Transitional Justice and the Public Sphere: Engagement, Legitimacy and Contestation 9781509900169, 9781509900190, 9781509900183

Table of contents :
Acknowledgements
Contents
Biographies
1. Introduction: The Rational and the Emotional: Issues of Transparency and Legitimacy in Transitional Justice
Introducing the Volume
Part I: Transitional Justice and its Public Spheres: Principles of Justice
2. Justice as the Art of Muddling through: The Importance of Nyaya in the Aftermath of International Crimes
I. Introduction
II. Different Conceptions of Justice: Niti and Nyaya
III. ICJ: A Necessarily Flawed Endeavour
IV. Final Remarks
References
3. Emotional Discourse in a Rational Public Sphere: The Victim and the International Criminal Trial
I. Introduction
II. International versus Domestic Criminal Justice
III. Aspects of Justice and Criminal Law
IV. Victims, Justice and the Domestic Criminal Trial: Between Rhetoric and Procedure-A Rock and a Hard Place
V. Victims, Justice and the International Criminal Trial
VI. Conclusions
References
4. Credible Justice and Incredible Crimes
I. Introduction
II. The Credibility of Transitional Justice: Legal, Informational and Institutional Credibility
III. Credibility at Stake: Three Illustrations
IV. Credibility Gaps and Problems
References
5. Globalisation, Crime and Governance: Transparency, Accountability and Participation as Principles for Global Criminal Law
I. Introduction
II. What is Global Criminal Law?
III. Why Principles in Criminal Law?
IV. Transparency, Accountability and Participation in Criminal Law (Brants et al)
V. Transparency, Accountability and PARTICIPATION in Global Law (the Global Administrative Law Project)
VI. Transparency, Accountability and PARTICIPATION in Global Criminal Law
VII. Transparency and Openness (the First Governance Principle)
VIII. Transparency in Global Criminal Law
IX. Accountability (the Second Governance Principle)
X. Accountability in Global Criminal Law: Perfect and Imperfect Arrangements
XI. Participation (the Third Governance Principle)
XII. Participation in Global Criminal Law: A Side Dish?
XIII. A Method for Applying Transparency, Accountability and Participation?
XIV. Conclusions
References
Part II: Justice Seen to Be Done: Courts and the Public
6. International Judicial Institutions: (Re)Defining ‘Public’ Proceedings?
I. Introduction
II. International Judicial Institutions and the Media
III. Outreach or Public Relations
IV. Challenges and Innovation
V. Should Courts Engage in Public Relations?
VI. Public Relations as Possible Manipulation?
VII. Conclusion
References
7. The Contestation of Complementarity in Uganda: The Case of Thomas Kwoyelo
I. Introduction
II. A Critical Discursive Approach to Violent Conflict
III. Framing Violent Conflict within the International Criminal Justice Regime
IV. Politics of Portrayal in Uganda
V. Producing an International Criminal Legal Frame
VI. Institutionalising ICL at a Domestic Level
VII. Playing Out Locally
VIII. Conclusion
References
8. Discursive Proceedings and the Transitional Trial: A View from the Extraordinary Chambers in the Courts of Cambodia
I. Introduction
II. Modes of Criminal Procedure and Transitional Justice
III. Testimony and Trial Dialogue at the ECCC
IV. Conclusion
References
9. Unmet Expectations and the Legitimacy of Transitional Justice Institutions: The International Criminal Tribunal for the Former Yugoslavia and the Extraordinary Chambers in the Courts of Cambodia
I. Introduction
II. The Expected Outcomes of Transitional Justice
III. The Expectation Problem
IV. Appropriate and Inappropriate Expectations
V. Current Management at the ICTY and the ECCC
VI. Improving Expectation Management
VII. Conclusion
References
Part III: Beyond the Courts: Creating Public Spheres of Testimony
10. Witness Testimony and the Incommensurability of Truth in Argentina
I. Introduction
II. International Fact-Finding Missions
III. Testimonios
IV. The CONADEP Truth Commission
V. Criminal Trials
VI. Conclusion
References
11. Faces of Truth: Journalism, Justice and War
I. Introduction
II. Truth and the Journalistic Paradigm
III. Truth-Finding in a Minefield
IV. Social Media: Help and Hindrance
V. The International Legal Status and Protection of Journalists
VI. A Dilemma of Truth in International Criminal Process
VII. Contradictions and Consequences
VIII. Conclusion
References
12. Memory Laws: Regulating Memory and the Policing of Acknowledgement and Denial
I. Introduction
II. Memory Laws
III. Memory Laws as Transitional Justice Mechanisms
IV. Perinçek v Switzerland
V. Protecting the Honour of Victims: Memory Laws as Hate Speech or Defamation
VI. Accusing the Victims of Lying
VII. The General Consensus
VIII. Facts and Interpretation
IX. Conclusion
References
13. Challenges to the Movement to Exhume the Missing Victims of the Spanish Civil War and Francoist Dictatorship
I. Introduction
II. Human Rights and Enforced Disappearance
III. Exhumations in Spain and the Materiality of the Body
IV. Challenges to the Exhumation of Mass Graves
V. Access to Information
VI. Obtaining the Relevant Authority
VII. Victims and Memory: The Legacies of Silence
VIII. The Hierarchy of Victimhood in Spain
IX. The Hierarchy of Grief
X. Concluding Remarks
References
14. Portraits of the Dead and the Living: Bosnia and Rwanda 20 Years on
I. Introduction
II. Art in Transitional Justice
III. Frozen in the Past: You Are My Witness
IV. Life beyond the Dead: The Portraits of Reconciliation
V. Viewers" Reactions to the Exhibitions
VI. Conclusion
References
Index

Citation preview

TRANSITIONAL JUSTICE AND THE PUBLIC SPHERE Transparency is a fundamental principle of justice. A cornerstone of the rule of law, it allows for public engagement and for democratic control of the decisions and actions of both the judiciary and the justice authorities. This book looks at the question of transparency within the framework of transitional justice. Bringing together scholars from across the disciplinary spectrum, the collection analyses the issue from socio-legal, cultural studies and practitioner perspectives. Taking a three-part approach, it firstly discusses basic principles guiding justice globally before exploring courts and how they make justice visible. Finally, the collection reviews the interface between law, transitional justice institutions and the public sphere.

Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW General Editors Rosemary Hunter David Nelken Founding Editors William L F Felstiner Eve Darian-Smith Board of General Editors Carlos Lugo, Hostos Law School, Puerto Rico Jacek Kurczewski, Warsaw University, Poland Marie-Claire Foblets, Leuven University, Belgium Ulrike Schultz, FernUniversität, Germany Recent titles in this series Rights and Courts in Pursuit of Social Change Legal Mobilisation in the Multi-Level European System Edited by Dia Anagnostou Women’s Rights to Social Security and Social Protection Edited by Beth Goldblatt and Lucie Lamarch Delivering Family Justice in the 21st Century Edited by Mavis Maclean, John Eekelaar and Benoit Bastard Regulatory Transformations Rethinking Economy-Society Interactions Edited by Bettina Lange, Fiona Haines and Dania Thomas Life Imprisonment and Human Rights Edited by Dirk van Zyl Smit and Catherine Appleton Trust in International Police and Justice Cooperation Edited by Saskia Hufnagel and Carole McCartney Human Rights Encounter Legal Pluralism Edited by Eva Brems, Giselle Corradi and Mark Goodale For the complete list of titles in this series, see ‘Oñati International Series in Law and Society’ link at www.bloomsburyprofessional.com/uk/series/ onati-international-series-in-law-and-society

Transitional Justice and the Public Sphere Engagement, Legitimacy and Contestation

Edited by

Chrisje Brants and Susanne Karstedt Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © Chrisje Brants and Susanne Karstedt 2017 Chrisje Brants and Susanne Karstedt have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, ­electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50990-016-9 ePDF: 978-1-50990-018-3 ePub: 978-1-50990-017-6 Library of Congress Cataloging-in-Publication Data Names: Brants, C. H. (Chrisje H.), editor.  |  Karstedt, Susanne, editor. Title: Transitional justice and the public sphere : engagement, legitimacy and contestation / Edited by Chrisje Brants and Susanne Karstedt. Description: Portland, Oregon : Hart Publishing, 2017.  |  Series: Oñati international series in law and society  |  Includes bibliographical references and index. Identifiers: LCCN 2017025632 (print)  |  LCCN 2017027011 (ebook)  |  ISBN 9781509900176 (Epub)  |  ISBN 9781509900169 (hardback : alk. paper) Subjects: LCSH: Transitional justice.  |  Political crimes and offenses.  |  Transparency.  |  Justice, Administration of—Political aspects. Classification: LCC K5250 (ebook)  |  LCC K5250 .T7345 2017 (print)  |  DDC 340/.115—dc23 LC record available at https://lccn.loc.gov/2017025632 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Acknowledgements The chapters published in this volume were first presented in a workshop at the International Institute for the Sociology of Law (IISJ) in Oñati, Spain in 2014. The workshop was organised by Chrisje Brants, Susanne Karstedt, Katrien Klep, Lauren Gould and Ray Nickson, and was supported by the IISJ and Utrecht University with a generous financial contribution. The ­editors and organisers of the workshop wish to express their gratitude to the IISJ, in particular Malen Gordoa Mendizabal, for the flawless organisation of the workshop, and to Utrecht University for its financial support. Thanks are also due to all our contributors for their hard work and patience, and to Oriel South, Griffith University, for her assistance with the preparation of the final manuscript.

vi 

Contents Acknowledgements����������������������������������������������������������������������������������� v Biographies���������������������������������������������������������������������������������������������� ix 1. Introduction: The Rational and the Emotional: Issues of Transparency and Legitimacy in Transitional Justice�������������������������� 1 Chrisje Brants and Susanne Karstedt Part I: Transitional Justice and its Public Spheres: Principles of Justice 2. Justice as the Art of Muddling through: The Importance of Nyaya in the Aftermath of International Crimes��������������������������� 17 Antony Pemberton and Rianne Letschert 3. Emotional Discourse in a Rational Public Sphere: The Victim and the International Criminal Trial������������������������������������������������� 41 Chrisje Brants 4. Credible Justice and Incredible Crimes��������������������������������������������� 65 Susanne Karstedt 5. Globalisation, Crime and Governance: Transparency, Accountability and Participation as Principles for Global Criminal Law����������������������������������������������������������������������������������� 91 Paul De Hert Part II: Justice Seen to Be Done: Courts and the Public 6. International Judicial Institutions: (Re)Defining ‘Public’ Proceedings?����������������������������������������������������������������������������������� 125 Olga Kavran 7. The Contestation of Complementarity in Uganda: The Case of Thomas Kwoyelo����������������������������������������������������������������������� 147 Lauren Gould 8. Discursive Proceedings and the Transitional Trial: A View from the Extraordinary Chambers in the Courts of Cambodia���������������� 169 Cheryl White

viii  Contents 9.

Unmet Expectations and the Legitimacy of Transitional Justice Institutions: The International Criminal Tribunal for the Former Yugoslavia and the Extraordinary Chambers in the Courts of Cambodia�������������������������������������������������������������������������������� 195 Ray Nickson Part III: Beyond the Courts: Creating Public Spheres of Testimony

10. Witness Testimony and the Incommensurability of Truth in Argentina��������������������������������������������������������������������������������� 221 Antonius CGM Robben 11. Faces of Truth: Journalism, Justice and War��������������������������������� 241 Kees Brants and Chrisje Brants 12. Memory Laws: Regulating Memory and the Policing of Acknowledgement and Denial�������������������������������������������������� 263 Marloes van Noorloos 13. Challenges to the Movement to Exhume the Missing Victims of the Spanish Civil War and Francoist Dictatorship�������������������� 285 Natalia Maystorovich Chulio 14. Portraits of the Dead and the Living: Bosnia and Rwanda 20 Years on���������������������������������������������������������������������������������� 307 Olivera Simić Index������������������������������������������������������������������������������������������������������������������ 335

Biographies Chrisje Brants is Professor emeritus of Criminal Law and Procedure at Utrecht ­University and Professor of Criminal Law at Northumbria University, ­Newcastle. She is a member of the Académie Internationale de Droit ­Comparé and the Association for International Criminal Justice, and a fellow of the European Law Institute. Her main interests, in which she combines a multi-disciplinary background in journalism, law and criminology, are transitional and international criminal justice, comparative studies on different aspects of criminal procedure, and crime, criminal justice and the media. Her most recent English-language book is Transitional Justice: Images and Memories (Ashgate, 2013). Kees Brants is Honorary Professor at the University of Amsterdam’s School of Communication Research (ASCoR) and professor emeritus of political communication at Leiden University. His research and publications focus on political communication, journalism studies and media policy. Before reading political science and mass communication at the University of Amsterdam, he studied journalism in Utrecht and worked for several years as a reporter for local and national newspapers in the Netherlands. He has published extensively, his latest English-language book being ­Political Communication in Postmodern Democracy (Palgrave Macmillan, 2011), edited with Katrin Voltmer. With his wife, he shares an—according to some ­morbid—fascination for the social construction in memory, h ­ istory and lieux de mémoires of the First World War, about which they have w ­ ritten two books and produced a music-theatre show. Paul De Hert is an international fundamental rights expert, having worked on human rights and criminal and surveillance law, constitutionalism and the impact of technology on law. He is interested both in legal practice and more fundamental reflections about law. He is a professor at the Vrije Universiteit Brussel (VUB) and is an associate professor at Tilburg ­University, where he teaches ‘Privacy and Data Protection’ at the Tilburg Institute of Law, Technology, and Society (TILT). He is member of the editorial boards of several national and international scientific journals, including the ­Inter-American and European Human Rights Journal (Intersentia), Criminal Law & P ­ hilosophy (Springer), the Computer Law & Security Review (Elsevier) and the International Journal in Advances in Security (Iaria). He is co-editor in chief of the Supranational Criminal Law Series (Intersentia) and the New Journal of European Criminal Law (Intersentia). He also is editor in chief of the ­Flemish human rights journal Tijdschrift voor Mensenrechten.

x  Biographies Lauren Gould is Assistant Professor in Conflict Studies at the Faculty of Humanities, Utrecht University. In 2016, she defended her PhD dissertation in the field of conflict studies on humanitarian intervention in the East African region. Taking a grounded theory approach, her dissertation lends insight into how a complex and layered global justice assemblage (as she chose to define it) of local, national, and international political and institutional actors, interests and discourses cooperated or contended with each other on the pressing question of how to define and how to bring justice to the northern Ugandan conflict. Her research has culminated in a number of multi-disciplinary publications in international peer-reviewed journals (eg, Alternatives: Global, Local, Political, 2015). Continuing to draw upon the analytical vocabulary of the ‘critical discursive approach to violent conflict’ and ‘assemblage analytics’, her recent work traces and documents the histories of interventionism of particular global assemblages in a number of different case studies in Africa, including Mali and Libya. Susanne Karstedt is Professor in the School of Criminology and C ­ riminal Justice at Griffith University, Australia. She has researched and written widely on international and comparative criminology. Atrocity crimes and transitional justice are a focus of her present research and publications, including an edited volume on Legal Institutions and Collective Memories (Hart Publishing, 2009), research on public opinion on the Nuremberg t­ rials and life after punishment for sentenced war criminals in post-war Germany. She was on the editor board of the British Journal of Criminology and is on the advisory boards of numerous other international journals. Recognition of her work includes the Christa-Hoffmann-Riehm Award for SocioLegal Studies in 2005, the Sellin-Glueck-Award of the American Society of Criminology in 2007 and the International Award of the Law and Society Association 2016. Olga Kavran is the Head of the Outreach and Legacy Section at the S­ pecial Tribunal for Lebanon. Previously, she worked as the Spokesperson for the Prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY), where she promoted and explained the work of the Office of the Prosecutor (OTP) of the ICTY to the public by encouraging and assisting better media coverage, and facilitating access to public information while ensuring confidentiality. She also played an active role in defining the ICTY’s overall communications strategy and coordinating all public relations efforts internally. As part of her work at the Special Tribunal for L ­ ebanon, she has designed and implemented the Inter-University Program on International Criminal Law and Procedure, a unique course organised in cooperation with eleven Lebanese universities and the Asser Institute in The Hague, during which Lebanese law (and international relations) students attend lectures delivered via video link from The Hague.

Biographies xi Rianne Letschert is Rector Magnificus of Maastricht University and ­Professor of Victimology and International Law. Until September 2016, she was Director of INTERVICT. She has edited three volumes on victimology and international law. Her research focuses on the development of ­ victimological approaches to international crimes and, in particular, interdisciplinary approaches combining psychological, legal, socioeconomic and anthropological perspectives. Her present work addresses African contexts (Victimological Approaches to International Crimes, 2011) and the ­Middle East-North African region (MENA) (together with REDRESS and the Hague Institute for Global Justice). In 2013, she became an expert consultant for the Legal Victim Representative Team of the UN Special Tribunal for Lebanon. Other main research topics include terrorist victimisation and legal developments of victim rights. In 2015, she received a large interdisciplinary research grant on the limitations of international law in providing redress to victims of international crimes. Natalia Maystorovich Chulio is a PhD student and works in the Department of Sociology and Social Policy at the University of Sydney. Her research interests include humanitarian and human rights law, transitional justice, the archaeological recovery of mass graves, and the capacity of social movements to elicit social, political and legal change as they seek justice for victims. Her focus is on sociolegal research and qualitative methods in an attempt to merge her political and social interests with a scholarship that may enact social change. Since 2012, she has worked with the Asociación para la Recuperación de la Memoria Histórica (Association for the Recovery of Historical Memory (ARMH)) in an attempt to draw attention to the difficulties experienced by victims and their relatives in the recovery of their missing. Ray Nickson is Assistant Professor and Program Director of Criminal Justice at the Peace and Conflict Studies Center, Fresno Pacific University, California. In 2013, he was awarded a PhD from the Australian National University for his study of the transitional justice trials at the International Criminal Tribunal for the Former Yugoslavia and the Extraordinary Chambers in the Courts of Cambodia. A committed advocate for social justice, he was formerly a criminal defence solicitor for South Australia’s Legal ­Services Commission. Antony Pemberton is Professor of Victimology and Director of INTERVICT, the International Victimology Institute at Tilburg ­University. He is a political scientist and a criminologist. His research interests concern the broad topic of victims and society, including victims’ perspectives on justice, societal reactions to victims and processes of victimisation, c­ ultural ­victimology, narrative victimology and the ethics of victimology. He has published over

xii  Biographies 80 articles, book chapters and books on the subject of v­ ictimology. Most of his current ideas are reflected in his inaugural address in Tilburg, Victimology with a Hammer: The Challenge of Victimology (Prismaprint, 2015). Antonius CGM Robben is Professor of Anthropology at Utrecht University, and former President of the Netherlands Society of Anthropology. He received a PhD from the University of California, Berkeley and has been a research fellow at the Michigan Society of Fellows, Ann Arbor, the Harry Frank Guggenheim Foundation, New York and the David Rockefeller Center, Harvard University. In 2006, his book Political Violence and Trauma in Argentina (University of Pennsylvania Press, 2005) won the ­Textor Prize from the American Anthropological Association for Excellence in Anthropology. His most recent edited volume is Necropolitics: Mass Graves and Exhumations in the Age of Human Rights (University of ­Pennsylvania Press, 2015, co-edited with Francisco Ferrándiz). Olivera Simić is a senior lecturer at the Griffith Law School, Griffith ­University, Australia and Visiting Professor with UN University for Peace, Costa Rica. She has published numerous articles, book chapters and books. In 2017, with a group of transitional justice experts, she published the first textbook on transitional justice, An Introduction to Transitional J­ustice (Routledge, 2017). Her latest monograph, Surviving Peace: A Political Memoir, was published by Spinifex in 2014. She is currently finalising her monograph Silenced Victims of Wartime Sexual Violence (Routledge, ­forthcoming, 2017). Marloes van Noorloos is Associate Professor of Criminal Law at Tilburg University. In 2011, she defended her PhD thesis on Hate Speech Revisited: A Comparative and Historical Perspective on Hate Speech Law in the Netherlands and England & Wales (Intersentia, 2011) at Utrecht University. She has published various articles about hate speech which combine aspects of criminal law, human rights law and legal theory with discussions of the sociopolitical context behind hate speech law (eg, Journal of Ethnic and Migration Studies, 2014). Her recent work focuses on freedom of expression and truth-telling in the context of transitional justice. She is President of the Dutch section of the International Commission of Jurists (NJCM). Cheryl White is a visiting scholar at the School of Regulation and Global Governance (RegNet) at the Australian National University (ANU). She was awarded a PhD in Law by the ANU in 2015. Her book Bridging Divides in Transitional Justice: The Extraordinary Chambers in the Courts of ­Cambodia (Intersentia, 2017) draws from and develops her doctoral thesis. She was formerly Director of Continuing Legal Education at the University of New South Wales, and has lectured at the University of Newcastle School of Law. Her research focus is on human rights and justice frameworks in post-conflict peacebuilding.

1 Introduction: The Rational and the Emotional Issues of Transparency and Legitimacy in Transitional Justice CHRISJE BRANTS AND SUSANNE KARSTEDT

T

RANSPARENCY IS A fundamental principle of justice. A cornerstone of the rule of law, it encourages public engagement with the ‘social project of justice’, allows democratic control of the decisions and actions of justice authorities and judiciary, promotes the acceptance of those decisions by society as a ‘shared truth’ and in essence determines their legitimacy. In this sense, the existence of a public sphere is not merely conducive to but is also constituent of legitimate justice. Normally, however, the only requirement to ensure transparency is that proceedings are public, which is said to make secret trials impossible, and to promote democratic control by communities and participation in justice by involving the public in decision-making, simply through allowing public attendance or more usually through ensuring that the mass media have the means and the freedom to report on trials and hearings. For it is through the mass media that most people obtain knowledge of and form opinions on what goes on in the law courts. These widely held notions are neatly embodied in the aphorism ‘Not only must Justice be done; it must also be seen to be done’. But seeing is not necessarily believing or understanding, and the fact that trials are public is no guarantee that they are also transparent in the sense that the public can fully comprehend, let alone endorse, the end to which such trials are held or the conclusion to which they come with regard to the ‘truth’ of past events, the apportioning of blame and the imposition of punishment. Nevertheless, if ‘Justice done and seen to be done’ begs the question of who justice is for, who has to see it and, indeed, what justice is, it still applies to domestic systems of justice in democratic states (and in particular to criminal justice);

2  Chrisje Brants and Susanne Karstedt their legitimacy, although increasingly challenged in the wake of diminishing faith in the rational discourse of democracy and law and the rise of political populism, is nevertheless sufficiently entrenched to allow those systems to adapt to the demands that such questions imply. This book transcends the domestic sphere and everyday delivery of ‘ordinary’ criminal justice. It is concerned with transitional justice, the process by which societies and individuals traumatised by mass (political) violence and human rights violations seek a reckoning with the past in order to create a viable future. In the context of such transition, the development of a global legal order is often seen as both a necessity and a given, which will lead to a peace driven by a shared morality and commitment to human rights. Indeed, the substantive and procedural rules of humanitarian and international criminal law have culminated in a system of international criminal justice, epitomised by the establishment of the International Criminal Court (ICC). The most important aims of the ICC as well as its predecessor international criminal tribunals include not only ending impunity with regard to genocide, crimes against humanity and war crimes, but also establishing or reinforcing the rule of law and democracy through reconciliation, conflict solution, deterrence and retribution, and providing a platform for the recognition of, and redress for, victims. Intriguingly, while most national jurisdictions recognise that the legitimacy of criminal justice can be challenged and therefore requires continual reinforcement among the public and its audiences, international criminal law finds itself in an ambiguous situation. On the one hand, its claim to such cosmopolitan legitimacy, even if not uncontested, is more or less taken for granted; on the other hand, an array of outreach activities by courts and tribunals testify to the tacit or open acknowledgement of a rather precarious basis of legitimacy in the societies where international justice is to apply, and the necessity of remedies to a situation upon which public opinion might be deeply divided. However, international criminal law is only one of the mechanisms of transitional justice, with not only the international criminal court but also ad hoc international tribunals and domestic criminal courts as its instruments. What this branch of transitional justice can and cannot achieve is the subject of fierce academic debate and, moreover, there are vast differences between what is perceived as paramount in international political, legal and academic circles and what is regarded as most important by the societies and individuals concerned, victims, perpetrators and bystanders alike. Like all criminal justice, the international variation is reactive; it looks back towards past events and can merely hope for some effect in the future. And it is finite; it ends with conviction (or acquittal) and sentencing by professional judges. While it brings some (hopefully, the most important) perpetrators of violence to justice and may contribute to redress and reconciliation in future, the inevitable reduction of the human experience to the ‘facts’ of

Introduction: The Rational and the Emotional 3 a criminal trial is rarely able to do justice to the reality on the ground and the suffering of victims. Although the very term ‘transition’ also implies finality, a ‘before’ and an ‘after’, it may not necessarily be felt or lived as such. Transitional justice is an ongoing process of many years, decades even, that does not depend on law alone, but can engage many different social and political actors in many different ways. Not only are there other legal institutions such as truth commissions or traditional methods of settling disputes (for example, mediation), the search for justice (and therefore also for truth) is conducted and continued by historians, activists, artists and writers. It is not surprising that a verdict in a court of law or other official determination of ‘the truth’ does not bring closure in this context, or even always contribute to the legitimacy of the overall process, though it might be an important part of it. While the above could be said (mutatis mutandis) of domestic criminal justice too, criminal procedures as part of a transitional justice process face particular challenges as they address mass atrocities. These differ from ‘ordinary’ violent crimes not only in their perceived greater heinousness, but also in that they involve by definition collectivities of perpetrators and victims, categories that are sometimes interchangeable and blurred, so that accounts of what actually took place continually shift and differ. Transitional justice must therefore always operate in divided public spaces where ‘truths’ are contested, hidden and suppressed. Given the nature of the situations and societies in which such justice must function, in some ways the role of public trials and transparency differs profoundly from its contours and functions in national systems of justice that are designed to deal with ‘normal’ situations in stable societies. Far from being stable, the societies that transitional justice is meant to benefit are usually torn and divided as a result of past or ongoing conflict and atrocity. Transitional justice institutions are set up ad hoc and operate within a limited timeframe; this applies to international and hybrid criminal tribunals as well as to domestic justice institutions which are specifically established for the task (eg, the gacaca courts in Rwanda) or operate under domestic statutes of limitation (eg, the prosecution of Nazi war criminals in post-war Germany). The ICC, despite being a permanent court, is not only young but also has limited temporal and territorial jurisdiction. Such institutions lack the legitimacy that derives from legal-cultural tradition and acceptance, and in many instances—particularly true of international criminal tribunals or the ICC—the different audiences have little or no opportunity to be physically present and are dependent on public accounts of what took place from governments, journalists or activist groups, all of whom may be politically or emotionally involved. Moreover, in the context of transitional justice, transparency is not an unambiguous concept—a quality that attaches to justice automatically if certain (legal) conditions are met, such as

4  Chrisje Brants and Susanne Karstedt publicly accessible procedures and free media, and that promotes rational debate and accountability. What people see of and in justice after conflict and mass atrocity depends to a large extent on perceptions of the past, on definitions of what was and is criminal, and who the perpetrators and victims are. As the past has often been largely hidden and documents and evidence have often been destroyed, a wide space opens up for decidedly differing interpretations in courts and truth commissions as well as among the public. As much as interpretations of the past differ, so do expectations for the future. Transitions imply that new and different truths emerge that will distinguish the troubled past from the peaceful future, that truths are defended and defeated in processes of transparency and ‘counter-transparency’, where spaces of ‘non-truth’ are created. But what kind of truth is requested, by whom and for whom? The quest for justice might emerge even after decades of suppression and acquiescence, as in Spain, or after starting with a landmark trial subside and re-emerge, as in Germany. Both processes testify to the longue durée of transitional justice and to the possible necessity of specific types of transparency and engagement in order to promote legitimacy and achieve acceptance among its different audiences, locally as well as globally. Questions then arise as to the role of the public and the media in changing the discourse and public spaces of justice, and to the role of courts and trials in this process: how do the newly created institutions of international criminal justice muster support, and how do actors in the public sphere actively engage with and shape transitional justice? The public sphere of transitional justice is made up of spaces that are created by different actors: courts, tribunals and other truth-finding bodies, and those leading the procedures, media and journalists, perpetrators, victims, and civil society and cosmopolitan actors. The legitimacy of the institutions of transitional justice requires that courts, tribunals and commissions present themselves as principled, independent and impartial institutions, indispensable to truth-finding, history-telling, retribution and reconciliation. That is no easy task in highly charged, politicised and divided public and international spheres. It means that they must find a way through the intricate constellation of networks and actors with different narratives and understandings of truth and justice in order to reach out to the relevant public and open up new spaces for victims and families of victims of mass atrocity crimes and gross human rights violations, thus restoring their space and presence in society. For this reason, and contrary to the domestic criminal process, the victim is said to take centre stage in these institutions and proceedings, as a participant, a witness and a ‘moral institution’. Indeed, victims’ quests for justice have been a driving force in establishing transitional justice institutions, and their engagement in and satisfaction with the process are seen as decisive for its legitimacy. The provision of protection and security for victim witnesses testifies to the efforts of courts and truth

Introduction: The Rational and the Emotional 5 commissions, and thus enhances their credibility in the search for justice and truth. However, victims come with goals and hopes, and with very specific quests for knowledge and truth, which do not sit easily with the requirements of legal institutions and procedures. These are received as ‘victims’ expectations’ by courts and commissions that need not only be addressed but also channelled and ‘managed’ in order to make them compatible with the exigencies of justice, the legal restraints of criminal procedure or the remit of a truth commission. At the same time, courts, tribunals and commissions have the perpetrators and their group to deal with, to speak to and to whom to convey their message of an end to impunity and of ‘never again’, in order to gain legitimacy across the dividing lines of post-conflict societies. The intensive and sweeping efforts around the Nuremberg trials to engage the public and solicit support and legitimacy have never been repeated, perhaps because failures soon became visible and the actual long-term impact was hard to detect. However, the quest for legitimacy needs to engage the whole of society and the claims of justice need to be acceptable and accepted across all social sections and factions. Past and/or ongoing atrocities, whether committed by state or non-state agents, are not only highly politicised issues, but wider (international) public knowledge about such events is dependent on those who witness them. Without their reports, there would be little incentive or support for the very procedures that are meant to ensure truth-finding, retribution and reconciliation. Non-governmental organisations (NGOs) and victims’ organisations operate at the local and global level as moral crusaders and entrepreneurs. They have often been seminal in bringing atrocities to the attention of local and international communities, and establishing transitional justice institutions or engaging the wider public in activist endeavours to end impunity and find the justice that victims seek. As much as this enhances public engagement with the legal process, it poses continuous challenges and puts considerable pressure on courts and commissions. Rather than being assured, legitimacy needs to be constantly re-asserted, and courts and truth commissions are confronted by hostile publicity both locally and globally, not only from perpetrators but equally from victims. Furthermore, the presence of high-profile victims and victim-activists in the public sphere, and widely circulated narratives of their plight make their role as witnesses in court particularly difficult. This tension that is built into the role of victim-witnesses also applies to witness-activists. Without the commitment of journalists, camera crews and ordinary members of the public to promote the cause of victims through the (social) media or even risk their lives to report on situations of conflict, efforts to establish the transitional justice process would be in vain. However, as the media promote the publicity and transparency of events, this brings its own problems when it comes to both the credibility of media

6  Chrisje Brants and Susanne Karstedt reports for establishing the ‘truth’ and the proceedings in which the perpetrators are called to account. It has been known for professional journalists to identify with victim groups, both emotionally and in their reporting, which endangers professional-ethical standards of an objective and impartial journalistic search for the truth. Likewise, while they can—indeed, as professionals, should—claim immunity from testifying, they may come to regard it as their duty (albeit unprofessional) to do everything in their power to assist in bringing perpetrators to justice, and thus ensuring justice for victims, by testifying and telling the truth as they see it. This endangers the impartiality required from the media to promote rational public debate on the process of justice, for action groups and citizen journalists are, by definition, part of the events they are reporting and, in the contested spheres of transitional justice, therefore by definition partisan. To a great extent, the transparency of transitional justice is established and driven by individual emotion and a desire for individual participation, interests that are essentially private. Simultaneously, collective emotions drive transitional justice processes, which in turn contribute to the emotional climate in post-conflict communities and societies. While the increasing invasion of the public sphere of justice by private emotion is seen as a ‘new’ development with which national systems of justice also struggle to cope, it should not be forgotten that this is precisely what justice is about— turning private interests into public ones. Justice defines the violation of, and by, the private as a public interest, but at the same time the delivery of justice is a rational endeavour that leaves little room for emotion and participation. This rationality has been increasingly contested in the domestic sphere, and particularly for transitional justice from the outset, where individual and collective emotions are writ large. In a way, transitional justice has been groundbreaking in this respect, becoming the epitome of highly emotionalised justice; in many ways, its legitimacy is based on giving space to and addressing both individual and collective emotions. This has consequences for the nature of what could be termed the ‘emotional transparency’ of transitional justice and the particular mechanisms through which it aims to achieve legitimacy. Publicity and transparency are seen as a condition of accountability of the instruments and authorities through which justice is enacted; this is why the Allies who presided over the Nuremberg trials took great pains to ensure that they could not be blamed for providing ‘victor’s justice’. In a different sense, these conditions are also essential for making the perpetrators of mass atrocities accountable. The nature of the events with which the ongoing process of transitional justice deals precludes making the emotional transparent exclusively through the rational mechanisms that justice has on offer. It needs more: activism, art, film and memorialisation. However, these operate in highly contested spaces where legal and political elites frame these events in terms and concepts that hide the other ‘truths’ that such processes would

Introduction: The Rational and the Emotional 7 promote. ‘Counter-framing’ by alternative mechanisms and the emotions these solicit has to be transparent and public for it to have any effect, but risks being captured and contested by the more powerful. This brings us to the question of the power to silence. In some cases such power may be used directly to suppress alternative truths and definitions by hindering, preventing or even criminalising efforts to make them public or to find evidence that supports them. But the power to silence is also a much more subtle mechanism embodied in the regulation of the public sphere in general. The vast majority of those who are affected by mass atrocity and would participate in transitional justice have little choice but to participate vicariously. They do so either in the context of (legal) procedures or through others, such as journalists, who are familiar with and are prepared to obey the rules of the rational public sphere. Even if direct participation is possible (for example, as witnesses in court or to truth commissions), this is still regulated by the rational context of the endeavour and the prescriptive rules that surround it. Social action is direct, unregulated participation, as are the use of social media and all journalism outside of the professional rules of impartiality and objectivity. This in its turn throws transparency as a precondition and mechanism of accountability into doubt: transparency in itself is a notion deriving from the necessity of the (democratic) public sphere being regulated rationally, and promoting rational and responsible engagement with information. Nonetheless, justice mechanisms are the defining core of transitional processes, even if they operate in conjunction and disjunction with numerous other endeavours. This raises the question of how legitimacy can be generated by transitional justice processes per se and why and how it is granted by its different audiences. Here, expectations by different audiences and the demands and expectations that are seen as legitimate by courts and tribunals as well as in the public sphere play a decisive role. Legitimacy of transitional justice is overwhelmingly measured by its outcomes rather than the fairness of its procedures and is permanently contested. More than criminal justice institutions that are part of legal traditions and culture, the institutions of transitional and international criminal justice operate under constant pressure to justify themselves—their very existence, their procedures and their outcomes. They are easily criticised for their lack of tangible outcomes that are acceptable to all concerned, and as a consequence they are burdened with ever more tasks and expectations. Institutions of transitional justice and their public spheres are intricately linked and constantly interact. Nonetheless, both the public and the courts and commissions follow their own logic when defining past events, and both are powerful actors in transitions. How do transitional justice institutions navigate the complexity of different public spheres in order to elicit legitimacy? How are these public spheres defined and which actors are powerful enough to define what justice means and how it should be done? These questions constitute

8  Chrisje Brants and Susanne Karstedt what can be termed the ‘twin puzzle’ of transitional justice that this volume aims to address. INTRODUCING THE VOLUME

This volume aims to cover the many facets and angles from which these puzzles can be addressed, without providing an exhaustive and conclusive perspective. The contributions explore an array of different mechanisms that are seminal in constituting and shaping the public sphere of transitional justice. They cover different courts and tribunals across time and space— from the Nuremberg trials to the Extraordinary Chambers in the Courts of Cambodia (ECCC)—and transitions and transitional justice mechanisms in Africa, Latin America, Asia and Europe. The authors take a close look at different actors—from witnesses and journalists to artists and activists, and their specific activities, as well as critically discussing, questioning and assessing the guiding principles of transparency, accountability and participation in transitional justice. Without deliberately aiming at a comparative perspective, the volume provides such a perspective through the different approaches taken by the authors, and the diversity of contexts and situations which they explore. The contributions vary between in-depth analyses of specific cases, laws and countries, and more sweeping comparative and historical perspectives. We guide our readers through three parts: Part I explores principles of (transitional) justice, Part II engages with the different patterns of transparency and accountability, and Part III looks beyond justice mechanisms per se and into the public spheres created by other actors and in different media of communication. The aim of the volume and its individual chapters is modest: rather than providing grand new schemes and tools, and asserting ‘what needs to be done’, it lays out puzzles, raises questions and promotes inside as well as insightful perspectives. Part I sets the scene with questioning the well-established principles of transparency, accountability and participation in (criminal) justice procedures, and exploring the ways in which they are embedded and work in transitional justice settings. Anthony Pemberton and Rianne Letschert start this part by canvassing the global pool of conceptualisations of justice in order to find one that befits the complex situation in which transitional justice operates. Using a distinction between the classical Sanskrit concepts of justice as niti and justice as nyaya, they argue that justice based on a blueprint of perfection can hardly achieve legitimacy, in contrast to a concept of justice (nyaya) that seeks to avoid manifest injustice in the reality of a given situation. The authors find that the diverse contexts in which international criminal and transitional justice operate suggest that the latter type of

Introduction: The Rational and the Emotional 9 justice will be more adapted to its aims, in particular when the situation of the victimised population is taken into account. Chrisje Brants takes up the question of emotional transparency, and the complex and often antagonistic relationship between emotions and the quest for rationality in the public sphere which justice requires and creates. She takes issue with the role assigned to ‘the victims’ and their interests in international criminal justice and other mechanisms and fora of transitional justice. This actually reflects similar developments in domestic criminal justice systems. However, in such claims the concept of justice itself in relation to criminal law or procedure is rarely problematised. Indeed, the ‘existing model [is] geared in all its procedural rules and safeguards … in its essential underlying assumptions with regards to its own legitimacy, to establishing an offender’s guilt—rationally, accountably and transparently. In that sense, the victim paradigm asks too much of (international) criminal law, ignoring its reality … and disqualifying its goals and functions where they run counter to the demands of “justice for victims”’. However she finds that ‘there can be no way back to the trial in which the victim plays no part’, although the way forward can only be to thoroughly rethink the goals and functions of (international) criminal law and procedure, and the role of victims in it. Susanne Karstedt explores the principle of credibility that recently has become one of the benchmarks for the success (or failure) of transitional justice. As the concept and term has made its way into UN documents, reports and claims by NGOs, the question arises as to what credible justice actually means in the context of transitional justice and how it is achieved. Credible justice is both justice expressed and perceived, with transparency being its necessary institutional and procedural precondition. She identifies three different dimensions of credibility in the context of transitional justice: credibility as generated by internal judicial and court procedures; credibility of information and its sources in the education of the public; and institutional credibility and credible commitments by responsible actors. Three case studies of transitional justice illustrate each of these dimensions, ranging from the Nuremberg Trials to the International Criminal Tribunal for the former Yugoslavia (ICTY) and addressing questions relating to the credibility of victim-witnesses as well as of public apologies. The cases illuminate the uphill battles that transitional justice institutions confront in becoming a credible source of both justice and information. Paul de Hert leads the reader back from the ground of transitional justice to the global level and ‘global criminal law’. Taking a global perspective, he unpacks the ‘complex multi-actor and multi-layered criminal law problems’ that we encounter in this sphere, but that easily migrate down to the local high-tension environment in which transitional justice seeks legitimacy. He casts these principles as ‘governance’ rather than justice principles. He discovers contextual analogies and links between transitional and global

10  Chrisje Brants and Susanne Karstedt justice, which both defy the mere application of general criminal law principles rooted in national constitutional values. Like global criminal justice, transitional justice demands more flexible, process-oriented principles, and opportunities to ‘explain and justify intentions, and to obtain feedback from other actors, enhancing acceptance and confidence’. In cases of the tragedies of mass atrocity, public account giving can help to provide ‘public catharsis’. However, he warns that none of the principles comes to us as ‘absolute’ or ‘a good per se’. The chapters in Part II shed light on the interaction between international criminal courts and tribunals, and the public which they seek to address inside and outside of the courtroom. Olga Kavran is a long-term practitioner of outreach at international criminal tribunals and opens this part with a rare view from within the institutions. She takes us on a fascinating journey from the beginnings of outreach activities at the ICTY in 1994 to the Special Tribunal for Lebanon. Whether dealing with a government-controlled and partisan press, like at the ICTY, or a situation where there is tension at the highest level, like in Lebanon, each situation requires the design of public relations strategies adapted to the specific context. Her account of the development of the institutional understanding and realisation of such necessities in the realm of international criminal justice simultaneously highlights the challenges and deficiencies of transparency, participation and legitimacy that these institutions face and have to address. Lauren Gould uses the first case brought before the International Crimes Division of the High Court of Uganda—the case of former child soldier Thomas Kwoyelo—to illustrate the difficult relationship between domestic and international justice, and the public sphere and political environment in which complementarity between the two is played out. She shows how an assembly of actors, including international actors, were instrumental in institutionalising legal and judicial reform in Uganda, but were unable to achieve government compliance. Rather, the dominant accountability frame prevailed in the public sphere, and contestations were gradually weakened. This an exemplary case of how outsiders and activists might be engulfed in political struggle and used by different factions if they do not reflect on the political and social impact of the international justice regime they promote; unintentionally they might entrench rather than break cycles of exclusion, impunity and violence. The following two chapters by Cheryl White and Ray Nickson focus on the role of victims and their participation in procedures of international courts and tribunals. As both authors explore questions relating to public engagement, transparency and legitimacy through an in-depth analysis of the interaction of and in the court with victims, they provide exemplary illustrations of ‘transparency’ as conceptualised by Paul de Hert in Part I. White argues that the discursive proceedings and communicative style that was facilitated by the representation of victims as civil parties at the

Introduction: The Rational and the Emotional 11 ECCC—a mechanism that had been used in all major trials of Holocaustperpetrators in Germany—greatly enriched the ECCC’s inquisitorial procedure as it activated the communicative dynamics of narrative testimony and made it dialogical in nature. Based on an analysis of witness testimonies and civil party statements in the Court’s first cases, she demonstrates that the more discursive proceedings amplified important social issues in Cambodia and engaged the public. This and the ECCC’s success in making the proceedings accessible to the population suggest that the transparency of proceedings and the space they give to different voices have the potential to enhance their legitimacy. Ray Nickson takes a view from within two institutions, the ICTY and the ECCC, and examines how these courts perceive, define and respond to expectations of justice held by, among others, victims, post-conflict communities and international donors. Staff working for, and with, the ICTY and the ECCC experienced such expectations as overblown with respect to what these institutions could achieve and deliver, and as a consequence believed that expectations and groups had to be managed. Each institution developed a set of practices of expectation management. Nickson’s analysis suggests a more proactive approach to expectation management and a more active consideration of the role of expectations, including identification of the type of expectation and how it might best be addressed in order to enhance legitimacy for transitional justice institutions. Part III explores the public sphere outside of courtrooms, and the mechanisms and actors through which transparency and legitimacy is created in this fluid as well as highly contested environment. Here, actors vie for acceptance of their testimony by society at large, and they fight against the obfuscation of and silence about the crimes that have been committed, against destruction of evidence and ‘cleansing’ of public spaces of remains, and for the memory of victims, often long after the events. Naturally, the creation of memories in the public sphere is a focal point of discussion and analysis in the five chapters in this part. Antonius Robben explores the presence and testimony of survivors of torture and disappearance during the 1976–83 Argentine dictatorship. Different transitional justice fora like fact-finding missions, truth commissions and criminal courts all use testimony to discover human rights violations, and they ask for different types of testimony from different actors. This chapter focuses on the tensions between the public sphere and the different fora, and the dilemmas they create for ‘witnesses torn between providing narrative truths, with a strong emotional veracity to convince people of their unimaginable suffering, and supplying the factual evidence demanded by courts as legal proof to convict perpetrators’. Chrisje and Kees Brants in turn to those who are seminal in creating the public sphere—from the international community to national civil society. Professional and citizen journalists are often eyewitnesses themselves and also make the world witness the atrocities that the international

12  Chrisje Brants and Susanne Karstedt community needs to address through its justice institutions. As such, they provide informative and emotional transparency and legitimacy in the first instance on which courts and tribunals can later build in prosecuting these crimes. This translates into conflicting dilemmas faced by war correspondents and the international justice system in relation to professional norms of an objective and transparent search for the truth in crimes against humanity, which this chapter addresses. When called to testify, journalists may claim that they need to protect their sources (and themselves), but this may hinder legal truth finding and, possibly, the conviction of perpetrators. In this dilemma, professional journalists are allowed immunity from testifying on certain conditions, precisely because their information is based on a professional guarantee of objectivity and neutrality, and because their role in creating rationality in public discourse should not be endangered. However, the environment of war reporting has changed dramatically, with journalists often being embedded and not neutral, or dependent on unverifiable information or citizen journalists. This chapter describes these problematic developments, raising the question of what they may mean for the transparency and legitimacy of international criminal justice and the public sphere itself. Marloes van Noorloos takes up a controversial topic and theme—the ‘memory laws’ that regulate and police both acknowledgement and silence and denial of mass atrocity crimes. Such laws are, to some, important means of consolidating the ‘historical truth’, making sure that certain facts can no longer be contested. To others, they are attempts by the state to fix an official truth while outlawing other versions of history, thus consolidating the state’s power. ‘Memory laws’ determine the space of the public sphere within which such events and conflicts are discussed, the transparency of facts and the legitimacy of arguments. Do such memory laws actually ‘succeed’ in shrinking the space for contestation and thus transparency? The author provides a critical analysis of the motives behind such laws and illustrates it by discussing the European Court of Human Rights judgments in Perinçek v Switzerland, concluding that the potential of memory laws to police the public sphere after mass atrocity is disputable. Natalia Maystorovich Chulio explores how social movements that address past atrocity crimes develop and shape public knowledge and acknowledgement of such crimes, and create transparency even after decades of silence and obfuscation. Her participatory research focuses on the exhumation of victims of mass atrocities of the Spanish Civil War, and specifically on the endeavours of the Association for the Recuperation of Historic Memory (ARMH) to exhume mass graves for the purpose of locating, identifying and providing recognition for victims. Through the advancement of victims’ rights and the expansion of international human rights law, the exhumation movement has gained visibility and has ushered in political and legal change domestically. Notwithstanding such changes, there are numerous social,

Introduction: The Rational and the Emotional 13 political, judicial and institutional barriers to exhumations. The author raises questions in relation to who has the power to define victimhood and whether and how the exhumation of mass graves has contributed to justice. Artists and their works are decisive players in the transitional and postconflict public sphere, shaping if not rational then emotional transparency for the communities involved. Photography is a major and presently the most prominent medium in artistic endeavours to make crimes and victims visible, perhaps because of its seeming authenticity, objectivity and inherent truth. Olivera Simić presents two artistic projects in the post-genocide countries Bosnia and Herzegovina and Rwanda 20 years after the events, which both seek to promote collective memory and symbolic reparation. Both projects have chosen different modes, in terms of symbolic representation, narratives and aims, as well as messages. While the installation in Bosnia and Herzegovina focuses on the victims, the narrative on Rwanda is about forgiveness. The chapter raises critical questions about the ambiguous role of art in the complex processes of transition, either as a tool to promote peace and reconciliation or, conversely, to reinforce and encourage the perpetuation of ethnic/racial divisions in post-genocide societies. The ambiguity of art becomes obvious in the reflections from viewers of both projects collated from internet blogs and comments left on an online discussion platform, and reactions from observers and academics who in particular question the possibility of forgiveness. Rather than providing easy answers, the contributions to this volume raise pressing questions and are far from solving the ‘twin puzzle’ of the public sphere of transitional justice and how accountability, transparency and legitimacy are generated for these still-fragile institutions which are increasingly besieged. Furthermore, the volume raises questions regarding rational and emotional transparency that affect domestic as well as international justice, and justice as we know (and see) it, as well as exceptional transitional fora. The chapters testify to and illustrate with representative examples the fact that local and domestic contexts, actors and movements are decisive in all endeavours of outreach and engagement. It is there where legitimacy for international criminal justice has to be engendered and where credible justice ultimately can be achieved.

