring imagination and creativity. The method grounded in aesthetics: case study of citizenship The specific case study of citizenship (and its international counterpart – nationality) is chosen for illustrative purposes only. This section does not attempt to cover the topic in a comprehensive manner but rather offers a preliminary ‘sampling’ of the method grounded in aesthetics. The reason for

31  M. Aksenova, ‘COVID-19 Symposium: Quantum Leaps of International Law’ Opinio Juris, 7 April 2020, available at http://opiniojuris​.org​/2020​/04​/07​/covid​-19​-symposium​-quantum​-leaps​-of​-international​-law/ 32  Koskenniemi, supra note 24. 33  Abbott, supra note 19. 34  J. B. White, The Legal Imagination (University of Chicago Press, 1973). 35  M. Aksenova and A. N. Rieff, ‘Setting the Scene: The Use of Art to Promote Reconciliation in International Criminal Justice’ (2021) Leiden Journal of International Law Vol 33(2), 495. 36  K. Chinnaiyan, The Heart of Wellness: Bridging Western and Eastern Medicine to Transform Your Relationship with Habits, Lifestyle, and Health (Llewellyn, 2018). 37  Gnoli, supra note 12. 38  White, supra note 34. 39  Koskenniemi, supra note 24; Del Mar, supra note 24.

Observe – build – play – repeat  163 engaging with the notion of citizenship is its strong significance for the development of international justice 2.0. The idea of territorial citizenship underlies some compulsive identitarian tendencies plaguing the old model of international justice. The system’s attachment to nationality as a master key to accessing individual rights at a state level needs to be re-imagined in the future as humanity moves towards alternative ways of belonging through professional associations, online communities and local organisations.40 Stage 1 – a myth of belonging through territorial citizenship

The first stage of the process interrogates assumptions pertaining to the chosen concept. Observing the notion of territorial citizenship (and its international equivalent of nationality) reveals the system of belonging strongly reinforced at an international level through the prism of human rights law, the body of which largely formed in the aftermath of the Second World War. The concept of citizenship as an institution enjoyed relatively positive treatment in academic and policy circles until quite recently.41 There are collective beliefs underlying such benevolent perceptions of territorial citizenship. They include the requirement to maintain a fixed identity tied to one’s nationality, the indispensable nature of states in ensuring effective distribution of resources, the requirement of nationality to access the fruits of a human rights movement, and the existence of an inherent sentimental bond between the state and the individual.42 Historically, nation-states assumed the role of the key generators of human belonging by promoting the vision of territorial membership-based communities.43 Several factors related to the Second World War impacted the way newly conceived international justice approached the concept of nationality, treating it as essential for human prospering.44 One piece of the puzzle is the fact that the interwar period witnessed a practice of depriving Jews of their German citizenship. This process paved the way to further discrimination as people could no longer enforce their rights because they were lacking formal status to do so. Citizenship was therefore correctly seen as a pre-condition to access any specific human rights, or the proverbial ‘right to have rights.’45 40  Aksenova, supra note 16. 41  See D. Kochenov, ‘Statelessness: A Radical Rethinking of the Dominant Citizenism Paradigm’ (2024) Annual Review of Law and Social Science, Vol 20, https://doi​.org​/10​.1146​/annurev​ -lawsocsci​-041822​-045326 42  Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ), 6 April 1955 (Nottebohm) https://www​.refworld​.org​/jurisprudence​/caselaw​/icj​ /1955​/en​/97455 43  N. Wheatley, The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Princeton University Press, 2023). 44  Kochenov, 2024, supra note 41. 45  H. Arendt, The Origins of Totalitarianism (Harcourt Brace & Co., 1979, originally published in 1951); D. Kochenov, Citizenship (MIT Press, 2019); L. Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton University Press, 2006).

164  Art, aesthetics and international justice It is then no surprise that the right to a nationality was addressed expressly in the 1948 Universal Declaration of Human Rights (UDHR) with the aim of deterring statelessness and ending the vulnerability that it generated.46 Article 15 of the UDHR guarantees everyone the right to a nationality and prevents its arbitrary deprivation. There is no equivalent right not to have a nationality. It is true that international law embraces the notion of a stateless person defined in the 1954 Statelessness Convention as ‘someone who is not considered as a national by any State under the operation of its law.’47 Despite the existence of the conceptual category of ‘statelessness,’ it is treated as a liability to be avoided.48 For instance, the 1951 Refugee Convention expressly mentions statelessness, connecting it – by association – to the status of a refugee.49 It is then no surprise that the 1961 Statelessness Convention aims precisely at reducing the number of stateless persons by imposing a duty on states to grant citizenship to people born on their territory.50 Statelessness was then a status, which was not desirable in the collective legal imagination of the late 1940s to late 1960s when key international treaties were drafted. The problem of the divergent quality of various citizenships was consequently not addressed at that time.51 The UN Refugee Agency continues to actively pursue an agenda of ending statelessness in the twenty-first century – its website currently advocates for joining the #IBelong Campaign dedicated to ending statelessness by signing an open letter.52 To sum up, the idea of territorial citizenship is chiefly built around the myth of belonging. From a neurobiological perspective, the need to belong is rooted in the limbic system of the human brain, which is primarily responsible for survival. Early humans required association with others to endure adverse conditions and pass down genes. Exclusion from the tribe meant physical death. These conditions are no longer present in most places around the world. In contrast, the neocortex, formed later in time, is largely responsible