14 

Part I

Transitional Justice and its Public Spheres: Principles of Justice

16 

2 Justice as the Art of Muddling through The Importance of Nyaya in the Aftermath of International Crimes1 ANTONY PEMBERTON AND RIANNE LETSCHERT

I. INTRODUCTION

I

N THE IMMEDIATE aftermath of the Second World War, Hannah Arendt wrote that the problem of extreme evil would be the defining problem of post-war intellectual life.2 Central to this is the understanding that where the power that is normally established to protect citizens is instead employed to harm them or even to kill a substantial number of them, these crimes become a matter of international concern. This is a key element of the notion of international crimes. The international quality of the justice reaction to this is then a function of the fact that the jurisdiction in question has proven to fail the minimum standard that one could expect of a law-governed polity: that the authority in question should not condone—let alone actively participate in—the commission of international crimes. In the terms of philosopher Bernard Williams, the state in question has fallen foul of the basic legitimation demand of any political order, while its legitimacy is contingent on its ability to provide a preferable alternative to the Hobbesian state of bellum omnium contra omnes for each citizen living within its borders.3

1  Work on this chapter was supported by a Veni-grant (451-13-019) from the Dutch Science Foundation (NWO) for A Pemberton. 2  See H Arendt, Essays in Understanding (New York, Harcourt, Brace & Co, 1994); S Neiman, Evil in Modern Thought: An Alternative History of Philosophy (Princeton, Princeton University Press, 2004). 3 See B Williams, In the Beginning was the Deed: Realism and Moralism in Political Argument (Princeton, Princeton University Press, 2005).

18  Antony Pemberton and Rianne Letschert The development of the institutions of international criminal justice (ICJ), from Nuremberg to the International Criminal Court, can be seen as an attempt to offer a legal reaction to the problem of extreme evil. It is an earnest effort to bring even the worst horrors perpetrated by men on fellow men under the purview of justice. In our view, however, this endeavour is hamstrung by the conception of justice that prevails throughout the systems of ICJ. To make our case, we marshal a distinction in Amartya Sen’s recent The Idea of Justice—between the classical Sanskrit concepts of justice as niti and justice as nyaya—to develop two radically different ways of viewing the extent of justice in the aftermath of international crimes.4 Should justice be seen as the extent to which it follows a blueprint of perfection, supposedly deriving its legitimacy from its transparent adoption of this blueprint, or should it be seen as the extent to which manifest injustice can be avoided in the reality of a given situation? We argue that the reality of ICJ suggests that the latter rather than the former is an appropriate view, and that this is doubly so when the situation of the victimised population is taken into account. Here our concerns echo those voiced by Judith Shklar over 50 years ago: that the ideology of legalism—which includes the pre-eminence of law and legal institutions as a means to provide solutions to social problems—is at its most convincing when it drops the pretence of being above or beyond politics, owns up to its own ideological status and recognises its limits within a given political and historical context.5 Where it does not do so, it invariably ends up privileging one political position over another, without any real reflection on the merits of this position. As we will argue in the case of ICJ, this results in meeting the needs of a vaguely defined and barely existent ‘international community’, at the expense of delivering a real modicum of justice to the victimised populations, for whom the stakes in the outcome of ICJ are of a decidedly greater magnitude. II.  DIFFERENT CONCEPTIONS OF JUSTICE: NITI AND NYAYA

The topics under consideration in the following section are the subject of a wide-ranging debate concerning the meaning of justice within political and moral philosophy. It is not feasible to even attempt to provide a full overview of all the intricacies, views and theories that form this ongoing discourse. It is important to note that other positions than those taken by us can be and are adopted.6 However, a brief sketch of some key issues is important to our central thesis in this chapter. 4 

A Sen, The Idea of Justice (London, Allen Lane, 2009). J Shklar, Legalism: Law, Morals and Political Trials (Cambridge, MA, Harvard University Press, 1964, 1986). 6  See, for instance, W Kymlicka, Contemporary Political Philosophy: An Introduction, 2nd edn (Oxford, Oxford University Press, 2002). 5 

Justice as the Art of Muddling through 19 A.  Niti and ICJ The default position of thinking about justice can be traced back to a particular branch of Enlightenment thinking.7 From this liberal perspective, the role of politics is constrained, in the sense that determining the good within the political order is bound by the demands of the right. This perspective can be found in the work of Immanuel Kant, but today it is associated with the monumental works of John Rawls and Ronald Dworkin,8 while many of the key theses have also been absorbed within human rights discourse and as a corollary within ICJ as well.9 From this perspective, justice is—in principle—neutral to different conceptions of the good life. The structure of rights derived from the concept of individual freedom is prior to and constrains any political conception of the good in society. The coherence of basic liberties undergirds liberalism’s attempt to develop a conception of the right, one that is not based on any particular conception of the good life. In Rawls’ view, the first task is the development of rights as autonomous beings to ‘will the moral law’. Only then, upon arrival at the principles that define our duties and rights, can we ponder conceptions of the good.10 As Sen points out, this view of justice, which he connects to the classical Sanskrit conception of niti, has two key characteristics.11 First, as an ideal theory it concentrates on what it identifies as ‘perfect’ justice.12 The initial step concerns abstract reasoning about justice. Real situations and jurisdictions may be used within this reasoning, but the end result is a blueprint of what justice entails, whether or not this can be connected to an existing jurisdiction. Second, it primarily concentrates on getting the institutions of justice right, while being—at least to a degree—agnostic to the consequences that emerge in reality. In other words, the extent to which reality can serve as a contradiction to this view of justice is limited. This is partly due to the understanding that empirical evidence suggests that any disparity can invariably be viewed as a function of imperfections in the way in which justice is done in practice rather than due to any failing of the justice standard itself, but, more fundamentally, because empirical shortcomings constitute the wrong kind of reason to refute this view of justice. As Neiman puts it in a nutshell: 7 

See Sen, The Idea of Justice (2009). J Rawls, A Theory of Justice (Cambridge, MA, Harvard University Press, 1971); R Dworkin, Taking Rights Seriously (Cambridge, MA, Harvard University Press, 1976). 9 See S Moyn, The Last Utopia: Human Rights in History (Cambridge, MA, Belknap, 2011). 10  See Rawls, A Theory of Justice (1979). See also M Sandel, Justice: What’s the Right Thing to Do? (New York, Farrar, 2009). 11  See Sen (n 4). 12  For a full discussion of ideal and non-ideal theory, see Z Stemplowska and A Swift, ‘Ideal and Non-ideal Theory’ in D Estlund (ed), The Oxford Handbook of Political Philosophy (Oxford, Oxford University Press, 2012). 8 See

20  Antony Pemberton and Rianne Letschert ‘of course ideas of reason conflict with the claims of experience. That’s what ideas are meant to do. Ideals are not measured by whether they conform to reality; reality is judged by whether it lives up to ideals’.13 Rawls’ own device of the original position and the veil of ignorance is a good case in point. It is not intended to mimic the reality of decision-making processes, for the type of consideration which then enters the procedure is exactly the sort of consideration that Rawls considers to be antithetical to justice: self-serving, biased and political. In turn, this means that most empirical statements of the form that ‘people did or do not act in such a fashion’ cannot serve to contradict the results of Rawls’ theory. The liberal quest for an ideal best way of life morphs into a quest for the ideal constitution. Gray takes liberalism to task for reducing the search for justice to ‘reading off the requirements of justice’.14 In Rawls’ later work Political Liberalism, he makes this explicit—the test he proposes for us to be sufficiently neutral, suitably shorn of any reliance on moral or religious views is as follows: ‘To check whether we are following public reason we might ask: how would our argument strike us presented in the form of a supreme court opinion?’15 The form that niti takes in ICJ cannot be fully understood without reference to the human rights revolution in international law more generally. In many ways, ICJ is a particular visible element of the radical shift in understanding the place and form of international law in the past four decades.16 Where international lawyers traditionally sought to regulate the dealings of states with each other, the rights of man were a powerful constituting factor of self-determination of peoples and nation-building. The 1970s, however, saw a double crossover: human rights went global, projecting itself as an ethical, supranational standard to which nation states could and should be held, while international law went personal, no longer halting at the borders of nation states, but moving beyond and within them, seeking to deliver justice at the social-atomic level of individual people. Samuel Moyn’s dissection of the history of human rights reveals the extent to which this was a choice made in a particular political and historical context, which at the time of its inception and in the years following has, however, sought to project itself as a matter of historical inevitability.17 Indeed, much of the rhetorical force of human rights is derived from its appearance of being beyond or above choice: as a true perfect theory of justice, the final word in a long march towards civilisation, simultaneously rendering previous

13 

S Neiman, Moral Clarity: A Guide for Grown Up Idealists (London, Vintage, 2011). J Gray, Two Faces of Liberalism (Cambridge, Polity Press, 2000). 15 See J Rawls, Political Liberalism (Cambridge, MA, Harvard University Press, 1993). Michael Sandel makes this point in his Justice (2009). 16  See Moyn, The Last Utopia (2011). See also S Moyn, Human Rights and the Uses of History (London, Verso, 2014). 17  See Moyn (n 9); and Moyn, Human Rights (2014). 14 

Justice as the Art of Muddling through 21 politically infused conceptions of injustice not only moot, but also backward and even nefarious. That we take this view to be mistaken will become apparent later; for now it is important to understand that human rights, in its attempt to ‘save the world one individual at a time’,18 views doing justice at the macro-level as a succession of instances of doing justice at the micro-level. This is similar to the chronologically parallel developments in economics, where the currently hegemonic neo-classical school has attempted to render moot the ­Keynesian divide between microeconomics and macroeconomics.19 Here there is no such thing as society—there is only an addition of individual economic actors. Indeed, human rights discourse in ICJ may be said to have superseded neo-classical economics in the emphasis on the individual above the collective. Where a degree of redistribution of income and wealth remains—albeit begrudgingly—part of economic orthodoxy, ICJ outlaws the weighing of justice in the individual cases against considerations that do not have a direct bearing on the facts of the individual matter: this cannot be a consideration of justice, but is its anathema. We can then understand niti in ICJ as striving for perfection in the institutions that deal with the adjudication of these individual cases. Justice is done where the institutional arrangement is applied to all individual cases under the remit of ICJ, and the extent to which justice is done follows this metric. That reality often fails to meet the standards set reflects poorly on reality, but does not serve as a reason to rethink these standards; indeed, any argument that rests on weighing the importance of adhering to these standards against other considerations and/or the situation of cases that do not fall within the remit of ICJ is not only irrelevant, but may also amount to a perversion of justice in itself. B.  The Non-ideal and ICJ A good deal of criticism has been levelled against the liberal perspective on justice. A key issue concerns the value of abstraction from the reality of human experience; this is argued to be misleading as it is this abstraction itself that makes fundamental questions of justice and injustice insoluble. According to this view, abstraction is neither neutral—exerting its own influence on the answers provided—nor helpful, as many of the most important justice questions only have full meaning once the reality of human experience is considered. The thinkers lumped together under the ill-named 18 

As Moyn (n 9) 132) quotes philosopher Arthur Danto. point elegantly made in different ways in M Blyth, Austerity: The History of a Dangerous Idea (Oxford, Oxford University Press, 2013); and Y Varoufakis, J Halevi and NJ Theocarakis, Modern Political Economics (Abingdon, Routledge, 2011). 19 A

22  Antony Pemberton and Rianne Letschert ‘communitarian’ guise,20 for instance, consider understanding questions of justice to receive adequate answers solely when it is understood in which community or communities,21 relationships22 and/or personal and collective narratives23 these questions are posed. This is not intended to result in a relativist position in which the demands of justice depend solely on these factors. Instead, the experience of justice as narrative, as depending on the ‘sphere’ of justice, and including bonds of community, necessitate the inclusion of these realities in the evaluation of justice, instead of seeing them as unwanted distractions on the path to justice. Similar criticism has been levelled by feminist thinkers, who rail against abstraction and liberalism’s default understanding of humans as independent and self-serving, while instead emphasising the particular claims of others and viewing people as fundamentally relational.24 Feminist thinkers have also criticised the notion that emotions serve as an unwanted obstacle on the path to justice, which is echoed by scholars working under the broad banner of law and emotions,25 and increasingly by research in the field of moral psychology.26 The central gist of this work is that emotions do not distort reason, but instead form a basic element of and/or point of departure for rational thought. The main inspiration for our own perspective is rooted first in the work of Isaiah Berlin. Berlin considers that the demands of justice are multi-polar and that striving for justice, even in abstracted terms, will eventually have to grapple with the contradictory nature of these demands. In other words, this ‘modus vivendi’ or agonistic liberalism finds the demands of the right to be inherently contradictory: the good is needed to settle matters.27 Berlin argued that the pinnacle of our liberty lies precisely in the ability to make radical choices: choices that involve following the demand of one of our

20 

See Kymlicka, Contemporary Political Philosophy (2002). M Sandel, Liberalism and the Limits of Justice, 2nd edn (Cambridge, Cambridge University Press, 1998). 22  See M Walzer, Spheres of Justice: A Defence of Pluralism and Equality (New York, Basic Books, 1982). 23  See A MacIntyre, After Virtue (London, Duckworth, 1982). 24 eg, V Held, ‘The Ethics of Care’ in D Copp (ed), The Oxford Handbook of Ethical Theory (Oxford, Oxford University Press, 2007). 25 For instance, S Bandes, The Passions of the Law (New York, NYU Press, 1999); MC Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge, Cambridge University Press, 2001); MC Nussbaum, Hiding from Humanity: Disgust, Shame and the Law (Oxford, Oxford University Press, 2004). 26  See J Haidt, ‘The New Synthesis in Moral Psychology’ (2007) 318 Science 998–1001; and J Haidt, The Righteous Mind: Why Good People are Divided by Politics and Religion (New York, Vintage, 2011). 27  See I Berlin, ‘The Pursuit of the Ideal’, ‘The Concept of Scientific History’ and ‘Herder and the Enlightenment’, all in H Hardy and R Hausheer (eds), The Proper Study of Mankind: An Anthology of Essays (London, Vintage, 1997); and J Gray, ‘On Negative and Positive Liberty’ in J Gray (ed), Liberalisms: Essays in Political Philosophy (Abingdon, Routledge, 1989); Gray, Two Faces of Liberalism (2000); and J Gray, Isaiah Berlin: An Interpretation of His Thought, 2nd edn (Princeton, Princeton University Press, 2013). 21 See

Justice as the Art of Muddling through 23 most cherished values at the cost of others. These radical choices not only give freedom its fullest expression, but they also form at once the substance of our unfolding collective and personal historical narratives, as well as the reason why our historical accounts defy scientific prediction. Berlin’s denial of a trump principle that can act as a rational foundation for all our choices also applies to liberty itself; even though he thought liberty to be the most important of all human goals, the value of liberty cannot in each circumstance override other important values. In keeping with Berlin’s thinking, Gray argues that rights, justice and the like have content insofar as they express a view of the good. The incommensurability of values embedded in our basic liberties regularly requires judgement for which we cannot rely on rights, as the requirements of justice are at odds with each other and/or offer multiple equally valid solutions.28 Legalising abortion is a case in point. There is no convincing way to reason oneself out of the double bind of deciding the relative import of the right of a woman to do with her own body what she wishes and the right to life of the unborn foetus. Instead, this is a matter of convention and judgement through the medium of politics. The unfortunate task of the legislature in these matters is to arrive at the least bad way of dealing with incompatible interests. This example also shows that the litmus test of legitimacy cannot be its conformity with one comprehensive conception of the good. In denying this, agonistic liberalism stands side by side with its liberal brethren and in opposition to the dominance of one vision of good over all others. However, the reality of conflicts of universal values means that justice cannot be insulated from disagreement about conceptions of the good. According to Berlin and Gray, the right and the good cannot be separated in the manner that liberalism foresees. In some way, the good always underlies the right and no single conception of the good can claim to have priority over all others. Some people may have good reason to oppose the legalisation of abortion and others to support it. But the view that one side in the debate is right and therefore their position signals what is good commits a tautological error, for it is exactly the view of the good that defines the right, in one way or another, in this case. Agonistic liberalism here affirms the primacy of politics in settling the key questions concerning justice. In reality, supreme courts have (or should have) some form of the ‘political question doctrine’, in which they refrain from attempts to adjudicate fundamental political issues.29 For the latter, a court of any kind is ill-equipped, and its province should be the hard rather than the insoluble cases of law. 28  See also J Raz, ‘Incommensurability and Agency’ in R Chang (ed), Incommensurability, Incomparability and Practical Reason (Cambridge, MA, Harvard University Press, 1997). 29  See R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA, Harvard University Press, 2004).

24  Antony Pemberton and Rianne Letschert The second and contrasting conception of justice in classical Sanskrit jurisprudence, nyaya, incorporates much of the aforementioned criticism.30 In contrast to the arrangement-focused conception niti, nyaya considers justice to be found in the world that actually emerges; it is a realisationfocused understanding. We cannot do away with the realities of the situation in which justice is supposed to be done, and must also face squarely the possible contradictions in the demands of justice if we are serious about achieving it in the real world. This combination means that one standard of perfection in justice is an unattainable ideal. Even more so, using perfection as the benchmark against which we measure justice in practice risks not only failing to achieve perfection, but also results in poorer justice outcomes than when another, more realistic benchmark is chosen. Most often, attaining perfection in an abstract sense is a less important concern than avoiding injustice in practice. Here Sen invokes the concept of matsyanyaya, ‘justice in the world of fish’, where big fish are free to devour small fish. As Sen emphasises, ‘the subject of justice is not merely about trying to achieve—or dreaming about achieving—some perfectly just society or social arrangements, but about preventing manifestly severe injustice’.31 This issue is also taken up by Martha Nussbaum, who uses the phrase tragic question to describe those situations where the moral question is not so much ‘what should I do?’, but rather ‘is any of the alternatives open to us free from serious moral wrongdoing?’.32 More recently, Lisa Tessman has expanded upon this to suggest that some of the most vexing moral questions can be found in situations of moral failure—where, indeed, none of the possible courses of action can avoid moral wrongdoing.33 In any case, according to Sen, justice should therefore not be measured along an abstract yardstick of perfection, but by a realistic comparison to possible alternatives, focusing in particular on the extent to which the state of matsyanyaya has been avoided. Here Sen’s view is in line with that of adherents of non-ideal theories of justice; as Pateman and Mills, for instance, state, ‘ideal theory aims at mapping a perfectly just society, while non-ideal theory seeks to adjudicate what corrective or rectificatory justice would require in societies that are unjust’.34 This by no means renders key liberal justice concepts, such as fundamental human rights or due process requirements, unimportant. These principles retain their independent value, although it will diminish the extent to which

30 

See Sen (n 4). See Sen (n 4) 21. 32  See MC Nussbaum, ‘The Costs of Tragedy: Some Moral Limits of Cost-Benefits Analysis’ (2000) 29 Journal of Legal Studies 1005–36. 33  See L Tessman, ‘Idealizing Morality’ (2009) 25 Hypatia 797–824; and L Tessman, Moral Failure (Oxford, Oxford University Press, 2014). 34  See C Pateman and CW Mills, Contract and Domination (Cambridge, Polity Press, 2007). 31 

Justice as the Art of Muddling through 25 they will serve as trumps or unimpeachable side-constraints.35 Even a move towards these principles will have to face the reality encapsulated in Lipsey and Lancaster’s theory of the second best: failure to meet all the requirements of a perfect solution also has consequences for other elements of this solution.36 In an imperfect society—and particularly in a manifestly unjust society—positing certain rights as trumps or as side-constraints can amount to an act of hypocrisy, instead of increasing justice. While we find Sen’s critique useful in understanding a diverse set of phenomena within our own field of study—victimology—in domestic national justice processes, the importance is brought into particularly sharp relief when viewing the attempts of ‘the international community’ to grapple with the meaning and processes of justice following international crimes. Given the practical constraints of the aftermath of genocide, war crimes and crimes against humanity, striving for niti in one area or case is likely to involve turning a blind eye to the state of matsyanyaya elsewhere. Here Sen’s views echo Avishai Margalit’s pleas in his The Decent Society and On Compromise and Rotten Compromises.37 In On Compromise and Rotten Compromises, Margalit forcefully argues for the necessity of developing a theory of compromise in those situations where peaceful coexistence is at stake, which draws upon the notion of decent societies developed in the former, by which Margalit means the avoidance of institutional humiliation. We cannot expand upon Margalit’s views here, but merely note that the state of matsyanyaya that we see in the aftermath of international crimes involves exactly the type of institutional humiliation he describes, while the ‘rottenness’ of the compromise is here in part due to the fact that there is a lack of awareness that a compromise is indeed being struck. A key point here—upon which we will expand below— concerns the division between acts and omissions.38 From the analysis we shall present, it becomes apparent that justice in the aftermath of international crimes becomes a quest for niti for the cases where the international community chooses to act, combined with a material acceptance of matsyanyaya where it omits to do so.

35  ‘Trumps’ is the term favoured by Ronald Dworkin; see Dworkin, Taking Rights Seriously (1976). ‘Side-constraints’ is the term Robert Nozick used in his Anarchy, State, Utopia (Cambridge, MA, Harvard University Press, 1974). 36 See RG Lipsey and KJ Lancaster, ‘The General Theory of the Second Best’ (1956) 24 Review of Economic Studies 11–23. 37 See A Margalit, The Decent Society (translated by N Goldblum) (Cambridge, MA, Harvard University Press, 1996); and A Margalit, On Compromise and Rotten Compromises (Princeton, Princeton University Press, 2010). 38  An important treatment of this issue can be found in C Sunstein, The Partial Constitution (Cambridge, MA, Harvard University Press, 1993).

26  Antony Pemberton and Rianne Letschert III.  ICJ: A NECESSARILY FLAWED ENDEAVOUR

A.  Criminological Restrictions One would be hard-pressed to find a criminologist endorsing the view that by any conceivable standard, criminal justice may be seen as (approaching) perfection. Its faults are legion and well documented. There is the poor coverage rate, with the dark number of undetected crimes always being of a considerably greater magnitude than those actually detected and tried within the criminal justice system.39 This not only applies to relatively minor incidents but also to sexual violence, human trafficking or various forms of organised crime.40 This is compounded by bias in the administration of criminal justice.41 The lament against the differential treatment of white-collar and blue-collar crime is well known,42 as is the recurrent charge of institutionalised forms of discrimination and racism.43 Moreover, seemingly neutral elements of criminal procedure can result in disparities between groups due to the characteristics of the crimes to which they typically fall victim; criminal justice is notoriously ill-equipped to deal with the types of crime in the private sphere that largely afflict women.44 Furthermore, the stated aims of criminal justice in terms of retribution and prevention and its actual outcomes often bear little resemblance to each other.45 It is no small wonder that politicians who tout the adjudication and enforcement of criminal law as the solution to social problems are viewed by the academic community with suspicion. This is well captured in the concept of penal populism.46 Even without considering its drawbacks in practice, the extent to which criminal law can be plausibly viewed as an attempt to achieve a standard of perfection in justice is implausible. At its retributive core, the categorical imperative to react to public wrongdoing, criminal justice equates justice in retaliation for a crime with the provision of an exact quantity of punishment for the offender. However, we should not be tricked into believing that the

39 

eg, JJM Van Dijk, World of Crime (Thousand Oaks, CA, Sage, 2007). generally RM Letschert and JJM van Dijk, New Faces of Victimhood (Houten, Springer, 2011). 41  See L Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham, NC, Duke University Press, 2009). 42 EH Sutherland, ‘Is “White Collar Crime” Crime?’ (1945) 10 American Sociological Review 132–39. 43  See B Harcourt, Against Prediction: Punishing and Policing in an Actuarial Age (Chicago, University of Chicago Press, 2007). 44  See C Smart, Feminism and the Power of Law (Abingdon, Routledge, 1989). 45 See M Tonry, Retributivism Has a Past: Has it a Future? (Oxford, Oxford University Press, 2011). 46 See JV Roberts, L Stalans, D Indermaur and M Hough, Penal Populism and Public Opinion: Lessons from Five Countries (Oxford, Oxford University Press, 2003). 40 See

Justice as the Art of Muddling through 27 precision of punishment is a signal of a precise and thereby perfect measure of justice. It is not by divine intervention that someone is sentenced to exactly 27 months in prison for the commission of a given crime. Instead, the necessity of the precision of the quantity of punishment in criminal law is an artefact of a key purpose of criminal justice. As one of us has argued elsewhere, the precise measurement of the ‘debt’ incurred by the commission of crime means that upon full retribution of the debt, no further relationship between ‘debtor’ and ‘creditor’ need remain.47 Maybe more fundamentally, it can be questioned why the damage done to and injustice visited on one person or collective—the victim(s)—is in some way made just by damaging the interests of other(s)—the perpetrator(s). Proponents of restorative justice often note that this solution merely adds to the amount of harm done in the world rather than serving to diminish it.48 Instead, justice should be sought in actions that might help to undo the harm suffered; first and foremost by victims and their communities, but also by the perpetrators themselves.49 In our view, the restorative justice position often fails to give sufficient weight to the importance that victims themselves place on the offender’s punishment as a means to justice.50 Nevertheless, we do share the view that the difficulties in equating punishment for ­wrongdoing with justice diminishes the extent to which it can exempt itself from providing additional principled and, in particular, empirical arguments for its pre-eminence. Therefore, the outcome of criminal justice cannot plausibly be viewed as an attempt at perfect, principled justice, which does not need further empirical embellishment. Nyaya is also visible in criminal justice’s purpose as a means to overcome cycles of revenge; here the echoes of avoiding matsyanyaya can be heard loud and clear. B.  Victimological Restrictions The notion that criminal justice would have any purchase on a niti like status is particularly odd from a victimological perspective. As noted above, 47  See A Pemberton, ‘Occupy Victimology. The Relevance of David Graeber to the Study of Victims of Crime’ in MS Groenhuijsen, RM Letschert and S Hazeborek (eds), KLM Van Dijk: liber amoricum Jan Van Dijk (Nijmegen, Wolf Legal Publishers, 2012). See more extensively on the connection between debt-remainders and relationships D Graeber, Debt: The First 5000 Years (New York, Melville, 2011). 48  A point well made by H Zehr, Changing Lenses (Scottdale, PA, Herald, 1990); M Wright, Justice for Victims and Offenders: A Restorative Response to Crime (Winchester, Waterside Press, 1996). 49 See in general G Johnstone, Restorative Justice: Ideas, Values, Debates (Cullompton, Willan Publishing, 2002). 50  Here we follow Antony Duff; see, for instance, RA Duff, Punishment, Communication and Community (Oxford, Oxford University Press, 2001); and RA Duff, ‘Restoration and Retribution’ in A Von Hirsch et al (eds), Restorative and Criminal Justice: Competing or Reconcilable Paradigms (Oxford, Hart Publishing, 2003).

28  Antony Pemberton and Rianne Letschert the nature of crime as a public wrong means that the public has standing and a proper interest in the resolution of the crime. Until very recently, this proper interest often gave rise to the misunderstanding that crime is a wrong against the public rather than the victim.51 The role and interest of victims in national criminal justice processes were confined to being a witness and— depending on the jurisdiction—a civil claimant. Beyond that, victims were assigned a child-like status: seen but not heard. However, increasingly insight is growing that the public nature is better understood in that the public has an obligation to provide an appropriate reaction—the criminal justice reaction—while the public norms constrain the possible outcomes of any adequate solution.52 The process of relegating the neglect of victims of crime by criminal justice to the history books is still very much ongoing.53 In this advance, arguments from niti crop up in at least two contradictory guises, neither of which can stand up to close scrutiny. First, there are those who view the ‘return of the victim’ with concern, as mistaken and as a reversion from justice.54 A recurring argument is that victim input simply has no place in criminal justice. A main issue in this regard is that victims’ interests are likely to clash with the key principles of criminal justice, including the interests of the suspect. Given this possible conflict, the importance—even centrality—of the principles in question and the understanding that justice must be a coherent whole, introducing victims’ rights is seen as wrong, which therefore cannot be good. However, as a matter of empirical fact, there is no evidence supporting the view that victims’ rights necessarily place pressure on the position of the suspect, while the reasoning is a typical instance of the type of tautological error Gray finds in liberalism in general.55 It is an argument from what is good (ie, the importance of the key principles that are supposedly endangered by victim involvement) to what is right (the criticism of victim rights), supplemented

51 See MS Groenhuijsen and A Pemberton, ‘Genocide, War Crimes and Crimes against Humanity: A Victimological Perspective’ in RM Letschert et al (eds), Victimological Approaches to International Crimes: Africa (Antwerp, Intersentia, 2011). 52  See Duff, ‘Restoration and Retribution’ (2003). 53 See MS Groenhuijsen and RM Letschert (eds), Compilation of International Victims’ Rights Instruments, 3rd edn (Nijmegen, Wolf Legal Publishers, 2012). 54 See D Garland, The Culture of Control (Oxford, Oxford University Press, 2001) or J Simon, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford, Oxford University Press, 2007). 55 See A Pemberton and S Reynaers, ‘The Controversial Nature of Victim Participation: The Case of the Victim Impact Statements’ in E Erez, M Kilchling and JA Wemmers (eds), Therapeutic Jurisprudence and Victim Participation in Criminal Justice: International Perspectives (Durham, NC, Carolina Academic Press, 2011); and A Pemberton, ‘Respecting Victims of Crime. Key Distinctions in a Theory of Victim’s Rights’ in I Vanfraechem, A Pemberton and FN Ndahinda (eds), Justice for Victims: Perspectives on Rights, Transition and Reconciliation (Abingdon, Routledge, 2014).

Justice as the Art of Muddling through 29 by the understanding that criminal justice can deliver justice without grappling with incommensurable values and contradictory interests.56 A contrary narrative instead emphasises the large and healing consequences of justice for victims of crime. This may be best illustrated by the widespread use of the term closure in relation to victims’ participation in justice. It is the view that the final verdict in a case involving severe forms of crime or victim participation in such a case could lead to closure and allow the victim ‘to move on with his/her life’.57 Here a notion of niti is found in the way in which the interests of the victim and the public fuse, while simultaneously giving rise to an expectation of profound positive effects.58 In one fell swoop, justice becomes a cathartic counterforce, capable of undoing even the greatest wrongfulness. However welcome this narrative might be, it is more like a fairytale than an accurate description of current practice. Instead, we should acknowledge the victimological truth that victims’ participation in criminal justice is a decidedly mixed blessing, meriting equal consideration to so-called secondary victimisation as to the benefits of participation.59 Any expectation that criminal justice will necessarily function as a panacea for all ills flies in the face of the past few decades of research into victims’ experience in the criminal justice process.60 Instead of being a one-off cathartic event, counteracting the consequences of criminal victimisation is a long, arduous and often unsatisfactory process. Indeed, fully acknowledging the victimological reality of the aftermath of serious crime rapidly brings to the surface the difficulty of conceiving what might plausibly be viewed as justice. Hannah Arendt noted that the reality of the Holocaust ‘explodes the limits of the law’, a highly­

56  It is somewhat ironic to note that supporters of this view criticise proponents of victim rights as introducing emotional and populist sentiments into criminal justice, while their own perspective is based on a not always clearly articulated vision of the good, lacks empirical support and is in large part based on the metaphysical belief in an abstract and perfect vision of justice. 57  As criticised for instance in F Furedi, Therapy Culture (London, Routledge, 2004). 58  Harvey Weinstein’s masterful editorial in the International Journal of Transitional Justice puts this notion to bed. See H Weinstein, ‘Editorial: The Myth of Closure: The Illusion of Reconciliation. Final Thoughts on Five Years as Co-editor in Chief’ (2010) 5 International Journal of Transitional Justice 1–10. 59  Concerning secondary victimisation, see MS Laxminarayan, The Heterogeneity of Crime Victims: Variations in Procedural and Outcome Preferences (Nijmegen, Wolf Legal Publishers, 2012) and for the benefits of participation KME Lens, A Pemberton and S Bogaerts, ‘Heterogeneity in Victim Participation: A New Perspective on Delivering a Victim Impact Statement’ (2013) 10 European Journal of Criminology 479–95. 60  See Laxminarayan, The Heterogeneity of Crime Victims (2012); as well as, for instance, JJM Wemmers, Victims in the Criminal Justice System (The Hague, WODC/Kugler, 1996); JL Herman, ‘The Mental Health of Crime Victims: Impact of Legal Intervention’ (2003) 16 Journal of Traumatic Stress 159–66; MJ Kunst, L Popelier and E Varekamp, ‘Victim Satisfaction with the Criminal Justice System and Emotional Recovery: A Systematic and Critical Review of the Literature’ (2014) 16 Trauma, Violence and Abuse 336–58.

30  Antony Pemberton and Rianne Letschert accurate description.61 However, the limits of the law—and also other institutions of justice—are breached at less extreme levels of injustice as well. One of the key problems with the notion of restorative justice is precisely that where the need for restoration is the greatest, the impossibility of actually meeting it is most keenly felt.62 This is not something that we are ready to acknowledge; it falls foul of a basic human need, the justice motive, the need to believe in a just world.63 Viewing (severe instances of) injustice gives rise to distress, which in turn motivates third parties to offer support to and compensate those suffering from injustice. However, reconciling the need to believe in a just world with the reality of victims of severe injustice will often result in decidedly less beneficial reactions. This is the case when third parties attempt to avoid or distance themselves from the source of their distress—the victim—and/ or reinterpret the event, for instance, by blaming the victim for his or her misfortune. The cognitive dissonance involved in seeing bad things happen to good people is solved by increasingly viewing the latter as bad people; it is this Mark of Abel that clings to victims of severe forms of crime.64 In addition, the term ‘closure’ is better viewed as a projection of what third parties want than of realistic prospects for victims.65 It is not the victims’ closure that is intended, but that of the observer. Part of the reason that our reaction to crime remains so heavily focused upon (punishing) the offender rather than ‘restoring’ the victim is that the former can be more readily conceived in terms amenable to the justice motive than the latter.66 Our distress at a murder is easily reconciled with our outrage at the murderer, but not so much with sympathy for the victim’s family. Our need for closure in respect to this distress might be quenched by the cathartic act of sentencing the murderer and his or her subsequent removal to prison; it is instead contradicted by viewing the enduring pain and the often lifelong recovery process of the victim’s family. That is not to say that some measure of justice is unachievable for victims of crime or that no benefit is to be expected from reorienting criminal justice towards the inclusion of victims of crime. Instead, it means that these

61 

H Arendt, On Violence (Orlando, Harcourt, 1970). See Pemberton, ‘Occupy Victimology’ (2012). 63  See MJ Lerner, The Belief in a Just World: A Fundamental Delusion (New York, Plenum Press, 1980); CL Hafer and L Begue, ‘Experimental Research on Just-World Theory: Problems, Developments and Future Challenges’ (2005) 131 Psychological Bulletin 128–67. 64  JJM Van Dijk, The Mark of Abel: Reflecting on the Social Labelling of Victims of Crime. Inaugural Lecture (Tilburg, Prismaprint, 2006). 65 See Weinstein, ‘Editorial: The Myth of Closure’ (2010); and Pemberton, ‘Respecting Victims of Crime’ (2014). 66  See A Pemberton, ‘Just-World Victimology’ in H Morosawa, J Dussich and G Kirchhoff (eds), Victimology and Human Security: New Horizons: Proceedings of the 13th Symposium of the World Society Victimology (Nijmegen, Wolf Legal Publishers, 2012). 62 

Justice as the Art of Muddling through 31 benefits will be small, conditional and easily missed in the expectation of grand, cathartic consequences. Moreover, the relevance of nyaya here is also the understanding of criminal justice as a mixed blessing to victims of crime; any justice that can be achieved will occur in an ongoing process, which will remain open-ended and liable to reinterpretation until long after the formal justice process is concluded. C.  Justice after International Crimes In the move to the international level, the shortcomings of criminal law have been given short shrift, replaced instead by a triumphant and aspirational rhetoric of ‘ending impunity’ and ‘delivering safety and justice on a global scale’.67 This is remarkable, considering the fact that the characteristics of international crimes render the delivery of justice through criminal law more rather than less difficult compared to delivering justice at the national level with regard to conventional crimes. Just to mention a number of additional difficulties: establishing individual guilt for crimes committed as a collective and/or in the name of a collective,68 in other words the abundance of evidence of collective evil, coupled with a lack of proof of individual wrongdoing; the uncertain line between culpable and inculpable parties,69 including the role of so-called innocent bystanders;70 the difficulty of finding a remedy suitable to the enormity of the crimes committed71 and, coupled with the previous points, the diminished likelihood of reaching goals of criminal justice such as retribution and general or special prevention.72 The sheer number of victims and the harm visited on them means that ‘the explosion of the limits of the law’ is not only a figure of speech but is also true in a far more practical sense.73 Victims’ participation in criminal justice in the

67  A point clearly elaborated in Mark Drumbl’s work. See MA Drumbl, ‘Collective V ­ iolence and Individual Punishment: The Criminality of Mass Atrocity’ (2005) 99 Northwestern ­University Law Review 539–610; MA Drumbl, Atrocity, Punishment and International Law (Cambridge, Cambridge University Press, 2007). 68 See Drumbl, ‘Collective Violence’ (2005). See also DJ Levinson, ‘Collective Sanctions’ (2003) 56 Stanford Law Review 345–428; and M Osiel, ‘The Banality of Good: Aligning Incentives against Mass Atrocity’ (2005) 105 Columbia Law Review 1751–861. 69  See Osiel, ‘The Banality of Good’ (2005). 70  See Drumbl, Atrocity, Punishment (2007); and LE Fletcher, ‘From Indifference to Engagement: Bystanders and International Criminal Justice’ (2005) 26 Michigan Journal of International Law 1013–62. 71  See Osiel (n 68); RM Letschert and T Van Boven, ‘Providing Reparation in Situations of Mass Victimization: Key Challenges Involved’ in RM Letschert et al (eds), Victimological Approaches to International Crimes: Africa (Antwerp, Intersentia, 2011). 72  See MJ Aukerman, ‘Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice’ (2002) 15 Harvard Human Rights Journal 39–98. 73  See RM Letschert et al (eds), Victimological Approaches (2011).

32  Antony Pemberton and Rianne Letschert domestic sphere, for instance, is normally predicated on the expectation that each case solely concerns one or at most a few victims. The existence of thousands or even millions of victims outstretches the resources afforded to justice procedures and reparation programmes. In practice, moreover, these shortcomings have been exacerbated by problems of selectivity, insufficient proportionality and lengthy procedures. The punishment meted out for international crimes is lower rather than higher compared to ordinary crimes, while the treatment of often top-level suspects and convicts in ICJ is vastly superior to the facilities available in most domestic criminal justice systems.74 The latter also applies to the emphatic and time-consuming emphasis on meeting all criminal-procedural niceties. In stark contrast to the Nuremberg trials, which were over and done with within the space of 11 months, and in trials in the domestic sphere—the Rwandans managed to try over 5,000 cases with one-tenth of the funding of the International Criminal Tribunal for Rwanda (ICTR), before the latter handed down one verdict—international criminal law proceeds at an almost glacial pace.75 The reason given for this, as noted by ICTY appeals court judge Patricia Wald, is that ‘we have to assure that justice is seen to be done’.76 This is also the explanation for international criminal law’s recurring emphasis on the independence of international criminal law, which attempts to protect it from so-called victor’s justice, but simultaneously erects a Chinese wall separating it from domestic attempts to provide justice, from other, concurrent, attempts to rebuild state structures and from the history, tradition and political realities of affected societies.77 International criminal law is remote justice, meted out by an ‘international community’ which may have positive connotations for many commentators, but whose actions in the experience of inhabitants of war-torn societies are most often characterised succinctly as ‘too little, too late’.78 The legitimacy of the process and actors involved in the process of international criminal law in the eyes of these populations is suspect, which further strains the smooth and easy connection of international criminal law to the provision of a sense of (global) justice.79

74 

See Drumbl, Atrocity (2007). See G Bass, Stay the Hand of Vengeance: The Politics of War Crime Tribunals (Princeton, Princeton University Press, 2001). See also J Rabkin, ‘Global Criminal Justice: An Idea Whose Time Has Passed’ (2005) 38 Cornell International Law Journal 753–78. 76  Rabkin, ‘Global Criminal Justice’ (2005) makes the same point. 77 See LE Fletcher and HM Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Human Rights Quarterly 573–639. 78  See Aukerman, ‘Extraordinary Evil, Ordinary Crime’ (2002). 79  See T Longman, P Pham and HM Weinstein, ‘Connecting Justice to Human Experience: Attitudes toward Accountability and Reconciliation in Rwanda’ in E Stover and HM Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge, Cambridge University Press, 2004) and the subsequent population-based surveys of the Berkeley Human Rights Center. 75 

Justice as the Art of Muddling through 33 Our qualms are not with the notion that it is necessary that justice is seen to be done. The latter is in fact something we wholeheartedly endorse.80 The key to connecting the backward-looking function of ICJ with its forwardlooking function lies precisely in the extent to which the population in question perceives the justice of the processes attempting to come to terms with the horrors committed by the previous regime. Even more so than in the domestic sphere, justice is done when it is seen to be done.81 Instead, we find the implicit assumptions preceding Judge Wald’s conclusion to be in urgent need of examination. Using the case of Rwanda as an example again: for each case tried by the ICTR, the Rwandans had to deal with thousands of cases themselves and come to the aid of tens of thousands of victims. If the manner of working at the ICTR is the way to see that justice is done, what does this say about all these other cases? To introduce some base material considerations, does it really make sense to spend 50 million dollars on one case, while another similar case can only receive an investment of 1,000 dollars? Is the extent to which justice is seen to be done then defined by the small number of cases which have received this premier attention and not by all the other ones that have not? ICJ appears to us to be riddled with attempts to sort out the cases that merit this first-class treatment, to the neglect of the other cases. The quest for its own definition of niti in these individual cases comes with a considerable cost, and thereby with the necessity to forego involvement in providing any justice in a large number of similar cases. To put in a different way, where the international community chooses to act, its actions have to meet the standards of perfection of justice that its own view of niti prescribes, even though this standard of perfection is something that criminal justice in the domestic sphere cannot attain either. Where it omits to act, no further standards seem to apply. A poignant example may be found at Mpanga prison in Rwanda. This facility houses both 6,000 Rwandan genocidaires and a small number—six—of inmates convicted by the Special Court of Sierra Leone. The latter have their own rooms, showers, computers and kitchen facilities, while the former are clumped together in dire circumstances in one cell block. The justification for this lies in the international (prison) standards which are solely applicable to the ‘international perpetrators’, but not to those locally tried by Rwandan courts.82

80  See Letschert et al, Victimological Approaches (2011); and A Pemberton et al, ‘Coherence in International Criminal Justice: A Victimological Perspective’ (2015) 15 International Criminal Law Review 339–68. 81  See Drumbl, Atrocity (n 67); and J Feinberg, ‘The Expressive Function of Punishment’ in J Feinberg (ed), Doing and Deserving: Essays in the Theory of Responsibility (Princeton, Princeton University Press, 1970). 82  See also http://www.theeastafrican.co.ke/news/Lavish-life-of-an-war-criminal-inside-aRwandan-jail/-/2558/1399924/-/view/printVersion/-/b3qh13/-/index.html.

34  Antony Pemberton and Rianne Letschert The distiction between acting and omitting does have purchase on moral issues. Evidence from Philippa Foot’s well-known trolley problem shows individuals have a deep-seated sense of the difference in moral terms between acting and omitting to do so.83 However, as Cass Sunstein has cogently argued, this does not mean that this distinction equally (if at all) applies to governmental action.84 The distiction between acting and omitting is a moral heuristic rather than a moral law. In defining the international community’s reaction to international crimes, it does not carry the same weight as it does in individual matters: omitting to act involves the same sort of choice that choosing to act does. Whether or not one can endorse Sunstein’s point of view, victimised populations’ understanding of justice will include these omissions, as they are confronted on a daily basis with the results. Of course, the international community’s involvement in international crimes is an improvement upon the long history of neglect (or even endorsement) that has characterised mankind’s historical record of the aftermath of genocide, war crimes and crimes against humanity.85 However, we should not turn a blind eye to the fact that the driver of the international community’s involvement is its own distress at viewing these inhumanities, due to their incompatibility with the justice motive. As noted above, this need to believe in a just world is a particularly fickle mistress. On the one hand, it is the driving force behind our actions to counteract injustice; on the other hand, our own need to reach justice closure will entice us to turn a blind eye to lingering and manifest injustice in the longer run. The aspirational r­ hetoric of ICJ is, we think, a function of this justice motive. And although this cannot be overcome—the justice motive represents a basic human need—both academic thought and legal policy would do more to achieve justice in the aftermath of international crimes by attempting to reel it in rather than by pretending that its consequences form the pinnacle of doing justice. IV.  FINAL REMARKS

Victimology’s sad truth concerns the Catch-22 of justice. In the aftermath of criminal victimisation, the more justice is needed and the more important

83  P Foot, ‘The Problem of Abortion and the Doctrine of the Double Effect’ (1967) 5 Oxford Review 5–15. The ‘trolley problem’ concerns a series of dilemmas in which an act (diverting a trolley onto other tracks or stopping the trolley) saves five people’s lives, at the expense of one person. 84  See Sunstein, The Partial Constitution (1993); and C Sunstein,‘Moral Heuristics’ (2005) 28(4) Behavioral and Brain Sciences 531–42. 85  As Ben Kiernan’s masterful overview of the history of genocides reveals. See B Kiernan, Blood and Soil: A World History of Genocide from Sparta to Darfur (New Haven, Yale University Press, 2007).

Justice as the Art of Muddling through 35 it is, the less likely it is that it can be fully obtained or even defined. That justice after minor crimes is easily restored should not blind us to the reality that for more severe crimes—of which the international crimes form the ugly pinnacle—only a very meagre and flawed version of justice is to be had. That does not render this justice unimportant, but does diminish its status as a trump card argument. Those labouring under King Ferdinand’s mistaken view of ‘let justice be done, though the world perish’ will hopefully come to their senses when they realise that the reality of ICJ rephrases this as ‘let some poor, imperfect, selective, disproportional, slothlike justice be done, though the world perish’. The international community’s need to come to terms with its own justice motive is a stronger driver for its actions than a realistic attempt to connect the backward- and forward-looking functions of doing justice in the aftermath of international crimes. It does so by pretending to strive for niti in the pittance of cases in which it actually acts, while averting its gaze from the multitude of cases in which this is not the case. Going through the motions of Westernised justice in these high-profile cases then aids members of the ‘international community’ in obtaining their much-needed justice closure. Viewed in this way, this version of niti rapidly degrades into an incorrectly applied moral heuristic (the different moral status of acts versus omissions) to aid what its discoverer, Melvin Lerner, called a fundamental delusion: the need to believe in a just world. This might serve to satisfy Western audiences, for whom railing against Mladic, Kony, Lubanga and Assad provides undoubtedly welcome and exotic variations in their daily consumption of crime news, but is unlikely to do so for the victimised inhabitants of countries razed by international crime. On a daily basis, they are confronted with the manifest injustices, the matsyanyaya, which remain hidden from the view of the international community. The main political choice that ICJ makes is to privilege the interests of the international community over those of the victimised population itself. That this choice is then dressed up in terms of justice does not make this assessment any less true or, indeed, this choice any less mistaken. This leads us to the understanding that we should strive to reorient our reaction to international crimes, to increase the chances of the victimised populations themselves seeing that justice is done and to further aid rebuilding justice in the future. This justice is done in reality, acknowledging the budgetary constraints and the cultural, historical and social contexts of the jurisdiction in question. This is a justice that is reflexive and contingent, a justice that will often fail the standards of the ‘international community’, including those relating to the inclusion of domestic political considerations. It is justice as the art of muddling through, acknowledging its many limitations: it is justice as nyaya.

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38  Antony Pemberton and Rianne Letschert Letschert, RM and Van Boven, T, ‘Providing Reparation in Situations of Mass Victimization: Key Challenges Involved’ in RM Letschert, R Haveman, A de Brouwer and A Pemberton (eds), Victimological Approaches to International Crimes: Africa (Antwerp, Intersentia, 2011) 153–84. Levinson, DJ, ‘Collective Sanctions’ (2003) 56 Stanford Law Review 345–428. Lipsey, RG and Lancaster, KJ, ‘The General Theory of the Second Best’ (1956) 24 Review of Economic Studies 11–23. Longman, T, Pham, P and Weinstein, HM, ‘Connecting Justice to Human Experience: Attitudes toward Accountability and Reconciliation in Rwanda’ in E Stover and HM Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge, Cambridge University Press, 2004) 206–25. MacIntyre, A, After Virtue (London, Duckworth, 1982). Margalit, A, The Decent Society (translated by N Goldblum) (Cambridge, MA, ­Harvard University Press, 1996). ——. ‘Justice and Peace? How the International Criminal Tribunal Affects Social Peace in Bosnia’ (2005) 42(3) Journal of Peace Research 271–89. ——. A, On Compromise and Rotten Compromises (Princeton, Princeton University Press, 2010). Moyn, S, The Last Utopia. Human Rights in History (Cambridge, MA, Belknap, 2011). ——. Human Rights and the Uses of History (London, Verso, 2014). Neiman, S, Evil in Modern Thought: An Alternative History of Philosophy ­(Princeton, Princeton University Press, 2004). ——. Moral Clarity: A Guide for Grown Up Idealists (London, Vintage, 2011). Nozick, R, Anarchy, State, Utopia (New York, Basic Books, 1974). Nussbaum, MC, ‘The Costs of Tragedy: Some Moral Limits of Cost-Benefits ­Analysis’ (2000) 29(2) Journal of Legal Studies 1005–36. ——. Upheavals of Thought: The Intelligence of Emotions (Cambridge, Cambridge University Press, 2001). ——. Hiding from Humanity: Disgust, Shame and the Law (Princeton, Princeton University Press, 2004). Osiel, M, ‘The Banality of Good: Aligning Incentives against Mass Atrocity’ (2005) 105 Columbia Law Review 1751–861. Pateman, C and Mills, CW, Contract and Domination (Cambridge, Polity Press, 2007). Pemberton, A, ‘Occupy Victimology: The Relevance of David Graeber to the Study of Victims of Crime’ in MS Groenhuijsen, RM Letschert and S Hazenbroek (eds), KLM Van Dijk. Liber amoricum J.J.M. Van Dijk (Nijmegen, Wolf Legal ­Publishers, 2012a) 297–310. ——. ‘Just-World Victimology’ in H Morosawa, J Dussich and G Kirchhoff (eds), Victimology and Human Security: New Horizons. Proceedings of the 13th Symposium of the World Society Victimology (Nijmegen, Wolf Legal Publishers, 2012b) 45–69. ——. ‘Victimology with a Hammer: The Challenge of Victimology’. Inaugural lecture, Tilburg, Prismaprint, 2015.

Justice as the Art of Muddling through 39 Pemberton, A, Aarten, P and Mulder, E, ‘Stories as Property: Narrative Ownership as a Key Construct in the Study of Victims of Crime’ (2014, unpublished manuscript). Pemberton, A, Letschert, RM, De Brouwer, AM and Haveman, RH, ‘Coherence in International Criminal Justice: A Victimological Perspective’ (2015) 15 International Criminal Law Review 339–68. Pemberton, A and Reynaers, S, ‘The Controversial Nature of Victim Participation: The Case of the Victim Impact Statements’ in E Erez, M Kilchling and JA Wemmers (eds), Therapeutic Jurisprudence and Victim Participation in ­Criminal Justice: International Perspectives (Durham, NC, Carolina Academic Press, 2011) 229–48. Peskin, V, ‘Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Trials for the Former Yugoslavia and Rwanda’ (2005) 4(2) Journal of Human Rights 213–31. Pogge, T, John Rawls: His Life and Theory of Justice (Oxford, Oxford University Press, 2007). Power, S, A Problem from Hell: America and the Age of Genocide (London, Harper Perennial, 2003). Quinney, R, The Social Reality of Crime (Boston, Little, 1970). Rabkin, J, ‘Global Criminal Justice: An Idea Whose Time Has Passed’ (2005) 38 Cornell International Law Journal 753–78. ——. A Theory of Justice (Cambridge, MA, Harvard University Press, 1972). Rawls, J, Political Liberalism (Cambridge, MA, Harvard University Press, 1993). Roberts, JV, Stalans, L, Indermaur, D and Hough, M, Penal Populism and Public Opinion: Lessons from Five Countries (Oxford, Oxford University Press, 2003). Rummel, RJ, ‘Power, Genocide and Mass Murder’ (1994) 31(1) Journal of Peace Research 1–10. ——. Liberalism and the Limits of Justice, 2nd edn (Cambridge, Cambridge University Press, 1998). Sandel, M, Justice: What’s the Right Thing to Do? (New York, Farrar, Straus & Giroux, 2009). Sen, A, The Idea of Justice (London, Allen Lane, 2009). Shapland, J, Wilmore, J and Duff, P, Victims in the Criminal Justice System (Cambridge, Gower, 1985). Shklar, J, Legalism: Law, Morals and Political Trials (Cambridge, MA, Harvard University Press, 1986 [1964]). Simon, J, Governing through Crime: How the War on Crime Transformed ­American Democracy and Created a Culture of Fear (Oxford, Oxford University Press, 2007). Snyder, T, Bloodlands: Europe between Hitler and Stalin (New York, Basic Books, 2010). Staub, E, The Roots of Evil: The Origins of Genocide and Other Group Violence (New York, Cambridge University Press, 1989). Stemplowska, Z and Swift, A, ‘Ideal and Nonideal Theory’ in D Estlund (ed), The Oxford Handbook of Political Philosophy (Oxford, Oxford University Press, 2012) 373–92.

40  Antony Pemberton and Rianne Letschert Strawson, PF (ed), ‘Freedom and Resentment’ in Studies in the Philosophy of Thought and Action (Oxford, Oxford University Press, 1968) 71–96. Sunstein, C, The Partial Constitution (Cambridge, MA, Harvard University Press, 1993). ——. ‘Moral Heuristics’ (2005) 28(4) Behavioral and Brain Sciences 531–42. Teitel, RG, Transitional Justice (Oxford, Oxford University Press, 2002). Tessman, L, ‘Idealizing Morality’ (2009) 25(4) Hypatia 797–824. ——. Moral Failure (Oxford, Oxford University Press, 2014). Tonry, M, Retributivism Has a Past: Has it a Future? (Oxford, Oxford University Press, 2011). Tyler, TR, ‘Procedural Justice, Legitimacy and the Effective Rule of Law’ in M Tonry (ed), Crime and Justice: A Review of the Research (Chicago, Chicago University Press, 2003) 283–358. Van Dijk, JJM, The Mark of Abel: Reflecting on the Social Labelling of Victims of Crime. Inaugural Lecture (Tilburg, Prismaprint, 2006). ——. World of Crime (Thousand Oaks, CA, Sage, 2007). Van Dijk, JJM and Letschert, RM, ‘Reconstructing Victim-Centered Justice on a Global Scale’ in RM Letschert, and JJM Van Dijk (eds), The New Faces of Victimhood: Globalization, Transnational Crimes, and Victim Rights (Houten, Springer, 2011). Wacquant, L, Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham, NC, Duke University Press, 2009). Waller, J, Becoming Evil. How Ordinary People Commit Genocide and Mass Killing, 2nd edn (Oxford, Oxford University Press, 2007). Walzer, M, Spheres of Justice: A Defense of Pluralism and Equality (New York, Basic Books, 1982). Weinstein, HM, ‘Editorial: The Myth of Closure: The Illusion of Reconciliation. Final Thoughts on Five Years as Co-editor in Chief’ (2011) 5 International Journal of Transitional Justice 1–10. Wemmers, JJM, Victims in the Criminal Justice System (The Hague, WODC/Kugler, 1996). Williams, B, In the Beginning was the Deed: Realism and Moralism in Political Argument (Princeton, Princeton University Press, 2005). Wright, M, Justice for Victims and Offenders: A Restorative Response to Crime (Winchester, Waterside Press, 1996). Zehr, H, Changing Lenses (Scottdale, PA, Herald, 1990).

3 Emotional Discourse in a Rational Public Sphere The Victim and the International Criminal Trial CHRISJE BRANTS1

I. INTRODUCTION

T

HE POSITION OF victims in an international criminal trial divides opinion like perhaps no other issue in international criminal justice. Rhetorically, if not in practice, the victim is now ‘the raison d’etre’ of the International Criminal Court (ICC)2 and numerous prosecutors, judges, international politicians and academics have claimed, and continue to claim, that victims of atrocities around the world are dependent on the ICC to give them a voice, that the Court acts in their name and that it exists primarily to provide justice for victims.3 However, if victims’ interests have now become ‘the dominant commitment of international criminal justice’,4 this shift from the offender to the ‘victim paradigm’ has not met with universal approval. Many see problems with incorporating victims into international criminal trials as participants or parties in their own right (rather than as witnesses) or with how this unfolds in practice.

1 This chapter is partly based on C Brants, ‘The “Victim Paradigm” in (International) Criminal Justice’ in F de Jong (ed), Overarching Views of Crime and Deviancy: Rethinking the Legacy of the Utrecht School (The Hague, Eleven International Publishing, 2015). 2  Registrar of the International Criminal Court, Silvana Arbia, Remarks to the 11th Session of the Assembly of States Parties, 14 November 2012. 3  S Kendall and S Nouwen, ‘Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood’ (2013) 76 Law & Contemporary Problems 235, 239–40; E Hoven and S Scheibel, ‘“Justice for Victims” in Trials of Mass Crimes: Symbolism or Substance?’ (2015) 21(2) International Review of Victimology 161. 4  M Findlay, ‘Activating a Victim Constituency in International Criminal Justice’ (2009) 3 International Journal of Transitional Justice 183, 203.

42  Chrisje Brants Some have welcomed the development as a shift from retributive goals towards restorative justice,5 as empowering victims,6 contributing to their ‘healing’7 and eventually ‘to a process in which victims reclaim control over their lives and may help restore their confidence in government’.8 Others, however, argue that victim participation serves primarily to justify the existence of the ICC where it lacks inherent legitimacy,9 that it leads to secondary victimisation,10 that the presumed benefits to the victim can be detrimental to the rights of the accused in a fair trial11 and that victim participation has the potential to undermine the deliberative discourse of the proceedings.12 Where the practice of victim participation has not met expectations, truth commissions and other forms of non-criminal transitional justice are said to form more satisfactory arenas for the victim.13 Yet others see most or even all institutional transitional justice as top-down practices, not rooted in the societies they serve, but created by elites, and therefore barely capable of satisfying victims’ needs.14 Although international criminal justice is said to be something ­different,15 this discourse is very similar to criminological and legal debates on ­domestic

5 eg, JI Turner, ‘Decision on Civil Party Participation in Provisional Detention Appeals’ (2009) American Journal of International Law 103, 116–21; J Wemmers, ‘Where Do They Belong? Giving Victims a Place in the Criminal Justice Process’ (2009) 20 Criminal Law Forum 395; A Triponel and S Pearson, ‘What Do You Think Should Happen? Public Participation in Transitional Justice’ (2010) 22(1) Pace International Law Review 103, 131. 6 P Lundy and M McGovern, ‘Whose Justice? Rethinking Transitional Justice from the Bottom up’ (2008) 35(2) Journal of Law and Society 265, 280. 7 JN Clarke, ‘Reconciliation via Truth? A Study of South Africa’s TRC’ (2012) 11(2) ­Journal of Human Rights 189, 202. 8  Kendall and Nouwen, ‘Representational Practices’ (2013) 240. 9  C McCarthy, ‘Victim Redress and International Criminal Justice: Competing Paradigms, or Compatible Forms of Justice?’ (2012) 10 Journal of International Criminal Justice 351, 353. 10  JL Herman, ‘The Mental Health of Crime Victims: Impact of Legal Intervention’ (2003) 16(2) Journal of Traumatic Stress 159; see also J Herman, ‘Realities of Victim Participation: The Civil Party System in Practice at the Extraordinary Chambers in the Courts of Cambodia (ECCC)’ (2013) 16(4) Contemporary Justice Review: Issues in Criminal, Social, and Restorative Justice 461, 469. 11 B McGonigle Leyh, ‘Victim-Oriented Measures at International Criminal Institutions: Participation and its Pitfalls’ (2012) 12 International Criminal Law Review 375. 12 C van den Wyngaert, ‘Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge’ (2011) 44 Case Western Reserve Journal of International Law 475; M Solange, ‘Victim Participation at the ICC for Victims of Gender-Based Crimes: A Conflict of Interest?’ (2013) 21 Cardozo Journal of International Law 619. 13 E Haslam, ‘Victim Participation at the International Criminal Court: A Triumph of Hope over Experience?’ in D McGoldrick et al (eds), The Permanent International Criminal Court: Legal and Policy Issues (Oxford, Hart Publishing, 2004); E Haslam and M Dembour, ‘Silencing Hearings? Victim/Witnesses at War Crimes Trials’ (2004) 15 European Journal of International Law 151. 14  K McEvoy and L McGregor, ‘Transitional Justice from Below: An Agenda for Research, Policy and Praxis’ in K McEvoy and L McGregor (eds), Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Oxford, Hart Publishing, 2008); Lundy and McGovern, ‘Whose Justice’ (2008). 15  cf McCarthy, ‘Victim Redress’ (2012).

Emotional Discourse in a Rational Public Sphere 43 criminal justice, where a similar shift towards the victim has occurred in many national jurisdictions and, mutatis mutandis, the same arguments for and against are put forward. Moreover, while many have remarked, sometimes for contradictory reasons, that the (international) courtroom is an inappropriate place for providing justice for victims, the question of what that is, whether a criminal trial is by definition capable of delivering it and, more importantly, whether it should do so is less often addressed.16 As Edwards has remarked, discussions on ‘justice for victims’ are often conducted as a matter of the rights of victims versus the rights of the accused, ‘zero-sum games, in which you are either for or against victims’.17 However, in such discussions the concept of justice itself in relation to criminal law or procedure is rarely problematised. It slips easily off the tongue in its apparent self-evidence, but what does it actually mean? What is the role of criminal law and procedure and where does the victim fit in this? In this chapter I want to unravel some of these issues, drawing on arguments from the debates on both domestic and international criminal justice. I do not intend to take a position on whether a criminal trial should or should not ‘give victims a voice’ or on whether other transitional justice arrangements are more suitable, nor is it my intention to repeat all the arguments as to why that is or is not the case.18 Rather, regarding criminal justice as one of the possible forms of transitional justice and given that the victim now has ‘a voice of sorts’ in almost all jurisdictions, including the international, I want to see what the implications are of incorporating the emotive rhetoric of victim participation and the emotional personal discourse of participating victims into the deliberately and deliberative rational public sphere of a criminal trial.19 II.  INTERNATIONAL VERSUS DOMESTIC CRIMINAL JUSTICE

The issues that arise in international criminal justice are often seen as distinct from those in the domestic sphere because of the very nature of the

16 

However, see Hoven and Scheibel, ‘Justice for Victims’ (2015). Edwards, ‘An Ambiguous Participant: The Crime Victim and Criminal DecisionMaking’ (2004) 44 British Journal of Criminology 967, 971. 18 For an extensive overview, see D Taylor, ‘Discussion Paper: Victim Participation in Transitional Justice Mechanisms: Real Power or Empty Ritual?’, April 2014, www.impunitywatch.org/docs/IW_Discussion_Paper_Victim_Participation1.pdf. 19  See S Karstedt on the empirical evidence that, within a framework of emotion sharing and under certain conditions, the legal setting and features of transitional justice proceedings are important for addressing victims’ cognitive needs for reframing and re-appraising traumatic events: S Karstedt, ‘The Emotion Dynamics of Transitional Justice: An Emotion Sharing Perspective’ (2016) 8(1) Emotion Review 50–55; and S Karstedt, ‘Emotions, Truth and Justice: Shared and Collective Emotions in Transitional Justice’ in H Landweer and D Koppelberg (eds), Recht und Emotion: Verkannte Zusammenhänge (Freiburg, Karl Alber, 2016). 17 I

44  Chrisje Brants crimes with which international courts and tribunals deal. These involve mass and collective violence,20 and huge numbers of victims who are dehumanised and placed outside of the ‘moral universe’ of the perpetrators.21 The latter include the ‘perpetrator state’ and non-state but organised actors such as rebel groups, militias, arms smugglers and other organised criminals, and the multi-national corporations and legitimate businesses that, wittingly or (less likely) unwittingly, provide funds that allow armed conflict to continue.22 Even if only some of these perpetrators actually organise or commit the violence, all profit from it, condone it or negligently omit to contain it. The proportion of perpetrators prosecuted at an international level is therefore much smaller than in the domestic setting, and only a fraction of all victims obtain some sort of redress.23 All of this is true, and certainly the mass nature of the atrocities that come within the ambit of international criminal law and the few international courts available to deal with them make such justice quantitatively different from run-of-the-mill domestic criminality. In a qualitative sense, however, the differences with the domestic are less easy to pinpoint (even if the core international crimes are ‘domestic’ in the sense that signatories to the Rome Statute are obliged to incorporate them into their own domestic legislation). What marks the crimes of the international criminal justice sphere out is a legal matter; they fall within the legal definition of the core international crimes, as genocide, crimes against humanity or war crimes.24 The only reason why many forms of terrorism, for example, could be regarded as ‘different’ is because terrorism as such is not legally defined as a core crime, notwithstanding that some terrorist acts can be ‘redefined’ as crimes against humanity or war crimes. The perpetrator state and various non-state actors are admittedly frequent, but are not necessary components of the different ‘quality’ of core international crimes. States, corporations and other businesses are frequently implicated in various forms of domestic crime (and non-criminalised actions) in the socioeconomic and environmental sphere that can be of a highly internationalised nature and involve—and destroy—the lives of large numbers of victims (eg, the wholesale destruction of ecosystems and social systems as

20  As also envisaged by arts 6, 7 and 8 of the Rome Statute, which refer to ‘destruction of a group’, ‘widespread or systematic attack’, ‘war crimes as part of a ‘plan’, ‘policy’ or ‘largescale commission’. 21  A Pemberton, RM Letschert, AM de Brouwer and RH Haveman, ‘Coherence in International Criminal Justice: A Victimological Perspective’ (2015) 15(2) International Criminal Law Review 1. 22 See W Huisman, Business as Usual? Corporate Involvement in International Crimes (The Hague, Eleven International Publishing, 2010). 23  McCarthy (n 9). 24  It could possibly be argued that genocide is intrinsically different, though even here it is a legal question—that of specific genocidal intent—that is the differentiating aspect.

Emotional Discourse in a Rational Public Sphere 45 a result of legal or illegal deforestation), and organised crime, again often international or transnational, is a feature of most national jurisdictions. With regard to victims specifically, dehumanisation and setting the victim outside of the moral universe of the perpetrator is a feature of much violent criminality in general and, as in international crimes, serves, from the perpetrator’s perspective, to justify and rationalise violence and the harm caused, and to neutralise the restraints of social norms. Consider the example of deforestation, where the rights and lives of indigenous peoples count for nothing in the face of massive profits25 or, closer to home and on a more individual level, gang violence and killings, ‘mindless violence’ where a victim is set upon for no other reason than he or she is ‘not one of us’, domestic violence and hate crime. Neither is it entirely accurate to say that victims of international crimes receive short thrift because only a few perpetrators will stand trial and criminal proceedings cannot do justice to the realities of their suffering, and that this marks them out from victims of domestic crime. That the criminal law ‘lets the victim down’ is a prominent argument in both international and domestic debates. In any jurisdiction, only a small proportion of perpetrators are ever brought to court; no system can cope with every crime committed. Moreover, where there are multiple perpetrators (also not uncommon in domestic situations, such as in cases of corporate crime), the primary reaction of prosecutors and courts will be to focus on those who gave the orders or were in a position to stop unlawful behaviour rather than on the small fry who actually got their hands dirty.26 That this is difficult in terms of proof, so that victims may be disappointed with the result, is not a differentiating factor of international trials. And no criminal trial, whether international or otherwise, can do justice to the historical reality of events and their aftermath as experienced by the victim; the determination of facts by the court stands in relation to the determination of guilt, inevitably reducing the emotional narrative of crime to rational issues of proof and evidence. This is not to say that, on occasion, courts do not make room for victims’ emotions,27 but merely that doing so is at the judge’s discretion, is not the purpose of the trial and will not alter the rationality of the verdict.

25 See, inter alia: T Boekhout van Solinge, ‘Deforestation Crimes and Conflicts in the Amazon’ (2010) 18(4) Critical Criminology 263; Global Witness, Deadly Environment: The Dramatic Increase in Killings of Environmental and Land Defenders (London, Global Witness, 2014). 26 See CH Brants, ‘Gold Collar Crime’ in G Geis and HN Pontell (eds), International Handbook of White Collar Crime (New York, Springer, 2007) for a legal and criminological comparison between white-collar and corporate crime and command and superior responsibility under international criminal law. 27  See Karstedt, ‘Emotions’ (2016) 195 on the recent trial of a former guard at Auschwitz where the judge did just that and the victim publicly forgave the perpetrator.

46  Chrisje Brants If international crimes are different, it is because their historical connotations and social construction as pure evil make them so. This has the effect of magnifying the crimes, the perpetrators, the victims and all of the attendant issues (a not unfortunate byproduct in academic debate as it brings such issues into greater focus), to produce a gut feeling that the ‘core international crimes’ are much, much worse (than what?).28 In any event, it is true to say that the circumstances in which victims find themselves in the aftermath of conflict and mass atrocity are different, for the simple reason that not only their lives, but also the material and immaterial infrastructure and stability of the society in which they must try to rebuild them have been disrupted and destroyed: displacement, the destruction of homes, the irreplaceable loss of income and livelihood, and the absence of legitimate authorities (although this does not magnify the crimes per se). Yet, when it comes to the criminal justice reaction to international crimes and, in particular, to the role of the victim, at a fundamental level the parallels with the discourse—legal, social and political—that surrounds domestic criminal justice are striking. Here too, the shift towards a victim paradigm parades the notion that victim participation will overcome the legal and practical constraints—the ‘shortcomings’—of criminal procedure, if only the lawyers would listen. But, above all, there is the paradox of increasing reliance on the criminal law, on the rhetoric that it will provide justice for victims, and its apparent inability to do so. At the same time, in the debate in international and domestic criminal justice, the problems with victims reveal essential questions about legitimacy, the goals and functions of criminal law, and its contribution to ‘justice’. III.  ASPECTS OF JUSTICE AND CRIMINAL LAW

A.  ‘Bringing to Justice’ and ‘Doing Justice to’ Pemberton et al see rebuilding the rule of law as key in the reaction to international crimes and distinguish (overlapping) back­ward- and forward-looking aspects of criminal justice: ‘backward looking in that it should incorporate a reaction to the atrocities already committed, and forward look­ing in that it should contribute to the perceived legitimacy of government and legal authorities, the rule of law in a material sense’.29 If we substitute ‘crimes’ for ‘atrocities’, this is not a distinguishing feature of international criminal justice, but applies in the domestic sphere too. And in both, the legitimacy

28  See P de Hert in ch 5 in this volume on the narrowly unthinking way in which the crimes that come under the jurisdiction of the ICC are accepted as the ‘core’ (but of what, exactly?). 29  Pemberton et al, ‘Coherence’ (2015) 6.

Emotional Discourse in a Rational Public Sphere 47 of forward- and backward-looking criminal justice is conditional on interrelated rational and emotional aspects. In legal theories of domestic criminal law, this fundamental relationship is well developed, yet they are rarely invoked to explain international criminal justice and the position of the victim in it, even though international criminal law not only derives from domestic law but must also address very similar if not the same fundamental issues. The following is drawn from just such theorisation.30 Another way of describing backward- and forward-looking justice is in terms of ‘bringing to justice’ and ‘doing justice to’, which better encapsulates the relationship between the two. Bringing (an offender) to justice refers to injustice perpetrated in the past and is a rational concept that more or less coincides with a criminal trial and punishment; such backward-­looking justice is retributive, exacting payment from—punishing—the offender and framed by such rational conditions as requirements of truth-finding through fair trial and proportionality (punishing only the guilty according to the severity of their crime). Individual and general deterrence, one of the ­presumed consequences of retributive justice, is forward-looking and is also a rational concept—and if this goal is met, that alone would seem to legitimise criminal justice. But whether or not it has been met is an empirical issue that cannot be measured by rational empirical means. We may know when deterrence has failed (if reoffending and reoccurring crime are measures of failure, then it fails all the time), but not when it has succeeded. It is simply unknowable how many people refrain from breaking the law because either they or someone else were punished for doing so, notwithstanding overblown claims of the international legal and political community that punishment by an international court will act as a deterrent.31 ‘Doing justice to’ also has an eye on the future: past wrongs must be righted and repaired, and the conflict at the heart of the trial must not remain unresolved, continuing into the future and causing more harm. Here punishment as retribution takes on the meaning of expiation, the offender atoning for the wrongdoing, paying his or her ‘debt to society’. ‘Bringing to justice’ through conducting a criminal trial, reaching a verdict, and pronouncing and executing a sentence thus also implies contributing to healing the fractured social and legal order, ‘doing justice to’ the interests of both society at large and the direct victims of the crime, and allowing all ­concerned—the offender, the victim and the general public—to move forward. Retributive justice is

30  In particular, those developed by the so-called Utrecht School from the 1950s to the present day; see F de Jong (ed), Overarching Views of Crime and Deviancy: Rethinking the Legacy of the Utrecht School (The Hague, Eleven International, 2015). 31  eg, the sweeping statement by the ICTR: ‘Punishment dissuades for ever … others who may be tempted in the future to perpetrate such atrocities by showing them that the international community shall not tolerate the serious violations of international humanitarian law and human rights’ (Prosecutor v Rutaganda, ICTR-96-3-T, TCh, 6 December 1999, § 456).

48  Chrisje Brants therefore also conciliatory—restorative almost—albeit that the rational reasoning that underlies this connection hides a plethora of emotionality: feelings, perceptions, expectations and emotions of individuals (perpetrators, victims and other members of society) that we can only assume rather than know. The assumption that the visibility of an offender brought to justice by legitimate authority also does justice to the other interests concerned allows the next assumption: that such justice itself will be considered legitimate and contribute in its turn to the legitimacy of the authority. B.  Transparency A final condition of legitimate criminal justice is therefore that it is transparent, ‘justice done [and] seen to been done’. This has different meanings according to the perspective taken. It is presumed that transparent procedures reinforce the norms contained in substantive criminal law (and in that sense contribute to deterrence): for the offender, transparency ensures a fair trial that is open to scrutiny; transparency enables society to oversee the actions of the authorities and gain confidence in the law and those who uphold it; and transparency shows victims that the wrong they have suffered is recognised and that ‘something’ is being done about it. Whether these assumptions actually hold true in practice is not the point, for as long as two fundamental conditions are met—that an acceptable truth is found, and found fairly and transparently—justice in this interlinked sensed is presumed to lie at the heart of the legitimacy of any system of criminal justice. Pemberton et al point to the same assumed link between the criminal trial, punishment and legitimacy in international criminal law.32 An ‘acceptable truth’ does not mean that a trial will find, or is even meant to find, ‘the’ truth. Even were we to think that ‘the’ truth is out there somewhere, it would mean many different things to many different people according to what they have experienced and how they interpret and remember it. We can ask no more of a criminal trial than that it find ‘a’ truth about guilt (or innocence) and pronounce a verdict accordingly, for that is its primary goal to which all others are secondary.33 That truth is acceptable if it has been found in the context of a procedure that is visibly fair and surrounded by guarantees that no one version of events will be privileged a priori above the other; in other words, if we can be as sure as humanly possible that the accused is indeed guilty (or innocent, as the case may be).

32 

Pemberton et al (n 21) 7. See the judgment by the District Court of Jerusalem in the trial of Adolf Eichmann, which makes precisely this point at the very beginning; transcript available at www.nizkor.org/ftp. cgi/people/e/eichmann.adolf/transcripts/ftp.cgi?people/e/eichmann.adolf/transcripts/Judgment/ Judgment-001. 33 

Emotional Discourse in a Rational Public Sphere 49 At the same time, the pronouncement of this truth is highly symbolic and lies at the core of what is termed the ‘expressive function’ of the criminal trial. Following from Hart’s idea that a guilty verdict duly arrived at through a criminal trial serves to produce ‘a formal and solemn pronouncement of the moral condemnation of the community’,34 such condemnation of a perpetrator and his or her actions by legitimate authority is now seen as one of the supremely important functions of criminal justice, serving both retributive and restorative aims.35 The Dutch sociologist of law Toon Peters added a critical dimension to expressive criminal justice in seeing it predominantly as contributing to the development of a moral dimension in society through the critical discussion that is law, and the necessity of demonstrating the subordination of power to it.36 These ideas on the expressive, or communicative, function of the trial, developed with domestic criminal justice in mind, are equally applicable to the international sphere,37 perhaps more so where international criminal trials are likely to involve more victims of one perpetrator than the routine domestic trial. Indeed, after discussing the shortcomings of retributive and restorative justice as a basis for the system of reparations for victims at the ICC, McCarthy sees the symbolic, expressive purpose of criminal law as a meaningful concept for understanding what it is reparations can achieve: ‘Just as the punishment of a handful of those who commit grave crimes under international law can be seen to give expression to certain ideas or values, so too can victim redress serve a similar purpose, providing both a measure of vindication for victims and denunciation of the barbarities in question.’38 C.  Interrelated Goals and Functions Domestic criminal law theory reflects the very roots and historical development of criminal law and procedure, as well as the overarching

34  HM Hart, ‘The Aims of the Criminal Law’ (1958) 23 Law and Contemporary Problems 401. 35  See J Feinberg, ‘The Expressive Function of Punishment’ (1965) 49(3) Philosophy of Law 397; and A Duff, ‘Punishment, Retribution and Communication’ in G Bruinsma, H Elffers and J De Keijser (eds), Punishment, Places and Perpetrators (Abingdon, Routledge, 2012). 36  AAG Peters, ‘Recht als kritische discussie’ in CJM Schuyt, C Kelk and M Gunning (eds), Recht als kritische discussie. Een selectie uit het werk van A.A.G. Peters (Arnhem, Gouda Quint, 1993). 37 See A Duff, ‘Authority and Responsibility in International Criminal Law’ in S Besson and J Tasioulas (eds), The Philosophy of International Law (Oxford, Oxford University Press, 2010); and A Duff, ‘Can We Punish the Perpetrators of Atrocities?’ in T Brudholm and T Cushman (eds), The Religious in Response to Mass Atrocities: Interdisciplinary Perspectives (Cambridge, Cambridge University Press, 2009). 38  McCarthy (n 9).

50  Chrisje Brants Enlightenment logic that demands rational public debate on matters of public interest. Those who criticise the criminal trial as ‘not being about the victim’ forget that historically it has always been about victims, precisely because they have interests that, however individually and emotionally exacting, transcend the private. The domestic criminal trial has always formed the arena where the state intervenes to prevent the inevitable cycle of revenge that would result if victims were to ‘take the law into their own hands’, plunging society back into the medieval chaos of vendetta and blood vengeance. In the same way, the international criminal trial seeks to prevent vengeance in the aftermath of conflict, in order to contribute to stable international relations governed by the rule of law and therefore to the security of the community of nations.39 Such (state) intervention must proceed along strictly rational lines if it is to be regarded as fair (and thus an example of the rule of law prevailing over barbarity) and as producing a truth acceptable to all concerned, not marred by the preponderance of any one party’s interests. In that connection, and from a historical perspective so self-evident it is rarely recalled,40 retribution is a public interest that subsumes any private interest of the victim in vengeance. It is not the same as revenge, but stands in for it and breaks the cycle by making punishment the condition on which the offender can return to society. In this concept of retribution, reconciliation and thus the restoration of a peaceful society in which perpetrators and victims have a place are seen as the logical results once retribution is enacted. Duff links this to the expressive function of the trial, and also the international trial, through the idea of ‘communicative censure’, a concept akin to Hart’s ‘formal and solemn … moral condemnation’. Transparency (without which there is no communication) then becomes an absolute condition. And, while admitting that the adequate punishment of atrocity is challenging, he still maintains that restoring the perpetrator, through punishment, to a status ‘as one of us’ is the ultimate goal.41 McCarthy places the development of international criminal law in the context of the necessity of dealing with the limits imposed by the overarching principle of the international law of states, namely state sovereignty: the power, but also the responsibility to determine individual responsibility and to punish being central to the very being of the nation state. ‘In this sense international criminal law was conceptualized as a system of law little concerned with victims but rather one which was concerned with perpetrators

39  One of the reasons why it would appear less desirable to initiate proceedings while the conflict is ongoing. 40  See RA Duff and S Marshall, ‘Public and Private Wrongs’ in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon. Edinburgh Studies in Law (Edinburgh, Edinburgh University Press, 2010). 41  Duff, ‘Can We Punish the Perpetrators of Atrocities?’ (2010).

Emotional Discourse in a Rational Public Sphere 51 and the enforcement of the rules of international law itself.’42 This is perhaps too restrictive a view, as the choice for the criminal law as the means of upholding fundamental international humanitarian norms is also a choice for its theoretical goals and functions. From this perspective, it is hardly surprising that the ICC, like its predecessors, places ending impunity through trial and punishment first. The other goals, apparent from the Rome Statute and the negotiations surrounding its inception, from political documents and statements, and from pronouncements and judgments by international prosecutors and judges—including reconciliation, conflict resolution, and providing a platform for the recognition of and redress for victims—follow from this primary retributive notion. However, while domestic and international criminal trials obviously bring offenders to justice, this is not to say that they are always perceived as doing justice to the interests and satisfaction of those involved. Whether the retribution they enact can contribute to the fulfilment of their other goals depends on whether their outcome is regarded as legitimate and whether the legitimacy of the trial process, including the authority of the court, is accepted. Increasingly in both domestic and international jurisdictions, that legitimacy is questioned on the basis that victims do not receive their ‘due’ place at trial. IV.  VICTIMS, JUSTICE AND THE DOMESTIC CRIMINAL TRIAL: BETWEEN RHETORIC AND PROCEDURE—A ROCK AND A HARD PLACE

Criminal trials are often said to be unable to respond adequately to the ‘needs of victims’ because of the two-party debate characteristic of the adversarial trial. It should be pointed out a priori that what ‘the needs of victims’ are is often a matter of (top-down) conjecture in both academic literature and criminal justice policy. Be that as it may, given that the structure of the adversarial trial is based on truth-finding as a matter of rational public debate between autonomous parties, defence and prosecution endowed with equal procedural rights, the introduction of the—possibly, probably—­emotional victim as a third ‘party’ is seen as disturbing the essential equilibrium and ‘tainting’ the (acceptability of the) outcome. Inquisitorial procedure, on the other hand, is based on the idea that thorough and impartial investigation by the criminal justice authorities and the trial court is most likely to produce the truth. In such procedures, it is less difficult to afford the victim some sort of role. 42  This explains the goal of McCarthy’s article—to find a principled justification for a system of victim redress in a branch of law that is, in his view, little concerned with victims (McCarthy (n 9)).

52  Chrisje Brants Indeed, some claim that the generally adversarial structure of international trials43 precludes them from ever catering for the victim; (mixed) international procedures that are inquisitorial (such as the Extraordinary Chambers in the Courts of Cambodia (ECCC)) are said to do a much­ better job.44 It would be surprising if this alleged result is actually a function of the inquisitorial trial. There are indeed countries with inquisitorial systems that allow the victim to participate at trial as a ‘civil party’. Others, such as the Netherlands (a highly inquisitorial system), afford the victim very little space in comparison. Nevertheless, victims are now afforded some way of making their views known to criminal courts in practically all Western countries and are provided with some form of representation if necessary. However, the complaint that the ‘victim voice’ is not properly heard is common in many domestic jurisdictions—adversarial and inquisitorial— and appears closely linked to penal populism and challenges to the legitimacy of the different criminal justice systems.45 Governments and legislatures have reacted to this with amendments to the law and changes to criminal policy that have produced a shift from the offender to the victim paradigm, with the victim gradually seen as a customer, a consumer of services that the criminal law by rights should provide for the individual. This discourse is disseminated by interest groups, reiterated and reinforced by the press, and repeated ad infinitum on social media. But at the same time, ‘the crime victim is now, in a certain sense, a representative character whose experience is assumed to be common and collective, rather than individual and atypical’.46 ‘The’ victim has become the main focus and abstract entity in whose name justice is done. The response to public opinion and the victim’s desire to be heard traps the (criminal justice) authorities, the courts and the victim between the expectations raised by the victim paradigm and the limits of what criminal procedure can offer. This is not so much a matter of balancing the rights of the offender against those of the victim, for that can be (and indeed is)

43  This does not, however, apply to the pre-trial phase during which the Prosecutor operates on a decidedly inquisitorial basis. 44  See C White, ch 8 in this volume. 45  See (among many others): M Tonry, ‘Symbol, Substance and Severity in Western Penal Policies’ (2001) 4 Punishment and Society 517; D Garland, The Culture of Control. Crime and Social Order in Contemporary Society (Oxford, Oxford University Press, 2001); M Tonry (ed), Crime Punishment and Politics in Comparative Perspective (Chicago, University of Chicago Press, 2007); J Pratt, Penal Populism (London, Routledge, 2007). From a legal perspective, this shift has given rise to, and is reinforced by, international legal instruments that prescribe victims’ rights and their implementation (see UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 29 November 1985, www.un.org/documents/ ga/res/40/a40r034; recommendations by the Council of Europe such as R(8501 of 28 June 1985, www.coe.int/t/DGHL/StandardSetting/Victims; Directive 2012/29/EU, http://ec.europa. eu/justice/criminal/victims/index_en.htm. 46 Garland, The Culture of Control (2001) 144.