46  UN General Assembly, Universal Declaration of Human Rights, 217 A (III), 10 December 1948 (UDHR). 47  UN General Assembly, Convention relating to the Status of Stateless Persons, United Nations, Treaty Series, Vol 360, p. 117, 28 September 1954. 48  A. Edwards and L. van Waas, Nationality and Statelessness under International Law (Cambridge University Press, 2014); J. Finnis, Natural Law and Natural Rights (2nd ed. Oxford University Press, 2011). 49  UN General Assembly, Convention Relating to the Status of Refugees, United Nations, Treaty Series, Vol 189, p. 137, 28 July 1951. 50  UN General Assembly, Convention on the Reduction of Statelessness, United Nations, Treaty Series, Vol 989, p. 175, 30 August 1961. 51  M. Shaw, International Law (6th ed. Cambridge University Press, 2008); I. Brownlie, Principles of Public International Law (7th ed. Oxford University Press, 2008). 52  UNCHR, the UN Refugee Agency, available at https://www​.unhcr​.org​/ibelong/; see also T. Bloom, Noncitizenism Recognising Noncitizen Capabilities in a World of Citizens (Routledge, 2018).

Observe – build – play – repeat  165 for the features defining humans as a species, namely memory, attention, and perception.53 Current global challenges continue to demonstrate, however, that the quality of citizenship in question predetermines one’s chances to access specific human rights, such as the right to education or the right to freedom of movement. There is intrinsic pressure on individuals to establish and maintain social bonds to the state where they were born, with very limited scope for agency and self-determination, as 97 per cent of the world’s population still live in the countries where they were born.54 This bond to a state then becomes either a source of support or a source of liability or a combination of both. The quality of citizenship determines the degree to which an individual can access the fruits of the human rights movement, with some nationalities being no more useful in facilitating access to justice than the status of a stateless person.55 International law does not truly account for these varying degrees in the quality of citizenship, as it traditionally outsources the questions of nationality to the exclusive sphere of state management.56 The model of legal belonging still resonates with the survival tendencies of the human brain. The international legal framework largely defers the decision to grant citizenship to states.57 The UN International Law Commission (ILC) observed in the 1950s that there is a consensus among states that nationality at birth must be conferred either based on jus soli (being born or residing for a certain amount of time in the territory) or jus sanguinis (by descent) or both.58 This approach solidified ‘time’ and ‘space’ as key parameters of the citizenship lottery, largely leaving it up to individual countries to design specific rules and regulations pertaining to this fundamental instrument of the global distribution of privileges and liabilities.59

53  R. Sapolsky, Behave: The Biology of Humans at Our Best and Worst (Penguin, 2017); Chinnaiyan, supra note 36. 54  B. Milanovic, Global Inequality: A New Approach for the Age of Globalization (Belknap Press of Harvard University Press 2016); D. Kochenov, ‘Abstract Citizenship in the Age of Concrete Human Rights’ in M. Tushnet and D. Kochenov (eds) Handbook on the Politics of Constitutional Law (Edward Elgar, 2023). 55  N. Jain and R. Bauböck (eds), Weaponised Citizenship: Should International Law Restrict Oppressive Nationality Attribution? EUI RSC, Working Paper, 2023/54, Global Governance Programme, GLOBALCIT, https://hdl​.handle​.net​/1814​/75896; M. Gibney, ‘Statelessness and Citizenship in Ethical and Political Perspective’ in A. Edwards and L. van Waas, Nationality and Statelessness under International Law (Cambridge University Press, 2014). 56  See, for example, Shaw, supra note 51; Brownlie, supra note 51. 57  Chinnaiyan, supra note 36. 58  UN Report by Mr Manley O. Hudson, Special Rapporteur, ‘Nationality, including Statelessness’ A/CN.4/50, ILC Yearbook (1952-II). 59  A. Shachar, The Birthright Lottery: Citizenship and Global Inequality (Harvard Universty Press, 2009).

166  Art, aesthetics and international justice Stage 2 – building transformative citizenship model

Critical observation unlocks a path towards an alternative normative model, which is termed ‘transformative citizenship’ here. This model is premised on the idea that the human need to belong and to access the fruits of belonging, such as human rights, can be met in a variety of ways, which are not limited to ascribing national identities. International justice 2.0 serves as a framework for developing a new normative model of belonging, which deliberately loosens individual attachment to the state as a key provider of the fruits of belonging. New approaches to legally describing the process of belonging are appropriate, considering the speedy advancement of technology. Models of engagement propagated by social media and virtual (extended) reality increasingly break familiar patterns of interaction with time and space, which are the core legal requirements in citizenship acquisition.60 International law gradually becomes entrenched with technology as a new form of life and not just something to be regulated.61 The models of interaction with the environment through technology are extraterritorial in the sense of not being linked to any specific geographical location (with the physical placement of the supporting technical equipment being a distinct issue). Likewise, instant communication and access to information challenge traditional views of events following in a temporal sequence. The ongoing rewiring of human perceptual faculties and abilities through technology will have an inevitable effect on the way attachment and belonging are construed in the future. This, in turn, will influence the process of conceptualising nationality in international law. The sentimental value of citizenship, underlined in the ICJ 1955 Nottebohm case, may no longer hold as new ways of associative bonding emerge.62 From a relational standpoint, emotional needs are no longer met solely through residing in a certain legally drawn-out territory over time. The mandatory vertical relationship with a state is gradually supplemented by the horizontal relationship with the environment, which is often digital.63 The latter connection facilitates exploring one’s interests, inclinations and opportunities without the limitations of a physical space and with fewer externally imposed time constraints. There is an increasing pull to create horizontal associa‑

60 N. Jain, ‘Manufacturing Statelessness’ (2022) American Journal of International Law 116(2). 61  M. Arvidsson and G. Noll, ‘Artificial Intelligence, Decision Making and International Law’ (2023) Nordic Journal of International Law Vol 92(1), 1–8; G. Dimitropoulos, ‘Artificial Intelligence and International Adjudication,’ Max Planck Encyclopedias of International Law, March 2023. 62  The Court held in Nottebohm that nationality is a ‘legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests, and sentiments, together with the existence of reciprocal rights and duties.’ See Nottebohm, p. 23. 63  S. Shaw and D. Sui, Understanding the New Human Dynamics in Smart Spaces and Places: Toward a Spatial Framework (Routledge, 2021); M. Chinen, The International Governance of Artificial Intelligence (Edward Elgar, 2023).

Observe – build – play – repeat  167 tions through networks formed in ways that are distinct from the traditional model of nation-building. It is true that currently the choice to imagine and construct alternative communities of belonging has more appeal and is more easily accessible to the educated elites with resources (financial, cultural and linguistic). It is probable, however, that automated translation services and exponentially sophisticated algorithmic programmes will gradually open doors to anyone intending to form digital ties to their environment.64 An alternative rhetorical and normative tool of ‘transformative citizenship’ may offer an original way of addressing the human need to belong. It does so without imposing any prior conditions, such as being born in a particular place or to particular people. This vision incorporates existing structures, but it also encompasses a more empowered and less identitarian perspective. Transformative citizenship can be designed as a status attributed to any individual on planet earth by virtue of being born and without any prior conditions. This status stems from the idea of human dignity.65 The seeds for the notion of human dignity were planted in the UN Charter of 1945 and the UDHR of 1948. The preamble of the UN Charter reaffirms ‘faith in fundamental human rights, in the dignity and worth of the human person,’ while the UDHR refers to dignity in its Preamble, Article 1, establishing the equality and freedom of all human beings in dignity and rights, and Article 22, embodying the right to social security and entitlement to realisation of economic, social, and cultural rights indispensable for the dignity of everyone as a member of society.66 Dignity also features prominently among the core values of the European Union.67 These provisions were criticised as being somewhat declarative in nature.68 Technological evolution provides unexpected opportunities to contextualise the idea of human dignity, beyond declarative statements. For instance, the EU AI Act, adopted by the European Parliament on 13 March 2024, prohibits the social scoring of natural persons. It is acknowledged that AI systems have the capacity to evaluate and assess persons or groups on the basis of many data points related to their social behaviour, but this practice is at odds with the right to dignity and

64  Aksenova, supra note 16. 65  É. Durkheim, The Elementary Forms of Religious Life, ed. and intro. by M. S. Cladis, translated by C. Cosman (1912; Oxford University Press, 2001); J. Waldron, ‘Human Dignity: A Pervasive Value’ (2015) NYU School of Law, Public Law Research Paper No. 20–46, 16, https:// papers​.ssrn​.com​/sol3​/papers​.cfm​?abstract​_id​=3463973 66  The Preamble of the UN Charter and the UDHR; Articles 1 and 22 of the UDHR. 67  Article 2 of the Treaty on European Union (Consolidated Version), Treaty of Maastricht, Official Journal of the European Communities C 325/5; 24 December 2002, 7 February 1992. 68  S. Moyn and C. Jayasinghe, ‘Why is Dignity in the Charter of the United Nations?’ (2014) Humanity Journal, http://humanityjournal​.org​/blog​/why​-is​-dignity​-in​-the​-charter​-of​-the​ -united​-nations/

168  Art, aesthetics and international justice non-discrimination.69 The idea of human dignity thus gets reinvented in light of technology as the quality of being human is understood in more depth. It is then no surprise that dignity is at the core of the new model of belonging, such as transformative citizenship. The descriptor ‘transformative’ is functional in nature as it reflects the process whereby an individual reframes their identity in a way that is helpful for achieving access to justice, despite possible obstacles presented by their nominal nationality. In practice, this may imply seeking innovative ways to enforce various rights, even when the state in question does not offer possibilities of formal enforcement.70 Admittedly, the ideas of the planetary rule of law and cosmopolitanism are difficult to implement in practice, especially when it comes to re-thinking the openness of state borders.71 The purpose of this model is, however, not to replace conventional notions of nationality and citizenship but rather to explore the possibilities of different vocabularies and visions that would be complementary to the existing legal discourse. Stage 3 – playing with new identities and spaces

The case study of citizenship and belonging is ideal for creative explorations because an aesthetic experience is universal and has great capacity to reveal the limitations of identity construction. To be clear, the aim here is not to generate conditions for abolishing established categories of citizenship and nationality but rather to invite an imaginative exercise that would encourage complementary normative systems of belonging, resonating less with the survival part of the brain and more with the neocortex. The stage of play presents differently in each individual case. There is no predetermined way to partake in an imaginative exercise or creative exploration. The invitation is to seek new inquiry tools that create spaces for selfreflection. In other words, aesthetics becomes a way of critically engaging with the process of producing material contents of international justice, including its firmly embedded concepts. One possible creative exercise enlivening the theory of transformative citizenship is designing an interactive virtual or