Emotional Discourse in a Rational Public Sphere 53 achieved in many jurisdictions. Rather, given that we may assume that the demand for ‘justice for victims’ does not reflect a desire to return to criminal justice as a matter of pursuing private interests in which the state has no role, the very fact that the criminal trial—despite amendments and new legislation with regard to the victim—is a matter of public interest has its own limits and implications. The first is the selectivity that is inherent in all criminal justice. Because not all harmful actions are criminalised, and criminalised actions are not always prosecuted, their victims are not legally relevant, have no right to representation or to have their ‘voice’ heard and can only air their grievances through protest and the media. But there is also another sort of selectivity. The discourse of the victim paradigm implies solidarity, but the ‘representative character whose experience is assumed to be common and collective’ cannot be just any victim. Solidarity requires victims with whom we can identify because they conform to our collective notions of victimhood: they are the innocent, the helpless, struck down by disasters in which they had no part. Recognition of and solidarity with victimhood is thus dependent on this ‘appropriate victim’, a concept reflected and reinforced by the selective victimhood that is (re)produced in criminal trials. Whatever form victim participation takes, the goals of criminal procedure require it to conform to its rational rules. Where the victim can operate as a civil party, he or she has specific rights and duties, adherence to which is ensured by legal representation. The (written or spoken) victim impact statement, which allows the victim to personally ‘speak’ to the court, is more subtly regulated; victims are selected and channelled through either the prosecution service or special victim units. In the Netherlands, one of the specific reasons for this is that ‘victims [could] have been perpetrators at some point or perpetrators may have been victims, and sometimes it is not clear who is the victim and who the perpetrator’.47 Presumably, not every victim is ‘appropriate’ for a victim impact statement. Moreover, in most jurisdictions, victims may speak only about the crime(s) charged and their impact; if they stray into other territory, they become—challengeable— witnesses, fair trial requiring that the defendant can answer any evidence presented in the guise of a victim impact statement. At the same time, however emotional a victim may feel, the rational decorum of courtroom procedure and argument—a major factor in the transparency of a fair trial—precludes highly emotional statements. Victims themselves understand this perfectly and research shows that those who fear losing control of their emotions in court prefer to present a written

47 Letter from the Dutch Minister of Security and Justice to the Second Chamber of Parliament, 22 February 2013, available at www.rijksoverheid.nl/nieuws/2014/11/13/ teeven-kiest-voor-onbeperkt-spreekrecht-slachtoffers.

54  Chrisje Brants statement, as do those who fear that what they say (or the way they say it) will have a negative impact on the result of the trial.48 This corresponds to research into the victim’s ‘voice’ in Argentina, which found that victims used quite different words and tone according to whether they were addressing a court or a truth commission (the latter leaving more room for emotional expression), and that different voices also produce different veracities.49 For this reason, unbridled emotions are highly problematic to the primary goal of criminal procedure: the establishment of an ‘acceptable’ truth about guilt and innocence. This too explains the screening and preparation of victims before trial, and the trial judge’s remaining the ultimate guardian of rational discourse in court to ensure due process. The problem with victim participation in domestic justice is not so much that victims are not heard, but that only some victims are legally relevant and appropriate, and are then limited in terms of what they can say and how they can say it. Moreover, the same rationality that requires due and decorous process also governs sentencing, but vengeful feelings of victims do not determine proportionality (though their emotional trauma may be a factor). It is at this point that victims say they feel let down. ‘Emotional healing’ is seldom why they want to participate at trial. They do, however, expect their communication to the court to be translated into a reflection of their own private desire for ‘just retribution’ and most feel that ‘their’ offender got off too lightly.50 Research in (adversarial) England confirms these findings from the Netherlands: ‘A victim may value the service and support they receive from a range of CJS agencies, but still feel that justice has not been served and their “voice” has not been heard in both the nature and implementation of the sentence.’51 For all that the rhetoric of victim participation propounds emotional solidarity with the victims and their desire for ‘justice’, the ‘public interest’ reality of the criminal trial is based on other definitions of solidarity and justice. V.  VICTIMS, JUSTICE AND THE INTERNATIONAL CRIMINAL TRIAL

The idea that the role of the victim in international criminal process is ­crucial to achieving justice in a much wider sense than retribution is not new. Winter maintains that providing information relevant to a defendant’s guilt (or innocence) by the victim-witness is but one ‘level’ of witnessing.

48  K Lens, A Pemberton and M Groenhuijsen, Het spreekrecht in Nederland: een bijdrage aan het emotioneel herstel van slachtoffers? (Tilburg, INTERVICT, 2010) ch 3. 49  See A Robben, ch 10 in this volume. 50  Lens et al, Het spreekrecht in Nederland (2010) ch 4. 51  Commissioner for Victims and Witnesses in England and Wales, Victims’ Views of Court and Sentencing Qualitative Research with WAVES Victims (October 2011).

Emotional Discourse in a Rational Public Sphere 55 At a moral level, victim testimony frames a wider narrative about evil and, ultimately, the victim speaks for humanity, emphasising that we have a duty to remember, for we forget at our moral peril.52 These ‘levels of witnessing’ are a variation of the expressive function of the criminal trial, serving the public interest of humanity at large, not the satisfaction of individual witnesses. But it was precisely the harnessing of the individual victim-witness to the broader collective aims of international criminal justice that lay at the heart of the criticism of the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Victims were said to be regarded as merely one of the tools of justice available during trials, which therefore failed to provide for their individual ‘needs’.53 Increasingly, a discourse comparable to that on victim participation in domestic justice has found its way into the international sphere. It is not only dissatisfaction with the tribunals that has fuelled this switch to the ‘victim paradigm’, which has culminated in the victim-participant under Article 68(3) of the ICC Statute, which has been hailed as one of the ICC’s ‘great innovations’.54 In the domestic context, the perceived threat to the legitimacy of criminal justice is inherent in the discourse of victim participation. The shift to a victim paradigm in international law can also be seen predominantly in terms of legitimacy, because international criminal justice could be said to lack legitimacy per se. An inherently political international institution like the ICC faces decisions about which of the many ‘situations’ in the world to define and investigate as potential international crimes, which of the many potential perpetrators to prosecute and whether it is (politically) feasible to do either. At the same time, it is based on a treaty to which the most powerful states are not a party. And so it ever stands accused of playing politics dressed up as law and of not speaking for a morally constituted international community of states.55 By default, ‘the’ victim then becomes the entity in whose name justice is done and from whom international criminal law derives its fundamental legitimacy.

52 J Winter, Remembering War: The Great War between Memory and History in the ­Twentieth Century (New Haven, Yale University Press, 2006). 53  Haslam, ‘Victim Participation’ (2004); BN McGonigle, ‘Bridging the Divides in International Criminal Proceedings: An Examination into the Victim Participation Endeavor of the International Criminal Court’ (2009) 21(1) Florida Journal of International Law 93. 54  As the somewhat self-congratulatory text on the ICC website puts it (www.icc-cpi.int, under ‘victims and witnesses’). 55  On Uganda, see SHM Nouwen and WG Werner, ‘Doing Justice to the Political’ (2010) 4 European Journal of International Law 941. On the criticism of the African Union that the ICC unfairly targets Africa and its politicians, see: www.aljazeera.com/news/africa/2014/02/ african-union-urges-united-stand-against-icc and www.theguardian.com/world/2013/oct/12/ african-union-icc-kenyan-president.

56  Chrisje Brants A.  Selectivity and Objectification Paradoxically, as in the domestic context, victim participation does not necessarily further the interests of the individual victim; rather, it precipitates a shift within the victim paradigm from the concrete to the abstract victim, the furthering of whose interests is presented as the major goal and justification of international criminal justice. But here too, as in domestic criminal procedure, the selectivity inherent in affording victims a legal status as participants involves categorising them as ‘legally relevant’, significantly narrows the number of victims who are represented and reduces the number who can actually represent themselves to practically none. Legal definition determines and significantly limits the crimes over which the ICC has jurisdiction, and decisions by the prosecutor (on the grounds of efficiency, political feasibility and/or the availability of evidence) to indict certain offenders for certain crimes in certain geographical areas put large numbers of victims out of the (legal) picture. The bureaucratic constraints on the procedure with regard to recognition and representation of victims, and increasingly the practice of collective representation, reduce numbers further;56 a major reorganisation of the ICC registry is likely to affect such constraints even more.57 And fears of allowing an emotional genie out of the bottle result in limitations imposed by the court in order to maintain the rational debate that is a criminal trial: Presiding Judge Adam Fulford remarked that during the status conference on the Situation in the Democratic Republic of the Congo, ‘people without legal training coming to talk about very difficult things that have happened to them could have a real capacity for destabilising these court proceedings’.58 However, while the practice of victim participation is much more limited for individual victims than it purports to be, judges, politicians and legal scholars still maintain that the ICC speaks in the name of the victim. But this is an abstract entity, to which Kendall and Nouwen, in good Bourdieuesque newspeak, indeed refer in the singular: ‘“The Victim”, which transcends all actual victims and corresponds to no individual victims in their particularity’.59 This entity is called upon to justify and legitimise international criminal justice.60 Such legitimacy, resting on the abstraction of suffering 56  See on the necessity of representation and collectivisation of victims, their exclusion from the pre-trial investigative stage and the ‘piecemeal approach’ of the court as to what they are allowed to say, see L Moffet, ‘Realising Justice for Victims before the International Criminal Court’, ICD Brief 6, September 2014, www.internationalcrimesdatabase.org. 57  See J Easterday, ‘Major Changes at the ICC: The Registry’s ReVision’, 24 August 2015, www.ijmonitor.org. 58  Transcript of 12 January 2009, ICC-01/04-01/06-T-101-ENG, ICC, at 43–44. 59  Kendall and Nouwen (n 3) 241. 60 A Sagan, ‘African Criminals/African Victims: The Institutionalised Production of Cultural Narratives in International Criminal Law’ (2010) 1 Millennium: Journal of International Studies 3.

Emotional Discourse in a Rational Public Sphere 57 rather than on that of the concrete individual, cannot be challenged, but at the same time, if international criminal justice is something enacted by the international community institutionalised in the ICC and ‘for “the” victim’, the latter becomes a passive object. This concept of ‘the’ victim both draws on and reinforces existing images of victims as innocent, helpless, hapless and needy,61 but also creates a victim constructed procedurally as a category from whom a certain rational legal performance is expected,62 appropriating the individual victim’s narrative and replacing it with that of a powerful protective third party, be it (collective) representation or the prosecutor.63 B.  Victims, Emotions and Transparency Inevitably, given the extensive rhetoric of the victim paradigm, the practice of victim participation in court can be something of a disappointment to those it is meant to benefit. Disappointment and feelings of not having received in court what one was invited to come for—justice—are very real and indicate that the difference between witness testimony and victim participation, the legal limits and the further constraints imposed by the court during the trial are not easily understood. This raises the question of what victims regard as ‘justice’ in the international context. According to Henry: ‘In the aftermath of armed conflict, justice is elusive, variant and deeply personal.’64 It depends very much on what the victim has suffered, but also on the political, social and cultural circumstances in the post-conflict ­society. In Chile and Nepal, for example, where disappearances figure high on the list of atrocities, the foremost desire is for the truth about the disappeared (whether they are dead, where they are buried), then for economic assistance. Justice in the form of punishment is a much less urgent desire.65 While financial compensation, though limited, can usually be provided by an international court, this sort of truth is not likely to emerge.

61  M Mutua, Human Rights: A Political and Cultural Critique (Philadelphia, University of Pennsylvania Press, 2002) 11. 62  KB Sandvik, ‘The Politics and Possibilities of Victimhood: A Cosmopolitan Perspective’ (paper presented at the Cosmopolitan Justice and its Discontents Interdisciplinary Conference in Oslo, Norway, 15–16 October 2009). 63  R Meister, After Evil: A Politics of Human Rights (New York, University of Columbia Press, 2011) 72–73. 64  N Henry, ‘Witness to Rape: The Limits and Potential of International War Crimes Trials for Victims of Wartime Sexual Violence’ (2009) 3 International Journal of Transitional Justice 114, 134. 65  On Nepal, see S Robins, ‘Towards Victim-Centred Transitional Justice: Understanding the Needs of Families of the Disappeared in Post-conflict Nepal’ (2011) 5 International Journal of Transitional Justice 75; on Chile, see K Klep, ‘Transitional Justice and Local Memory: Commemoration and Local Action in Londres 38, Espacio de Memorias’ in C Brants, A Hol and D Siegel (eds), Transitional Justice: Images and Memories (Farnham, Ashgate, 2013).

58  Chrisje Brants In other cases, victims want and expect punishment of the offender, compensation and especially to be able to give their personal account.66 However, all of these desires and expectations can differ significantly from those of legal professionals and can also be thwarted by the (legal) practicalities of international criminal justice. Professionals understand that a criminal charge does not necessarily reflect (all of) the accused’s actions, or the sentence the victim’s desire for revenge. This can be incomprehensible to victims, who often think that only the most severe label of ‘genocide’ reflects the severity of their suffering,67 or desire to see the death penalty imposed (impossible under international criminal law) or at the very least life imprisonment. And where professionals see the transparency inherent in victim participation predominantly as a means of ‘informing the country’, victims want to tell their individual story.68 The victims of the Congolese Lubanga Dyilo, who for evidential and expediency reasons was charged only with recruiting child soldiers, could not speak about the sexual violence they had suffered: ‘the ambit of participation by the victims must be focused, must be really directed, at the evidence that we’re going to be dealing with in this trial and in particular, the charges which this accused faces’. A victim told to answer a question directly exclaimed: ‘I thought I was here to talk about my personal story.’ Before the ECCC, the wife of a victim, visibly struggling to come to terms with what had happened to her husband, was told ‘to … concentrate on … when your husband was detained and tortured … And please don’t stray far away from that matter’.69 Judges not only call to order victims whose emotions get the better of them, they are careful to keep the victim’s narrative well within the limits of the indictment. Victim participation is seen as essentially in support of the court’s truth-finding task and victims are expected to tailor their performance accordingly. As a result, the possibility of victim participation raises more expectations than are, or can be, fulfilled. And interestingly, there is little difference between the ICC with its adversarial trial structure and the ECCC, which is based on inquisitorial French procedure and incorporates the victim as a civil party. This suggests that if the ECCC has been seen to do better, it is not because of the type of procedure, but because it set in place extensive measures to enhance the transparency of the court process, thus promoting debate on a subject that had been all but taboo in Cambodia, and therefore possibly enhancing the victims’ experience.70 66 See S SaCouto, ‘Victim Participation at the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia: A Feminist Project’ (2012) 18 Michigan Journal of Gender and Law 297; and Hoven and Scheibel (n 3) 172–78. 67  See R Nickson, ch 9 in this volume. 68  Hovel and Scheibel (n 3) 177. 69  Quotes in SaCouto, ‘Victim Participation’ (2012) 346–47. 70  See C White, ‘ ch 8 in this volume.

Emotional Discourse in a Rational Public Sphere 59 VI. CONCLUSIONS

To borrow from Thomas Kuhn, as a specific way of viewing reality, the victim paradigm and its translation into criminal procedure are mutually reinforcing: the greater the scope for the victim in terms of procedural rights, the more self-evident the paradigm appears. Yet, it is also self-­contradictory and full of unreconciled anomalies, seeming to represent reality, but ignoring and disqualifying realities that undermine its assumptions.71 Above all, it assumes that the victim and his or her emotions can be fitted into, and prioritised in, an existing model geared in all its procedural rules and safeguards—indeed, in its essential underlying assumptions with regard to its own legitimacy—to establishing an offender’s guilt rationally, accountably and transparently. In that sense, the victim paradigm asks too much of (international) criminal law, ignoring its reality, dismissing it as ‘insufficient’ when it conforms to its own inherent logic, and disqualifying its goals and functions where they run counter to the demands of ‘justice for victims’. To assume that criminal procedure can meet ‘the’ victim’s needs for justice is to equate law and punishment with justice—insofar as the latter includes (as it must do, though not to the exclusion of all other interests) the victim’s perspective. Law, however, makes demands on procedure that run contrary to what victims might want or expect. In particular, during a criminal trial, human experience must always be reduced to what can be spoken of rationally and proven, and that does not necessarily correspond to what a victim—or an offender for that matter—has actually experienced. And where it requires precise, quantifiable and rationally presented evidence for establishing facts beyond reasonable doubt, the emotive personal memories inherent in victims’ narratives may be superfluous and prevent victims from relating their experiences in their own words or recognising them in the words of the court.72 Indeed, the emotional transparency that is inherent in the victim paradigm would replace or at least undermine the rational, expressive function of the criminal trial and with it the significant social and critical potential of criminal process to hold the criminal justice authorities to the law, and to account, and to the production of an ‘acceptable truth’. However, one thing seems certain. There can be no way back to the trial in which the victim plays no part. But the underlying contradictions and anomalies of the victim paradigm are such that a great deal of rethinking is in order on essential questions regarding the goals and functions of (international) criminal law and procedure. What, for example, is meant

71 TS Kuhn, The Structure of Scientific Revolutions, 2nd edn (Chicago, University of Chicago Press, 1970), 80 ff. While Kuhn is referring to paradigms as the sets of practices and shared preconceptions and assumptions that define scientific disciplines at any given period in time, the concept of the paradigm can also be applied to social practices, of which law is one. 72  Haslam (n 13) 328.

60  Chrisje Brants by retribution through punishment and does that meaning change if social groups refute the idea that individual interests are subsumed under the general interests of society or of the international society of states? Or if the legitimacy of justice—in this context, international criminal justice—is contested from the outset? In that light, the following logical question is whether reconciliation is still—or can be even—a goal. And what is the nature of the expressive function of criminal law and procedure: can we still maintain that it promotes shared moral values or that it speaks to power through such essential foundations of legitimate criminal justice as transparency and accountability? Or has it become a non-debatable declaration of solidarity with victims? The goals of international criminal justice have been called ‘as ambitious as they are contradictory’.73 That they are ambitious is true—all criminal law is ambitious—but from the wider theoretical perspective as outlined in this chapter, they are neither contradictory nor necessarily indicative of a system unconcerned with victims. The problems arise from (emotional) expectations based on the idea that the goals of the trial reflect a future empirical reality, while they are no more, but also no less, than rational normative precepts and ideals. A criminal trial may bring to justice, may even do justice to, but does not and cannot bring about a state of ‘justice’. The trial process is finite and the judgment is definitive and authoritative, and deliberately so; it is not meant to provoke endless debate on whether or not the verdict was correct, but to establish a particular legally determined version of events, in a particular prescribed manner and at a particular point in time, upon which to base retributive sanctions.74 ‘Justice’, however, is an infinite social and emotional process, a striving through debate and contestation towards making sense of what has happened and to imputing a shared significance to past events that recognises the reality of individual and collective suffering, and makes a shared future possible.75 A criminal court can only be part of that process, never its whole. Visible, rational closure about what it has established as the truth, not unknowable emotional closure for individual victims, is its purpose. By definition, its contribution to the process of justice for victims is limited. A trial is a rational set piece; justice an emotional long haul.

73  J Alvarez, ‘Trying Hussein: Between Hubris and Hegemony’ (2004) 2 Journal of International Criminal Justice 319, 321–22. 74 C Brants and K Klep, ‘History-Telling, Collective Memory, and the Victim-Witness’ (2013) 7(1) International Journal of Conflict and Violence 36, 47–48. 75  cf Brants and Klep, ‘History-Telling’ (2013); C Brants, ‘Introduction’ in CH Brants, A Hol and D Siegel (eds), Transitional Justice: Images and Memories (Farnham, Ashgate, 2013).

Emotional Discourse in a Rational Public Sphere 61 REFERENCES Alvarez, JE, ‘Trying Hussein: Between Hubris and Hegemony’ (2004) 2 Journal of International Criminal Justice 319–29. Boekhout van Solinge, T, ‘Deforestation Crimes and Conflicts in the Amazon’ (2010) 18(4) Critical Criminology 263–77. Brants, CH, ‘Gold Collar Crime’ in G Geis and HN Pontell (eds), International Handbook of White Collar Crime (New York, Springer, 2007) 309–26. Brants, C, ‘Introduction’ in CH Brants, A Hol and D Siegel (eds), Transitional ­Justice: Images and Memories (Farnham, Ashgate, 2013), 1–14. ——. ‘The “Victim Paradigm” in (International) Criminal Justice’ in F de Jong (ed), Overarching Views of Crime and Deviancy: Rethinking the Legacy of the Utrecht School (The Hague, Eleven International Publishing, 2015) 203–30. Brants, C and Klep, K, ‘History-Telling, Collective Memory, and the Victim-Witness’ (2013) 7(1) International Journal of Conflict and Violence 36–49. Clark, JN, ‘Reconciliation via Truth? A Study of South Africa’s TRC’ (2012) 11(2) Journal of Human Rights 189–209. Commissioner for Victims and Witnesses in England and Wales, Victims’ Views of Court and Sentencing Qualitative Research with WAVES Victims (October 2011). Duff, RA, ‘Can We Punish the Perpetrators of Atrocities?’ in T Brudholm and T Cushman (eds), The Religious in Response to Mass Atrocities: Interdisciplinary Perspectives (Cambridge, Cambridge University Press, 2009) 79–104. ——. ‘Authority and Responsibility in International Criminal Law’ in S Besson and J Tasioulas (eds), The Philosophy of International Law (Oxford, Oxford University Press, 2010) 589–604. ——. ‘Punishment, Retribution and Communication’ in G Bruinsma, H Elffers and J De Keijser (eds), Punishment, Places and Perpetrators (Abingdon, Routledge, 2012) 78–96. Duff, RA and Marshall, S, ‘Public and Private Wrongs’ in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon. Edinburgh Studies in Law (Edinburgh, Edinburgh University Press, 2010) 70–85. Edwards, I, ‘An Ambiguous Participant: The Crime Victim and Criminal DecisionMaking’ (2004) 44 British Journal of Criminology 967–82. Findlay, M, ‘Activating a Victim Constituency in International Criminal Justice’ (2009) 3 International Journal of Transitional Justice 183–206. Garland, D, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford, Oxford University Press, 2001). Global Witness, Deadly Environment: The Dramatic Increase in Killings of Environmental and Land Defenders (London, Global Witness, 2014). Hart, HM, ‘The Aims of the Criminal Law’ (1958) 23 Law and Contemporary Problems 401–41. Haslam, E, ‘Victim Participation at the International Criminal Court: A Triumph of Hope over Experience?’ in D MacGoldrick, P Rowe and E Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Oxford, Hart Publishing, 2004) 315–34. Haslam, E and Dembour, M, ‘Silencing Hearings? Victim/Witnesses at War Crimes Trials’ (2004) 15 European Journal of International Law 151–77.

62  Chrisje Brants Henry, N, ‘Witness to Rape: The Limits and Potential of International War Crimes Trials for Victims of Wartime Sexual Violence’ (2009) 3 International Journal of Transitional Justice 114–34. Herman, JL, ‘The Mental Health of Crime Victims: Impact of Legal Intervention’ (2003) 16(2) Journal of Traumatic Stress 159–66. ——. ‘Realities of Victim Participation: The Civil Party System in Practice at the Extraordinary Chambers in the Courts of Cambodia (ECCC)’ (2013) 16(4) Contemporary Justice Review: Issues in Criminal, Social, and Restorative Justice 461–81. Hoven, E and Scheibel, S, ‘“Justice for Victims” in Trials of Mass Crimes: Symbolism or Substance?’ (2015) 21(2) International Review of Victimology 161–85. Huisman, W, Business as Usual? Corporate Involvement in International Crimes (The Hague, Eleven International Publishing, 2010). Ignatieff, M, ‘The Elusive Goal of War Trials’ (1997) 294(1762) Harper’s Magazine 15–18. Jong, Ferry de (ed), Overarching Views of Crime and Deviancy: Rethinking the Legacy of the Utrecht School (The Hague, Eleven International Publishing, 2015). Karstedt, S, ‘The Emotion Dynamics of Transitional Justice: An Emotion Sharing Perspective’ (2016) 8(1) Emotion Review 50–55. ——. ‘Emotions, Truth and Justice: Shared and Collective Emotions in Transitional Justice’ in H Landweer and D Koppelberg (eds), Recht und Emotion: Verkannte Zusammenhänge (Freiburg, Karl Alber, 2016) 194–224. Kendall, S and Nouwen, S, ‘Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood’ (2013) 76 Law & Contemporary Problems 235–62. Klep, K, ‘Transitional Justice and Local Memory: Commemoration and Local Action in Londres 38, Espacio de Memorias’ in C Brants, A Hol and D Siegel (eds), Transitional Justice: Images and Memories (Farnham, Ashgate, 2013) 105–22. Kuhn, TS, The Structure of Scientific Revolutions, 2nd edn (Chicago, University of Chicago Press, 1970). Lens, K, Pemberton, A and Groenhuijsen, M, Het spreekrecht in Nederland: een bijdrage aan het emotioneel herstel van slachtoffers? (Tilburg, INTERVICT, 2010). Lundy, P and McGovern, M, ‘Whose Justice? Rethinking Transitional Justice from the Bottom up’ (2008) 35(2) Journal of Law and Society 265–92. McCarthy, C, ‘Victim Redress and International Criminal Justice: Competing Paradigms, or Compatible Forms of Justice?’ (2012) 10 Journal of International Criminal Justice 351–72. McEvoy, K and McGregor, L, ‘Transitional Justice from Below: An Agenda for Research, Policy and Praxis’ in K McEvoy and L McGregor (eds), Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Oxford, Hart Publishing, 2008) 1–14. McGonigle, BN, ‘Bridging the Divides in International Criminal Proceedings: An Examination into the Victim Participation Endeavor of the International Criminal Court’ (2009) 21(1) Florida Journal of International Law 93–151. McGonigle Leyh, B, ‘Victim-Oriented Measures at International Criminal Institutions: Participation and its Pitfalls’ (2012) 12 International Criminal Law Review 375–408.

Emotional Discourse in a Rational Public Sphere 63 Meister, R, After Evil: A Politics of Human Rights (New York, University of ­Columbia Press, 2011). Moffet, L, ‘Realising Justice for Victims before the International Criminal Court’, ICD Brief 6, September 2014, www.internationalcrimesdatabase.org. Mutua, M, Human Rights: A Political and Cultural Critique (Philadelphia, University of Pennsylvania Press, 2002). Nouwen, SHM and Werner, WG, ‘Doing Justice to the Political’ (2011) 4 European Journal of International Law 941–65. Pemberton, A, Letschert, RM, de Brouwer, AM and Haveman, RH, ‘Coherence in International Criminal Justice: A Victimological Perspective’ (2015) 15(2) International Criminal Law Review 1–30. Peters, AAG, ‘Recht als kritische discussie’ in CJM Schuyt, C Kelk and M Gunning (eds), Recht als kritische discussie. Een selectie uit het werk van A.A.G. Peters (Arnhem, Gouda Quint, 1993) 209–38. Pratt, J, Penal Populism (London, Routledge, 2007). Robins, S, ‘Towards Victim-Centred Transitional Justice: Understanding the Needs of Families of the Disappeared in Post-conflict Nepal’ (2011) 5 International Journal of Transitional Justice 75–98. SaCouto, S, ‘Victim Participation at the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia: A Feminist Project’ (2012) 18 Michigan Journal of Gender and Law 297–359. Sagan, A, ‘African Criminals/African Victims: The Institutionalised Production of Cultural Narratives in International Criminal Law’ (2010) 1 Millennium: Journal of International Studies 3–21. Sandvik, KB, ‘The Politics and Possibilities of Victimhood, A Cosmopolitan Perspective’ (paper presented at the Cosmopolitan Justice and its Discontents Interdisciplinary Conference in Oslo, Norway, 15–16 October 2009). Solange, M, ‘Victim Participation at the ICC for Victims of Gender-Based Crimes: A Conflict of Interest?’ (2013) 21 Cardozo Journal of International Law 619–51. Tonry, M, ‘Symbol, Substance and Severity in Western Penal Policies’ (2001) 4 Punishment and Society 517–36. ——. (ed), Crime Punishment and Politics in Comparative Perspective (Chicago: University of Chicago Press, 2007). Triponel, A and Pearson, S, ‘What Do You Think Should Happen? Public Participation in Transitional Justice’ (2010) 22(1) Pace International Law Review 103–44. Turner, JI, ‘Decision on Civil Party Participation in Provisional Detention Appeals’ (2009) 103 American Journal of International Law 116–21. Van den Wyngaert, C, ‘Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge’ (2011) 44 Case Western Reserve Journal of International Law 475–96. Wemmers, J, ‘Where Do They Belong? Giving Victims a Place in the Criminal Justice Process’ (2009) 20 Criminal Law Forum 395–416. Winter, J, Remembering War: The Great War between Memory and History in the Twentieth Century (New Haven, Yale University Press, 2006).

64 

4 Credible Justice and Incredible Crimes SUSANNE KARSTEDT

I. INTRODUCTION Brave the mediocre Fritzsche [one of the defendants at the Nuremberg trials against the major war criminals] who tried to put down how happenings looked to people who had never quite known what was happening; and brave the men, who in making the Nuremberg trial, tried to force a huge and sprawling historical event to become comprehensible. It is only by making such efforts that we survive.1

W

ITH THESE WORDS, Rebecca West concludes her account of the Nuremberg trials, which she had covered as a journalist from beginning to end. An astute observer inside and outside of the courtroom, of defendants and judges, as well as of ordinary Germans living in and around Nuremberg at the time, she recorded the misinformation and misunderstandings among all affected, and her concluding remarks sum these observations up. She writes them as she reviews a book by Hans Fritzsche, who stood on trial as head of broadcasting in Goebbels’ Ministry of Propaganda and was acquitted; here, he expounds his view of the Nuremberg trials and its procedures based on common law practice, which he deems partially incomprehensible and deeply unfair.2 But her conclusion also encompasses her encounters with a woman who was convinced that the judges were (revengeful) Jews, and with Germans, who saw the trials as vicarious revenge against their leadership (and for reasons of personal hardship).3

1  R West, A Train of Powder: Six Reports on the Problem of Guilt and Punishment in Our Time (Chicago, Ivan R Dee, 1955) 250. 2  H Fritzsche, Das Schwert auf der Waage (Heidelberg, Kurt Vowinckel, 1953); he mainly refers to cross-examinations. At the ICTY, similar problems emerged; see P Wald, ‘Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal’ (2002) 5 Yale Human Rights and Development Journal 217. 3 S Karstedt, ‘Coming to Terms with the Past in Germany after 1945 and 1989: Public Judgments on Procedures and Justice’ (1998) 20 Law and Policy 15.

66  Susanne Karstedt As a journalist, West had a keen eye for the misunderstandings and misinformation that haunted the Nuremberg trials, and for the need to send a credible message that succeeded in getting citizens to accept the judgments and the views of the prosecution and the judges.4 She knew that ‘it is the bystanders—the great mass of most societies—who are crucial’, as Gibson stated for the South African Truth and Reconciliation Commission (TRC) more than half a century later.5 She had heard Justice Jackson defining the task of the Nuremberg trials in his opening statement as ‘establish[ing] incredible events by credible evidence’.6 Her report on the Nuremberg trials portrays them as heroic achievements and simultaneously failures of being a credible institution with a credible message. Contemporary international courts and tribunals hardly seem to have improved. There is mounting evidence of public views on a range of transitional justice mechanisms, from truth commissions to international tribunals, showing that ‘there is a great deal of misinformation and misunderstanding among the affected public’, which ultimately leads to perceptions of ‘illegitimacy’.7 The stakes are high: the ‘credibility of the promise’ that is the foundation of the institutions of international criminal justice is seen as being in danger, and with it the entire United Nations (UN) security system on which it is ultimately predicated.8 In official UN documents, reports from non-governmental organisations (NGOs) in the field, and in recommendations, the ‘credibility’ of transitional justice generally and of its institutions and mechanisms specifically has been assigned an increasingly important role. Thus, the UN Secretary General in his ‘Guidance Notes’ for transitional justice states that ‘the credibility and legitimacy of prosecution initiatives require that they are conducted in a non-discriminatory and objective manner, regardless who the alleged perpetrators may be’.9 4  Actually, public opinion differed on both: while the final sentences were supported by a majority, and the vast majority (85%) acknowledged the war crimes committed at the end of the International Military Tribunal (IMT) in 1946, they saw the IMT as a vicarious revenge on their leadership, and there was little acknowledgement of the victims. See S Karstedt, ‘The Nuremberg Tribunal and German Society: International Justice and Local Judgment in Post-conflict Reconstruction’ in DA Blumenthal and T McCormack (eds), The Legacy of Nuremberg. Civilising Influence or Institutionalised Vengeance? (Leiden, Koninklijke Brill, 2008). 5  JL Gibson, ‘On Legitimacy Theory and the Effectiveness of Truth Commissions’ (2009) 72 Law and Contemporary Problems 123. 6  T Taylor, The Anatomy of the Nuremberg Trials (New York, Knopf, 1992) 54; P Wald, ‘To “Establish Incredible Events by Credible Evidence”: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’ (2001) 42 Harvard International Law Journal 535; with a different quote, see DM Amann, ‘Assessing International Criminal Adjudication of Human Rights Atrocities’ (2000–03) Third World Legal Studies 169. 7  J Meernik, ‘Public Support for the International Criminal Court’ in DL Rothe, J Meernik and T Ingadottir (eds), The Realities of the International Criminal Court (Leiden, Martinus Nijhoff, 2013) 320. 8 ibid. 9  UN Secretary General, Guidance Note of the Secretary General ‘United Nations Approach to Transitional Justice’ (New York, United Nations, 2010).

Credible Justice and Incredible Crimes 67 The Coalition for the International Criminal Court recommends that ‘courtled communications is essential for the meaningful delivery of fair and credible justice to victims as set out in the Rome Statute’.10 In 2000, the then President of Sierra Leone requested assistance from the UN in setting up a court ‘to try and bring to credible justice members of the Revolutionary United Front’,11 and UN Security Council Resolution 1315 promoting the Special Court for Sierra Leone (SCSL) recognised ‘that in the particular circumstances of Sierra Leone, a credible system of justice and accountability for the very serious crimes committed there’ should be established.12 Reports on surveys of the general population in the affected countries, of victim participants at the International Criminal Court (ICC) or of former combatants in Sierra Leone reflect the importance of ‘popular ­credibility’13 of transitional justice mechanisms and institutions on both sides of the divide. Victim participants at the ICC expected ‘convictions’ based on the ‘strength’ of their presentations and saw ‘a lot of credibility of the court … at stake’ if these were not achieved as they had envisioned.14 Former combatants in Sierra Leone made ‘credible’ commitments by both the Court and the Truth Commission a precondition for their participation in either of these transitional justice institutions. They were most concerned about information sharing between both institutions and the timing and framing of subsequent or simultaneous criminal prosecution. They demanded credible commitments as to ‘firewalls’ between both institutions and clear limitations for prosecution. They feared in particular ‘false information’ being given to the Truth Commission which they could not contest.15 Like the defendant Hans Fritzsche at the Nuremberg trials, victims expressed incomprehension at the plea bargains at the ICTY, which were unknown in their

10 Coalition for the International Criminal Court (CICC) Communications Team, Comments and Recommendations to the 13th Session of the Assembly of the States Parties (2014) www.iccnow.org/documents/Comments_and_Recommendations_to_the_13th_ASP.PDF. Actually, the Rome Statute does not mention credibility. 11  Quoted in DE Arzt, ‘Views on the Ground: The Local Perception of International Criminal Tribunals’ (2006) 603Annals of the American Academy of Political and Social Science 226, 234. 12  UN Security Council, Security Council Resolution 1315 (2000) On the Establishment of a Special Court for Sierra Leone, 14 August 2000, S/RES/1315 (2000) www.rscsl.org/Documents/Establishment/S-Res-1315-2000.pdf. See also Office of the Attorney General and Ministry of Justice Special Court Task Force, Briefing Paper on an Outreach and Public Education Program for the Special Court 7–18 Jan (Freetown, Office of the Attorney General/ Ministry of Justice, 2002), quoted in M Glasius, ‘Do International Criminal Courts Require Democratic Legitimacy?’ (2012) 23 European Journal of International Law 43, 50, note 33. 13  Arzt, ‘Views on the Ground’ (2006) 227. 14  Human Rights Center, The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court (Berkeley, University of California Press, 2015), 56; see also Wald, ‘Dealing with Witnesses’ (2002). 15 PRIDE (Post-conflict Reintegration Initiative for Development and Empowerment), Ex-combatant Views of the Truth and Reconciliation Commission and the Special Court in Sierra Leone (Freetown, PRIDE, 2002).

68  Susanne Karstedt national legal systems, and ultimately bitterness at the sentences meted out to their former tormentors.16 Consequently, it is widely debated whether transitional justice institutions—be they international, national or hybrid, courts or truth commissions—are experienced as ‘credible system(s) of justice and accountability’, in particular by the local populations to whom they address themselves.17 Their task of ‘establish[ing] incredible events by credible evidence’ has not changed or become easier since the Nuremberg trials.18 Actually, it looks much more daunting with hostile states and governments who withhold evidence, intimidated and harassed victims, and populations that demand information and transparency. However, while ‘credible evidence’ is a well-established legal term and construct,19 with very few exceptions, the concept and notion of ‘credible justice’ is neither defined nor linked to related concepts like legitimacy of and trust in justice, or transparency, notwithstanding the fact that it is widely used.20 What exactly does it mean and encompass? How is ‘credibility’ related to fair and transparent procedures and decision-making by those who conduct and preside over them in courts and truth commissions, and what is the role of the narrower legal concept of ‘credible evidence’ in this process? Finally, can it serve—as insinuated in the aforementioned documents—as a meaningful benchmark for assessing the impact and achievements of different transitional justice mechanisms and institutions besides legitimacy and transparency? This chapter aims to address such questions and clarify the role of credibility in the context of transitional justice. It starts from the assumption that justice not only needs to be seen, but also expressed and perceived. Credibility thus captures the notion of two-way communication between transitional justice institutions and affected communities, and with defendants, victims and bystanders.21 Transparency is the sine qua non and necessary precondition of credibility in this communicative endeavour, and in its broadest sense ‘pertains to all factors that affect the flow of information’ in the transitional justice setting.22 Credibility of justice is predicated on the credibility of its institutions and actors on the one hand, and on its procedures as a source of credible information on the other hand; accordingly, transparency of information flows both within institutions and with external

16 

Arzt (n 11). M Glasius and K Meijers, ‘Constructions of Legitimacy: The Charles Taylor Trial’ (2012) 6 International Journal of Transitional Justice 229, 230. 18  See Taylor, The Anatomy (1992); Wald, ‘To “Establish Incredible Events”’ (2001); and Amann, ‘Assessing International Criminal Adjudication’ (2000–03). 19  For international criminal procedures, see Wald (n 2); and Wald (n 6). 20  The exception is Gibson, ‘On Legitimacy Theory’ (2009). 21 On penal law as communication, see RA Duff, Punishment, Communication and Community (Oxford, Oxford University Press, 2001). 22  JR Hollyer, PB Rosendorff and JR Vreeland, ‘Democracy and Transparency’ (2011) 73 Journal of Politics 1191. 17 

Credible Justice and Incredible Crimes 69 actors and communities, is pivotal in achieving both. With its focus on communicative and cognitive relations,23 credibility emerges as a building block for the analysis of the expressive function of transitional justice. Revealing and confirming norms, as expressive functions can be generally described,24 is predicated on the credibility of the norm itself, of the procedures in which norms are applied and used, and of those who are involved in this process. This might be even more important where the expressive function of the law becomes instrumental and aims to alter norms and provide guidance for future action.25 In this chapter, first, the concept of credibility will be discussed using legal, psychological and institutional approaches. Second, its particular usage in the context of transitional justice will be explored, and the empirical evidence canvassed. Finally, three exemplary case studies of credibility will be presented: victim testimony and credible evidence at the International Criminal Tribunal for the former Yugoslavia (ICTY); the efforts of the Allies to educate the German public on the incredible crimes adjudicated in Nuremberg; and the credibility of apologies in contemporary transitional justice processes. II.  THE CREDIBILITY OF TRANSITIONAL JUSTICE: LEGAL, INFORMATIONAL AND INSTITUTIONAL CREDIBILITY

The concept of credibility is situated in three major fields of theorising and research. In the legal context, it mainly concerns the credibility of evidence and witnesses, both as a normative requirement and an empirical problem. Credibility of information and sources of information is a field of communication and media studies. Finally, credibility of institutions and the credible commitments these forge in society are analysed within the framework of institutional analysis.26 We need to draw on all three sources. The legal conceptualisation of credibility is embedded in how courts, tribunals and truth commissions articulate their objectives, procedures and outcomes. Media and communication conceptualisations look into how these are popularly understood, and this might differ hugely from the pronouncements of the above-mentioned institutions of transitional justice.27 Finally, institutional credibility concerns the expectations directed towards institutions in terms of their viability and effectiveness to pursue and achieve their tasks, and the

23 

Glasius, ‘Do International Criminal Courts Require Democratic Legitimacy?’ (2012) 51. T Meijers and M Glasius, ‘Expression of Justice or Political Trial: Discursive Battles in the Karadži Case’ (2013) 35 Human Rights Quarterly 720; C Sunstein, ‘The Expressive Function of the Law’ (1995) 144 University of Pennsylvania Law Review 2021, 2028. 25  Gibson (n 5); Meijers and Glasius, ‘Expression of Justice’ (1995). 26  DC North, ‘Institutions and Credible Commitment’ (1993) 149 Journal of Institutional and Theoretical Economics 11. 27  Arzt (n 11) 230. 24 

70  Susanne Karstedt commitment of the actors involved to the institution’s objectives, actions and processes.28 The legal concept of credibility is both normative and empirical: ‘Convictions if they are to be legitimate must be based on credible evidence presented in a public trial.’29 Procedures need to be in place such as that evidence is properly presented, that all parties can present evidence and that it is used in an unbiased way. An array of procedural safeguards—in other words, fair procedure—guarantees the credibility of evidence, and thus creates legitimacy for outcomes that are acceptable to those directly affected and to wider communities.30 Legal systems differ as to the norms of accepting what counts as credible evidence and the discretion given to the courts. Civil law systems allow for a much wider use of written statements and affidavits, while common law systems restrict such use and rely on oral presentations by witnesses. Here, the cross-examination of witnesses during the trial is the ‘gold standard’ for producing credible evidence, as it makes evidence visible and audible through a transparent procedure and in a public trial. The empirical reality of two-way communication between courts and tribunals on the one hand, and defendants and witnesses on the other nestles within these formal structures and normative requirements. This raises two questions as to the credibility of the evidence that emerges in this process. The first concerns the trustworthiness or reliability of the memory of witnesses and defendants, while the second concerns the ways in which their personal impression or their statements bias juries and judges, and in particular have an impact on the impartiality and even-handedness of the latter.31 When is a witness seen as a credible source and the information as reliable? While the procedures establish the stronghold for credibility and legitimacy, courts struggle with the reality of credible witnesses and credible facts. This in particular applies to transitional justice institutions, where ‘incredible events and actions’ are to be adjudicated, as Justice Jackson put it at Nuremberg. He found that ‘courts try cases, but cases also try courts’,32

28  I Grabel, ‘The Political Economy of “Policy Credibility”: The New-Classical Macroeconomics and the Remaking of Emerging Economies’ (2000) 24 Cambridge Journal of Economics 3. 29  Wald (n 2) 217. 30  See the work on procedural fairness by Tyler and his colleagues, who make exactly this claim: T Tyler, Why People Obey the Law (Princeton, Princeton University Press, 1990/2006). 31 SL Brodsky, MP Griffin and RJ Cramer, ‘The Witness Credibility Scale: An Outcome Measure for Expert Witness Research’ (2010) 28 Behavioral Sciences and the Law 892; EM Wessel, GC Bollingmo, C Sønsteby, LM Nielsen, DM Eliersten and S Magnussen, ‘The Emotional Witness Effect: Story Content, Emotional Valence and Credibility of a Male Suspect’ (2012) 18 Psychology, Crime & Law 417; on the impact of victim statements, see J Roberts and E Erez, ‘Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements’ (2004) 10 International Review of Victimology 233. 32  Taylor (n 6) 44–45.