69  Article 31 of the Position of the European Parliament adopted at first reading on 13 March 2024 with a view to the adoption of Regulation (EU) 2024/ … of the European Parliament and of the Council laying down harmonised rules on artificial intelligence and amending Regulations (EC) No 300/2008, (EU) No 167/2013, (EU) No 168/2013, (EU) 2018/858, (EU) 2018/1139, and (EU) 2019/2144 and Directives 2014/90/EU, (EU) 2016/797, and (EU) 2020/1828 (EU Artificial Intelligence Act). 70  Aksenova, supra note 16. 71  D. Zolo, ‘La Strategia della cittadinanza’ in Danilo Zolo (ed.) La Cittadinanza, (Gius. Laterza & Figli, 1994); W. Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford University Press, 2001); Shachar, supra note 59. 2009.

Observe – build – play – repeat  169 extended reality space of belonging that enables members of the public to experience transformative citizenship and not just read about it. The space of virtual belonging will engage with fundamental connections between agency and materiality and will allow the public to construct their unique versions of ‘citizenship’ based on each person’s values and associations. The purpose of this activity is to interact with artificial intelligence in building new dynamic fields of perception. This process reframes our understanding of nationality and citizenship as being tightly linked to one state. The virtual space holds immense potential to respond to the core human need to belong and to enjoy the fruits of belonging. It complements the vertical system of governance whereby states automatically hand down citizenship statuses and require some form of allegiance in return. In contrast, the virtual space works with horizontal networks of association, which are voluntary and allow individuals to design their own version of mutually beneficial participation. The structures created in an extended reality challenge familiar ways of interfacing with time and space as they exist on a non-tangible plane while still forming part of the (digital) environment. Such virtual tools reveal the fluidity of one’s seemingly fixed identity as transformative citizenship can be moulded to suit different values and relations. Conclusion This concluding chapter explored in practice what it means to move away from thinking in certainties and to move towards thinking in possibilities. It does so by building an enlivened theory of inquiry that shifts the focus of attention from existing structures to the practice of perception itself. Methodology grounded in aesthetics distances itself from specific material outcomes (such as the concept of ‘nationality’) and engages directly with relational dynamics within the field of international justice (such as exploring what it means to belong).72 Insights from aesthetic theories are foundational for non-engaged observation. The case study revealed how releasing – for a moment – prior assumptions of citizenship as necessary or beneficial for human attachment unlocks new insights. These include new models of citizenship grounded in the idea of human dignity rather than the fact of being born in a particular place or to specific parents. The core invitation is then to loosen the attachment of international justice to its existing manifestations and explore new ways of constructing (legal) belonging.

72  R. Collins, Interaction Ritual Chains (Princeton University Press, 2004); Abbott, supra note 19.

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Observe – build – play – repeat  171 R. Gnoli, The Aesthetic Experience According to Abinavagupta (Chowkhamba Sanskrit Series Office, 4th edn, 2015) N. Jain, ‘Manufacturing Statelessness’ (2022) American Journal of International Law 116(2) N. Jain and R. Bauböck (eds), Weaponised Citizenship: Should International Law Restrict Oppressive Nationality Attribution? EUI RSC, Working Paper, 2023/54, Global Governance Programme, GLOBALCIT, https://hdl​.handle​.net​/1814​ /75896 I. Kant, Critique of Judgement, trans. Werner S. Pluhar (Hackett Publishing, 1987; or. 1790) D. Kochenov, ‘Abstract Citizenship in the Age of Concrete Human Rights’ in M. Tushnet and D. Kochenov (eds) Handbook on the Politics of Constitutional Law (Edward Elgar, 2023) D. Kochenov, Citizenship (MIT Press, 2019) D. Kochenov, ‘Statelessness: A Radical Rethinking of the Dominant Citizenism Paradigm’ (2024) Annual Review of Law and Social Science Vol 20, https://doi​ .org​/10​.1146​/annurev​-lawsocsci​-041822​-045326 M. Koskenniemi, From Apology to Utopia (Cambridge University Press, 2005) M. Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300–1870 (Cambridge University Press, 2021) W. Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford University Press, 2001) M. Del Mar, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (Hart, 2021) M. Merleau-Ponty, Phenomenology of Perception (1945, Routledge, 2005) B. Milanovic, Global Inequality: A New Approach for the Age of Globalization (Belknap Press of Harvard University Press, 2016) S. Moyn and C. Jayasinghe, ‘Why is Dignity in the Charter of the United Nations?’ (2014) Humanity Journal, http://humanityjournal​.org​/blog​/why​-is​-dignity​-in​ -the​-charter​-of​-the​-united​-nations/ S. O’Sullivan, ‘The Aesthetic of Affect: Thinking Art beyond Representation’ (2001) Angelaki Journal of the Theoretical Humanities Vol 6, 125 P. Palusova, ‘Technology as a Life Form’, 16 July 2024, https://petrapalusova​.com​/ articles​/technology​-as​-a​-life​-form R. Sapolsky, Behave: The Biology of Humans at Our Best and Worst (Penguin, 2017) C. Schwöbel-Patel, Marketing Global Justice (Cambridge University Press, 2021) C. Schwöbel-Patel and R. Knox, Aesthetics and Counter-Aesthetics of International Justice (Counterpress, 2024) A. Shachar, The Birthright Lottery: Citizenship and Global Inequality (Harvard University Press, 2009) M. Shaw, International Law (Cambridge University Press, 6th edn, 2008) S. Shaw and D. Sui, Understanding the New Human Dynamics in Smart Spaces and Places: Toward a Spatial Framework (Routledge, 2021) R. Sherwin, Visualizing Law in the Age of the Digital Baroque: Arabesques and Entanglements (Routledge, 2011) C. A. Thomas, ‘Uses and Abuses of Legitimacy in International Law’ (2014) Oxford Journal of Legal Studies Vol 34(4), 729 I. Venzke and K. Heller, Contingency in International Law: On the Possibility of Different Legal Histories (Oxford University Press, 2021)

172  Art, aesthetics and international justice J. Waldron, ‘Human Dignity: A Pervasive Value’ (2015) NYU School of Law, Public Law Research Paper No. 20-46, 16, https://papers​.ssrn​.com​/sol3​/papers​.cfm​ ?abstract​_id​=3463973 N. Wheatley, The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Princeton University Press, 2023) J. B. White, The Legal Imagination (University of Chicago Press, 1973) D. Zolo, ‘La Strategia della cittadinanza’ in Danilo Zolo (ed) La Cittadinanza (Gius. Laterza & Figli, 1994) Legal Instruments and Judgments Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ), 6 April 1955 (Nottebohm) https://www​.refworld​.org​/jurisprudence​ /caselaw​/icj​/1955​/en​/97455 The Position of the European Parliament Adopted at First Reading on 13 March 2024 with a View to the Adoption of Regulation (EU) 2024/… of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence and Amending Regulations (EC) No 300/2008, (EU) No 167/2013, (EU) No 168/2013, (EU) 2018/858, (EU) 2018/1139 and (EU) 2019/2144 and Directives 2014/90/EU, (EU) 2016/797 and (EU) 2020/1828 (EU Artificial Intelligence Act) Treaty on European Union (Consolidated Version), Treaty of Maastricht, Official Journal of the European Communities C 325/5; 24 December 2002, 7 February 1992 UN General Assembly, Convention on the Reduction of Statelessness, United Nations, Treaty Series, vol. 989, p. 175, 30 August 1961 UN General Assembly, Convention Relating to the Status of Stateless Persons, United Nations, Treaty Series, vol. 360, p. 117, 28 September 1954 UN General Assembly, Convention Relating to the Status of Refugees, United Nations, Treaty Series, vol. 189, p. 137, 28 July 1951 UN General Assembly, Universal Declaration of Human Rights, 217 A (III), 10 December 1948 (UDHR) United Nations, Charter of the United Nations, 1 UNTS XVI, 24 October 1945 (UN Charter) UNCHR, the UN Refugee Agency, available at https://www​.unhcr​.org​/ibelong/ UN Report by Mr. Manley O. Hudson, Special Rapporteur, ‘Nationality, Including Statelessness’, A/CN.4/50, ILC Yearbook (1952-II)

Index

Page numbers in bold denote tables 19 Tradesmen v. Colombia 133, 141 Abbott, A. 161 Abhinavagupta 25, 44, 46, 50, 72, 77 abuse 117; child 137 Adorno, T. 45–46, 48, 70 affective 7, 13, 94, 109 Alexander, J. 100–101 Aloeboetoe v. Suriname 124 Alter, K. 57 American Convention on Human Rights 122 Aquinas, T. 25, 51–54 Arendt, H. 36, 82 Aristotle 51 Arms Trade Treaty 109 artificial intelligence (AI) 37, 62, 161, 167, 169 astroturfing 9 Austin, J. 73, 81 authority 38, 54, 57–58, 68, 81, 87, 98, 107; formal 58; foundations of 156; governmental 98; inherent 39; of international courts 57; of international justice 13–15, 17, 25, 39, 55, 57; of international law 58; lack of 4; monistic 4; persuasive 55–56, 84; sense of 51, 60; source of 55; sovereign 6; state 5; theoretical models of 93 Bal, M. 43 Balkan War 86 baroque 17; digital 17; visual 70 behaviour 58, 102; international 80; patterns of 53; social 167; standards of 111; symbolic 105

belonging 35, 82, 109, 163–164, 166, 168–169; alternative communities of 167; legal 165; new model of 168; normative system of 168; process of 166; reality space of 168; virtual 169 Ben Dor, O. 24 Benjamin, W. 49–50, 70, 83 Bennoune, K. 8 biosafety 1, 34 Bloch, M. 105–108 Bourdieu, P. 49–50 Buis, E. 109 Burgis-Kasthala, M. 10 Çali, B. 58 capacity for wonder (camatkāra) 44–45, 50, 162 Case of the ‘Street Children’ (VillagránMorales) v. Guatemala 127, 141 citizenship 36–37, 82, 162–164, 168–169; acquisition 166; concept of 158, 163; disparity 82; label of 36; lottery 165; national 157–158; notions of 27, 163; prior assumptions of 169; quality of 165; sentimental value of 166; territorial 163–164; traditional 37; transformative 166–169 climate: crisis 41, 70; emergency 1, 34; -related shifts in global migration 82 Cohen, A. 104–105 Cold War 59, 87 Collins, R. 107–108 commemoration 119, 125, 134; ceremonies 117; civic 111; public 117 Commission of Experts 85 Commission of International Justice and Accountability (CIJA) 10–11 