Credible Justice and Incredible Crimes 71 and this statement still reverberates today; Glasius and Meijers argue that ‘without exaggeration … the courts themselves are as much on trial as the accused’.33 Within this legal framework, the credibility of evidence is vital in creating legitimacy of the outcome—the conviction—and thus contributing to the overall legitimacy of the institution. However, it is produced within and predicated on the framework of fair and transparent procedures that are the cornerstone of the legitimacy of criminal justice institutions. As such, credibility is the product of an autonomous and endogenous process within the legal system, and is simultaneously decisive in communicating with the wider community. In communication and media science, ‘credibility is traditionally defined as the believability of information’ as it is interpreted by the receiver of such information.34 As such, it rests on the trustworthiness, authority and expertise of the source of the message. Besides a judgment on the expertise of the source, it involves a judgment on the accuracy and ‘veracity’ of the information as well, ie, avoiding hyperbole and exaggeration.35 Even if subjectively perceived, both accuracy and expertise involve relatively ‘objective’ characteristics of the information and the expertise. However, there is general consent in the field of communication and psychology that ‘credibility is a perceptual variable: credibility is not an objective property of a source or a piece of information … it is a subjective perception on the part of the information receiver’.36 Consequently, the credibility of a source or piece of information might be judged very differently by different groups and individuals. This of course is the core and basic problem of transitional justice procedures. As expected, perpetrators and victims differ considerably in terms of whom they see as trustworthy sources; most importantly, the general public, the bystanders—the great mass of society—are equally divided, and consequently differ on whom they deem a credible source and what evidence they are willing to believe. Surveys of the general population, of victims and victim witnesses demonstrate for a range of transitional justice institutions that allegiances to groups largely define credibility among these publics; the exception might be the South African TRC.37 Research mostly agrees that knowledge and information about the court, tribunal or commission has

33 

Glasius and Meijers, ‘Constructions of Legitimacy’ (2012) 230. Metzger and AJ Flanagin, ‘Psychological Approaches to Credibility Assessment Online’ in S Sundar (ed), The Handbook of the Psychology of Communication Technology (New York, John Wiley & Sons, 2015) 445–66. 35  P Grabosky, ‘Beyond Responsive Regulation: The Expanding Role of Non-state Actors in the Regulatory Process’ (2013) 7 Regulation & Governance 114, 119. 36  Metzger and Flanagin, ‘Psychological Approaches’ (2015) 446. 37 On the SCSL, see, eg, Glasius and Meijers (n 17) 230. On ex-combatants’ views, see PRIDE, Ex-combatant Views (2002). For the ICC in African countries, see Meernik, ‘Public Support’ (2013). For the ICTY, see M Klarin, ‘The Impact of the ICTY Trials on Public 34 MJ

72  Susanne Karstedt little or no impact on how they are assessed and evaluated.38 The endogenous process through which credible evidence is produced in the legal setting is seemingly not deemed as important when judging all types of transitional justice institutions. However, misunderstandings might contribute to this, as a public not used to the adversarial system might see cross-examination neither as a viable source of undisputable evidence nor as a fair and transparent procedure, as defendants, lawyers and the public did in the Nuremberg trials. For such audiences, the credibility and legitimacy of the prosecution, as invoked by the UN Secretary General, might actually take precedence, and their judgment might be based on the non-discriminatory conduct of the prosecution or equivalent parts of the process. Finally, we consider the credibility of the institutions of transitional justice, ie, courts, tribunals or truth commissions. Similar to the related concept of legitimacy, institutional credibility is the perceived social support for an institution. Credibility rests on the actual performance of the institution on the one hand and on perceptions of such performance on the other hand. The credibility of institutions predominantly implies that they achieve their set goals and function efficiently and effectively in addressing them. However, credibility is also predicated on the predictability of actions and outcomes, reassurance against arbitrary changes by powerful actors, and generally trustworthy procedures. Only then will actors make ‘credible commitments’39 to the institution, comply with the rules and cooperate, whether they are powerful actors or not. Credibility is therefore not simply about legitimacy, which is associated with authority and rule, the exertion of power and its counterpart obedience, though most authors link the two, as will be shown below. Institutional credibility is about the actual and perceived aggregate support that the institution can muster on the grounds of its produced outcomes, functioning and endogenous processes.40

Opinion in the Former Yugoslavia’ (2009) 7 Journal of International Criminal Justice 89; S Kutnjak Ivkovic and J Hagan, Reclaiming Justice: The International Tribunal for the ­Former Yugoslavia and Local Courts (Oxford, Oxford University Press, 2011). On credible ­punishment, see NJ Clark, ‘The Limits of Retributive Justice. Findings of an Empirical Study in ­Bosnia and Herzegovina’ (2009) 7 Journal of International Criminal Justice 463. On the South A ­ frican TRC, see JL Gibson, ‘Truth, Reconciliation and the Creation of a Human Rights Culture in South Africa’ (2004) 38 Law and Society Review 5. 38  On the ICTY, see Klarin, ‘The Impact’ (2009); Kutnjak Ivkovic and Hagan, Reclaiming Justice (2011); on the South African TRC, see JL Gibson, ‘Does Truth Lead to Reconciliation? Testing the Causal Assumption of the South African Truth and Reconciliation Process’ (2004) 48 American Journal of Political Science 201. 39  North, ‘Institutions and Credible Commitment’ (1993); on the ICC, see BA Simmons and A Danner, ‘Credible Commitments and the International Criminal Court’ (2010) 64 International Organization 225. 40  P Ho, ‘The “Credibility Thesis” and its Application to Property Rights: (In)secure Land Tenure, Conflict and Social Welfare in China’ (2014) 40 Land Use Policy 13, 14–16.

Credible Justice and Incredible Crimes 73 Legitimacy and credibility are linked in a recursive process and a kind of ‘virtuous circle’: credibility enhances legitimacy, and legitimacy enhances credibility. According to Grabosky, ‘the legitimacy of an institution … may depend on its credibility, which in turn depends on its veracity’.41 In relation to the South African TRC and the ‘effectiveness’ of truth commissions more generally, Gibson links the endogenous legal framework of evidence credibility to institutional or macro-credibility. If truth commissions meet expectations of fair and transparent decision-making, legitimacy is enhanced, and simultaneously ‘its message will be perceived as objective and the commission itself as credible’.42 Only if the commission is ‘perceived as a credible source of both information about the past and guidance about … the future’ can it achieve agreement on past events—writing one history and telling one story—and lasting changes in the affected public.43 Consequently, Gibson sees legitimate institutions as more credible and credible institutions as more persuasive in achieving change, and both as linked in a recursive process. This applies not only to truth commissions but also to courts and tribunals, though Gibson finds that truth commissions have comparative advantages over courts and tribunals as their setting is less formal and more adapted to communicating in a way that provides credible information to all groups. Support for institutions is the result of historical pathways and longterm experience; exogenous and imported institutions, in particular when enforced from the outside, fight an uphill battle in securing such support, and with it credibility and legitimacy.44 Transitional justice institutions are more often than not innovations, established and enforced from the outside, or particularly designed for the transitional situation and implanted into the national legal system or established as an adjunct. Consequently, they arrive on the ground with a weak institutional credibility, which makes them an easy target for the accusation of being politicised (and they might ­actually be). The Nuremberg trials were blamed for being ‘victor’s justice’45 and the SCSL ‘could with some credibility be portrayed as the Americans’ plaything’, of which the defence of Charles Taylor took ample advantage to the detriment of the legitimacy of the court.46 Fair procedures and credible evidence are not sufficient in themselves to muster the support that makes the court or tribunal credible, as much as judges may try; from the Nuremberg trials to contemporary international courts and tribunals, the credibility of the institution has been a major problem for transitional justice. 41 

Grabosky, ‘Beyond Responsive Regulation’ (2013) 119. Gibson (n 5) 125. 43  ibid; I owe the phrase of ‘one history and story’ to Richard Goldstone. 44 Ho therefore warns against ‘demands … for grand schemes to design, establish and enforce new institutions’: Ho, ‘The “Credibility Thesis”’ (2014) 25. 45  For a discussion, see W Schabas, Unimaginable Atrocities: Justice, Politics and Rights at War Crimes Tribunals (Oxford, Oxford University Press, 2012) ch 3. 46  Glasius and Meijers (n 17) 251. 42 

74  Susanne Karstedt While for perceived support and credibility of information the ‘great mass of most societies’ is crucial, the active participants in the conflict are decisive in the process of initiating credible institutions of transitional justice. The credibility of contemporary transitional justice institutions hinges on credible commitments by those actors who have been party to the conflict: governments, rebel/insurgent groups and militias from both sides. Both courts and truth commissions require that all actors submit to these procedures, and to do so in a credible way for each other. In particular for governments and their forces, this implies that they credibly commit to fair prosecution as well as to being the potential targets of prosecution and inquiries. For insurgent groups and other non-state actors, such visible and credible commitment by a government is simultaneously an incentive to commit themselves and a guarantee that their commitment will be honoured.47 Credible commitments from these actors are decisive at the stage when transitional justice institutions are established, as they implicitly promise the fair procedures that make the transitional justice institution credible to the general population and rally support behind it. If such commitments are lacking, or are given hesitantly and reluctantly as in the countries of the former Yugoslavia, or exclude the governing group altogether as in Rwanda, this impacts on the credibility of the transitional justice institution. Media reports exclusively focusing on perpetrators from their own ethnic group rather than recognising the victims pose a challenge to credibility, as in the case of the ICTY, and amplify division between these groups in society.48 Former combatants both from the rebel and the government militia forces in Sierra Leone supported the Truth Commission and the Special Court in principle, but insisted on credible protective measures and respective commitments for themselves.49 If such commitments are made by all actors, transitional justice institutions stand a high chance of becoming credible across the divide of perpetrator and victim groups, as blurred as the boundaries between these might be. The exemplary case here is the South African TRC, even if its inauguration was preceded by two years of highlevel violence, in particular among African groups. As Gibson shows, there was little racial division in judgments on the fairness of amnesties and much less than on other issues, and all racial communities shared the dominant view.50 The TRC was preceded by the Goldstone Commission (Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation),

47  Simmons and Danner, ‘Credible Commitments’ (2010) 232–36; S Karstedt, ‘The End of Impunity? Global Lawmaking and Atrocity Crimes’ (2014) 34 Zeitschrift für Rechtssoziologie 125. 48  Klarin (n 37); Kutnjak Ivkovic and Hagan (n 37) chs 2 and 3. 49  PRIDE (n 15). 50  JL Gibson, ‘Truth, Justice and Reconciliation: Judging the Fairness of Amnesty in South Africa’ (2002) 46 American Journal of Political Science 552.

Credible Justice and Incredible Crimes 75 which committed both the government, which was a main suspect for fuelling the violence between 1991 and 1994, and all factions to the conflict. Its success paved the way for further commitments to the TRC.51 Systematic evidence for credible commitments was found in an analysis of transitional justice mechanisms after complex conflicts in 63 countries between 1976 and 2012, involving state and non-state actors.52 First, a quite even-handed pattern of sequencing these mechanisms for both groups emerged: trials against state and non-state agents mainly alternate, and they were spread across the conflict and post-conflict periods. Next, trials against non-state actors coincided with a significant increase in legal institutional quality. As it was also found that transitional justice processes and trials did not increase all types of violence, better prospects for non-state actors of receiving a fair trial might motivate this group not to take to violent means or to resume the conflict, as obviously the government had committed to change the justice system. In contrast, amnesties seem to involve less credible commitments, as amnesties for both groups increase the level of violence during the first five post-conflict years. When amnesties are granted to state actors, this might be seen as encouragement by this group to further engage in both repressive and conflict violence; when amnesties are granted to non-state actors, this seemed to serve as justification for state agents for further repressive action and state violence. The fairness of procedures emerges as a lynchpin in all three contexts and types of credibility, as they guarantee transparent information flows. Credibility of evidence is generated in autonomous processes that are endogenous to the legal system. Fair and transparent decision-making within the transitional justice institution will ensure that its message is perceived as objective and credible, and this will reflect on the credibility of the institution as a source of information about the past. Credible commitments from actors require that they can expect to be treated fairly by all parties to the conflict and that the transitional justice institution will ensure this by establishing respective procedures. However, one type of credibility does not easily translate into another; on the contrary, transitional justice institutions are riddled with tensions between different types and sources of credibility. Even if courts and tribunals articulate their own objectives in retrieving credible evidence and base their decisions on this, victim witnesses and the population have difficulties

51  D Foster, P Haupt and M de Beer, The Theatre of Violence (Cape Town, HSRC Press, 2005). 52 S Karstedt, Transitional Justice and Complex Conflicts: Legacies of Multipolar and Horizontal Violence. Report for the International Centre for Transitional Justice (2016, with Michael Koch, Griffith University) 36–38; 37 trials were conducted against state agents in 19 countries and 29 against non-state agents in 16 countries; 27 amnesties involved state agents in 17 countries and 41 involved non-state agents in 21 countries.

76  Susanne Karstedt in understanding and accepting the final outcome. The cross-examination of defendants and witnesses at the Nuremberg trials was seen as the centrepiece of fair and transparent procedures by those who established the court, but perplexed defendants and witnesses, as the account of Fritzsche on his and his co-defendants’ experiences shows, and thus literally discredited the court and its message.53 Even if information is perceived as credible and thus accepted by the population, the institution itself might be seen as less credible. Exemplary cases here are the Nuremberg trials, where the population accepted the information, but soon rejected the trials as ‘victor’s justice’ and thus as biased,54 or the populations in the countries of the former Yugoslavia, who share the view that the information on atrocities is credible, but who deny the ICTY institutional credibility along ethnic dividing lines. Reassurance of ‘unflappable integrity’ might make the institution inclusive and credible for committing actors, but less credible for victim groups and their expectations with regard to telling their stories and to substantive outcomes. Fairness and even-handedness in serving indictments on all parties involved in the conflict make the institution more credible for committed actors, but might be received as a shock by the population, as happened in the case of the SCSL.55 In contrast, the Rwandan mechanisms of transitional justice clearly lack even-handedness, but seem largely to muster support and hence have been perceived as credible by the population.56 Ultimately, for all three types of credibility, the most important audience is domestic, and it is the experience of credibility among the population that finally counts in the transitional situation. This does not imply that this can and should be the benchmark for the working of courts and tribunals, and should affect their autonomous legal procedures. However, credibility among the public is significant for truth commissions and their procedures. As Gibson shows for the South African TRC, this might result in a trade-off between credible evidence in legal terms and the protection of the accused on the one hand, and credibility among the public generally and victims specifically on the other, who are given more space for their stories than in a formal trial.57 The blanket amnesty that was given to the leadership of the African National Congress (ANC)—and ultimately overturned by the

53 Fritzsche, Das Schwert (1953); Rebecca West was sympathetic to this complaint and deemed it a major source of misunderstanding and misapprehension on part of the defendants; West, A Train of Powder (1955) 243; also noted by Taylor (n 6). 54 S Karstedt, ‘The Life Course of Collective Memories: Persistency and Change in West Germany between 1950 and 1970’ (2009) 165 Polish Sociological Review 27. 55  Arzt (n 11) 234; Glasius and Meijers (n 17) 250–51. 56  For a more critical assessment, see P Kanyangara, B Rimé, P Philippot and V Yzerbyt, ‘Collective Rituals, Emotional Climate and Intergroup Perception: Participation in “Gacaca” Tribunals and Assimilation of the Rwandan Genocide’ (2007) 63 Journal of Social Issues 387; C Le Mon, ‘Rwanda’s Troubled Gacaca Courts’ (2006–07) Human Rights Brief 16. 57  For a critical comment, see Brants, ch 3, this volume.

Credible Justice and Incredible Crimes 77 Constitutional Court—did not change the commitment by actors and credibility among their constituents. Generally a number of conditions worked in favour of the credibility of the South African TRC, in particular the comparatively small number of victims of human rights violations, but also the strong commitment of the leadership.58 In the following sections I will illustrate the three types of credibility as outlined in the preceding sections using the following exemplary cases: victim testimony and institutional credibility at the ICTY and other tribunals; the efforts of the Allies to educate the German public with credible information about ‘incredible events’ that were adjudicated in Nuremberg; and apologies in transitional justice as they highlight the problems of credible commitments by those who apologise and those who accept them. III.  CREDIBILITY AT STAKE: THREE ILLUSTRATIONS

A. Securing Credible Evidence: Witnesses, Testimony and Institutional Credibility at the ICTY Transitional justice institutions deal with ‘incredible events’, for which they seek to retrieve ‘credible evidence’. Contemporary courts and tribunals make ‘lavish use’ of victim witnesses and their testimony.59 At the ICTY, some trials had over 200 witnesses, and in 2000, seven of the then complete trials had more than 100 witnesses appearing at the court.60 Victim witnesses are indeed a visible sign of the efforts of courts and tribunals to ‘diffuse the outrage of war crimes victims and their kin’61 and provide ‘credible justice to victims’. Their presence thus enhances the credibility of the ultimate promise of transitional justice to bring justice to victims, even if only in a symbolic way. As part of the legal process itself, ‘live witnesses’ and their oral testimony are also decisive for the fairness and transparency of the trial and the evidence that will ultimately lead to the court’s decision. However, ‘live witnesses’ pose serious challenges to international courts and tribunals, as well as to national truth commissions.62 58 

Gibson (n 5) 138 and 139. Wald (n 2) 217. 60 Wald (n 6) 535. This is in stark contrast to the Nuremberg trials, which were nearly exclusively based on documents left by the Nazi regime and written statements from the several national commissions for Nazi crimes. In the Major War Criminals’ Trial with 23 defendants present, only 33 witnesses were called for the prosecution and 61 for the defendants. This illustrates the profound changes in the presence of witnesses; see S Karstedt, ‘From Absence to Presence, from Silence to Voice: Victims in Transitional Justice since the Nuremberg Trials’ (2010) 17 International Review of Victimology 9. 61  P Wald, ‘Foreword: War Tales and War Trials’ (2008) 106 Michigan Law Review 910. 62 For example, Reports from the South African TRC: www.justice.gov.za/trc/report; on ex-combatants’ views on testifying at the truth commission in Sierra Leone, see PRIDE (n 15). 59 

78  Susanne Karstedt This prominently includes safeguarding against any threats to their security and wellbeing: securing victim witnesses from different countries, providing safety at home and abroad, protecting them from intimidation and harassment, giving support during and after the testimony, and protecting them and their testimony by non-disclosure of their identity. Courts and tribunals are further challenged by the complex nature of the events on which victims testify and the specific problems of memory; often, victim witnesses have told their story in public to journalists and humanitarian organisations with numerous changes.63 They need time and often insist on attention as their story unfolds in ways that are not relevant to the credible evidence that the court requires, and they are not used to, and feel intimidated by, the formalities of the trial. Indeed, as reports from all types of transitional justice institutions show, victims often feel sidelined and see their testimony as useless; they lose trust in the court/tribunal and are deeply dissatisfied with the final decisions, convictions and sentences.64 Misunderstanding and lack of familiarity with court procedures generally and transitional justice mechanisms specifically are rife. However, the characteristics of the crimes, the multiple actors involved in these events and the problem of memory that traumatic events pose make the presence of victim witnesses indispensable for the court in order to ensure the fairness of the court procedure and transparency in gathering credible evidence. The norms and practicalities of legal procedure take precedence over credible communication with affected publics though not necessarily over the needs of victims, as judges are sympathetic and give space to victims to tell their stories.65 Further to this, the extensive use of victim witnesses in court comes at the expense of overall institutional credibility, as it makes trials extraordinarily time-consuming and causes exponential increases in costs. This raises serious doubts as to the viability and effectiveness of international criminal law and transitional justice institutions, and thus impacts on the overall credibility of the institution itself. This led the ICTY to move from a trial primarily based on live testimony to procedures that allow for an extended use of written statements and affidavits.66 As Patricia Wald, a former judge at the ICTY, states: ‘The primary reason for this movement is a focus on shorter and less costly trials entailing less delay

63 

ACGM Robben, ch 10, this volume. the experiences of victims at the ICC, see, eg, Human Rights Center, The Victims’ Court? (2015). 65  Wald (n 2) 233–35; however, reports on victims show that this judge’s view is not shared by the majority of victim witnesses. See E Stover, ‘Witnesses and the Promise of Justice in The Hague’ in E Stover and H Weinstein (eds), My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge, Cambridge University Press, 2004) 104–12; Kutnjak Ivkovic and Hagan (n 37) ch 5. 66 See, eg, United Nations ICTY, ‘Decision on Guidelines for the Admission of Evidence through Witnesses’, IT-95-5/18-T. D35844-D35835, 19 May 2010. 64  For

Credible Justice and Incredible Crimes 79 for the accused in detention and more credibility for the Tribunal’s ability to get its work done.’67 As Gibson notes for the South African TRC, victim witnesses’ stories can have an ‘enormous impact on bystanders’ and thus add to the credibility of transitional justice mechanisms among affected communities.68 Reducing live testimony in courts therefore not only affects the norms and realities of fair and transparent procedures, but might also reduce the credibility and impact of the messages of the victim’s stories, the amount of attention they muster in affected communities and the popular understanding of the court’s proceedings. Balancing this, shorter and less costly trials might hugely enhance the credibility of the institutions, not only by securing attentiveness among domestic audiences, but also at the international level. B. Communicating Incredible Crimes: Atrocity Films in Post-War Germany When the Allies set out to ‘establish incredible events through credible evidence’ in the courtroom of Nuremberg, they made the first major and neverreplicated effort at educating the German public on the crimes that had been committed more or less in their midst, in their name and with their direct involvement or at least implicit support. It was an effort that aimed simultaneously at providing credible information on what had happened and thus at strengthening the credibility (and legitimacy) of the tribunal itself among the German population. Such incredible crimes needed graphic and visual evidence in order to convince the world that they had in fact happened. Obviously, the Germans as the nation of the perpetrators were the most important target audience for such a visual confrontation with facts. The Allies, led by the Americans, did this in two ways: through visits by the population to the scene of the atrocities and through photography and film. They forced those who lived in close proximity of camps and subcamps to visit and witness the sites of atrocities, the corpses left unburied and the wretched conditions of the survivors. They addressed the general public through documentaries on the atrocities compiled from footage that army cameramen had shot. These ‘atrocity films’ were viewed by several hundred thousand Germans in 1945 and 1946 at the time of the trial of the major war criminals in Nuremberg.69 Generally, it was decided not to make viewing compulsory (though there were exceptions); however, the German

67 

Wald (n 2). Gibson (n 5) 134. 69  U Weckel, Beschämende Bilder (Stuttgart, Franz Steiner, 2012); U Weckel, ‘Disappointed Hopes for Spontaneous Mass Conversion: German Responses to allied Atrocity Film Screenings, 1945–46’ (2012) 51 Bulletin of the German Historical Institute 39. 68 

80  Susanne Karstedt media presented it as a moral obligation and duty to the Germans.70 Both site visits and viewing of documentaries were intended to dispel any remaining doubts on what had happened, and the Allies deemed the film a medium that was particularly adapted to providing believable information and achieving an impressing presentation of reality.71 Thus, the aims were twofold: education through believable information from credible sources on the one hand, and generation of support for and credibility of the transitional justice policies of the Allies on the other hand. With regard to the latter objective, not only believable information but also a collective sense of guilt, and recognition and empathy for the victims were seen as decisive for the credibility of the justice that was done at Nuremberg, and the sanctions that were to be meted out. According to Weckel, ten different documentaries were shown to the ­German public in different cities and areas, in addition to prisoners of war in their camps. The Americans made a point of ensuring the utmost transparency and reproducibility of facts and sources. Camera teams were advised that the facts presented in the films were to be documented truly and in detail. Thus, camps had to be shown with clear clues as to where they were situated (like signposts or road signs indicating nearby towns) in order to dispel any doubts; in a similar vein, visitors to the camp were shown, including public figures and the population from nearby areas.72 Importantly, the Allies ‘intensely observed, listened in on, questioned, surveyed, and evaluated’ the reactions to and reception of the films by the viewers.73 The m ­ ajority (between just over 50 per cent up to 87 per cent in Berlin) attested to the films’ factuality and veracity.74 This coincides with public assessments of the credibility of the facts that were uncovered by the International Military Tribunal (IMT) itself; at the end of the Nuremberg trials in 1946, 85 per cent of the surveyed population in the American zone acknowledged that war crimes had been committed.75 In addition, the majority conceded that the films had made a major impression on them, and Allied observers reported ‘manifestations of horror’ during the viewings. In Berlin, 90 per cent of the public deemed it necessary that all Germans viewed the films. However, a large minority aired doubts, and among these was a substantive group that

70 Weckel, Beschämende Bilder (2012) 329; Weckel, ‘Disappointed Hopes’ (2012) 48–49; U Weckel, ‘Nachsitzen im Kino. Angloamerikanische Filme und deutsche Reaktionen 1945/46—über Versuche kollektiver Beschämung’ (2006) 17 Berliner Debatte Initial 87. 71  Weckel, ‘Nachsitzen’ (2006) 87. 72 BS Chamberlin, ‘Todesmühlen. Ein früher Versuch zur Massen-“Umerziehung” im besetzten Deutschland, 1945–1946’ (1981) 29 Vierteljahreshefte für Zeitgeschichte 420, 423; however, fears that one day the photographic evidence might be doubted was another reason for ensuring the transparency of information gathering. 73  Weckel, ‘Disappointed Hopes’ (n 69) 40. 74  All survey data from Weckel, Beschämende Bilder (n 69) ch 4. 75  Karstedt, ‘Coming to Terms’ (1998); and Karstedt, ‘The Nuremberg Tribunal’ (2008).

Credible Justice and Incredible Crimes 81 was openly and aggressively hostile. Given the fact that the population had just been led astray by the propaganda of the Nazi regime, they were equally suspicious of propaganda from the Allies. In particular, young people under 30 years of age, who had spent their adult life under the Nazi regime, were most hostile and dismissive of the content and facts, as were the prisoners of war who were defiant and demonstrated loyalty to their country and leadership.76 Men were more inclined to accept the information as credible (perhaps as soldiers and police in occupied countries, they had been eyewitnesses), while women, who had stayed in Germany during the war, were generally more reluctant. There is little indication that such information was widely discussed and shared among social circles. Where this happened, as in the prisoner of war camps, it also opened up discussions of involvement and witnessing, which made denial increasingly harder.77 Yet, the widespread acceptance of the information as credible did not translate seamlessly into support and credibility of the Nuremberg trials and the denazification programme that was implemented during the subsequent years until 1949. While the Nuremberg trials could muster substantive support and credibility when they were conducted, the denazification programme and the sanctions attached to it could never solicit majority support within the population, and were in subsequent years deemed to be one of the ‘major mistakes of the Allies’.78 The films did not instil a sense of collective guilt in the German population, as the Americans in particular had hoped for,79 and thus failed to enhance the credibility of the denazification programme. Importantly, the films did not generate recognition and empathy for the victims among a population that saw themselves as victims, as defiant viewers stated time and again, notwithstanding that the facts were accepted.80 As a British observer noted, the films failed to establish a clear message on guilt and general responsibility.81 However, the main achievement was that most Germans felt impelled to admit that ‘incredible crimes’ had been committed in death and concentrations camps, even if otherwise they conceded as little as possible.82 This could never be publicly disputed again.

76 Weckel,

Beschämende Bilder (n 69) ch 3 on POWs. Weckel, ‘Zeichen der Scham. Reaktionen auf alliierte atrocity-Filme im Nachkriegsdeutschland’ (2014) 36(10 Mittelweg 3, 21. 78  Karstedt (n 3); Karstedt (n 4); Karstedt ‘The Life Course’ (2009) 34. 79  Weckel, ‘Disappointed Hopes’ (n 69). 80  See West (n 1) on Germans seeing themselves as victims. Recognition of victims did not take hold in the general public until the early 1960s; see Karstedt, ‘From Absence to Presence’ (2010). For contemporary transitional justice processes, see Klarin (n 37); Meernik (n 7). 81 Weckel, Beschämende Bilder (n 69) 503–04. 82  According to a British observer; ibid 515. 77  U

82  Susanne Karstedt C.  Credible Commitments: Apologies in Transitional Justice It caused uproar when Biljana Plavšić, the former President of the Republika Srpska, who had been sentenced for crimes against humanity, later publicly retracted her expression of remorse and apology that she had given in court. Victim groups saw it as playing cruel games with their emotions; in addition, her negation of the apology exposed the ICTY and its judges, who had accepted her expression of remorse as genuine, to ridicule.83 When at a recent trial of a former guard and accountant in Auschwitz in Germany, one of the victims and civil parties present reached out to the defendant in a gesture of reconciliation and offered forgiveness, this was deeply resented by the other victims; they felt that this was a futile gesture as long as the defendant had not offered an apology himself.84 His later recognition of guilt, if only a ‘moral guilt’, did not meet with unanimously positive responses. Victims and victim organisations argued that this was too late to be deemed genuine; the lawyer who represented some of the victims in court expressed their feelings when he deplored the lack of any expression of ‘being sorry’ by the defendant.85 Apologies and their counterpart—forgiveness—have been assigned an important and ever-increasing role in transitional justice processes: from informal encounters between individual victims and perpetrators to group encounters, within the formal context of courts, as expressed (or withheld) by implicated organisations, governments and political leaders, finally institutionalised in truth and reconciliation commissions, and legally formalised as part of amnesty procedures.86 At its most basic, apologies are an acknowledgement of a past violation of a norm and an expression of remorse. This is coupled with a commitment by the perpetrator not to repeat the crime in the future, thus assuring the victim that it will not happen again. Acknowledgment of a norm violation (re-)establishes a ‘common moral ground’ between victims and perpetrators. Political or official apologies given by a representative of a state, government bodies and corporations to groups of victims or their descendants similarly acknowledge and validate the wrong, the responsibility of the perpetrator (group), and establish a commitment to the norms of the national and international community.87 In transitional 83 J Subotić, ‘The Cruelty of False Remorse: Biljana Plavšić at The Hague’ (2012) 36 ­Southeastern Europe 39. 84  P Huth and HC Jasch, Die letzten Zeugen. Der Auschwitz-Prozess von Lüneburg 2015: Eine Dokumentation (München, Reclam, 2015) 19. This was widely debated in the German and international media. 85 ibid 168–69, 170; the defendant made his statement about his moral guilt after the victims‘ lawyers had addressed the court. 86  M Gibney, R Howard-Hassmann, JM Coicaud and N Steiner (eds), The Age of Apology: Facing up to the Past (Philadelphia, University of Philadelphia Press, 2008). 87  For an overview of definitions, see R Jeffery, ‘When is an Apology Not an Apology? Contrition Chic and Japan’s (Un)apologetic Politics’ (2011) 65 Australian Journal of International Affairs 607, 608.

Credible Justice and Incredible Crimes 83 justice processes, apologies have a potential to address three issues: they can transform how the transgressor is perceived,88 restore the social balance between the perpetrator and the victim group, and communicate a commitment to reform and change.89 Apologies are exclusively one-sided commitments by the individual perpetrator or representatives of the group, and they do not require any commitment from the individual or victim group. However, the credibility of the perpetrator’s commitment hinges on the acknowledgement and validation by the victim(s), even if this does not necessarily imply forgiveness, and thus empowers the victim group. As the examples above demonstrate, the credibility of this commitment is crucial, and in transitional justice processes it is both victims and professionals (judges or other judicial personnel) who assess in a direct confrontation how credible an apology is as a commitment, eg, through expressions of remorse.90 Apologies in interpersonal encounters are not easily transposed to intergroup encounters and to the political realm of public apologies. Here actions signalling authenticity and credible commitment are required, which are not ‘hypocritical or arbitrary’, and include measures that ‘engage morally those in whose name apology is made and to assure the wronged group that the apology is sincere’.91 Consequently, official apologies are often rejected in transitional justice as less sincere and effective, in particular from government agencies heavily implicated in the atrocities.92 Apologies seen as ritualistic are not well received,93 in contrast to those that come across as spontaneous, like the gesture of humility and penance by German Chancellor Willy Brandt towards the victims of the Warsaw Ghetto Uprising when he fell down on his knees in front of the memorial. Apologies which turn out to be purely instrumental for the advantage of the offender are detrimental for a transitional justice process, as in the case of Biljana Plavšić.94 As apologies are one-sided commitments in the first instance, credibility does not seamlessly translate into forgiveness, but it is a precondition in

88 

eg, Rwanda: see Kanyangara et al, ‘Collective Rituals’ (2007). MJ Hornsey, ‘Collective Apologies are Good at Regulating Transgressors’ Emotions, But for Victim Group Members the Story is Not so Clear’ (2016) 27 Psychological Inquiry 101. 90 M Proeve and S Tudor, Remorse: Psychological and Jurisprudential Perspectives (Farnham, Ashgate, 2010). 91  M James, ‘Wrestling with the Past: Apologies, Quasi-apologies, and Non-apologies’ in M Gibney et al (eds), The Age of Apology (2008) 137–53. 92 eg, for Chile, see M Cardenas, D Paez, B Rimé, and A Bilbao, ‘Personal Emotions, Emotional Climate, Social Sharing, Beliefs and Values among People Affected and Unaffected by Past Political Violence’ (2014) 20 Peace and Conflict. Journal of Peace Psychology 452; M Cardenas, D Paez, B Rimé and M Arnoso, ‘How Transitional Justice Processes and Official Apologies Influence Reconciliation: The Case of the Chilean “Truth and Reconciliation” and “Political Imprisonment and Torture” Commissions’ (2015) 26 Journal of Community and Applied Psychology 515. 93  Jeffery, ‘When is an Apology Not an Apology?’ (2011). 94 Subotić, ‘The Cruelty of False Remorse’ (2012). 89 

84  Susanne Karstedt interpersonal encounters. Victims demand that apologies imply expressions of guilt and that they are authentic and represent true emotions. Victims of gross human rights violations in South Africa, whether they had participated in the TRC proceedings or not and whether they had given public or closed testimony to a TRC investigator, were not willing to forgive when only guilt was admitted or an apology was made by the perpetrator. They requested to see signs of ‘truly being sorry’ from the perpetrator, which validated the commitment.95 Those who had given public testimony and had been present at the TRC proceedings were most divided and tended to be either very forgiving or very unforgiving, probably related to their assessment of the credibility of the apology. Research confirms the role of interpersonal encounters for the credibility of apologies, independent of a legal or quasi-legal setting.96 Interpersonal encounters create the ‘emotional transparency’ that is a precondition for apologies: the visible signs of stress, guilt and remorse in the perpetrator.97 A Holocaust survivor was only willing to accept redress and reparation payments from Germany after she had met and received an emotional personal apology from the then Federal President in the 1990s.98 In contrast, official apologies, which lack a direct encounter, require equivalents and substitutes for ‘emotional transparency’. They are challenged by victim groups on the grounds of a lack of credibility, and accordingly no link to forgiveness was found.99 In Chile, direct victims of past atrocities in particular rejected apologies from government bodies like the police or the military, or from political leaders as ‘less sincere and effective’.100 However, those who approved of the two commissions dealing with the past in Chile also found the apology by the country’s president more sincere and promoting trust. Thus, if transitional justice mechanisms and institutions signal credible commitment to change and reform by the government, they also confer credibility on official apologies. This similarly applies to intergroup apologies, which are particularly challenging in a mistrustful environment of past or ongoing conflict. Credibility is established by perceived remorse within the perpetrator group, and apologies are deemed more credible when the group can

95 A Allan, M Allan, D Kaminer and D Stein, ‘Exploration of the Association between Apology and Forgiveness amongst Victims of Human Rights Violations’ (2006) 24 Behavioural Sciences and the Law 87. 96  Hornsey, ‘Collective Apologies’ (2016). 97  See Brants, ch 3, this volume; S Karstedt, ‘The Emotion Dynamics of Transitional Justice: An Emotion Sharing Perspective’ (2016) 8 Emotion Review 50. 98 S Slyomovics, How to Accept German Reparations (Philadelphia, University of Philadelphia Press, 2014). 99  These are often results from experimental studies; see C Philpot and M Hornsey ‘What Happens When Groups Say Sorry: The Effect of Intergroup Apologies on Their Recipients’ (2008) 34 Personality and Social Psychology Bulletin 474. 100  Cardenas et al, ‘Personal Emotions’ (2014) 461–62.

Credible Justice and Incredible Crimes 85 signal credible change.101 As such, credible commitments by the perpetrator group are made for the future. However, perpetrator groups might often seem to perceive an apology as the ‘end of a process’ and an opportunity to close the books rather than committing to change in the future.102 Only if apologies are credible do they open up the road to the future and contribute to closing the books. IV.  CREDIBILITY GAPS AND PROBLEMS

In contrast to established national justice systems, which can usually bank on a certain level of credibility, transitional justice procedures and institutions have to earn credibility among the audiences that they address. Since the Nuremberg trials, the credibility of transitional justice procedures has been challenged and ‘courts are as much on trial as the accused’. This applies to international criminal justice institutions as well as to hybrid and national ones, and whether they are endogenous (ie, initiated and conducted by national governments) or exogenous when international actors are involved and conduct prosecutions and trials.103 In any case, they are exceptional justice institutions and frequently operate outside the established justice system. Credibility of transitional justice involves different types of credibility and in different realms: the credibility of the judicial procedures and the evidence that is retrieved and presented in fair procedures, which is termed internal and endogenous credibility; the credibility and believability of the information, and the trustworthiness of the sources for the general public; and finally the credibility of the institution itself, and the credible commitments that actors are making to the cause of transitional justice. These different types of credibility interact and intersect in various ways and institutional contexts. In any case, transparency is pivotal to achieving credibility. Transparent procedures and decision-making in transitional justice institutions determine the credibility of evidence and ultimately justice, and they ensure that transitional justice mechanisms are credible sources of information for a divided public. Finally, transparency of the motives and decision-making of actors promotes credible commitments by actors, and emotional transparency is an essential precondition for the acceptance of apologies.

101 S Čehajić-Clancy, A Goldenberg, JJ Gross and E Halperin, ‘Social-Psychological Interventions for Intergroup Reconciliation: An Emotion Regulation Perspective’ (2016) 27(2) Psychological Inquiry 73. 102  Hornsey (n 89) 103–04. 103  J Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge, Cambridge University Press, 2004).

86  Susanne Karstedt Credibility of justice is generated in two-way communication between institutions, procedures and audiences of transitional justice. However, credibility in one realm does not readily transpose into another. The analysis demonstrated that tensions exist between the internal fairness of procedures in establishing credible evidence, the credibility of victim witnesses and the credible functioning of the institution itself; procedures in place to establish credible evidence can severely affect institutional credibility in terms of its achievements and efficiency. Information about incredible crimes is deemed credible among the public, but it does not translate into recognition of and empathy with victims, neither in post-war Germany nor in the contemporary former Yugoslavia. However, a historical narrative is created that cannot be disputed in the long term. Credible commitments by actors to the transitional process need an environment of minimal trust and signals of change for the future. Apologies by perpetrators become credible as far as they signal profound change, but they do not necessarily elicit forgiveness in victims. Given these credibility gaps and problems, the levels of credibility that the South African TRC could muster are exceptional in hindsight and perhaps irreproducible. Evidence from Latin America does not unambiguously support Gibson’s claim that truth commissions have a kind of credibility advantage over other forms of transitional justice. Presently little is known about how fair and transparent decision-making, the legitimacy of the institution, the credibility of the message and finally the credibility of the institution itself are linked, or how this translates into lasting changes in the public. How much credibility of institutions, actors and actions is needed to re-establish a common moral ground and agreement on past events, and how is it generated within deeply divided societies? Given the historical evidence, there are no easy answers to these questions and even less are there blueprints available for making transitional justice credible. REFERENCES Allan, A, Allan, M, Kaminer, D and Stein, D, ‘Exploration of the Association between Apology and Forgiveness amongst Victims of Human Rights Violations’ (2006) 24 Behavioural Sciences and the Law 87–102. Amann, DM, ‘Assessing International Criminal Adjudication of Human Rights Atrocities’ (2000–03) Third World Legal Studies 169–81. Arzt, DE, ‘Views on the Ground: The Local Perception of International Criminal Tribunals’ (2006) 603 Annals of the American Academy of Political and Social Science 226–39. Brants, C, ‘Emotional Discourse in a Rational Public Sphere: The Victim and the International Criminal Trial’ in CH Brants and S Karstedt (eds,) The Public Spheres of Transitional Justice: Engagement, Legitimacy and Contestation (Hart Publishing, 2017).

Credible Justice and Incredible Crimes 87 Brodsky, SL, Griffin, MP and Cramer, RJ, ‘The Witness Credibility Scale: An Outcome Measure for Expert Witness Research’ (2010) 28 Behavioral Sciences and the Law 892–907. Cardenas, M, Paez, D, Rimé, B and Arnoso, M ‘How Transitional Justice Processes and Official Apologies Influence Reconciliation: The Case of the Chilean “Truth and Reconciliation” and “Political Imprisonment and Torture” Commissions’ (2015) 26 Journal of Community and Applied Psychology 515–30. Cardenas, M, Paez, D, Rimé, B and Bilbao, A, ‘Personal Emotions, Emotional Climate, Social Sharing, Beliefs and Values among People Affected and Unaffected by Past Political Violence’ (2014) 20 Peace and Conflict. Journal of Peace Psychology 452–64. Čehajić-Clancy, S, Goldenberg, A, Gross JJ and Halperin, E, ‘Social-Psychological Interventions for Intergroup Reconciliation: An Emotion Regulation Perspective’ (2016) 27(2) Psychological Inquiry 73–88. Chamberlin, BS, ‘Todesmühlen. Ein früher Versuch zur Massen-“Umerziehung” im besetzten Deutschland, 1945–1946’ (1981) 29 Vierteljahreshefte für Zeitgeschichte 420–36. Clark, NJ, ‘The Limits of Retributive Justice. Findings of an Empirical Study in Bosnia and Herzegovina’ (2009) 7 Journal of International Criminal Justice ­ 463–87. Coalition for the International Criminal Court (CICC) Communications Team, ‘Comments and Recommendations to the 13th Session of the Assembly of the States Parties’ (2014) www.iccnow.org/documents/Comments_and_Recommendations_to_the_13th_ASP.PDF. Duff, RA, Punishment, Communication and Community (Oxford, Oxford University Press, 2001). Elster, J, Closing the Books: Transitional Justice in Historical Perspective (Cambridge, Cambridge University Press, 2004). Foster, D, Haupt, P and de Beer, M, The Theatre of Violence (Cape Town, HSRC Press, 2005). Fritzsche, H, Das Schwert auf der Waage (Heidelberg, Kurt Vowinckel, 1953) Gibney, M, Howard-Hassmann, R, Coicaud JM and Steiner, N (eds), The Age of Apology: Facing up to the Past (Philadelphia, University of Philadelphia Press, 2008). Gibson, JL, ‘Truth, Justice and Reconciliation: Judging the Fairness of Amnesty in South Africa’ (2002) 46 American Journal of Political Science 540–66. ——. ‘Truth, Reconciliation and the Creation of a Human Rights Culture in South Africa’ (2004) 38 Law and Society Review 5–40. ——. ‘On Legitimacy Theory and the Effectiveness of Truth Commissions’ (2009) 72 Law and Contemporary Problems 123–41. Glasius, M, ‘Do International Criminal Courts Require Democratic Legitimacy?’ (2012) 23 European Journal of International Law 43–66. Glasius, M and Meijers, K, ‘Constructions of Legitimacy: The Charles Taylor Trial’ (2012) 6 International Journal of Transitional Justice 229–52. Grabel, I, ‘The Political Economy of “Policy Credibility”: The New-Classical Macroeconomics and the Remaking of Emerging Economies’ (2000) 24 Cambridge Journal of Economics 1–19.