174 Index common good 17, 53, 55, 58–59, 76–77 communism 40 compensation 120, 122, 125; fair 122; financial 120, 123; monetary 123, 126 conceptualisation 73, 75, 76, 78, 95 consensual: ground 42; tilt 4 consensus 1, 34, 40, 68–69, 73, 78, 87, 96, 156, 162, 165; building 40–41; collective 26; international 56, 111; landscape of 4; moment of 40, 55, 87; moral 98; pockets of 67–68; quantum shifts in 74; sense of 88; shared 4 Constitutional Court of the Russian Federation 5 cooperation 13, 15, 17, 41–42, 55–56, 58; degree of 3; global 69; goals of 2; international 84, 87; narrative of 15; value of 52, 56 crimes against humanity 101, 110, 131, 136 criminal law 97, 126; defence 97; domestic 136; international 11, 19–21, 23, 26, 40, 56, 98, 101–102, 125–126, 137, 139; traditional 96; understanding of 139; value system of 98 cultural: activities 129; backgrounds 34; context 21; cross- 73; diplomacy 23; diversity 34; events 130; heritage 23, 124–125; hierarchies 1; meaning of violence 131; practice 100; property 23, 125; qualities 101; resources 167; rights 8, 167; scripts 101; significance 125; theorist 43; understanding of violence 20; values 125 cyberspace: hygiene 70; interconnected 41; vulnerability 1, 34 Declaration of Essential Human Rights 80 de Falco, R. 23 Derrida, J. 51, 106 Dewey, J. 7, 47, 50, 111–112 diplomatic conferences 26 discrimination 36, 130, 163; non- 168 diversification 98 diversity 4, 98; human 101; see also cultural double standards 27 Drumbl, M. 23 Duffy, A. 23 Durkheim, E. 97–99, 102

emotional: appeal 102; digestion 162; distress 125; energy 25–26, 74, 93, 100, 103–105, 108–109, 112; landscape 119; perspective 126; reaction 102; significance 108; validation 109 energy 105, 109; collective 95; security 34; see also emotional enforcement 1, 39, 60, 82–84; abilities 27; challenges of 39; deficit 56, 107; formal 168; of human rights law 39; lack of 56–57; mechanisms 55; phase 82; powers 19, 74, 157; practical 109; strict 97; vertical 39; visible 158 Enlightenment 11 ethical: contemplation 61; foundations 27; judgment 46, 49; principles 59; process 43; wisdom 70 Eurocentric 76 European Court of Human Rights (ECtHR) 4–5, 122–123 evolution 8, 42, 52, 162, 167 Extraordinary Chambers in the Courts of Cambodia (ECCC) 120 fascism 40 Finnis, J. 25, 52–53, 58, 76–77, 108 First World War 97 Fletcher, G. 97 Foucault, M. 73, 78 fragmentation 2, 4–6, 11, 34, 39, 42, 55, 68–70 Fujimori, A. 135 Fukuyama, F. 40, 87 Garnsey, E. 22 Gatheret, F. 23 Geary, A. 21 General Agreement on Tariffs and Trade 40 genocide 23, 101, 110; crime of 101; prohibition of 3; prosecutions of 100; trials 101 Genocide Convention 3 Giddens, A. 35 global 10, 100; actors 41, 84; affairs 59, 69; agenda 10; challenges 1, 27, 34, 41, 59, 69, 82, 165; changes 2; community 42, 56; concerns 1, 4, 11; consciousness 27, 96; cooperation 69; coordination 39; crises 158; discourse 41; distribution 165; economic order 40; engagement 42, 62; expectations 38; footprint 38; governance 41–42;

Index  175 human rights movement 36, 82; institution 40; interconnectedness 27, 40, 42; justice 23–24, 36, 156, 158; landscape 13; level 11, 35, 99; migration 82; norms 157; North 9; ordering 1, 10, 35, 67; pandemic 9, 41, 69; police force 55; scale 37, 41; shifts 37; stage 35; supply chains 9; system of governance 4; threats 1 González v. Mexico 127, 144 governance 4, 12, 27, 41–42, 59, 169 grassroots 9 Griffiths, J. 6 Guatemalan Army 117 Higgins, R. 42 Hobbes, T. 54–55 Howse, R. 58 humanitarian: assistance 3; intervention 5; law 85, 88, 102 humanity 1, 9, 12, 21, 27, 49, 59, 69, 74, 87, 158, 163; attack on 158; collective objectives for 15; consciousness of 23; core of 59, 62; crimes against 101, 110–111, 131, 136; evolution of 8; flourishing of 34; interconnectedness of 9; nature of 41; shared sense of 88; threats to 12, 34, 40 human rights 23, 34, 38, 74, 80, 82, 87, 102, 119, 163, 165–166; adverse 38; basic 82; discourse 81–83; educational programmes 134; fundamental 79, 81, 167; global 82; language of 82, 84; law 26, 39, 58, 81–82, 95, 122, 136, 163; movement 36, 163, 165; obligations 39; respect for 79; system 40; treaties 82; violations 23, 123, 125; women’s 8 Hunneus, A. 123 identity 9, 52, 77, 82, 102, 104, 168; -building 110, 111, 158; common 158; construction 168; core 59; fixed 163, 169; formation 81; legal 95–96; limitations of 77; national 36; politics 12, 42, 53, 59; shared 102; social 95–97, 99 imagination 25, 42, 71–73, 75, 89, 94, 101, 162; exercise of 71; faculty of 77; free play of 16, 44, 161; legal 18, 71–72, 89, 160, 162, 164; role of 69, 71 individual criminal responsibility 19, 88, 103, 118–119, 124

institutional: architecture 2; constraints 119; designs 58; structure 55, 88, 106 Inter-American Convention on Human Rights 57, 122 Inter-American Court of Human Rights (IACtHR) 116–120, 122–127, 131, 133–137, 139–140 International Court of Justice (ICJ) 3–4, 11–12, 42, 67, 74, 166 international courts 13–14, 24, 57, 112, 116 international criminal: courts 120, 123; justice 18–19, 21, 23, 46, 56, 85, 139; law 11, 19–21, 26, 40, 56, 95, 101–102, 125–126, 137, 139; lawyers 23; proceedings 120; trials 26, 96, 103, 111; tribunals 109 International Criminal Court (ICC) 10, 19–21, 56–57, 109, 116, 118–121, 126, 128, 130–132, 136, 139–140; Rome Statute 10–11, 20–21, 57, 74, 119–121, 132, 139 International Criminal Tribunal for Rwanda (ICTR) 18, 41, 101–103 International Criminal Tribunal for the Former Yugoslavia (ICTY) 18, 41, 69, 84–88, 101–103, 109–110 International Monetary Fund 40 Jefferson, T. 35 Judeo-Christian 98 judicial: activity 13, 15, 102; determination 56; discretion 102; fairness 84; impartiality 14–15; independence 15; proceedings 121; pronouncements 67; rhetoric 103; trial 15 jus cogens 5, 24, 59–60 jus sanguinis 165 jus soli 165 Kant, I. 16, 25, 43–44, 46–47, 49–50, 77 Kashmiri 16, 25, 44, 72, 76–77, 83, 88 Kawas-Fernández v. Honduras 138, 141 Kelsen, H. 11 Kony, J. 20–21 Koskenniemi, M. 38 Lauterpacht, H. 37 legitimacy 94–95; crisis 19; deficit 27; legal 94, 96; moral 94, 96; perceived 112; social 94, 111, 158

176 Index locus of awareness 45, 50, 89 Lord’s Resistance Army (LRA) (Uganda) 19, 137 Luban, D. 88 Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights 38 Marxist school of thought 45 mass atrocities 11, 23, 40–41, 46, 95–96, 118, 139–140 Matheson, M. J. 87 McKenna, M. B. 23 Merleau-Ponty, M. 159 metaphors 71, 73 Miguel Castro-Castro Prison v. Peru 134–136, 138–139, 143 Moiwana Community v. Suriname 131, 141 murder 19–20, 127–128, 133, 138 national: affiliations 55; citizenship 157– 158; hierarchy 41; identity 36, 166; law 12; particularities 34; stakeholders 102; states 55 nationalism 12, 42 nationality 27, 36–37, 55, 101, 161– 166, 168–169 natural law theory 2, 25, 34, 39, 51, 55, 60, 62, 76 Nottebohm case 166 Nussbaum, M. 22, 82–83 observation 25, 48–49, 60, 107, 159– 161; critical 166; insightful 60; nonengaged 26, 156, 169; participatory 104 O’Connell, M. E. 24 Orokaiva 105, 107–108 O’Sullivan, S. 8, 48, 50, 60 perception 1, 17, 24, 35, 49, 59, 62, 76, 78, 94, 111–112, 157, 159–162, 165, 169; act of 25; aesthetic 71, 162; clear 112; critical 19; embryonic 81; faculty of 111; human 47, 156; of international law 23; joint 105; nature of 156; neutrality of 39; order of 75; practice of 169; quality of 156, 159; of reality 18; refined 182; register of 50; science of 111; shared 105; space 37; state of 156; subjective 104; universality of 16, 39, 45, 48, 157

Permanent Court of Arbitration (PCA) 5 Philippines v. China (2016) 68 Plan de Sánchez Massacre v. Guatemala 128, 142 pluralism 6, 98, 100; legal 6; societal 100 positive law 2, 39, 51, 116 postmodernist 48 Prosecutor v. Akayesu 101 Prosecutor v. Aleksovski 102 Prosecutor v. Al Mahdi 121, 124–126, 132 Prosecutor v. Bemba Gombo 132 Prosecutor v. Bosco Ntaganda 128, 130 Prosecutor v. Dominic Ongwen 19, 119, 136 Prosecutor v. Joseph Kony and Vincent Otti 20–21 Prosecutor v. Krstić 101 Prosecutor v. Lubanga Dyilo 119, 128–129 rasas (artistically induced mental states) 16, 45–46, 48 reality 12, 20, 48, 71, 77, 105, 116; creative 16; dynamic nature of 83; engagement with 78, 80; extended 166, 169; mediated 17–18; perception of 18; representation of 13, 70; shared 42, 105, 108–109, 111, 113; understanding of 75, 77; virtual 166, 168–169 Refugee Convention (1951) 164 religion 52, 99, 101 religious: activities 108; affiliations 55; backgrounds 34; differences 140; practices 99; quasi- 99, 103; ritual 99–100, 102–104; service 109; structures 105 reparations: collective 124, 128–131; community-based 130; conception of 120; creative 116, 128, 133; formal 121, 124, 132; individual 126; legal frameworks for 120; limited scope of 119; modalities of 121, 126; order for 112, 121–125, 128–129, 138, 140; practice 20, 24, 120, 140; symbolic 13, 26, 116–121, 124–126, 128–134, 136–140 representational 7, 22, 24, 48; aspects 7; dimension 116, 156; discourse 48; forms 17; quality 7, 111 Rig Veda 25, 69, 71–73, 88