88  Susanne Karstedt Grabosky, P, ‘Beyond Responsive Regulation: The Expanding Role of Non-state Actors in the Regulatory Process’ (2013) 7 Regulation & Governance 114–23. Ho, P, ‘The “Credibility Thesis” and its Application to Property Rights: (In)secure Land Tenure, Conflict and Social Welfare in China’ (2014) 40 Land Use Policy 13–27. Hollyer, JR, Rosendorff, PB and Vreeland, JR, ‘Democracy and Transparency’ (2011) 73 Journal of Politics 1191–205. Hornsey, MJ, ‘Collective Apologies are Good at Regulating Transgressors’ Emotions, But for Victim Group Members the Story is Not so Clear’ (2016) 27 Psychological Inquiry 101–05. Human Rights Center, The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court (Berkeley, University of California Press, 2015). Huth, P and Jasch, HC, Die letzten Zeugen. Der Auschwitz-Prozess von Lüneburg 2015: Eine Dokumentation (Munich, Reclam, 2015). James, M, ‘Wrestling with the Past: Apologies, Quasi-apologies, and Non-apologies’ in M Gibney et al (eds), Age of Apology: Facing up to the Past (Philadelphia, University of Philadelphia Press, 2008) 137–153. Jeffery, R, ‘When is an Apology Not an Apology? Contrition Chic and Japan’s (Un) apologetic Politics’ (2011) 65 Australian Journal of International Affairs 607–17. Kanyangara, P, Rimé, B, Philippot, P and Yzerbyt, V, ‘Collective Rituals, Emotional Climate and Intergroup Perception: Participation in “Gacaca” Tribunals and Assimilation of the Rwandan Genocide’ (2007) 63 Journal of Social Issues 387–403. Karstedt, S, ‘Coming to Terms with the Past in Germany after 1945 and 1989: Public Judgments on Procedures and Justice’ (1998) 20 Law and Policy 15–56. ——. ‘The Nuremberg Tribunal and German Society: International Justice and Local Judgment in Post-conflict Reconstruction’ in DA Blumenthal and T McCormack (eds), The Legacy of Nuremberg. Civilising Influence or Institutionalised Vengeance? (Leiden, Koninklijke Brill, 2008) 13–35. ——. ‘The Life Course of Collective Memories: Persistency and Change in West Germany between 1950 and 1970’ (2009) 165 Polish Sociological Review 27–38. ——. ‘From Absence to Presence, from Silence to Voice: Victims in Transitional Justice since the Nuremberg Trials’ (2010) 17 International Review of Victimology 9–30. ——. ‘The End of Impunity? Global Lawmaking and Atrocity Crimes’ (2014) 34 Zeitschrift für Rechtssoziologie 125–48. ——. ‘The Emotion Dynamics of Transitional Justice: An Emotion Sharing Perspective’ (2016) 8 Emotion Review 50–55. ——. Transitional Justice and Complex Conflicts: Legacies of Multipolar and Horizontal Violence. Report for the International Centre for Transitional Justice (2016, with Michael Koch, Griffith University). Klarin, M, ‘The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia’ (2009) 7 Journal of International Criminal Justice 89–96. Kutnjak Ivkovic, S and Hagan J, Reclaiming Justice: The International Tribunal for the Former Yugoslavia and Local Courts (Oxford, Oxford University Press, 2011).

Credible Justice and Incredible Crimes 89 Le Mon, C, ‘Rwanda’s Troubled Gacaca Courts’ (2006–07) Human Rights Brief 16–20. Meernik, J, ‘Public Support for the International Criminal Court’ in DL Rothe, J Meernik and T Ingadottir (eds), The Realities of the International Criminal Court (Leiden, Martinus Nijhoff, 2013) 319–37. Meijers, T and Glasius, M, ‘Expression of Justice or Political Trial: Discursive Battles in the Karadži Case’ (2013) 35 Human Rights Quarterly 720–52. Metzger, MJ and Flanagin, AJ, ‘Psychological Approaches to Credibility Assessment Online’ in S Sundar (ed), The Handbook of the Psychology of Communication Technology (New York, John Wiley & Sons, 2015) 445–66. North, DC, ‘Institutions and Credible Commitment’ (1993) 149 Journal of Institutional and Theoretical Economics 11–23. Office of the Attorney General and Ministry of Justice Special Court Task Force, Briefing Paper on an Outreach and Public Education Program for the Special Court 7–18 Jan. (Freetown, Office of the Attorney General/ Ministry of Justice, 2002) Philpot, C and Hornsey, M, ‘What Happens When Groups Say Sorry: The Effect of Intergroup Apologies on their Recipients’ (2008) 34 Personality and Social Psychology Bulletin 474–87. PRIDE (Post-conflict Reintegration Initiative for Development and Empowerment), Ex-combatant Views of the Truth and Reconciliation Commission and the Special Court in Sierra Leone (Freetown, PRIDE, 2002) Proeve, M and Tudor, S, Remorse: Psychological and Jurisprudential Perspectives (Farnham, Ashgate, 2010). Robben, ACGM, ‘Witness Testimony and the Incommensurability of Truth in Argentina’ in CH Brants and S Karstedt (eds), The Public Spheres of Transitional Justice: Engagement, Legitimacy and Contestation (Hart Publishing, 2017). Roberts, J and Erez, E, ‘Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements’ (2004) 10 International Review of Victimology 233–44. Schabas, W, Unimaginable Atrocities: Justice, Politics and Rights at War Crimes Tribunals (Oxford, Oxford University Press, 2012). Simmons, BA and Danner, A, ‘Credible Commitments and the International Criminal Court’ (2010) 64 International Organization 225–56. Slyomovics, S, How to Accept German Reparations (Philadelphia, University of Philadelphia Press, 2014). Stover, E, ‘Witnesses and the Promise of Justice in The Hague’ in E Stover and H Weinstein (eds), My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge, Cambridge University Press, 2004) 104–12. Subotić, J, ‘The Cruelty of False Remorse: Biljana Plavšić at The Hague’ (2012) 36 Southeastern Europe 39–59. Sunstein, C, ‘The Expressive Function of the Law’ (1995) 144 University of Pennsylvania Law Review 2021–53. Taylor, T, The Anatomy of the Nuremberg Trials (New York, Knopf, 1992). ——. Why People Obey the Law (Princeton, Princeton University Press, 2006).

90  Susanne Karstedt UN Secretary General, Guidance Note of the Secretary General ‘United Nations Approach to Transitional Justice (New York, United Nations, 2010). UN Security Council, Security Council Resolution 1315 (2000) On the Establishment of a Special Court for Sierra Leone, 14 August 2000, S/RES/1315 (2000) www.rscsl.org/Documents/Establishment/S-Res-1315-2000.pdf. Wald, P, ‘To “Establish Incredible Events by Credible Evidence”: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’ (2001) 42 Harvard International Law Journal 535–53. ——. ‘Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal’ (2002) 5 Yale Human Rights and Development Journal 217–39. ——. ‘Foreword: War Tales and War Trials’ (2008) 106 Michigan Law Review 901–22. Weckel, U, ‘Nachsitzen im Kino. Angloamerikanische Filme und deutsche Reaktionen 1945/46—über Versuche kollektiver Beschämung’ (2006) 17 Berliner Debatte Initial 84–99. ——. Beschämende Bilder (Stuttgart, Franz Steiner, 2012) ——. ‘Disappointed Hopes for Spontaneous Mass Conversion: German Responses to Allied Atrocity Film Screenings, 1945–46’ (2012) 51 Bulletin of the German Historical Institute 39–53. Wessel, EM, Bollingmo, GC, Sønsteby, C, Nielsen, LM, Eliersten, DM and Magnussen, S, ‘The Emotional Witness Effect: Story Content, Emotional Valence and Credibility of a Male Suspect’ (2012) 18 Psychology, Crime & Law 417–30. West, R, A Train of Powder. Six Reports on the Problem of Guilt and Punishment in Our Time (Chicago, Ivan R Dee, 1955).

5 Globalisation, Crime and Governance Transparency, Accountability and Participation as Principles for Global Criminal Law PAUL DE HERT1

I. INTRODUCTION

T

HE AIM OF this chapter is to look for analytical tools at an abstract level to help further the debate on the many legal and practical issues besetting the public spheres of transitional and international criminal justice. To that end, I propose a global criminal law perspective, encompassing both transitional justice and international criminal law and transnational criminal law, and inquire into the principles that could guide us. Can we simply apply domestic principles of criminal law and criminal justice at the trans-state level? Admittedly, a theoretical framework developed for sovereign states can be adapted to an interstate context. Yet, the inherent weaknesses of the modern principled approach to criminal law remain—for instance, the lack of an empirical basis, and of respect in practice, for the use of the harm criterion or the ultima ratio principle. The result is a certain cynicism regarding the actual capacity of modern criminal law principles to steer legislative and judicial developments. I suggest looking elsewhere when discussing how to govern and implement global criminal justice and advocate a procedural approach, relying on two theoretical frameworks. The first was proposed by Brants, Mevis and Prakken in 2001, and looks to procedurally oriented principles to address criminal justice issues, in particular transparency, a­ ccountability 1  The author would like to thank Irene Wieczorek, Mathias Holvoet and the two editors for their encouragement and help.

92  Paul De Hert and ­participation. The second is also a call for a procedural approach but launched in the context of the Global Administrative Law project and the debate on global constitutionalism. Can these two approaches be connected? What are their limits and possibilities for global criminal justice and their application for global criminal law? Finally, how do they interrelate and could they provide a way forward in terms of a methodology to judge their application in each and every single case, given the many insights on this to be found in governance literature? II.  WHAT IS GLOBAL CRIMINAL LAW?

The traditional presentation of the institutions, norms and crimes, ­processes and personnel of international criminal law always puzzles me, a legal ­theorist. It is simply too state-centred, too much based on old intuitions and seemingly oblivious to today’s conversation about criminal law in a global era2 that moves beyond international crimes, criminals and courts. Let us review some of the basic facts. International criminal law focuses on core crimes (genocide, war crimes, crimes against humanities and aggression). But why are these core crimes? Why the predicate ‘core’ in light of their ever-expanding scope? Should the mandate of international criminal tribunals be extended to, for instance, terrorism; do we simply admit that the core has grown too? Again, what is this the core of? The discussion lacks context and perspective, losing sight of crimes equally blameworthy as those belonging to this alleged ‘core’, and strongly related to globalisation, such as the trafficking of human beings, transnational corruption or online fraud. Neil Boister has tried to save the concept of international criminal law by distinguishing between International Criminal Law Stricto Sensu and Transnational Criminal Law,3 the latter being a legal counterpart to ‘transnational crimes’ resulting from the negative externalities associated with the liberalised movement of persons, products and services.4 Boister’s ­theoretical defence of the distinction between the two systems qua substance, mode of development and overall policy goals has not met with enthusiasm,5 but at least he creates a window on criminal law in a global era.

2 For a definition of globalisation (as a phenomenon of increasing interconnectedness of societies) and a discussion of alternative definitions, see KF Aas, Globalization and Crime (Los Angeles, Sage, 2007) 3–6. 3  N Boister, An Introduction to Transnational Criminal Law (Oxford, Oxford University Press, 2012) 13 and 18. 4 See P Kotiswaran and N Palmer, ‘Rethinking the “International Law of Crime”: ­Provocations from Transnational Legal Studies’ (2015) 6(1) Transnational Legal Theory 55, 56. See also N Boister, ‘Reflections on the Concept of Transnational Criminal Law’ (2015) 6(1) ­Transnational Legal Theory 9. 5  See Kotiswaran and Palmer, ‘Rethinking’ (2015) 55–88.

Globalisation, Crime and Governance 93 However, even in Boister’s approach, the perspective is still inspired by traditional international law. He defines Transnational Criminal Law as ‘the indirect suppression by international law through domestic penal law of criminal activities that have actual or potential trans-border effects’,6 a ­definition that explains why the bulk of his book concerns not today’s crimes, victims, criminals and stakeholders of globalisation, but those selected crimes that are the object of bilateral and multilateral conventions between states and international organisations. I am still waiting for the first convention incriminating atrocities against illegal migrants or the starvation of populations due to neoliberal economic reform plans. These ‘crimes that are not crimes’ should be the object of a conversation about criminal law in a global era, but are absent in the legalistic contours of the Transnational Criminal Law project. Particularly missing is a complete description of the real actors of ­globalisation. Understanding the importance of new and non-state actors is a central tenet in the booming literature on what is called Global Law.7 In today’s setting, several players claim authority to control a given legal ­situation, and a single act or actor is potentially regulated by multiple legal or quasi-legal regimes.8 Gone are the simple schemes with autonomous, ­territorially distinct spheres, where activities and actors fall under the legal jurisdiction of one single regime at a time.9 Bernam labels the new landscape as one of jurisdictional hybridity, where there is confusion and conflict about what norms are applicable. Possible alternative labels are multi-layeredness and fragmentation. The fascinating example that comes to mind are the hybrid or internationalised criminal tribunals, such as the Extraordinary Chambers in the Courts of Cambodia, the Special Court for Sierra Leone, the Special Panels for Serious Crimes in Timor, the ‘Regulation 64’ Panels in Kosovo, the War Crimes Chamber in Bosnia and Herzegovina and the Special Tribunal for Lebanon. These courts illustrate the multi-layeredness central to global law understanding: their institutional set-up and applicable law is a blend of international and domestic law. Going beyond these new forms of international criminal justice mechanisms that are still relatively traditional (they are ‘courts’ after all!) are actors such as the United Nations (UN) Security Council, human rights non-governmental organisations (NGOs), recognised international and national media, newcomers such as WikiLeaks and so forth. All play an important role in today’s discussion on criminal law in a global era. Amnesty International’s recent policy change in favour of

6 Boister,

An Introduction (2012) 13 and 18. See N Walker, Intimations of Global Law (Cambridge, Cambridge University Press, 2015). 8  PS Berman, Global Legal Pluralism: A Jurisprudence of Law beyond Borders (New York, Cambridge University Press, 2012) 4. 9  ibid 4. 7 

94  Paul De Hert decriminalising consensual adult sex work worldwide is a case in point and changes the role of the organisation in setting policies. The same can be said of the critics (some of them famous Hollywood stars) who disagree with Amnesty’s new policy with arguments about the evil of human trafficking behind the sex work industry.10 And our traditional understanding of international criminal justice certainly fails to capture official unilateral policies, beyond established mechanisms of accountability, by individual states: the US and Israel on extrajudicial killings of suspected persons, for example,11 or Belgium on obtaining data stored by providers in other countries.12 The global law lens can help us ask relevant and new questions: how can we identify and assess the impact of old and new actors in the international and transnational landscape? Does conceiving of certain activities, such as environmentally harmful activities, rights abuses that are a product of global trade or corruption as global rather than international crime, allow us more insight into the nature of, or solutions to, particularly thorny or heinous problems? Can we understand local responses to the blunt end of transnationally driven crimes better by examining them through a global law lens? Have the forces of globalisation, simultaneously drawing us closer together by making the globe smaller yet increasing fragmentation between normative orders, created new types of criminals, operating in a (legal) space that is not national, international or transnational? Do such criminals create new types of victims, whose sufferings engender claims that cannot be adequately addressed by the existing frameworks of criminal law? Are there (criminal) justice claims or responses that are ‘global’? Perhaps the response to certain crimes, such as corruption, is necessarily global? Can we observe a ‘global criminal law’ apart from and beyond the institutions, norms, processes and personnel of international criminal law? How does global criminal law relate to existing institutions or is it non-institutional by nature? It is fair to say that these questions perfectly fit the project or paradigm of transitional justice,13 with its eye for the multiplicity of actors and mechanisms involved in post-conflict situations. But the label of global criminal

10 See J Neuwirth, ‘Amnesty International Says Prostitution is a Human Right—But it’s Wrong’, The Guardian (29 July 2015), www.theguardian.com/sustainable-business/2015/ jul/28/amnesty-international-prostitution-sex-work-human-trafficking. See also N Grimley, ‘Amnesty International Row: Should Prostitution be Decriminalised?’, BBC News (11 August 2015), http://www.bbc.com/news/world-33850749. 11 O Kessler and W Werner, ‘Extrajudicial Killing as Risk Management’ (2008) 39(2–3) Security Dialogue 289. 12 P De Hert and M Kopcheva, ‘International Mutual Legal Assistance in Criminal Law Made Redundant: A Comment on the Belgian Yahoo! Case’ (2011) 27(3) Computer Law & Security Review 291. See also Boister (n 3) on ‘norm entrepreneurialism’, by which (usually powerful) states export their domestic criminal laws into the international realm. 13  Compare with the short discussions of this ‘paradigm’ by B Kotecha, ‘Book Review of Alison Bisset, Truth Commissions and Criminal Courts (Cambridge University Press, 2014)’ (2015) 3 Journal of International Criminal Justice 409–18.

Globalisation, Crime and Governance 95 law allows us to go beyond these post-conflict situations, which are only part of what is going on, and to focus on all criminal law developments related to international criminal law and globalisation.14 The question is what principles or general criteria should govern or frame it? III.  WHY PRINCIPLES IN CRIMINAL LAW?

Criminal law can be either conceived as a mere instrument at the service of effective law and (cross-border) crime control or, conversely, as a special field deserving special care because of its particularly invasive character. Attempts to identify this ‘special field’ often aim to protect criminal law from inflated instrumental use as a policy tool that can be used in all possible situations, even in those where the link with traditional criminal law logic is weak. Principles play a primordial role here,15 as they do in global law scholarship.16 Horders calls these voices a ‘counterreformation’ in criminal law scholarship,17 advocating the return to general basic principles: the use of criminal law should be restricted to serious kinds of ­wrongdoing and criminalisation to wrongdoing accompanied by fault—preferably wrong actions rather than culpable omissions; or the onus of proof should rest with the state. The call for principles also forms part of significant criticism of attempts to harmonise substantive criminal law by the EU.18 A 2009 Manifesto on European Criminal Policy enumerates relevant principles that should guide EU substantive criminal law:19 four criteria concerning the selection of behaviour deserving criminal punishment are the principle of legitimate interest, the principle of ultima ratio, the principle of coherence and the

14  To my knowledge, the term Global Criminal Law first appears in O Höffe, Democracy in an Age of Globalisation (Dordrecht, Springer, 2007) 262–68. 15  See, eg, A Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 Law Quarterly Review 225–56; D Husak, Over-criminalisation (Oxford, Oxford University Press, 2008); RA Duff, Answering for Crime (Oxford, Hart Publishing, 2007); AP Simester and A von Hirsch, Crimes, Harms and Wrongs: On the Principles of Criminalisation (Oxford, Hart ­Publishing, 2011). 16  On the advantages of identifying, working and adopting of legal principles, see A von Bogdandy, ‘Constitutional Principles’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law (2006, Oxford, Hart Publishing); K Lenaerts and JA Gutiérrez-Fons, ‘The Constitutional Allocation of Powers and General Principles of EU Law’ (2010) 47(6) Common Market Law Review 1629–69. 17  J Horder, ‘Bureaucratic “Criminal” Law: Too Much of a Bad Thing?’, LSE Law, Society and Economy Working Papers 1/2014. 18  See, for instance, M Kaiafa-Gbandis, ‘The Importance of Core Principles of Substantive Criminal Law for a European Criminal Policy Respecting Fundamental Rights and the Rule of Law’ (2011) 1(1) European Criminal Law Review 6, 28. 19  ‘The Manifesto on European Criminal Policy in 2011’ (2011) 1 European Criminal Law Review 86–103.

96  Paul De Hert principle of subsidiarity. As has been rightly noted,20 the Manifesto contains some principles which are not all criminal law-specific. In particular, subsidiarity and coherence are defined as ‘meta-principles’ and are distinguished from ‘well-established and fundamental principles of criminal law’ (such as ultima ratio and legitimate interest or legality and guilt), although even here doubts are raised about their validity as guiding principles for national and European criminal law and their respect in practice.21 Very general principles, not necessarily context-specific, such as subsidiarity, coherence and proportionality might be preferable to no principles at all. But that would still leave unanswered the question of the specificity of criminal law and the need for specific principles capable of limiting its expansion. Transparency, together with other governance or administrative law ­principles such as accountability and participation, figures predominantly in many policy and academic writings on global justice. The authors behind the 2005 Global Administrative Law Project, for instance, propose it as a key procedural principle, while in 2001 Brants et al insisted on governance principles such as transparency, accountability and participation as starting points for domestic criminal law reform. Given that the main focus of this volume is the concept of transparency, it is to these principles that I now turn. IV.  TRANSPARENCY, ACCOUNTABILITY AND PARTICIPATION IN CRIMINAL LAW (BRANTS ET AL)

Around the turn of the century, there were intensive discussions in the Netherlands about a possible reform of the Dutch Code of Criminal ­ ­Procedure.22 A research group ‘Strafvordering 2001’ was asked to examine how a new code should look, given contemporary needs and standards. Critics of its proposals included Brants, Mevis and Prakken, who saw a legitimate criminal law system as anchored in three key notions: transparency, accountability and participation;23 not principles but central starting points, requirements, key notions and central notions.24 These are said to

20 

L Foffani, ‘Il Manifesto sulla Politica Criminale Europea’ (2010) Criminalia 657, 665. M Massé, JP Jean and A Giudicielli (eds), Un droit pénal postmoderne ? Mise en perspective des évolutions et ruptures contemporaines (Paris, PUF, 2009). On the specific point of the crisis of ultima ratio as a criminal law principle, see M van de Kerchove, ‘Le principe de subsidiarité’ in A Giudicielli-Delage and C Lazerges (eds), Le Droit Pénal de l’Union Européenne au Lendemain du Traité de Lisbonne (Paris, Société de Législation Comparée, 2012). 22  See the retrospective analysis of these discussions in M Groenhuijsen and T Kooijmans (eds), The Reform of the Dutch Code of Criminal Procedure in Comparative Perspective (Leiden, Brill, 2012). 23  CH Brants, PAM Mevis and E Prakken (eds), Legitieme strafvordering. Rechten van de mens als inspiratie in de 21ste eeuw (Antwerp, Intersentia, 2001) 1–21. 24  ibid 2, 7 and 19. 21 

Globalisation, Crime and Governance 97 derive from constitutionalism and the case law of the European Court on Human Rights, though elsewhere the authors attribute them to the legacy of the Enlightenment and consider them interwoven with the principles of the rule of law and democracy—touchstones which all criminal proceedings of a democratic state should meet. Participation refers to participation of the accused and the public, but also of the victim and other private persons (eg, investigators, consultants and experts) in criminal proceedings.25 Transparency refers to publicity of court procedures, both external and internal, and is a key notion in determining the role of the media in the criminal justice system.26 Accountability is the standard for assessing the respective responsibilities and duties of the actors involved in the criminal justice system to account for themselves: what accountability structures are there? What kinds of accounts need to be provided? Who can set existing control and accountability mechanisms in motion? Accountability refers to the duty to justify oneself and to develop practices to do so, but also to the duty to set up structures that allow this account-giving in front of someone.27 V.  TRANSPARENCY, ACCOUNTABILITY AND PARTICIPATION IN GLOBAL LAW (THE GLOBAL ADMINISTRATIVE LAW PROJECT)

Brants, Mevis and Prakken specifically aimed at influencing Dutch law reform, but the standards they identify are presented as general reference points for all criminal states that are respectful of the rule of law, democracy and human rights. In the literature on globalisation and global law, the same standards are also central in the Global Administrative Law project proposed by Kingsbury, Krisch and Stewart in 2005.28 The Global Administrative Law project should be understood in the context of the debate between global constitutionalism and global pluralism.29 Both schools look at global developments, the growing interconnectedness of actors, the changing role

25 

ibid 7–8. ibid 10–11. 27  ibid 8–10. 28  B Kingsbury, N Krisch and RB Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems 15. See also N Krisch, ‘Global Administrative Law and the Constitutional Ambition’ in P Dobner and M Loughlin (eds), The Twilight of Constitutionalism? (Oxford, Oxford University Press, 2010). For critical assessments, see DH Rached, ‘Doomed Aspiration of Pure Instrumentality: Global Administrative Law and Accountability’ (2014) 3 Global Constitutionalism 338; A Somek, ‘The Concept of “Law” in Global Administrative Law: A Reply to Benedict Kingsbury’ (2009) 20(4) European Journal of International Law 985. 29  A Peters, ‘The Constitutionalisation of International Organisations’ in N Walker, J Shaw and S Tierney (eds), Europe’s Constitutional Mosaic (Oxford, Hart Publishing, 2011) 253. 26 

98  Paul De Hert of the state and the growing impact of international and national non-state actors, and both detect many accountability problems, but the solutions they offer differ. Constitutionalism is of course familiar to us all, since it is a way of organising states. It is about the rule of law, checks and balances, human rights protection and also to a somewhat lesser degree democracy. Global constitutionalists ‘see’ and ‘defend’ constitutionalisation beyond the state. The growing body of international human rights law, the success of the International Criminal Court (ICC) and the success of the transformation of the European Community into a more constitutionalist EU fuel this movement and encourage it to continue. The analogy with the ‘counterreformation’ in criminal law scholarship is not hard to see. Otfried Höffe, for example, assumes that everything is already in place for an overarching system of criminal law, based on a division of work between an international court and domestic systems. This optimistic perspective allows Höffe to set out a full programme for global criminal law that assumes common principles and minima, and the creation of a global world court that would not only judge core crimes, but would also serve as an appeal court.30 Global pluralists like Krisch and Bernman underline the attractiveness of the constitutionalist endeavour, but see many objections, ranging from the practical (‘it will never be realized’) to the normative (‘diversity is good’, ‘we should respect political choices made by other states’). The Global Administrative Law project presents itself as a spin-off from global pluralism and as an alternative whose methodology and understanding of current globalisation developments differs from constitutionalism. It is driven by the perception that the evolution of global law mostly engages issues of administrative rather than constitutional law or, alternatively, can be better understood from a more administrative than ambitious, constitutional, principles-based perspective. The authors behind the Global Administrative Law project are concerned about the de facto independence and discretion of transnational actors with some sort of decision-making power.31 But rather than incorporating strong constitutional machinery, they propose the organisation of good governance through guarantees, mechanisms and values such as transparency and participation. These are mainly process-related (as opposed to substantive) values that suggest only modest interventions; institutional reform ‘writ small’, one step at a time with prudent attention to non-ideal factual contexts, and aimed at legitimising accountability arrangements of institutions beyond the state. In their 2005 book, Kingsbury, Krisch and Stewart hardly touch upon criminal law issues. Yet, there are also non-judicial actors on the global

30 Höffe, 31 

Democracy (2007) 262–68. Kingsbury, Krisch and Stewart, ‘The Emergence’ (2005) 26.

Globalisation, Crime and Governance 99 criminal law scene. Even the traditional judicial actors (courts, judges and prosecutors) should be seen as holding decision-making powers and governance responsibilities.32 All through the ICC Lubanga trial, judges and prosecutor were at odds regarding the selection of crimes to be tried and victims to be heard at trial.33 Moreover, increasingly courts and prosecutors at all levels will be confronted with the need to foster a global administration of criminal justice (‘do we prosecute or will others?’),34 a task requiring an understanding of good governance and notions such as transparency, accountability and participation. A fine example of this development is the ICC Prosecutor’s strategic policy plan and the willingness of the current ICC Prosecutor to seek acceptance for her policy options.35 Governance requirements that Kingsbury, Krisch and Stewart would impose on administrations must also be met when courts and prosecutors go beyond mere adjudication.36 VI.  TRANSPARENCY, ACCOUNTABILITY AND PARTICIPATION IN GLOBAL CRIMINAL LAW

What Brants, Mevis and Prakken and the Global Administrative Law authors propose is not easy. Western legal education has been thoroughly moulded by constitutionalism and the belief that principles exist with regard to the general organisation of both the state and the criminal system. Criminal law and procedure have been theorised and regulated since the Enlightenment by a model based on principles such as legality, specific benchmarks for guilt 32 

ibid 26. L Moffett, ‘Meaningful and Effective? Considering Victims’ Interests through Participation at the International Criminal Court’ (2015) 26(2) Criminal Law Forum 255–89, in particular 275, discussing the Trial Chamber I’s decision to hear victims about crimes not selected for trial by the Prosecutor. 34  Höffe (n 14) 264. On the complementarity mechanism in the ICC statute as a forum for managerial interaction between the ICC and states, see C Stahn, ‘Complementarity: A Tale of Two Notions’ (2008) 19 Criminal Law Forum 87. 35  Expert Seminar: ‘The Role of the Prosecutor in the Emerging Practice of the International Criminal Court’, 24 October 2013, www.humanrightsdoctorate.blogspot.be/2013/10/newapproach-to-investigations-at.html. At this 2013 expert seminar in Brussels, ICC Prosecutor Fatou Bensouda presented her first strategic policy plan in front of an academic and NGO community. 36  Which they must, given that many international criminal courts also have a general preventive role, which they fulfil by combining judicial proceedings with external relations, outreach and public information activities. On the ICC, see M Holvoet and M Mema, ‘The International Criminal Court and the Responsibility to Protect’ in D Fiott and J Koops (eds), The ­Responsibility to Protect and the Third Pillar: Legitimacy and Operationalization ­(Basingstoke, Palgrave Macmillan, 2014) 23, with reference to R Cryer, H Friman, D Robinson and E Wilmshurst, An Introduction to International Criminal Law and Procedure (Cambridge, Cambridge University Press, 2007) 22–39; H Olasolo, ‘The ICC’s Timely Intervention as a Result of Threats of Future Atrocity Crimes’ in H Olasolo (ed), Essays on International ­Criminal Justice (Oxford, Hart Publishing, 2012) 1–19. 33 See

100  Paul De Hert and conviction assessments (such as beyond reasonable doubt), which are somehow similarly grounded in the concept of the rule of law, and human rights principles and considerations. Brants et al, while not denying this, shift the perspective to the procedural. Both the Global Administrative Law project and Brants et al’s proposal take stock of the failures of traditional global constitutionalism and traditional principled approaches to criminal law, and rely on concepts such as transparency, accountability and participation as a viable solution. I advocate using Brants et al’s model at the global level and expanding the Global Administrative Law analysis to include global criminal law players, and to judge and ground their roles and behaviour against and in participation, transparency and accountability. In the realm of global criminal law, both global constitutionalism and substantive principles of criminal justice would probably fail to ensure the accountability of the relevant actors.37 Indeed, in a global criminal justice context with its variety of actors and norms, and time and place as differentiating factors, one cannot but be attracted by the pluralist pragmatic step-by-step solutions of the proposal of Brants et al and the Global Administrative Law project. These contextual elements explain why the one-size-fits-all programme of accountability enhancement of the global constitutionalist model, or the mere application of general criminal law principles rooted in national constitutional values, is less appropriate. The global criminal justice context demands more flexible, process-oriented principles. Let us recall the diversity of the hybrid courts. There is no ‘model’ as such and each has been established in a variety of situations and has different features depending on the political context: legal basis, structure, applicable law and composition.38 These hybrid courts will not disappear; on the contrary, there are proposals to create many more. Their political dimension, including the role of the governments that host them, will remain very visible. Pushing an ideal constitutionalist design for hybrid courts or abandoning them by transferring to the ICC will not (always) be successful, but insisting on accountability and transparency could allow us to accept

37 See M Reglitz, ‘Political Legitimacy without a (Claim-)Right to Rule’ (2015) 21 Res ­Publica 291. Since it is doubtful that we can establish global institutions that are democratically authorised anytime soon, we have to make sense of existing non-state players, which is precisely the object of Reglitz’s analysis. Note that he does not seem to differentiate between judicial global actors and others entrusted ‘with relatively uncontroversial general duties such as the persecution of war criminals and bans on aggressive wars, illegal weapons trading, unfair terms and conditions of trade, and the exclusion of people from making use of a fair share of the world’s resources etc.’ (at 306). 38  S Williams, ‘Review of John D. Ciorciari and Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Michigan University Press, 2014)’ (2015) 13 Journal of International Criminal Justice 660, 661.

Globalisation, Crime and Governance 101 that imperfect justice might be better than no justice.39 The challenge is to develop the meaning of transparency, participation and accountability, drawing from both theoretical frameworks sketched above, to make them operational in the context of transitional and international justice. VII.  TRANSPARENCY AND OPENNESS (THE FIRST GOVERNANCE PRINCIPLE)

Transparency has not been uncontested in the history of global governance. In some ways it has been a flagship of neoliberalism. Looking back at the past 30 years of economic globalisation, Recalde notes an acute process of deregulation or dismantling of regulatory mechanisms, fuelled by market scepticism towards the role of regulatory bodies, and a preference for self-regulation. In an area freed from supervision and control, transparency was advanced as the only indispensable requirement and precondition for rational and efficient decision-making.40 Yet, last decade’s financial crisis has shown that transparency did not fulfil its promise.41 Its close links to deregulation suggests that transparency-based policies have led to less regulation and participation. Aware of Recalde’s critical observations, Barnes defends transparency as one of the most basic of principles, a prior condition for the existence of many others. Adding, however, that sometimes more than transparency may be needed, such as the requirement to state the reasoning behind decisions, the need for control and accountability of different bodies and fair representation in membership, and requirements of impartibility and independence.42 In his study on transparency and openness (limited to EU law), Alberto Alemanno highlights their connection but also what sets them apart.43 Both notions convey a common idea: the ‘opposite of opaqueness, complexity or 39 See the insistence on the role of the UN and key state actors to create accountability and transparency mechanisms to make hybrid courts live up to international standards, in JD ­Ciorciari and A Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Ann Arbor, Michigan University Press, 2014) 261–78. See also Williams, ‘Review’ (2014) 662. 40  On transparency in contemporary theories of economics and management studies, see T Erkkilä, Government Transparency. Impacts and Unintended Consequences (Basingstoke, Palgrave Macmillan, 2012) 13–15. 41  A Recalde, ‘Transparencia y autonomía del mercado: principios inspiradores de la regulación financiera antes de la crisis’ in RG Macho (ed), Ordenación y transparencia económica en el derecho público y privado (Madrid, Marcial Pons, 2014). 42  JB Vázquez, ‘La transparencia: cuando los sujetos privados desarrollan actividades regulatorias’ in RG Macho (ed), Ordenación y transparencia económica en el derecho público y privado (Madrid, Marcial Pons, 2014). 43  A Alemanno, ‘Unpacking the Principle of Openness in EU Law: Transparency, Participation and Democracy’ (2014) 39(1) European Law Review 72. On the related notion of publicity, see Erkkilä, Government Transparency (2012) 3–6.

102  Paul De Hert even secretiveness’. Alemanno sees openness as the greater good: transparency is merely the most developed legal dimension of openness, recognised in primary law and developed in EU secondary law and case law.44 The bestknown application of this legal transparency is the provision of information and, correspondingly, the right to access documents, conceived in a passive mode and requiring no more than providing individuals with information when they specifically ask for it.45 A broader, holistic perspective assumes that the duty of transparency extends to additional, more active obligations such as using clear language, consistently interpreting and applying the law, and supporting action with reasons, facilitating both accountability and participation.46 These additional duties (seven in total)47 focus on how information is communicated and turn transparency into openness.48 Thus, openness is more than transparency and is itself instrumental to the enjoyment of a right to participate in the democratic life of an institution or polity. Kingsbury, Krisch and Stewart place considerable weight on transparency and its possible application to international actors. How much transparency is needed in each case and for every actor depends on several factors (the way in which information is communicated, the effectiveness, the usefulness for the democratic life of an institution or polity). Transparency is open and sensitive to political environments that are poorly regulated by law. Rached points to the modular and sector-sensitive nature of principles like transparency, as understood by the Global Administrative Law project. One needs to verify ‘how, in each and every global body, those general principles of administrative law are and should be put into effect. The exact mix and form, or the particular version of due process that is required in a given sector, “remains very much up for grabs”’.49 Insisting on transparency neither implies universal homogeneity in terms of procedural solutions nor resembles an arbitrary adhocracy.50

44  Alemanno, ‘Unpacking the Principle’ (2014) 73. See in extenso on this right I Spahiu, ‘Courts: An Effective Venue to Promote Government Transparency? The Case of the Court of Justice of the European Union’ (2015) 80 Utrecht Journal of International and European Law 5. 45  Alemanno (n 43) 75. 46 ibid. 47 Specifically: (1) clarity; (2) understandability and knowledge of decisional processes; (3) freedom of information; (4) access to open proceedings; (5) the duty to inform who may be seeking to influence decision-making; (6) the duty to publish all legislative outputs; and (7) the giving of reasons (ibid 82). 48  This is also the understanding of the European Commission in its White Paper on governance. See Communication from the Commission of 25 July 2001 ‘European Governance— A White Paper’, COM(2001) 428 final, OJ C 287 of 12 October 2001. 49 Rached, ‘Doomed Aspiration’ (2014) 361–62, with reference to E MacDonald and E Shamir-Borer, ‘Meeting the Challenges of Global Governance: Administrative and Constitutional Approaches’, 2008, NYU Hauser Globalization Colloquium, 3, available at http://iilj. org/courses/documents/MacDonald.Shamir-Borer.92508.pdf. 50  Rached (n 28) 361–62.

Globalisation, Crime and Governance 103 VIII.  TRANSPARENCY IN GLOBAL CRIMINAL LAW

In the criminal justice context, many questions arise: is there a legal basis to require transparency, intended as openness, from global criminal law (policy) actors? And is it enforceable in court? Does openness require full transparency, even at the cost of privacy and other rights of persons concerned? And, lastly, are there legal or non-legal means other than court procedures to promote or enforce it? These questions will not guarantee uniform answers, but nor do they need to.51 Transparency in classic criminal law gives the defendant a legal right to access many types of evidence before trial in order to make informed decisions and to minimise surprise at trial. Transparency by judges about their work contributes to the idea of procedural justice.52 Indeed, criminal trials in general, international criminal trials and transitional justice methods such as truth commissions are about transparency, in the sense that they provide clarity regarding criminal facts affecting individuals and entire populations. They are truth-finding mechanisms that Miguel de Serpa Soares, a highranking UN official, sees as instrumental to realising a right to know (about heinous crimes and the circumstances of their commission) and the right to justice (to see perpetrators brought to justice).53 For De Serpa Soares, in the context of the commission of international crimes, both rights are fundamental and have an individual and collective dimension.54 This collective right to the truth has altered the traditional prerogative of states to investigate criminal activity, a role now increasingly supplemented by that assumed by the international community to investigate, record and make known facts about crimes in certain countries that destabilise the whole international community. This explains why the UN has created numerous different commissions of inquiry, all, if we believe de Serpa Soares, made possible by the broad mandate of the UN to maintain international peace and security (Article 1 UN Charter).55 51 The study by Antonios Tzanakopoulos offers an adequate starting point here. ­ zanakopoulos shows that transparency has insufficient status as principle of international or T customary law: A Tzanakopoulos, ‘Strengthening Security Council Accountability for Sanctions: The Role of International Responsibility’ (2014) Journal of Conflict & Security Law 1, 16. He also observes that transparency lacks independent normative charge and that the degree of transparency obtained in a given situation partly depends on the outcome of political power pressure: if there is no legal basis, that is all it comes to. However, no transparency does not mean that no accountability is possible. UN Member States have successfully pressured and threatened the UN Security Council with disobedience in situations where not enough openness was given, and subsequently obtained more openness (Tzanakopoulos, ‘Strengthening Security’ (2014) 16). 52  See TR Tyler, ‘Procedural Justice and the Courts’ (2007–08) 44 Court Review 26, 29; E Brems and L Lavrysen, ‘Procedural Justice in Human Rights Adjudication: The European Court of Human Rights’ (2013) 35 Human Rights Quarterly 176. 53 M de Serpa Soares, ‘An Age of Accountability’ (2015) 13(4) Journal of International Criminal Justice 669, 670. 54  ibid 670. 55  ibid 670, 673.

104  Paul De Hert The coexistence of a plurality of truth-finding mechanisms can be a c­hallenge, in particular when considering both trials and truth commissions. For Bisset, trials have a retributive focus on individual cases, while truth commissions have an investigatory focus on documenting the past and establishing truth.56 Both have strengths and weaknesses with regard to truth-finding and both should be applied when appropriate. The impact of the ICC and the complementarity principle on the coexistence of trials and other truth-finding methods is still unclear, but a broad discretion to replace trials with truth commissions or amnesties certainly no longer exists. One possible option remains to install truth commissions as complementary to or as a forerunner of trials.57 This, however, raises important questions about obligations to cooperate and provide assistance to courts and the further use of confidential information and self-incriminating evidence. In this connection, Bisset suggests that the ICC should create a transparent policy regarding the multi-layeredness of transitional justice in order to help clarify respective roles and guarantee overall fairness—for instance, by consulting a truth commission to avoid disputes and showing self-restraint by accessing confidential information only as an exception rather than the norm.58 The rule that trials are unfair if the defendant is denied access to many types of evidence was confirmed at the global level by the ICC, which ordered Lubanga’s release on 2 July 2008 on the grounds that a fair trial was impossible given that the Prosecutor had obtained evidence on the condition of confidentiality and was not willing to share it. The trial continued only when the Prosecutor agreed to make all confidential information ­available.59 One author spoke about ‘behind-the-scenes decision making that brought the exculpatory evidence to light and allowed the stay of proceedings to be lifted on 18 November 2008’.60 The Rome Treaty does mention the prosecution’s right to obtain confidential evidence (Article 54(3)(e)) and its responsibility to disclose potentially exculpatory evidence (Article 67(2)), but commentators find the guidance insufficient and foresee more questions about the degree to which transparency should be guaranteed.61

56 A Bisset, Truth Commissions and Criminal Courts (Cambridge, Cambridge University Press, 2014) 42–45. For a criticism of Bisset’s working distinction, see Kotecha, ‘Book Review’ (2014) 412. 57  ibid 69. 58  ibid 137 and 191. 59  International Criminal Court, ‘Stay of Proceedings in the Lubanga Case is Lifted—Trial Provisionally Scheduled for 26 January 2009’, 18 November 2008, http://reliefweb.int/report/ democratic-republic-congo/dr-congo-stay-proceedings-lubanga-case-lifted-trial-provisionally. See A Whiting, ‘Lead Evidence and Discovery before the International Criminal Court: The Lubanga Case’ (2009) 14 UCLA Journal of International Law and Foreign Affairs 207. 60  R Katzman, ‘The Non-disclosure of Confidential Exculpatory Evidence and the Lubanga Proceedings: How the ICC Defense System Affects the Accused’s Right to a Fair Trial’ (2009) 8 Northwestern Journal of International Human Rights 77, 78. 61  Whiting, ‘Lead Evidence’ (2009) 207.