Index  177 rituals 25–26, 95, 100, 103–105, 107– 109, 111–113; analysis of 107; cattle sacrifice 108; collective 81; daily 111; human 47; interaction 107; legal 24, 74, 81, 86, 93–96, 109, 111; religious 100, 102–104; study of 104; symbolic 95; traditional 108 Rochac Hernández et al. v. El Salvador 127, 142 Russian Constitution 5 Sawhoyamaxa Indigenous Community v. Paraguay 125 Schwöbel-Patel, C. 24 Second World War 1–2, 18, 34, 40, 74, 81, 156, 163 self 61, 77, 99, 104; -determination 165; -empowerment 43; -expression 70; -fulfilling prophecy 11; individual 104; -interest 13; -preference 45, 53–54, 59–60; -preservation 25, 59; -reflection 6, 157, 168; subjective 104; universal 77 Sendero Luminoso 134–135 Sherwin, R. 17–18, 70 social: cohesion 98; complexity 100; conditioning 35, 49; conflict 133; contract 54; counterpart 96; differences 49; dimensions 139; disagreement 134; events 96; fact 54; fields 6; function 99; identity 95–97, 99; ill 133; legitimacy 94, 111; life 7, 99; media 9, 17, 53, 70, 89; movements 10; organisation 1; performance 94, 100–101, 104; platforms 37; practice 13; purpose 48; relationships 99; ritual 109; significance 104; solidarity 98; stigma 129; structures 61; world 49 solidarity 41, 95–98, 100, 102; communal 95–96; mechanical 97–98; organic 98–99; sense of 100; social 98; societal 102 sovereignty 5, 42, 44, 59, 68, 94–95 Statelessness Convention (1954) 164 Statelessness Convention (1961) 164 Statute of the International Court of Justice 11, 42, 67 Steer, C. 6 Stolk, S. 23 Tallgren, I. 19, 23 territorial: citizenship 163–164; conception of responsibility 38;

conquests 1, 34, 41; jurisdiction 37; membership-based communities 163 theory: aesthetic 16, 21, 24–25, 27, 35, 44, 47, 62, 76–77, 89; of affects 60; construction 26–27, 161; of discourse analysis 78–79; formulation 161; of inquiry 169; interaction 107–108; of justice 53, 76; natural law 2, 25, 34, 39, 51, 55, 60, 62, 76; of speech 25, 69, 72–73, 81, 89, 93; of structuration 35; of transformative citizenship 168 Thomas, C. 94 Tokyo Trial 23 transcendental 105–106 transnational: coherence 10; concern 4; corporate influence 158; relevance 12 trauma 117–118; childhood 137; connotations 136; events 117, 132–133; lifelong 20; war 23 tribalism 42, 53, 59 Trust Fund for Victims (TFV) 121, 128–130, 132, 133 United Nations (UN) 14, 26, 40, 56, 83, 86, 158; agencies 109; Charter (1945) 2, 13–14, 40, 56–57, 79–80, 84, 87, 158, 167; Conference on International Organization 79; Convention on the Law of the Sea (UNCLOS) 5, 67–68; Educational, Scientific and Cultural Organization (UNESCO) 109; General Assembly 2, 81; Guiding Principles on Business and Human Rights 38; International Law Commission (ILC) 165; Refugee Agency 164; Security Council 2–3, 10–11, 41, 56, 85–87 Universal Declaration of Human Rights (UDHR) (1948) 36, 81–82, 84, 164, 167 universality 2, 15, 25, 34–35, 39, 43–44, 55–56, 62, 69, 76, 88, 98; context of 43; core of 39, 78; focus on 35; idea of 34, 60; of justice 51; language of 88; of perception 16, 39, 45, 47–48, 157; quality of 1; quasi- 105; route of 25, 36; value of 59 UPWORK 37 US Declaration of Independence (1776) 35, 56 Utpaladeva 77

178 Index Vāk (Goddess of divine speech) 73; Madhyamā (verbalisation) 73, 80–81, 84, 86, 93; Parā (unity) 73, 75–78, 87; Paśyantī (conceptualisation) 73, 78, 80–81, 84; Vaikharī (communication) 73, 83–85, 93, 113 vandalism 135, 139 Vargas-Areco v. Paraguay 127, 142 verbalisation 74, 80 Vienna Convention on the Law of Treaties 60

Walker, N. 4 war crimes 19–20, 101, 110, 131, 136 wealth inequality 41, 76 well-being 15, 34 Werner, W. 23 Wittgenstein, L. 61 World Bank 40 worship 104, 108–109, 111; communal 99 Zeineddine, F. 80