Globalisation, Crime and Governance 105 Of the non-judicial actors, the first that comes to mind is the UN ­Security Council with its enormous powers under the UN Charter and, in particular, its sanctioning powers under Article 41 affecting many aspects of global criminal law.62 Tzanakopoulos has nicely identified the low level of engagement of the general public with the Security Council’s actions, its particularly secretive mode of operation—the result of inappropriate organisational rules—and the effective pressure by Member States and regional courts to create more openness about the terrorist sanctions system and to accept quasi-external oversight of listing and delisting procedures.63 A constitutionalist would rewrite the UN Charter to make its transparency provisions more explicit; meanwhile, this is a small step forwards. What about transparency requirements imposed on private actors? Again, the answer needs to be modular and sector-sensitive, with broad exceptions for the media and minimally a deontological duty for transnational corporations to report on their own behaviour and interactions with governments.64 Very low transparency can be required from WikiLeaks and other similar initiatives that give whistleblowers a voice by publishing censored or otherwise restricted official materials involving war, spying and corruption, and are very vulnerable.65 The Snowden revelations make clear the types of transparency concepts used in discussions about surveillance and governmental powers. Very prevalent amongst secret services and law enforcement officials is the idea of radical transparency, opening up both public processes and private lives of citizens for inspection: nothing to hide, nothing to fear.66 This contrasts with the traditional liberal transparency concept focused on the public inspection of state power, rejecting any tendency towards the ‘uncheckability’ of power and granting control and privacy to law-abiding citizens. One criterion by which to judge the amount of transparency will be the actual power of the actor and risks of abuses. This rule of thumb explains why more transparency can be required from certain corporations, but not from all. For journalists and whistleblowers, the (civil liberties) stakes are higher. Here there is simply no rule of thumb, although careful ethical consideration can help create some sort of framework.67 62 For an overview of the Security Council’s sanctioning powers, see Tzanakopoulos (n 51) 6–7. 63  ibid 17. 64  P De Hert and D Kloza, ‘Corporate Transparency is Crucial, But it Must Also Become Far More Meaningful’, The Privacy Surgeon, 2014, http://www.privacysurgeon.org/blog/incision/ corporate-transparency-is-crucial-but-it-must-also-become-far-more-meaningful. 65  P De Hert and D Kloza, ‘WikiLeaks, Privacy, Territoriality and Pluralism. What Does Matter and What Does Not?’,6 January 2011, www.vub.ac.be/LSTS/pub/Dehert/Dehert_361. pdf. On the infiltration of OpenLeaks by German government officials, see http://it.slashdot. org/story/12/09/14/1322238/why-wikileaks-spinoff-openleaks-failed. 66 V Bakir and A McStay, ‘Assessing Interdisciplinary Academic and Multi-stakeholder ­Positions on Transparency in the Post-Snowden Leak Era’ (2015) 12(3–4) Ethical Space: The International Journal of Communication Ethics 25, 27. 67 P Lashmar, ‘Spies and Journalists: Towards an Ethical Framework?’ (2015) 12(3–4) ­Ethical Space. The International Journal of Communication Ethics 4. See also T Crook, ‘Useful

106  Paul De Hert IX.  ACCOUNTABILITY (THE SECOND GOVERNANCE PRINCIPLE)

Like transparency, accountability has become a global concept of responsible government and governance. The idea that power must be held to account is a general principle, not necessarily legal in nature but triggered by a ‘gut feeling’: entities should not exercise power without having to somehow account for it.68 This status as a gut-felt necessity explains why accountability is not only promoted as a standard by global pluralists, but also forms part of the global constitutionalist programme for reform beyond the state.69 Accountability can be considered the alter ego of transparency70 and at the same time also a final good to which transparency is instrumental.71 Accountability is equally modular. There is no universally accepted definition of what accountability is and there is no unique answer to, or form or outcome of, accountability problems. The form can be legal, but also political, economic, financial, market-based, administrative, hierarchical and reputational (and this with many sub-divisions).72 Like transparency, there is no intrinsic link with law. Accountability can exist even when the law is silent and there are no independent and impartial third parties to decide matters with binding force.73 Other actors can play a role in enforcing accountability, public opinion being only one of them. Again, contextual solutions, taking into account power configurations and what is there already, will define responses to ‘the who, what, and how’ question. The foregoing explains why I avoid the traditional presentation of accountability as a combination of the (internal) duty to justify oneself and to develop practices to do so on the one hand, and, on the other hand, the (external) duty to set up structures that allow for accountability and increase accountability, control and sanctioning.74 Some authors refuse Idiots or Big Brother’s Antidote? Analysing the Ethical Role of the State, Guardian and Edward Snowden in the Controversy over Surveillance and Whistle-Blowing’ (2015) 12(3–4) Ethical Space. The International Journal of Communication Ethics 14. 68 

Tzanakopoulos (n 51) 1. See Peters, ‘The Constitutionalisation’ (2011) 264–66. 70  Tzanakopoulos (n 51) 15, with reference to C Harlow, Accountability in the European Union (Oxford, Oxford University Press, 2002) 7. 71  Moreover, through the analysis of the concept of accountability, one can especially appreciate the tension with others such as democratic participation. Given the interconnection with transparency, this analysis of the implication for other values also applies to transparency itself. 72  Tzanakopoulos (n 51) 4; M Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’ (2007) 13(4) European Law Journal 447, 460–61. 73  Tzanakopoulos (n 51) 10. 74  Brants, Mevis and Prakken (n 23) 8–10. This view on accountability and its two duties can be traced back to the definition of Richard Mulgan in his seminal article on accountability: R Mulgan, ‘Accountability: An Ever-Expanding Concept?’ (2000) 78 Public Administration 555, 555, which was written to defend a restrictive view on the definition of accountability (at 571). Mulgan rejects broader uses of the term in literature that create ‘confusion’ and imply a ‘questionable shift of focus away from the central importance of external scrutiny’ (at 557). 69 

Globalisation, Crime and Governance 107 to use the term ‘accountability’ for mechanisms based solely on the first ­(internal-oriented) duty, but not on the (external) second. So, ‘accountability’ would not cover arrangements that lack a sanctioning system. I prefer a more pragmatic understanding of accountability that includes all kinds of accountability arrangements, including the self-imposed.75 It runs against the practical wisdom of the Global Administrative Law project to disregard the latter; more logical is to refer to thin or imperfect accountability.76 Such a notion also helps underline the existence of many variations in accountability schemes and, within each variation, the many rules and procedures that can produce effective or less effective accountability.77 Bovens sees a threefold rationale (democratic, constitutional and learning) for public accountability (the object of his analysis) with two additional indirect rationales (legitimacy and catharsis). Public accountability serves the democratic perspective, helping citizens to hold responsible those in public office. Accountability arrangements prevent the development of concentrations of power, and they enhance the learning capacity and effectiveness of public administration. Behind these three perspectives lurks a far greater, more abstract concern with legitimacy: processes of accountability provide opportunities to explain and justify intentions, and to obtain feedback from other actors, enhancing acceptance and confidence.78 The other indirect rationale that Bovens identifies is closely linked to the legitimacy concern and deals with catharsis: In the incidental case of tragedies, fiascos and failures, processes of public account giving may also have an important ritual, purifying function—they can help to provide public catharsis. Public account giving can help to bring a tragic period to an end because it can offer a platform for the victims to voice their grievances, and for the real or reputed perpetrators to account for themselves and to justify or excuse their conduct. This can be an important secondary effect of parliamentary inquiries, official investigations or public hearings in cases of natural disasters, plane crashes or railroad accidents. The South African ‘truth commissions’, and various war crime tribunals, starting with the Tokyo and Nuremberg trials, the Eichmann trial, up to the Yugoslav tribunal are at least partly meant to fulfil

75  For a critique of Mulgan, see Erkkilä (n 40) 10, with reference to M Dubnick, ‘Accountability and Ethics: Reconsidering the Relationships’ (2003) 6(3) International Journal of Organization Theory and Behavior 405. 76  cf Bovens, ‘Analysing and Assessing Accountability’ (2007) 449–54, which distinguishes between broad and narrow accountability. Concurring with Mulgan (see n 74), Bovens insists on a narrow or strict interpretation of accountability, with the possibility of sanctions or consequences of a constitutive element (at 451). My problem with this narrow and strict approach is that informal arrangements then become problematic. 77  See the definition of accountability, focusing only on the first duty, given by the International Law Association, Final Conference Report: Accountability of International Organisations (International Law Association, 2004): ‘the duty to account for the exercise of power’. See equally these sources for a listing of principles that can make accountability more effective. 78  Bovens (n 72) 464.

108  Paul De Hert this function. Public processes of calling to account create the opportunity for penitence, reparation and forgiveness, and can thus provide social or political closure.79

Bovens observes that neither legitimacy nor catharsis can be easily evaluated, since they concern meta-effects, which explains why he narrows down his analysis to three principal direct reasons for accountability: democratic control, constitutional or countervailing powers, and learning.80 Each of these perspectives yields a separate theoretical perspective on the rationale behind accountability and a separate perspective for the assessment of accountability relations.81 Moreover, they sometimes point in different directions; accountability arrangements can score well from one perspective, but not from others.82 This explains the importance of the ‘why-question’ regarding accountability: why is accountability important and what is the purpose of the various different forms of accountability?83 X.  ACCOUNTABILITY IN GLOBAL CRIMINAL LAW: PERFECT AND IMPERFECT ARRANGEMENTS

Accountability is a difficult concept for lawyers. Usually they avoid talking about it, but when they do, they see nothing else in law. A fine example is Rebecca Brown’s 1998 article on ‘Accountability, Liberty, and the Constitution’. By looking at constitutionalism from the viewpoint of accountability rather than democracy, the author comes to a ‘different model of constitutionalism’ and a different understanding of American constitutionalism, one that depicts accountability as a structural feature of the Constitution, similar to separation of powers, checks and balances, or federalism, the purpose of which is to protect liberty.84 Similarly, accountability is probably intrinsic to classic criminal law: ­following up on criminal facts with a court procedure is (bringing) accountability. Courts in states with international human rights monitoring are used to having their performance judged against certain standards. These accountability requirements have been spelled out by supervisory bodies such as the Inter-American Court and Commission on Human Rights and the UN Human Rights Committee, and most clearly in the jurisprudence of the European Court of Human Rights (ECtHR):85 violations of human 79 ibid. 80 

ibid 465. ibid 462. 82  See ibid 466. 83  ibid 462–67. 84 RL Brown, ‘Accountability, Liberty, and the Constitution’ (1998) 98 Columbia Law Review 531. 85  Kessler and Werner, ‘Extrajudicial Killing’ (2008) 297. 81 

Globalisation, Crime and Governance 109 rights such as the right to life need to be followed by an independent and effective investigation capable of identifying those responsible and determining whether the force used was justified. The investigation must also be prompt and expeditious, and ‘there must be a sufficient element of public scrutiny of the investigation or of its results to secure accountability in practice as well as in theory’.86 In global criminal law, the accountability standard is directed towards all actors involved. Coming back to the gut-felt necessity to have accountability everywhere in some way or another, de Serpa Soares subtly observes that we have only recently entered An Age of Accountability.87 The guts now feel different to some time ago. Only now is the time right for recognising an individual and collective right to justice (to see perpetrators brought to justice) next to the connected right to know about injustices.88 De Serpa Soares sees enforcing both rights at the international level, when states are unwilling to act, as falling within the broad mandate of the UN to maintain international peace and security spelled out in the UN Charter,89 and as a response to contemporary demands by the international community. Accountability, too, is also modular, as is well known to professionals of transnational justice with its arsenal of accountability mechanisms. Existing options range from commissions of inquiry (‘truth commissions’), prosecutions and lustration to compensation for victims.90 The trial of Charles Taylor by the Special Court for Sierra Leone ran in conjunction with truth commissions and localised accountability processes in both Liberia and Sierra Leone.91 In Kenya, constitutional reforms were introduced at the same time as a truth commission, a judicial vetting board and the prosecution of senior officials before the ICC.92 In the context of transparency, 86 ECtHR, McKerr v UK, Judgment of 4 May 2001, paras 110–15. See Kessler and Werner (n 11) 297, also referring to Kelly and Others v UK, 4 May 2001; Shanaghan v UK, 4 May 2001. 87  De Serpa Soares (n 53) 673. 88  ibid 672. 89  ibid 673. 90 A historical discussion and secondary literature on accountability is reprinted in N Kritz (ed), Transitional Justice: How Emerging Democracies Reckon with Former Regimes ­(Washington DC, United States Institute of Peace Press, 1995) 3 vols. See also the review and discussion of this book by SR Ratner, ‘Judging the Past: State Practice and the Law of Accountability’ (1998) 9 European Journal of International Law 412. Volume 2 of Neil Kritz’s Transitional Justice shows that states use a variety of accountability options, sometimes consecutively, often of a non-prosecutorial nature. 91  T Kelsall, Culture under Cross-examination: International Justice and the Special Court for Sierra Leone (Cambridge, Cambridge University Press, 2009); M Schotsmans, ‘Blow Your Mind and Cool Your Heart: Can Traditional Based Justice Fill the Transitional Justice Gap in Sierra Leone?’ in N Palmer, P Clark and D Granville (eds), Critical Perspectives in Transitional Justice (Brussels, Intersentia, 2011). 92  G Lynch, ‘Truth Commissions as a Tool of Transitional Justice: Lessons from Kenya’ in A Robertson and R Jones-Parry (eds), Commonwealth Governance Handbook 2012–2013 (Cambridge, Nexus/Commonwealth Secretariat, 2012); JD Barkan and M Mutua, ‘Turning the Corner in Kenya: A New Constitution in Nairobi’, Foreign Affairs (10 August 2010).

110  Paul De Hert I briefly referred to the possible negative impact of the Rome Statute and the mandate of the ICC on accountability mechanisms other than trials. Social scientists have criticised this legalistic view on conflict resolution, calling for a radical reconceptualisation of the notion of ‘accountability’ to move beyond the narrow deployment of the term as synonymous with criminal trials.93 A growing body of specialised conventions and case law of treaty supervisory bodies such as the Inter-American Court and Commission on Human Rights and the UN Human Rights Committee impose a duty on states to prosecute individuals for certain crimes (such as genocide, war crimes, t­orture and disappearances). However, many cases reported in Kritz’s T ­ ransnational Justice suggest that (newly established or transitional) governments are unwilling to respect these duties for a variety of reasons (concern for national reconciliation or fear of upsetting prior government connected fractions). Equally significant is a lack of state-to-state pressure. Ratner also makes a point of the lack of a clear well-defined international law duty to prosecute these crimes: there might be extended jurisdiction to act, but this does not strictly impose a legal duty to act.94 XI.  PARTICIPATION (THE THIRD GOVERNANCE PRINCIPLE)

Of the three governance concepts with which this chapter is concerned, participation is the least compelling or absolute,95 although its democratic undertone is intuitively seductive. Like transparency, it is instrumental in bringing about accountability. There is a thin line between accountability and participation, but they can be distinguished analytically: accountability is by definition retrospective, while participation is a mechanism to provide proactive input in policy processes.96 In good governance literature, participation is usually understood as the idea that citizens must be more systematically involved in the drafting and implementation of policies.97 Transparency and openness can make more participation by the public possible, assuming that citizens have the opportunity to make known and publicly exchange views, that there is an open, 93  Kotiswaran and Palmer (n 4) 65, with reference to L Mallinder and K McEvoy, ‘­ Rethinking Amnesties: Atrocity, Accountability and Impunity in Post-conflict Societies’ (2011) 6 Contemporary Social Science: Journal of the Academy of Social Science 107. 94  Ratner, ‘Judging the Past’ (1998) 417. 95  See the when less (participation) is more message in N Molenaers and R Renard, ‘The Trouble with Participation: Assessing the New Aid Paradigm’ in M Kremer, P van Lieshout and R Went (eds), Doing Good or Doing Better: Development Policies in a Globalizing World (Amsterdam, Amsterdam University Press, 2009) 271–73. 96  Bovens (n 72) 453. 97  Communication from the Commission of 25 July 2001 ‘European Governance—A White Paper’, COM(2001) 428 final, OJ C 287 of 12 October 2001.

Globalisation, Crime and Governance 111 transparent and regular dialogue with the public or that broad consultations are carried out and citizens’ initiatives are taken seriously.98 Participation is seen as one of the four distinct procedural justice principles when dealing with citizens (others are neutrality, respect and trust).99 The benefits are enormous in terms of satisfaction, compliance and legitimacy: if people have the opportunity to tell their side of the story before decisions are made and feel that what they say is being considered, this positively affects their experience with the legal system, irrespective of the outcome, assuming that the decision was properly communicated (ie, in the case of an unfavourable outcome, that the decision-maker communicates that citizens’ views were taken into account, but unfortunately could not influence the decision). The foregoing concerns the participation of the public, but that does not exhaust the idea of participation. Like other governance principles, participation can be modulated towards different sectors and applied very narrowly (only involving some stakeholders) or widened through mechanisms of consultation, notice, comment and hearings. Involving the public is one option, but is not necessarily mandatory.100 Inspiration for modelling the kind of participation one seeks for actors at the global level can be found in domestic law, but this is only a source of inspiration.101 The deep level of interdependency in nation states is not always reached in the global sphere, and giving all people equal rights to participation even in matters that impact more on some than on others seems unjustifiable.102 It might also sometimes be preferable not to insist on civil society participation at the global level, especially when dealing with countries that have a poor track record on civil liberties, where no genuine freedom for civil society groups can be expected.103 Governance literature has produced a wealth of valuable insights on concepts of participation, sometimes conflicting but always such as to make us cautious when advocating participation. For instance, we have been alerted to be sensitive to the right ‘process moment’ in the policy-making cycle (formulation, decision-making, implementation and evaluation) for incorporating participation. We learn that involving citizens and experts in investigating and questioning evidence and information has a greater effect on the preferences of participants than involving them in the final stages. ­Participation can also serve to increase awareness of options and

98 

Alemanno (n 43) 82. Procedural Justice (2007–08) 30; TR Tyler, Why People Obey the Law (Princeton, Princeton University Press, 2006) 119; Brems and Lavrysen, ‘Procedural Justice’ (2013) 181. 100  Other formats of participation, not focusing on the public, are administrative participation and right-based participation. See on this Alemanno (n 43) 82. 101  Rached (n 28) 361. 102  cf Reglitz, ‘Political Legitimacy’ (2015) 305. 103  Molenaers and Renard, ‘The Trouble’ (2009) 271. 99 Tyler,

112  Paul De Hert ­ erspectives and to overcome biases.104 Commonly it is felt that participap tion is not to be used as a decision-making procedure.105 It is important to avoid naivety, with its tendency to produce ­depoliticised analysis and prescriptions. States are seldom neutral and it would be ‘angelical’ to assume that they are sufficiently so in important matters that affect their interests. Similarly, civil society is not a plus in all respects. An angelical perspective of civil society ignores that it is by its very nature heterogeneous, organised around the interests and common perceptions of participants, with collective self-interest playing a major role.106 There is also selection bias in the stakeholders invited to participate, possible resulting in externally funded NGOs dominating the negotiation spaces (and the absence of smaller local NGOs), and avoidance of involvement of more dissident voices, leading to pro-government selection bias in terms of who gets invited.107 Finally, given the emphasis in contemporary governance on ad hoc expert groups, transparency and participation may clash, with the drive for transparency leading to information-sharing among (some) policy actors and thereby running the risk of making these deliberations non-public: paradoxically, the drive for transparency might render public administration less accountable in a democratic sense.108 XII.  PARTICIPATION IN GLOBAL CRIMINAL LAW: A SIDE DISH?

The participation concept usefully brings to light the political dimension of global criminal law: the question who sits at the table enriches the typical depoliticised lawyers view on treaties and norms, and reconnects with basic social science insights on governance. A recurrent theme in Boister’s handling of transnational criminal law is ‘norm entrepreneurialism’, by which (usually powerful) states export their domestic criminal laws into the international realm.109 The analysis helps to remind us of the ‘messy political nature of reality’.110 Boister seems to believe that reality is less messy with

104 More fundamentally, participation can help solve the hermeneutic problem discussed above: there might not be a common understanding of principles, but through participation (talking to each other), it is possible to construct in a given case a shared understanding of ‘principles’, concepts, terms and nouns in general. 105 RE Goodin, Innovating Democracy: Democratic Theory and Practice after the ­Deliberative Turn (Oxford, Oxford University Press, 2008) 108–24. See also the book review by B Saunders, ‘Democracy after Deliberation’ (2009) 15 Res Publica 315. 106  Molenaers and Renard (n 95) 255 and 261–63. 107  ibid 273. 108  cf Erkkilä (n 40) 21. 109  See, for instance, Boister (n 3) 11; and N Boister, ‘Transnational Criminal Law?’ (2003) 14 European Journal of International Law 953, 965. 110  Molenaers and Renard (n 95) 260, with reference to the work of Driscoll and Evans (2005); Eberlei (2007); and Siebold (2007).

Globalisation, Crime and Governance 113 regard to classical international criminal law where states participate and engage with each other with a higher moral aim to protect basic common values, as opposed to transnational treaty drafting, where states are driven by specific individualised state interests. Kotiswaran and Palmer elegantly narrow this distinction in terms of the way in which treaties are negotiated by pointing to many self-interested moves by those present at the moment of negotiating the Rome Statute.111 The ICC is a good test case when it comes to participation. Already during the Rome Conference, a ­panoply of state delegates, NGO representatives and academics participated in ­drafting the Statute. The democratic character of these participations is questionable, given that none of them was elected to draft the most important international criminal law bill up to date. Immi Tallgren, for instance, held that ‘any democratic control … will at best be retroactive, at the point of ratification’.112 Within the criminal law system, Brants, Mevis and Prakken understand participation as participation of the accused and of the public, but also of the victim and other private persons (investigators, consultants, experts etc) in criminal proceedings.113 Brems and Lavrysen show how participation has been picked up by the ECtHR as a right to participate effectively in a (fair) trial and a right to be involved in investigations on, and decisions about, the rights to life, integrity, privacy and family life.114 Part of the current development towards the recognition of victim rights has most definitely been co-triggered by this Court. Moffett’s study on victim rights before the ICC recalls the history of the growing recognition of victim interests in international criminal law and rightly welcomes the participatory rights attributed to victims under Article 68(3) of the Rome Statute.115 Having struck the balance exceptionally well between sympathies for victims and the understanding that many other interests are also at play in criminal law, Moffett outlines the benefits of victim participation and the need to balance this with other interests and the purpose of international criminal justice and its dominant retributive focus.116 One of the tensions concerns conflicting interests of parties involved, not only those of the defence, but also of the Prosecutor in determining the selection of charges.117 Within the existing framework, Moffett 111  See Kotiswaran and Palmer (n 4) 70, with an analysis of feminist strategies to obtain sex crime incriminations with a very broad scope going beyond liberal criminal understandings in most Western states. 112 I Tallgren, ‘We Did it? The Vertigo of Law and Everyday Life at the Diplomatic ­Conference on the Establishment of an International Criminal Court’ (1999) 12 European Journal of International Law 683, 685. 113  Brants, Mevis and Prakken (n 23) 7–8. 114  Brems and Lavrysen (n 52) 189–200. 115  Moffett, ‘Meaningful and Effective?’ (2015) 255–89. 116  ibid 259–61. 117  ibid 264.

114  Paul De Hert tries to make the ICC more victim-oriented (without adopting a restorative justice approach) in the investigation phase, the trial phase and in sentencing proceedings. The Lubanga case, with its well-known conflict between the victims and the Prosecutor, has allowed the ICC (and academics like Moffett) to defend more clearly the balance that must be struck in light of the many alternative views on victim participation.118 However, there exist less overt contributions to the ICC judicial p ­ rocess by participants not explicitly recognised under the Rome Statute. The Office of the Prosecutor has held consultations with civil society, so-called NGO round tables: ‘the Office of the Prosecutor’s interaction with local and international NGOs is relevant at all stages of its activities, including development of policies/practices, prevention, promotion of domestic legislation and proceedings, preliminary examination, investigation, prosecution, cooperation, maximizing the impact of its work and its understanding by victims and affected communities’.119 Furthermore, in 2012, the Office of the Prosecutor appointed three Special Advisers, persons with recognised expertise in their field, who provide advice to the Prosecutor at her request or on their own initiative on training, policies, procedures and legal submissions. More specifically, the Office of the Prosecutor appointed a Special Adviser on International Criminal Law Prosecution Strategies, a Special Adviser on Crimes against Humanity and a Special Adviser on Children in and Affected by Armed Conflict. During the adjudicative process, Amicus Curiae observations are a device by which outside participants such as academics and NGOs can have a say and influence the judicial reasoning.120 Another kind of participation is made possible by the principle of complementarity in the ICC Statute and the day-to-day use of hybrid courts. Greater legitimacy, local ownership, a greater connection to victims and capacity-building are among the asserted advantages of hybrid tribunals,121 and all have to do with bringing in local and domestic law. Much critical legal and empirical research is looking closely at these courts, often with

118  C Stahn, ‘Reparative Justice after the Lubanga Appeals Judgment: New Prospects for Expressivism and Participatory Justice or “Juridified Victimhood” by Other Means?’ (2015) 13(4) Journal of International Criminal Justice 801. 119  ICC, Prosecutorial Strategy, 2009-2012, 1 February 2010, available at www.icc-cpi.int/ NR/rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281506/OTPProsecutorialStrategy20092013.pdf. 120 See, eg, ICC, Situation in the Republic of Côte d’Ivoire, The Prosecutor v Laurent Gbagbo, Amicus Curiae Observations of Professors Robinson, de Guzman, Jalloh and Cryer, 9 October 2013. 121 Williams (n 38) 662. See M Holvoet and P De Hert, ‘International Criminal Law as Global Law: An Assessment of the Hybrid Tribunals’ (2012) 17(2) Tilburg Law Review 228; CPR Romano, A Nollkaemper and JK Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford, Oxford University Press, 2004); L Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97 American Journal of International Law 295.

Globalisation, Crime and Governance 115 useful recommendations for coping with this prime example of constitutional pluralism, although there is a tendency to require ‘perfect justice’ which fits uneasily with the legal pluralism that such courts embody. XIII.  A METHOD FOR APPLYING TRANSPARENCY, ACCOUNTABILITY AND PARTICIPATION?

It should by now be obvious that I regard our three concepts as interconnected: transparency should be understood in a holistic and proactive manner, as openness, as only in that form might it actually enable participation, with transparency and participation instrumentally related to accountability. This makes applying transparency, accountability and participation no easy matter, and tensions between the three and between the ends sought with a particular accountability arrangement add to the complexity. In assessing these interactions and tensions, it is useful to return to Bovens’ ‘why-question’ regarding accountability: why is accountability important and what is the purpose of the various different forms of accountability?122 The answer to this will allow a deeper understanding of the accountability principle, but also of the possible limits to the principles of participation and transparency. Bovens’ grid of (direct) reasons for accountability— democratic control, constitutional or countervailing powers and learning— is particularly useful.123 It gives three reasons to want accountability and three reasons that might and probably will give way to different governance options about transparency, accountability and participation. It should be noted that the two indirect purposes of accountability—legitimacy and catharsis—are also important in this regard. So, what does one want: democratic control, constitutional or countervailing powers, learning, legitimacy or catharsis, or a combination of these? Whether international organisations need to be accountable not only to states, but also to (global) citizens; whether parliaments need to be built into organisations such as the UN, the Bretton Woods institutions and the World Trade Organization (WTO),124 whether magistrates need to be involved in truth commissions, how many international judges need to sit in a hybrid court, or whether citizens or domestic judges need to be actively involved in (international) adjudication are all questions that should be answered along these lines. This exercise requires an in-depth comprehension of how human

122 

Bovens (n 72) 462–67. ibid 465. 124 See Peters (n 29) 265–66 and 279–80. See also RH Weber, ‘The Crucial Triangle: ­Analysis of the Links between Transparency, Accountability and Participation in the Information Society’ in E Schweighofer, F Kummer and W Hötzendorfer (eds), Transparenz (Salzburg, IRIS, 2014) 195. 123 

116  Paul De Hert understanding develops in interactions,125 actors and the institutions they represent,126 and an awareness that several alternative answers can often be defended. Requiring direct participation by the public everywhere will not do, nor does it correspond to actual practices in transitional justice and the organisation of the criminal law apparatus. In this context we should recall Rubenstein’s beautiful demonstration that the question ‘who elected Oxfam?’ quite misses the point.127 This author argues that conceptualising international NGOs as representation bodies is far from flawless and that when it comes to NGOs, the onus should be on the constitutional, countervailing perspective.128 This does not exclude arrangements that take other perspectives into account, but it does make us understand the actual and possible limits to the idea of representation in the area of global criminal justice: the democratic perspective is one of the perspectives that, depending on the context, need or need not be emphasised. XIV. CONCLUSIONS

In this chapter I defined global criminal law as a paradigm for understanding developments of criminal law affected by globalisation that seeks to go beyond international criminal law strictu senso and its fix on adjudication by international tribunals, and transitional justice’s focus on treaty-making. There is simply more happening than international courts judging cases and active states exporting criminal law choices via treaties. Welcome to the world of political solutions to crimes, of non-legal responses, of policy-­ making by judges, prosecutors and national and international NGOs. Rather than a constitutionalist programme for global criminal law with substantive principles,129 my ideas are partly driven by a certain cynicism about principled approaches to (criminal) law, especially when they are substantively oriented and rigidly presented as fact. I therefore turned to the Global Administrative Law project (2005) and the proposals by Brants et al 125  While participation can increase awareness about options and overcome biases. Goodin shows that discussion and participation, especially in the early stages of a discovery process, unduly influence the later course of discussion, producing path-dependent results (Goodin, Innovating Democracy (2008) 111–14). 126  For a conceptual analysis of representation, see JC Rubenstein, ‘The Misuse of Power, Not Bad Representation: Why it is Beside the Point that No One Elected Oxfam’ (2014) 22(2) Journal of Political Philosophy 204, 210–23. See also on this ‘boundary problem’ in democratic theory Goodin (n 105) ch 7; RE Goodin, ‘Enfranchising All Affected Interests, and its Alternatives’ (2007) 35 Philosophy and Public Affairs 40. 127  Rubenstein, ‘The Misuse of Power’ (2014) 204–23. Equally missing the point is Anne Peters’ remark that ‘contrary to popular opinion, international organisations are relatively accountable in comparison to transnational corporations and non-governmental organisations’ (Peters (n 29) 265). 128  cf Rubenstein (n 126) 218. 129  Höffe (n 14) 262–68.

Globalisation, Crime and Governance 117 in 2001 for more procedurally oriented guidelines or principles to address issues of globalisation, in particular transparency, accountability and participation. The role and weight of these flexible, process-oriented principles need to be grasped and adjusted to the context of each actor and their respective purpose and power. Domestic law, including constitutional law, may be a rich source of inspiration, but, from a pluralist, comparative and multi-stakeholder perspective, does not deliver definitive answers. I have discussed the application and understanding of transparency, participation and accountability in the administration of global criminal justice. At first sight, there seems to be no objection to applying these principles to actors and problems of global criminal justice. There is often a ‘gut feeling’ that these principles need to be there somehow, which accounts for a ‘situation of presence’: there is already often some transparency, an accountability arrangement, some way of participating in policy-impacting decisions, either by public actors or by private actors exercising some form of quasi-governmental power. This chapter has illustrated thin and thick applications of the three principles, identifying among other things openness as a thick version of transparency and defending imperfect arrangements of accounting as forms of accountability. None of the principles comes to us as absolute. In particular, transparency serves broader values, such as accountability and participation; full transparency is not always required and is therefore not an absolute value or principle (a good per se). The three principles usually reinforce each other, but might show internal tensions. A mandatory process of legal accountability via courts can block democratic processes in transitional states. There are many more tensions that need to be taken into consideration. Borrowing Bovens’ analytical grid about the threefold direct rationales of accountability (democratic, constitutional and learning), complemented by two additional indirect rationales (legitimacy and catharsis), I hope to have shown that the application of governance principles may be good from one perspective and less ideal from another, and that we should not ignore a constitutional perspective on legal and non-legal developments in the area of global criminal law. REFERENCES Aas, KF, Globalization and Crime (Los Angeles, Sage, 2007). Alemanno, A, ‘Unpacking the Principle of Openness in EU Law: Transparency, ­Participation and Democracy’ (2014) 39(1) European Law Review 72–90. Ashworth, A, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 Law Quarterly Review 225–56. Bakir, V and McStay, A, ‘Assessing Interdisciplinary Academic and Multi-­stakeholder Positions on Transparency in the Post-Snowden Leak Era’ (2015) 12(3–4) Ethical Space: The International Journal of Communication Ethics 25–38.

118  Paul De Hert Berman, PS, Global Legal Pluralism: A Jurisprudence of Law beyond Borders (New York, Cambridge University Press, 2012). Bisset, A, Truth Commissions and Criminal Courts (Cambridge, Cambridge ­University Press, 2014). Boister, N, ‘Transnational Criminal Law?’ (2003) 14 European Journal of International Law 953–76. ——. An Introduction to Transnational Criminal Law (Oxford, Oxford University Press, 2012). ——. ‘Reflections on the Concept of Transnational Criminal Law’ (2015) 6(10 Transnational Legal Theory 9–30. Bovens, M, ‘Analysing and Assessing Accountability: A Conceptual Framework’ (2007) 13(4) European Law Journal 447–68. Brants, CH, Mevis, PAM and Prakken E (eds), Legitieme strafvordering. Rechten van de mens als inspiratie in de 21ste eeuw (Antwerp, Intersentia, 2001). Brown, RL, ‘Accountability, Liberty, and the Constitution’ (1998) 98 Columbia Law Review 531–79. Ciorciari, JD and Heindel, A, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Ann Arbor, Michigan University Press, 2014). Crook, T, ‘Useful Idiots or Big Brother’s Antidote? Analysing the Ethical Role of the State, Guardian and Edward Snowden in the Controversy over Surveillance and Whistle-Blowing’ (2015) 12(3–4) Ethical Space. The International Journal of Communication Ethics 14–24. Cryer, R, Friman, H, Robinson, D and Wilmshurst, E, An Introduction to International Criminal Law and Procedure (Cambridge, Cambridge University Press, 2007). De Hert, P and Kopcheva M, ‘International Mutual Legal Assistance in Criminal Law Made Redundant: A Comment on the Belgian Yahoo! Case’ (2011) 27(30 Computer Law & Security Review 291–97. De Serpa Soares, M, ‘An Age of Accountability’ (2015) 13(4) Journal of International Criminal Justice 669–76. Dickinson, L, ‘The Promise of Hybrid Courts’ (2003) 97 American Journal of International Law 295–310. Dubnick, M, ‘Accountability and Ethics: Reconsidering the Relationships’ (2003) 6(3) International Journal of Organization Theory and Behavior 405–41. Duff, RA, Answering for Crime (Oxford, Hart Publishing, 2007). Erkkilä, T, Government Transparency. Impacts and Unintended Consequences ­(Basingstoke, Palgrave Macmillan, 2012). Foffani, L, ‘Il Manifesto sulla Politica Criminale Europea’ (2010) Criminalia 657–71. Goodin, RE, ‘Enfranchising All Affected Interests, and its Alternatives’ (2007) 35 Philosophy and Public Affairs 40–68. ——. Innovating Democracy: Democratic Theory and Practice after the ­Deliberative Turn (Oxford, Oxford University Press, 2008). Harlow, C, Accountability in the European Union (Oxford, Oxford University Press, 2002). Höffe, O, Democracy in an Age of Globalisation (Dordrecht, Springer, 2007). Holvoet, M and De Hert, P, ‘International Criminal Law as Global Law: An Assessment of the Hybrid Tribunals’ (2012) 17(2) Tilburg Law Review 228–40.

Globalisation, Crime and Governance 119 Holvoet, M and Mema, M, ‘The International Criminal Court and the R ­ esponsibility to Protect’ in D Fiott and J Koops (eds), The Responsibility to Protect and the Third Pillar: Legitimacy and Operationalization (Basingstoke, Palgrave ­ Macmillan, 2014) 21–38. Horder, J. ‘Bureaucratic “Criminal” Law: Too Much of a Bad Thing?’, LSE Law, Society and Economy Working Papers 1/2014. Husak, D, Over-criminalisation (Oxford, Oxford University Press, 2008). International Law Association, Final Conference Report: Accountability of International Organisations (International Law Association, 2004). Kaiafa-Gbandis, M, ‘The Importance of Core Principles of Substantive Criminal Law for a European Criminal Policy Respecting Fundamental Rights and the Rule of Law’ (2011) 1(1) European Criminal Law Review 6–33. Katzman, R, ‘The Non-disclosure of Confidential Exculpatory Evidence and the Lubanga Proceedings: How the ICC Defense System Affects the Accused’s Right to a Fair Trial’ (2009) 8 Northwestern Journal of International Human Rights 77–101. Kelsall, T, Culture under Cross-examination: International Justice and the Special Court for Sierra Leone (Cambridge, Cambridge University Press, 2009). Kessler, O and Werner, W, ‘Extrajudicial Killing as Risk Management’ (2008) 39(2–3) Security Dialogue 289–308. Kingsbury, B, Krisch, N and Stewart RB, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems 15–61. Kotecha, B, ‘Book Review of Alison Bisset, Truth Commissions and Criminal Courts (Cambridge University Press, 2014)’ (2015) 3 Journal of International Criminal Justice 409–18. Kotiswaran, P and Palmer, N, ‘Rethinking the “International Law of Crime”: ­Provocations from Transnational Legal Studies’ (2015) 6(1) Transnational Legal Theory 55–88. Krisch, N, ‘Global Administrative Law and the Constitutional Ambition’ in ­P Dobner and M Loughlin (eds), The Twilight of Constitutionalism? (Oxford, Oxford University Press, 2010) 245–66. Kritz, N (ed), Transitional Justice: How Emerging Democracies Reckon with ­Former Regimes (Washington DC, United States Institute of Peace Press, 1995). Lashmar, P, ‘Spies and Journalists: Towards an Ethical Framework?’ (2015) 12(3–4) Ethical Space. The International Journal of Communication Ethics 4–14. Lenaerts, K and Gutiérrez-Fons, JA, ‘The Constitutional Allocation of Powers and General Principles of EU Law’ (2010) 47(6) Common Market Law Review 1629–69. Mallinder, L and McEvoy, K, ‘Rethinking Amnesties: Atrocity, Accountability and Impunity in Post-conflict Societies’ (2011) 6 Contemporary Social Science: Journal of the Academy of Social Science 107–28. Massé, M, Jean, JP and Giudicielli, A (eds), Un droit pénal postmoderne ? Mise en perspective des évolutions et ruptures contemporaines (Paris, PUF, 2009). Moffett, L, ‘Meaningful and Effective? Considering Victims’ Interests through ­Participation at the International Criminal Court’ (2015) 26(2) Criminal Law Forum 255–89. Molenaers, N and Renard, R, ‘The Trouble with Participation: Assessing the New Aid Paradigm’ in M Kremer, P van Lieshout and R Went (eds), Doing Good or Doing Better: Development Policies in a Globalizing World (Amsterdam, ­Amsterdam University Press, 2009) 255–78.

120  Paul De Hert Mulgan, R, ‘Accountability: An Ever-Expanding Concept?’ (2000) 78 Public Administration 555–73. Olasolo, H (ed), Essays on International Criminal Justice (Oxford: Hart Publishing, 2012). Peters, A, ‘The Constitutionalisation of International Organisations’ in N Walker, J Shaw and S Tierney (eds), Europe’s Constitutional Mosaic (Oxford, Hart ­Publishing, 2011) 253–86. Rached, DH, ‘Doomed Aspiration of Pure Instrumentality: Global Administrative Law and Accountability’ (2014) 3 Global Constitutionalism 338–72. Ratner, SR, ‘Judging the Past: State Practice and the Law of Accountability’ (1998) 9 European Journal of International Law 412–20. Recalde, A, ‘Transparencia y autonomía del mercado: principios inspiradores de la regulación financiera antes de la crisis’ in RG Macho (ed), Ordenación y transparencia económica en el derecho público y privado (Madrid, Marcial Pons, 2014) 55–76. Reglitz, M, ‘Political Legitimacy without a (Claim-)Right to Rule’ (2015) 21 Res Publica 291–307. Romano, CPR, Nollkaemper, A and Kleffner, JK (eds), Internationalized ­Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford, Oxford ­University Press, 2004). Rubenstein, JC, ‘The Misuse of Power, Not Bad Representation: Why it is Beside the Point that No One Elected Oxfam’ (2014) 22(2) Journal of Political Philosophy 204–23. Saunders, B, ‘Democracy after Deliberation’ (2009) 15 Res Publica 315–19. Schiff, BP, Global Legal Pluralism: A Jurisprudence of Law beyond Borders (New York, Cambridge University Press, 2012). Schotsmans, M, ‘Blow Your Mind and Cool Your Heart: Can Traditional Based ­Justice Fill the Transitional Justice Gap in Sierra Leone?’ in N Palmer, P Clark and D Granville (eds), Critical Perspectives in Transitional Justice (Brussels, ­Intersentia, 2011) 263–87. Simester, AP and von Hirsch, A, Crimes, Harms and Wrongs: On the Principles of Criminalisation (Oxford, Hart Publishing, 2011). Somek, A, ‘The Concept of “Law” in Global Administrative Law: A Reply to ­Benedict Kingsbury’ (2009) 20(4) European Journal of International Law 985–95. Spahiu, I, ‘Courts: An Effective Venue to Promote Government Transparency? The Case of the Court of Justice of the European Union’ (2015) 80 Utrecht Journal of International and European Law 5–24. Stahn, C, ‘Complementarity: A Tale of Two Notions’ (2008) 19 Criminal Law Forum 87–113. ——. ‘Reparative Justice after the Lubanga Appeals Judgment: New Prospects for Expressivism and Participatory Justice or “Juridified Victimhood” by Other Means?’ (2015) 13(4) Journal of International Criminal Justice 801–13. Tallgren, I, ‘We Did it? The Vertigo of Law and Everyday Life at the Diplomatic Conference on the Establishment of an International Criminal Court’ (1999) 12 European Journal of International Law 683–707. Tyler, TR, ‘Procedural Justice and the Courts’ (2007–08) 44 Court Review 26–31. Tzanakopoulos, A, ‘Strengthening Security Council Accountability for Sanctions: The Role of International Responsibility’ (2014) Journal of Conflict & Security Law 1–18.

Globalisation, Crime and Governance 121 Van de Kerchove, M, ‘Le principe de subsidiarité’ in A Giudicielli-Delage and C Lazerges (eds), Le Droit Pénal de l’Union Européenne au Lendemain du Traité de Lisbonne (Paris, Société de Législation Comparée, 2012) 27–47. Vázquez, JB, ‘La transparencia: cuando los sujetos privados desarrollan actividades regulatorias’ in RG Macho (ed), Ordenación y transparencia económica en el derecho público y privado (Madrid, Marcial Pons, 2014) 77–124. Von Bogdandy, A, ‘Constitutional Principles’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law (2006, Oxford, Hart Publishing) 3–52. Walker, N, Intimations of Global Law (Cambridge, Cambridge University Press, 2015). Weber, RH, ‘The Crucial Triangle: Analysis of the Links between Transparency, Accountability and Participation in the Information Society’ in E Schweighofer, F Kummer and W Hötzendorfer (eds), Transparenz (Salzburg, IRIS, 2014) 187–96. Whiting, A, ‘Lead Evidence and Discovery before the International Criminal Court: The Lubanga Case’ (2009) 14 UCLA Journal of International Law and Foreign Affairs 207–34. Williams, S, ‘Review of John D. Ciorciari and Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Michigan University Press, 2014)’ (2015) 13 Journal of International Criminal Justice 660.

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Part II

Justice Seen to Be Done: Courts and the Public

124 

6 International Judicial Institutions (Re)Defining ‘Public’ Proceedings?1 OLGA KAVRAN2

I. INTRODUCTION

T

RANSPARENCY OF PROCEEDINGS is one of the fundamental principles of criminal justice. It is enshrined in human rights documents as one of the basic rights of the accused. Both Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights guarantee the accused a ‘fair and public hearing’ (emphasis added). This right is protected in national laws of all countries which adhere to the international covenants and conventions. Most importantly for the present discussion, it is one of the fundamental guarantees in the proceedings before international and hybrid criminal courts and tribunals. The first of the modern international judicial institutions is the International Criminal Tribunal for the former Yugoslavia (ICTY) created in 1993 and the most recent the Kosovo Relocated Specialist Judicial Institution established in 2016. In the intervening 23 years, more than a dozen international and hybrid courts have been established. Their Statutes and Rules of Procedure and Evidence offer the highest protection of the rights of the accused. The principle of transparency is protected in the Rules of Procedure and evidence of the international tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone (SCSL), the Special Tribunal

1  This chapter builds and expands upon O Kavran, ‘Public Proceedings, Outreach and Reconciliation’, FICHL Policy Brief Series No 40 (2015), June 2015, www.fichl.org/fileadmin/fichl/ documents/FICHL_Policy_Brief_Series/150726_PBS_No._40__2015___Kavran_.pdf. 2  The author is the Head of Outreach and Legacy at the Special Tribunal for Lebanon. The views expressed are solely those of the author and do not necessarily represent those of the Special Tribunal for Lebanon.

126  Olga Kavran for Lebanon (STL), the International Criminal Court (ICC) and others. All contain a provision that ‘all proceedings before a Trial Chamber, other than deliberations of the Chamber, shall be held in public, unless otherwise provided’. The exceptions generally refer to the protection of witnesses.3 These same documents also stipulate that ‘judgments shall be pronounced in public’, providing not only reinforcement to the rights of the accused to a public trial but also reflecting the widely accepted principle in democratic societies that the citizen has a right to scrutinise the work of state institutions. In the words of an ICTY Trial Chamber: ‘proceedings before this Tribunal should be public as far as possible … Over and above the reasons that public proceedings facilitate public knowledge and understanding and may have a general deterrent effect, the public should have the opportunity to assess the fairness of the proceedings. Justice should not only be done, it should also be seen to be done’.4 However, both human rights law and the statutes and rules of international judicial institutions are silent on what it actually means to hold a public hearing. In the words of a prominent judge, ‘the traditional approach has been that courts are open to the public, the public can come and observe if they wish, we submit our processes and decisions to their scrutiny, and therefore the public will value judicial independence and will have confidence in the judicial system’.5 Nevertheless, this traditional approach cannot apply to international judicial institutions which are, as a rule, situated far from the areas and communities most affected by their jurisdiction: The [ICTY] is unlike any other Court. National courts exist within each state’s criminal justice system and an institutional framework that supports the conduct of criminal proceedings. Within the international community, there are no such mechanisms to ensure the dissemination and interpretation of the work of the Tribunal. The gap thus created between justice and its beneficiaries … is exacerbated by the Tribunal’s physical location far from the former Yugoslavia.6

Almost all international courts face the same problem of distance: the ICC, the STL and the Kosovo Relocated Specialist Judicial Institution are also based in the Netherlands, while the International Criminal Tribunal for Rwanda (ICTR) was in Tanzania and the Extraordinary African Chambers (dealing with crimes committed in Chad) are based in Senegal. 3  See, for example, r 78 of the ICTR, ICTY and SCSL Rules of Procedure and Evidence or r 136 of the STL Rules of Procedure and Evidence. 4  Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (IT-96-23 & 23/1), Order on Defence Motion Pursuant to Rule 79, 22 March 2000, para 5, available at www.icty. org/x/cases/kunarac/tord/en/00322CS212262.htm. 5  J Doyle, ‘Should Judges Speak Out?’, Judicial Conference of Australia, Uluru, April 2001, 2, jca.asn.au/wp-content/uploads/2013/11/doyle.pdf. 6  Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, A/54/187; S/1999/846, 25 August 1999, para 147.

International Judicial Institutions 127 This chapter will begin by examining the international tribunals’ initial efforts at providing information on their proceedings, how these efforts have evolved over the years and why. It will draw upon the views of those who created these institutions as well as those who monitor their work to analyse the needs for such activities. Finally, it will answer the question posed in the title—have international judicial institutions redefined what it means to conduct public proceedings? II.  INTERNATIONAL JUDICIAL INSTITUTIONS AND THE MEDIA

In its first annual report, issued in 1994, the ICTY stated that ‘press and information facilities are a key requirement of the Tribunal’s infrastructure and the necessary preparations are being made to meet the demands of the public interest’. It added that ‘already a Press and Information Officer has been appointed’.7 This was by no means common at the time and the institution thus showed admirable foresight. In national systems, at best, specific judges or prosecutors were designated to speak to the media when the need arose. At worst, like in the infamous OJ Simpson case in the US, the presence of the media turned the trial into a circus. Not many cases at the national level necessarily invite such media attention. At the international level, the situation is rather different. As a rule, international courts deal with the gravest of crimes in societies which are unwilling or unable to conduct criminal proceedings themselves. The cases often concern those considered ‘most responsible’, who are either respected or feared leaders in their communities. The list of individuals tried at the ICTY provides a good example as it consists of former presidents, prime ministers, army and police generals, and other senior figures.8 This inspires keen interest from the media, especially (but not exclusively) in the affected countries. On the eve of the start of its first trial, recognising the important historical role it would have and in order to keep an audio-visual record of the proceedings for posterity, the ICTY installed six remotely operated cameras in its newly built and technically sophisticated courtroom. In an accomplishment not usually achieved by archiving tools, these cameras would play a seminal role when an American cable television channel ‘Court TV’ requested and was granted permission to broadcast what it referred to as ‘the trial of the century’. And, even though it could not place a TV camera

7  Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, A/49/342; S/1994/1007, 29 August 1994, para 125. 8  ‘Key Figures of the Cases’, www.icty.org/sid/24.

128  Olga Kavran inside the courtroom, it was able to broadcast proceedings using the feed from the cameras in court. The Tribunal started issuing regular press releases about significant decisions, judgments and events, and appointed a spokesperson to deal with media queries. The public information office issued summaries of the main judicial decisions and witness testimony in court with the aim of assisting the media and others who follow the work of the institution. The ICTY also continued to provide a feed from the courtroom which could be broadcast by TV stations anywhere. As technology advanced and use of the internet became widespread, this feed was made available on the Tribunal’s website, providing the ICTY with what was sometimes referred to as the largest public gallery in the world. All subsequent international and hybrid tribunals and courts followed suit. The ICTR, the ICC, the SCSL and the STL, to name but a few, issue press releases, provide a broadcast of their proceedings online to interested TV channels, issue summaries of proceedings and have dedicated teams who respond to media queries. Nevertheless, relying on the media to transmit the information to affected communities has proved to be insufficient. The media are entities with their own specific interests and concerns, and do not necessarily present an objective view of court proceedings. In societies inevitably divided during and in the immediate aftermath of crimes the magnitude of which demands the creation of international tribunals, the media are rarely independent. The complexity of international criminal proceedings only exacerbates the situation and the journalists sometimes fall foul of the law by violating the courts’ rules and regulations. First, the media are commercial entities, driven by commercial interests and not necessarily the interests of justice. By applying a particular lens or focus which may be justifiable from their point of view, the media can misrepresent criminal proceedings. For example, at the trial of Charles Taylor, the former President of Liberia, before the SCSL, the single most ‘popular’ day of trial (in terms of media presence) was when fashion model Naomi Campbell testified. More than 200 journalists and camera crews from media outlets from all over the world, including all the major news networks, covered her testimony at great expense. Not many were there when numerous victims and witnesses told of the horrors they survived, speaking for many who did not. In a trial that lasted over three and a half years, this type of reporting would not have provided a complete picture. Second, in post-conflict societies, one rarely finds the media fully independent of the ruling political elites. During the first seven years of the ICTY’s existence, for example, the very political leaders the Tribunal had in its sights were still in power. Serbia, Croatia and Bosnia were ruled by the individuals and members of the political and military elites who were themselves suspected of involvement in war crimes. Naturally, it was not in the best interests of their regimes for the public in their countries to have

International Judicial Institutions 129 a positive image of the ICTY’s mission and work; they did all they could to convince their subjects that the Tribunal was biased and hostile towards their states and ethnic groups, and used the media to deliver this message.9 In its sixth annual report issued in 1999, the ICTY reported that its ‘work is frequently politicized and used for propaganda purposes by its opponents, who portray the Tribunal as persecuting one or other ethnic group and mistreating persons detained under its authority’. It added that ‘the Tribunal is often viewed as remote and disconnected from the population’ with ‘little information available about it’. It concluded that ‘such views are exploited by authorities that do not recognize or cooperate with the Tribunal, thereby damaging efforts to foster reconciliation and impeding the work of the Office of the Prosecutor’.10 Throughout this period, the most influential sections of the local media were under government control; editors and journalists were loyal to the regimes, the same people who had paved the way for the war and war crimes by disseminating the propaganda of hate and fear. After the war, they devoted themselves wholeheartedly to efforts to justify or cover up those crimes, in the name of ‘national interests’ above all else.11 In the new states, the media were far more interested in giving voice to (their) accused before the ICTY than to (their) victims testifying in the cases.12 The media in Serbia, for example, regularly reported on the trials of former Serbian President Slobodan Milošević or Serb ultra-nationalist leader Vojislav Šešelj, but hardly devoted any time at all to the trials of Croats or Bosnians accused of crimes against hundreds of Serbs. The Croatian media did exactly the same by focusing solely on the trial of Croatian generals and other high-level dignitaries from the same ethnic or national group. The outcome for the audience was a rather biased picture in which only one ‘side’ appeared to be the ‘victim’ of the ICTY, while the others appeared to (literally) get away with murder. The main purpose of these reports was to undermine the credibility of the ICTY in the eyes of the public. Even as recently as 2013, the then Serbian President Tomislav Nikolić stated at a debate in the UN General Assembly that the ICTY was unfair because of its ‘systematic atmosphere of lynch-mobbing of everything that is Serbian’.13 Such statements and related media reporting land on fertile ground since, as a rule, international courts deal with cases that tend to inspire strong emotional reactions because of the magnitude of suffering or the social

9  M Klarin, ‘The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia’ (2009) 7(1) Journal of International Criminal Justice 89, 90. 10  Report of the International Tribunal (n 6) para 148. 11  Klarin, The Impact of the ICTY Trials (2009). 12  ibid 94. 13  ‘Serbia Slams Hague Tribunal at UN Debate’, Balkaninsight, 3 April 2013, www.balkaninsight.com/en/article/un-debate-turns-as-criticism-of-the-icty.

130  Olga Kavran status of the accused, or because of the very controversy created around the case or the institution by politicians and other prominent figures to serve their own interests. The lack of experienced reporting on an independent judiciary and the complexity of international criminal proceedings aggravates the situation. All court proceedings are complex and international criminal proceedings are even more so. Because the proceedings are a combination of provisions found in civil and common systems, even lawyers practising before international courts must learn and adapt. In such circumstances, journalists without a legal background or experience of trial reporting will find the procedural aspects of international trials very difficult to understand, follow and explain to their viewers or readers. Due to this lack of understanding of the rules and regulations or, at times, their deliberate violation, journalists themselves can and do end up on the wrong side of the bench. This irritates them and their colleagues, and does not create an environment conducive to objective reporting on the very court before which they might be facing sanctions. To prevent or punish interference with the administration of justice, most international criminal tribunals and courts have provisions in their Rules of Procedure and Evidence. Such interference includes but is not limited to the publication of confidential information. At the ICTY, for example, a number of journalists have been tried and convicted of contempt of court for such publication.14 More recently, in early 2014, the STL issued an indictment for contempt of court against two journalists and their employers for publishing (and then refusing to retract) what they had alleged was confidential information on the Tribunal’s witnesses.15 As one might expect, these cases generated great interest and attracted much attention, particularly from the media in Lebanon, where journalists are unfamiliar with the very notion of contempt of court and, by extension, contempt proceedings before international courts. As had become customary in such circumstances, the STL issued a press release and provided information on various social media platforms. The then spokesperson of the Tribunal responded to more than 90 media inquiries within three days of the issuing of the indictment. And yet, most of the headlines were along the following lines: ‘National Audio-visual Council Condemns STL’; ‘Information Minister Voices Solidarity with Lebanese Journalists Summoned by STL’; ‘Protest Held in Solidarity with al-Jadeed TV, al-Akhbar Journalists Summoned by STL’; ‘Through Our Solidarity,

14 

Please see the full list of ICTY contempt cases at www.icty.org/en/action/contemptcases/27. Tribunal for Lebanon Issues Summons to Appear in Contempt Cases’, https:// www.stl-tsl.org/en/media/press-releases/3098-special-tribunal-for-lebanon-issues-summons-toappear-in-contempt-cases. 15  ‘Special

International Judicial Institutions 131 We Will Confront the STL’; ‘We Will Not Be Silenced: The STL is­ Illegitimate’. These media reports also gave the impression that the Tribunal had fallen silent because the many interviews with the spokesperson were edited out, edited into meaninglessness or drowned out in the clamour. These examples demonstrate clearly why relying on the media as the sole interlocutor between an international judicial institution and the interested communities can prove insufficient. Faced with many of the limitations that arose from reliance on the media in the first six years of the Tribunal’s mandate, the then President of the ICTY, Judge Gabrielle Kirk McDonald, declared that ‘there was a need— a necessity, really—for the Tribunal to do more: to actually communicate with the people of the former Yugoslavia, living hundreds of miles away from the Tribunal that had been established for their benefit’.16 The term that Judge McDonald and the ICTY used is ‘outreach’,17 describing it as ‘a programme dedicated to explaining the Tribunal’s work and addressing the effects of misperceptions and misinformation’.18 She further explained that ‘it is intended to engage local legal communities and non-governmental organizations, victims’ associations and educational institutions … to create a two-way channel of communication, benefiting both the Tribunal and these institutions’.19 Upon examination of what Judge McDonald advocated, it becomes clear that what she actually meant was that the Tribunal needed to engage in public relations. III.  OUTREACH OR PUBLIC RELATIONS

The website of the Public Relations Society of America (PRSA) defines public relations as ‘a strategic communication process that builds mutually beneficial relationships between organizations and their publics’ and further explains that ‘more modern definitions incorporate the concepts of engagement and relationship building’.20 Following on from the ICTY example and expressing a widely accepted view on the topic, the ICC tasks its Outreach section with ‘establishing sustainable, two-way communication … promoting ­ understanding

16 GK McDonald, ‘Problems, Obstacles and Achievements of the ICTY’, as quoted in JN Clark, ‘International War Crimes Tribunals and the Challenge of Outreach’ (2009) 9 ­International Criminal Law Review 99, 101. 17 www.icty.org/en/press/united-states-pledge-usd-500000-tribunals-outreach-project. 18  Sixth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, A/54/187, S/1999/846, para 150. 19 ibid. 20 www.prsa.org/AboutPRSA/PublicRelationsDefined/#.U1Yq0qKfBI0.

132  Olga Kavran and support for the judicial process … clarifying misperceptions and­ misunderstandings … to enable affected communities to follow trials’.21 The PRSA goes on to explain that public relations also includes monitoring and understanding public opinion and attitudes that might impact an organisation, counselling management on communications issues, conducting programmes with the aim of informing the public to further the organisation’s aims and conducting efforts aimed at influencing or changing public policy.22 This summarises, in general terms, many of the complex roles of the public information and outreach departments in the various international and hybrid courts and tribunals. In an attempt to engage as directly as possible, the international judicial institutions closely monitor events in affected communities to identify issues that need to be addressed. They have differentiated their approach towards different audiences like the media, victims, legal professionals, nongovernmental organisation (NGO) representatives, the academic community and, depending on the region, also students, the youth, members of the army or security services and others. The judicial institutions have tailored their activities to each of these groups and have produced booklets, leaflets, audio-visual material and other information products on their work. They regularly issue press releases or statements by judges, prosecutors, registrars and senior staff for use by the media. The annual reports summarise and emphasise the activities of the Tribunal’s public information and outreach departments, highlighting their achievements. Reference is made to conferences, symposia, workshops for lawyers, NGO representatives, academics and students, as well as interviews with the media and participation in TV and radio programmes. The international judicial institutions have also organised seminars, presentations, lectures, trainings etc. on an array of topics related to the work of the institutions or the broader issues of international criminal justice, also for specialised audiences.23 For example, the ICTY organised a number of comprehensive training sessions on international criminal proceedings for legal professional throughout the former Yugoslavia.24 More recently, the STL organised a training of monitoring international criminal proceedings for representatives of a number of Lebanese NGOs.25 The aim of all these activities is to inform and educate the public about the work of the institution in question, on the assumption that such an informed public would have a better understanding (and appreciation) of 21 ‘Strategic Plan for Outreach of the International Criminal Court’, ICC-ASP/5/12, 29 September 2006. 22 ibid. 23  See, for example, ICTY Annual Reports at the following link: www.icty.org/sid/31. 24 www.icty.org/en/outreach/capacity-building/development-local-judiciaries. 25 https://www.stl-tsl.org/en/media/press-releases/3652-01-12-2014-representatives-of-lebanese-ngos-complete-the-training-on-monitoring-international-criminal-proceedings.

International Judicial Institutions 133 the work done. As the ICC put it succinctly in the introduction to its booklet ‘Understanding the ICC’: ‘A well-informed public can contribute to guaranteeing lasting respect for and the enforcement of international justice.’26 The European Court of Human Rights also held in one of its judgments that ‘the field of the administration of justice … serves the interests of the community at large and requires the co-operation of an enlightened public’.27 The assumption that a well-informed or enlightened public will be favourably inclined towards an international court is based on the belief (at least within the walls of judicial institutions) that the criminal proceedings are conducted with the highest respect for criminal justice. This assumption leads to the logical conclusion that if the public had all the information at their disposal, the majority would be favourably inclined towards institutions that conduct fair trials. At this point, one could embark on an interesting and relevant debate as to whether these institutions indeed apply the highest standards of international justice and whether the related assumptions are valid, but such a discussion lies outside the scope of this chapter. IV.  CHALLENGES AND INNOVATION

The countries over which the different courts have jurisdiction are quite varied. Operating in diverse cultural and social environments presents complex challenges. For example, in the former Yugoslavia, both the electronic and print media are highly developed and the vast majority of the population has access to television, radio and newsprint. At the same time, the mainstream media remain under considerable influence of local politicians, most of whom were opposed to the work of the ICTY. SCSL outreach faced a very different problem in Sierra Leone—that of how to reach people in remote villages with no access to electricity or any media. Addressing these very different challenges, the courts have become quite creative in the conduct of their outreach or public relations activities. The ICTY, for example, ran a series of ‘Bridging the Gap’ conferences in 2004 and 2005.28 As the title would suggest, this was done in order to reach out as directly as possible to the effected communities, rather than using the media as a proxy. The conferences were focused on completed cases that dealt with crimes committed in a particular area and brought together Tribunal officials and representatives of the local communities to explain and discuss the process and the outcome. The Tribunal was represented

26 

‘Understanding the ICC’, www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf. Court of Human Rights, The Sunday Times v United Kingdom (App No 6538/74), para 65, available at http://hudoc.echr.coe.int/eng?i=001-57584. 28 ‘Bridging the Gap with Local Communities’, www.icty.org/en/outreach/bridging-thegap-with-local-communities. 27 European

134  Olga Kavran by staff from its three organs—the Office of the Prosecutor, Chambers and Registry—who had worked on the relevant cases. Five such conferences took place related to crimes committed in different areas of Bosnia and Herzegovina. In each, the audience included around 200 people from different ethnic groups, both victims and those who are seen as associated with or even supportive of the perpetrators. The discussions were fascinating and resulted in a much deeper understanding of the work of the ICTY, and the recognition of both its accomplishments and its limitations.29 ‘After participating in Bridging the Gap events, Bosnians— including Serbs—whose knowledge of the ICTY had long been filtered by local political leaders and ethnic media were … finally “able to see the factual truth, not the political truth,” and they grasped that “the truths are horrible”.’30 The SCSL responded to communication challenges in Sierra Leone by distributing picture booklets explaining the work of the court, producing radio and TV panel discussions, screenings of trials, weekly summaries of court proceedings, poster campaigns and theatre productions, some of which travelled to remote provinces. They also conducted training-the-trainer workshops. SCSL outreach activities resulted in the formation of a School of Human Rights and Peace Clubs as well as ‘Accountability Now’ clubs at universities throughout the country, which explored the broader issues of justice, accountability and human rights.31 The Public Affairs Section (PAS) of the Extraordinary Chambers in the Courts of Cambodia took a somewhat different approach and added frequent visits to the court to its many other public relations activities. It regularly organised and funded transportation from remote areas of the country to the seat of the court, making it possible for ordinary people to attend the trials of the former Khmer Rouge.32 Thousands have thus far benefited from these efforts and continue to do so.33 In order to assist the media, legal professionals, academia and NGOs in following its work, the STL has published a glossary of legal terms in Arabic, English and French, and has facilitated the translation of Antonio

29  More information and detailed transcripts of ‘Bridging the Gap’ conferences are available at www.icty.org/en/outreach/bridging-the-gap-with-local-communities. 30  Branko Todorovic, the then President of the Helsinki Committee for Human Rights in Republika Srpska, as quoted in DF Orentlicher, ‘That Someone Guilty Be Punished: Impact of the ICTY in Bosnia’, Open Society Justice Initiative, International Center for Transitional Justice, 2010, 103. 31  R Kerr and J Lincoln, ‘The Special Court for Sierra Leone: Outreach, Legacy and Impact, Final Report’, February 2008, War Crimes Research Group, Department of War Studies, King’s College, University of London, 11–12. 32  See the chapter by Cheryl White in this volume. 33 See www.eccc.gov.kh/en/tags/topic/70 and www.eccc.gov.kh/sites/default/files/publications/The_Court_Report_Oct_2015%28lower_res%29.pdf.

International Judicial Institutions 135 Cassese’s seminal book International Criminal Law into Arabic. The translation was published in 2015 and is the first comprehensive textbook on this subject in the Arabic language. It has also organised a number of working visits to the Netherlands and has brought Lebanese senior media editors and journalists, lawyers, NGO representatives, academics and students not only to the seat of the Tribunal but also to other international judicial institutions in the Hague, in an attempt to assist in the understanding of international criminal justice and the STL’s place in its development. Furthermore, the STL has used an arguably traditional method— education—in an innovative way to reach different audiences with messages about international criminal justice. When a preliminary analysis conducted in 2011 showed that no Lebanese university offered a comprehensive course on international criminal law, the STL partnered with eleven Lebanese universities to provide such a course to students free of charge. In the first programme of its kind in the Middle East and possibly the world, the STL implemented a full course on international criminal law and procedure, conducted via video-link by lecturers in the Hague to students of eleven participating universities in Lebanon. The idea is based on the belief that law students, equipped with knowledge, are best placed to champion the rule of law and share their knowledge with their family and peers. In the first six sessions, the course was attended by well over 700 students of law, political science and international relations, over 120 of whom earned a study visit to the Hague.34 As a consequence, some of the participating Lebanese universities have since decided to offer specialised courses on international criminal law and some of the students have specialised in the area and begun teaching. The unprecedented inter-university cooperation also led to a number of additional bilateral and multilateral projects. The reactions have been very positive. A professor at one of the participating universities referred to the inter-university course as the ‘best attempt towards reconciliation in ­Lebanon because it brings together universities and students all coming from the various backgrounds in a country where dialogue lacks unfortunately’.35 A former inter-university programme student who has since finished her PhD on international criminal law and started teaching on the topic at her alma mater said that she had been ‘against the idea of a Special Tribunal for Lebanon’ prior to the course, but when she followed the inter-­university programme, she ‘completely changed her mind’.36 She encouraged the 34 ‘Inter-University Course on International Criminal Law and Procedure, September 2014–February 2015’, www.stl-tsl.org/en/about-the-stl/events/inter-university-course-on-international-criminal-law-and-procedure-september-2014-february-2015. 35  Georges Masse, Professor at the American University of Science and Technology, discussion on file with the author. 36  Tarteel Darwish, Assistant Professor at Beirut Arab University, discussion on file with the author.

136  Olga Kavran continuation of the programme and said her students ‘need to have that experience too because they would not have financial resources to follow a similar Programme abroad’.37 Within all international judicial institutions, public information experts have had to tackle the sensitivity of the more conservative judges and lawyers who would refuse engagement, particularly with the media. They did so by including them in outreach activities. Time permitting, judges and prosecutors rarely decline an invitation to hold a lecture or presentation for, and answer questions from, a group of students, representatives of NGOs, legal professionals or victims, as long as that audience does not include media representatives. V.  SHOULD COURTS ENGAGE IN PUBLIC RELATIONS?

The foregoing analysis has demonstrated that all international criminal courts and tribunals have invested ample time and resources in what can most accurately be described as public relations. It has also addressed the desired impact on the target audiences. Following this overview, a different question arises: is this something the courts should do? Some national systems hold that judicial decisions should speak for themselves. The guide for judicial conduct in the courts of New Zealand, for example, states that ‘judgments must stand without further clarification or explanation’. It further instructs that ‘where a decision is subject to inaccurate comment … generally the most effective response is to get the full text of the judgment into the public arena promptly’ and that ‘in major or high profile cases, a short explanatory media release may be appropriate to accompany a judgment’.38 The judiciary of England and Wales asserts that ‘it is inappropriate for a judge outside of his decision to seek to amplify or explain his decision— his public judgment speaks for itself. It follows from this principle and the nature of judicial office that … judges should not give media briefings’.39 Similar guidelines and principles have applied in diverse national systems, both of the common law and the civil law tradition. However, in recent years, this view has been changing and the attitude towards the issue has been evolving. The Hon John Doyle, former Chief Justice of South

37 ibid.

38 Courts of New Zealand, ‘Guidelines for Judicial Conduct’, 18, www.courtsofnz.govt. nz/business/guidelines/guidelines-for-judicial-conduct/Guidelines-for-Judicial-ConductMarch-2013.pdf. 39 ‘Response from the Judiciary to the House of Lords Select Committee on the Constitution Report on Relations between the Executive, the Judiciary and Parliament’, House of Lords Select Committee on the Constitution Report on Relations between the Executive, the Judiciary and Parliament (HL Paper 151), 26 July 2007, 3, www.judiciary.gov.uk/wp-content/ uploads/JCO/Documents/Consultations/const_committee_response.pdf.

International Judicial Institutions 137 Australia, assessed that the ‘traditional approach’ described earlier where the courts are simply open to the public was ‘proving inadequate’.40 He went on to say that ‘the picture conveyed by the media is often incomplete or inaccurate and that this incomplete or inaccurate picture shapes the perception and understanding of many Australians’, and then stated that the judiciary had its own responsibility and obligation ‘to try to change things’.41 In the most recent update of its recommendations on dealing with the media, the Dutch Council for the Judiciary clearly acknowledged that judgments alone may be insufficient for providing information: In the Netherlands judges generally do not explain their own judgments directly to journalists … That is based on the principle that the judge ‘speaks through his judgment’. However, in practice that is not always sufficient to adequately respond to questions that arise with respect to the administration of justice. Therefore, each court has its own communications department, whose duties include ensuring that the press is informed properly.42

When it comes to international judicial institutions, a clear preference for significant engagement has evolved over time. In 2000, seven years after the establishment of the ICTY (and only one year after the creation of its outreach programme), the UN Secretary-General, in his report on the establishment of a special court for Sierra Leone, called for ‘a broad public information and education campaign … as an integral part of the Court’s activities’.43 In 2004, a UN-commissioned expert report stated that effective outreach programmes are essential not only to ensure that people are aware of and understand prosecutions and why certain charges were brought, but also so that the judicial officials are aware of how human rights prosecutions are perceived by ordinary people and to ensure that public perceptions are not distorted due to a lack of information.44 In 2007, a UN report on the steps taken to establish the STL emphasised that ‘a key element for the success of the Special Tribunal is not only that justice be done but also that justice must be seen to be done’45 and referred to ‘the development of an effective and comprehensive outreach programme bringing the activities of

40 

Doyle, ‘Should Judges Speak Out?’ (2001) 3.

41 ibid. 42 

Press Guidelines 2013, www.rechtspraak.nl/SiteCollectionDocuments/Press-Guidelines.pdf. of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc S/2000/915, 4 October 2000, para 2. 44 D Orentlicher, ‘Independent Study on Best Practices, Including Recommendations, to Assist States in Strengthening their Domestic Capacity to Combat all Aspects of Impunity’, UN ECOSOC, Commission on Human Rights, UN Doc E/CN.4/2004/88, 27 February 2004, para 40. 45  Report of the Secretary-General Submitted Pursuant to Security Council Resolution 1757 (2007) of 30 May 2007, UN Doc S/2007/525, 4 September 2007, para 33. 43 ‘Report

138  Olga Kavran the Special Tribunal closer to the population of Lebanon and the wider region’ as ‘a priority’.46 International NGOs have also weighed in on the issue, particularly in relation to the first permanent international criminal court—the ICC. Human Rights Watch (HRW) stated that its field experience ‘suggests that the ICC’s mandate will not be fulfilled solely by conducting efficient, effective investigations with fair trials—however crucial those tasks are’.47 According to HRW, ‘because none of the usual means for disseminating information about a national court are readily available to the ICC, the court needs to have an effective strategy for external relations, public information and outreach to popularize its work’. It further added that ‘effective outreach and communications require meaningful engagement, dialogue and exchange with local communities and media’48 and that such programmes must ‘start early to be most effective’.49 According to the International Bar Association, ‘it is of key importance that extensive outreach campaigns are now initiated in all current situation countries, and provision made for adequate resources to be allocated to outreach when future investigations begin’.50 Again, the Coalition for the International Criminal Court (CICC) is of the view that ‘lessons learned— including from the ad hoc tribunals—demonstrate that early, Court-led communications is essential for the meaningful delivery of fair and credible justice to victims as set out in the Rome Statute’.51 REDRESS has said that ‘if the Court is to be relevant to communities most affected by the crimes within its jurisdiction, there is a need to go beyond simply notifying communities of certain decisions. Instead, a sustained capacity to respond and engage communities on new issues as they arise must be assured’.52 And finally, the Victims’ Rights Working Group has called for ‘early and direct outreach’ which would create: [C]onditions conducive to supporting the Court’s operations by ensuring the necessary cooperation for conducting investigations in the field and carrying out trials; preventing or stemming the spread of misinformation; reinforcing complementarity initiatives; facilitating participation and legal representation of

46 ibid.

47  Human Rights Watch, ‘Human Rights Watch Memorandum for the 4th ICC Assembly of States Parties’, November 2005, 2–3. 48 ibid. 49 ibid. 50  International Bar Association Human Rights Institute, ‘ICC Monitoring and Outreach Programme First Outreach Report’, June 2006, 6. 51 Coalition for the International Criminal Court, ‘Comments and Recommendations to the 13th Session of the Assembly of States Parties’, 1, www.coalitionfortheicc.org/documents/ Comments_and_Recommendations_to_the_13th_ASP.PDF. 52  Redress, ‘Making the ICC Relevant to Affected Communities’, Report prepared for the 6th Assembly of States Parties, New York, 28 November–14 December 2007, 3, www.redress. org/downloads/publications/REDRESS%20Making_the_ICC_relevant_3_Dec_07.pdf.

International Judicial Institutions 139 victims in ICC proceedings; explaining due process rights; facilitating redress for affected communities; and creating an enabling and supportive environment for field engagement and presence.53

The courts and tribunals themselves also emphasise the necessity for outreach. In its seventh annual report, the ICTY stated that ‘an Outreach Programme was established to improve understanding of the work of the Tribunal and its relevance in the territory of the former Yugoslavia’.54 The following year, the ICTY expanded its outreach activities ‘recognising the critical importance to the success of the Tribunal that populations in the region of the former Yugoslavia are informed about and understand the work and significance of the Tribunal’.55 Every subsequent annual report describes in some detail outreach activities and their importance. The ICC issued a comprehensive strategy in 2005, which was presented and endorsed at the Assembly of States Parties. Addressing the Assembly, the then President of the ICC included outreach among the court’s core activities, along with the proceedings, securing cooperation and responsibilities towards participants, and stated that ‘the fundamental priorities in the [ICC Strategic] Plan include ensuring the quality and effectiveness of such activities’.56 The then Prosecutor also emphasised ‘the need for resources for outreach’.57 In its first annual report, the SCSL reported on an outreach programme ‘established with the aim not only of ensuring that the purpose of the Special Court is understood across Sierra Leone, but also to grant to all sections of civil society in the country the opportunity to have their voice heard and their expectations of the Court identified’.58 The judges at the STL took a step further than any before them and included outreach in the Tribunal’s Rules of Procedure and Evidence, tasking the Registrar with setting up an Outreach programme to ‘disseminate 53  Victims’ Rights Working Group, ‘International Criminal Court at 10: The Implementation of Victims’ Rights’, 11th Session of the Assembly of States Parties, 14–22 November 2012, 4, www.vrwg.org/VRWG%20Documents/201114_VRWG_ASP11-ENGLISH-VERSION.pdf. 54  Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, A/55/273-S/2000/777, 7 August 2000, para 213. 55  Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, A/56/352–S/2001/865, 17 September 2001, para 224. 56  P Kirsch, ‘Opening Remarks Fifth Session of the Assembly of States Parties’, 23 November 2006, 2. 57 L M Ocampo, ‘Opening Remarks Fifth Session of the Assembly of States Parties’, 23 November 2006, 7. 58  Special Court for Sierra Leone, ‘First Annual Report of the President of the Special Court for Sierra Leone’, 2 December 2002–1 December 2003, www.rscsl.org/Documents/AnRpt1. pdf, para 6.

140  Olga Kavran accurate and timely information to the public, particularly in Lebanon, about the general role and functioning of the Tribunal, and … carry out outreach activities related to victims’.59 VI.  PUBLIC RELATIONS AS POSSIBLE MANIPULATION?

It seems obvious from the above that there is a definite consensus at the international (and national) level that providing information and conducting outreach constitute an important part of the mission of international and hybrid courts and tribunals. Still, it might be asked whether this amounts to inappropriate attempts to manipulate public opinion. A number of academic and other commentaries on the impact of different international judicial institutions (and their outreach programmes) have been published over the years. The courts are often accused of bias in terms of prosecutions (allegedly favouring one ethnic or religious group over another, either with immunity or reduced sentences) and they are accused of selectivity (jurisdiction over some crimes but not others). They do not appear to have been accused of manipulating the information provided to the public about the work of the institution. In this respect, even the most outspoken critics refer to manipulation of the information they provide to the public only in the context of alleged ‘secrecy’ when it comes to the non-disclosure of confidential information or testimony given in closed session. Different commentators have debated the effect (or lack thereof) of the various outreach efforts of the international judicial institutions. The criticisms mostly focus on ‘not doing enough’. As Mirko Klarin, the editor-in-chief of SENSE News Agency who has been reporting on the ICTY on a daily basis since 1998, states, ‘the most frequent explanation or justification for [the ICTY’s] public relations problems notes that its Outreach Programme was set up too late’.60 His words are echoed by other commentators from the former Y ­ ugoslavia. When interviewed by Diane Orentlicher in 2006, Srdjan Dizdarevic, former President of the Bosnia and Herzegovina Helsinki Committee, said that: [T]he ICTY’s Outreach Programme ‘came too late’ and remained ‘absolutely insufficient’, while Senad Pecanin, the editor of prominent Bosnian weekly Dani said that he believed the ICTY needed to do far more to ensure that its work is properly understood in the region.61

59  Rule 52 of the STL Rules of Procedure and Evidence: Outreach Programme Unit: ‘(A) The Registrar shall set up an Outreach Programme Unit within the Registry to (i) disseminate accurate and timely information to the public, particularly in Lebanon, about the general role and functioning of the Tribunal, and (ii) carry out outreach activities related to victims. (B) Due consideration shall be given, in the appointment of staff, to the employment of qualified Lebanese nationals’ (STL-BD-2009-01-Rev.6-Corr.1). 60 ibid. 61  Orentlicher, ‘That Someone Guilty Be Punished’ (2010) 105.

International Judicial Institutions 141 The ICTR outreach programme has also been criticised as inadequate, even ‘sorely lacking’ as ‘it has not done enough either to make the legal process transparent and known to everyday Rwandans or to engage a broad range of Rwandans and help train the local judiciary’.62 Some of the criticism levelled at the ICC and its intervention in Uganda is more nuanced and points to the problem of projecting different messages by the different organs or prominent personalities in the Tribunal. This is seen as creating a situation where the court appears to be manipulated by the local political elite, whom many citizens see as a problem, not the solution.63 It is important to note at this stage that none of the critics seem to suggest that the courts have done ‘too much’ or that their outreach programmes themselves could be accused of attempting to manipulate their target audiences. The different information products provided by the courts, whether in the form of press releases, presentations at events, media interviews, leaflets or booklets, must be accurate as they can be easily verified against judicial decisions or other court records. Public information and outreach staff in these institutions are ‘officers of the court’ and, as such, are bound by both legal and ethical rules. An analysis of the press releases, media advisories and publications will demonstrate that the language used to communicate facts about court proceedings is rather dry and factual. Every major text goes through a rigorous internal approval procedure (conducted by lawyers, representatives of all organs of a judicial institution) before it is released to the public. It is not surprising that there appears to be a consensus on the need for international judicial institutions to carefully engage in public relations rather than simply provide information about their work. With reference to the ICTY, Mirko Klarin explained that there are at least four reasons why it is ‘indeed necessary and appropriate for an international criminal court to be concerned about its image and rating, and to promote an impression of fairness, impartiality and independence’.64 The first is the novelty of the ICTY as an international ad hoc criminal court which was the first of its kind in history.65 The second refers to the public in the former Yugoslavia, which, in his view, ‘was weaned on the Marxist maxim that law was “an instrument in the hands of the ruling class”’66 and therefore ‘naturally saw the ICTY as an instrument to ensure the interests of “a new world order”

62  V Peskin, ‘Courting Rwanda: The Promises and Pitfalls of the ICTR Outreach ­Programme’ (2005) 3 Journal of International Criminal Justice 950, 955. 63  LM Gould, CH Brants and K Brants, ‘Selling the ICC: Imagery and Image Building in Uganda’ in C Brants, A Hol and D Siegel (eds), Transitional Justice Images and Memories (Farnham, Ashgate, 2013) 57. See also the chapter by Lauren Gould in this volume. 64  Klarin (n 9) 95–96. 65 ibid. 66 ibid.

142  Olga Kavran were served in the region’.67 The third is the fact that same public had been ‘traumatized by the experience of large-scale criminal conduct and brainwashed by the nationalist propaganda of hatred, fear and revenge’. The fourth is because, in addition to its core function of prosecution, punishment and deterrence, ‘the ICTY is expected to contribute to a lasting peace, democracy, protection of human rights and inter-ethnic reconciliation in the Balkans’.68 Although he refers specifically to the ICTY, the reasons above apply to all international judicial institutions. Even though they may not be ‘the first’ ad hoc court in history, the ICTR, the SCSL, the STL and others were the first in their respective regions. Some were established in or for countries that have little or no prior experience with an independent judiciary—otherwise they would have been capable of prosecuting the crimes themselves. The public in affected countries had been traumatised by large-scale criminality and influenced by propaganda (nationalist or otherwise) readily conducted through the media. Finally, all international judicial institutions are (rightly or wrongly) expected to deliver and accomplish far more than prosecution— all are expected to contribute to rehabilitating damaged societies. VII. CONCLUSION

Transparency of proceedings is one of the fundamental principles of criminal justice at the national and international levels. This gains additional importance with international and hybrid courts and tribunals as they are under unprecedented public scrutiny. Every aspect of their work needs to be carefully followed and analysed by the media, international and national NGOs, legal professionals, academics and students, and, most importantly, the victims of the crimes under their jurisdiction and other members of the affected communities. In addition, international judicial institutions have endured serious attacks from opponents, often conducted through concerted media campaigns with the clear aim of undermining the institution. They have also faced unrealistic expectations from victims of horrible atrocities under their jurisdiction. The courts and tribunals have responded to these challenges by adopting a proactive approach to providing information about their work. Over the years, these efforts have evolved from simply making information available to conducting public relations. In this, the courts and tribunals seem to have enjoyed unanimous support of their creators, observers and funders. Over the years, international courts and tribunals have thus redefined what it

67 ibid. 68 ibid.

International Judicial Institutions 143 means, in practice, to conduct ‘public’ proceedings. Today, 24 years after the establishment of the first modern international criminal tribunal, the principle of transparency at the international level means, at a minimum, issuing press releases and media advisories and providing a broadcast of proceedings both to the media that request such a service and on the institution’s website. It also means having at least one and preferably more spokespersons (the different voices of the prosecutor, the judges, the registry and the defence), who are available at all times and are well prepared to explain complex legal issues to an audience, the majority of whom have no legal training. These spokespersons must speak the language(s) spoken in the communities affected by the tribunal’s jurisdiction and they should be in the affected countries so as to be able to respond in a timely fashion to any requests, particularly from broadcast media. The court must also provide summaries of proceedings, regular news and bulletins. It must make its senior court officials available to the media: the prosecutor, president and judges, and (where applicable) the head of the defence office must be willing to address the media and other groups, as necessary, to speak about the institutions achievements and, equally importantly, limitations. The court must also run a sophisticated website and engage on social media platforms. International judicial institutions must also proactively and creatively engage with specialised audiences, seek out sources of misunderstanding and misperception, and actively address them, tailoring all of their communications to the situation in affected countries and communities. With the ever-increasing demand for justice and the proliferation not only of international courts but also of national judicial efforts to address serious and widespread past violations of human rights, domestic jurisdictions are increasingly facing the same issues. Technological advances (the internet and social media) and the ways in which they have affected how people receive, exchange and process information have also impacted upon the obligation of all criminal courts when it comes to the issue of transparency. National jurisdictions can look to the experience of international judicial institutions for further guidance and lessons learned on how to ensure transparency and conduct ‘public’ proceedings in accordance with international standards. And universities should look into ways of educating communication and outreach specialists who can perform the necessary functions professionally, both in their national jurisdictions and in international judicial institutions. REFERENCES Clark, JN, ‘International War Crimes Tribunals and the Challenge of Outreach’ (2009) 9 International Criminal Law Review 99–116.

144  Olga Kavran Coalition for the International Criminal Court, ‘Comments and Recommendations to the 13th Session of the Assembly of States Parties’, New York, November 2014, www.coalitionfortheicc.org/documents/Comments_and_Recommendations_to_ the_13th_ASP.PDF. Courts of New Zealand, ‘Guidelines for Judicial Conduct’, March 2013, www. courtsofnz.govt.nz/business/guidelines/guidelines-for-judicial-conduct/Guidelinesfor-Judicial-Conduct-March-2013.pdf. Doyle, J, ‘Should Judges Speak Out?’ Judicial Conference of Australia, Uluru, April 2001. First Annual Report of the President of the Special Court for Sierra Leone, 2 December 2002–1 December 2003. Gies, L, ‘The Empire Strikes Back: Press Judges and Communication Advisers in Dutch Courts’ (2005) 32(3) Journal of Law and Society 450–72. Gould, LM, Brants, CH and Brants, K, ‘Selling the ICC: Imagery and Image Building in Uganda’ in C Brants, A Hol and D Siegel (eds), Transitional Justice Images and Memories (Farnham, Ashgate, 2013) 143–60. Human Rights Watch, ‘Human Rights Watch Memorandum for the 4th ICC Assembly of States Parties’, New York, November 2005, https://www.hrw.org/legacy/ backgrounder/ij/memo1105/memo1105.pdf. International Bar Association Human Rights Institute, ‘ICC Monitoring and Outreach Programme First Outreach Report’, London, June 2006, www.ibanet.org/Document/ Default.aspx?DocumentUid=F1A250AC-0C11-459E-B965-B2623FA32232. International Criminal Court, ‘Understanding the ICC’, The Hague, the ­Netherlands, www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf. Jalloh, CC, ‘Special Court for Sierra Leone: Achieving Justice?’ (2011) 32 Michigan Journal of International Law 395–460. Judiciary of England and Wales, ‘Response from the Judiciary to the House of Lords Select Committee on the Constitution Report on Relations between the Executive, the Judiciary and Parliament’, October 2007, www.judiciary.gov.uk/wp-content/ uploads/JCO/Documents/Consultations/const_committee_response.pdf. Kavran, O, ‘Public Proceedings, Outreach and Reconciliation’, FICHL Policy Brief Series No 40, June 2015, www.fichl.org/fileadmin/fichl/documents/FICHL_Policy_Brief_Series/150726_PBS_No._40__2015___Kavran_.pdf. Kerr, R and Lincoln, J, ‘The Special Court for Sierra Leone: Outreach, Legacy and Impact, Final Report’, War Crimes Research Group, Department of War Studies, King’s College, University of London, 2008. Kirsch, P, ‘Opening Remarks Fifth Session of the Assembly of States Parties’, The Hague, the Netherlands, 23 November 2006, https://asp.icc-cpi.int/iccdocs/ asp_docs/library/organs/presidency/PK_20061123_en.pdf. Klarin, M, ‘The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia’ (2009) 7(1) Journal of International Criminal Justice 89–96. Ocampo, LM, ‘Opening Remarks Fifth Session of the Assembly of States Parties’, The Hague, the Netherlands, 23 November 2006, https://asp.icc-cpi.int/iccdocs/ asp_docs/library/organs/otp/LMO_20061123_en.pdf. Orentlicher, D, ‘Independent Study on Best Practices, Including Recommendations, to Assist States in Strengthening Their Domestic Capacity to Combat All Aspects of Impunity’, United Nations Economic and Social Council, Commission on Human Rights, UN Doc E/CN.4/2004/88, 27 February 2004.

International Judicial Institutions 145 ——. ‘That Someone Guilty Be Punished: Impact of the ICTY in Bosnia’, Open Society Justice Initiative, International Center for Transitional Justice. Peskin, V, ‘Courting Rwanda: The Promises and Pitfalls of the ICTR Outreach Programme’ (2005) 3 Journal of International Criminal Justice 950–61. REDRESS, ‘Making the ICC Relevant to Affected Communities’, New York, November 2007, www.redress.org/downloads/publications/REDRESS%20Making_the_ICC_relevant_3_Dec_07.pdf. Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, A/49/342; S/1994/1007, 29 August 1994. Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, A/54/187; S/1999/846, 25 August 1999. Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, A/55/273; S/2000/777, 7 August 2000. Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, A/56/352; S/2001/865, 17 September 2001. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc S/2000/915, 4 October 2000. Report of the Secretary-General Submitted Pursuant to Security Council Resolution 1757 (2007) of 30 May 2007, UN Doc S/2007/525, 4 September 2007. Rules of Procedure and Evidence of the Special Tribunal for Lebanon, STL-BD-2009-01-Rev.6-Corr.1. Strategic Plan for Outreach of the International Criminal Court, ICC-ASP/5/12, 29 September 2006. Victims’ Rights Working Group, ‘International Criminal Court at 10: The Implementation of Victims’ Rights’, The Hague, the Netherlands, November 2012, www. vrwg.org/VRWG%20Documents/201114_VRWG_ASP11-ENGLISH-VERSION. pdf.

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7 The Contestation of Complementarity in Uganda The Case of Thomas Kwoyelo LAUREN GOULD

I. INTRODUCTION

D

URING THE LAST decade, situations arising out of violent c­ onflicts have increasingly been referred to the International Criminal Court (ICC). Advocates of the ICC argue that criminal proceedings against those most responsible for war crimes will mobilise efforts to arrest v­ iolent, extreme actors, bring ‘justice’ to the victims, end impunity, deter future atrocities, facilitate reconciliation and contribute to the rule of law.1 But while the ideal of achieving peace through the pacifying effects of international criminal law (ICL) is appealing,2 how it plays out in practice in highly contentious political contexts has been far from straightforward. This has left the ICC exposed to a chorus of criticism which targets its overblown promises and accuses it of being a tool of the powerful.3 One recent result of this crisis within the regime of international criminal justice has been a shift in the discourse on what the ICC can—and cannot— deliver. Most notably, there has been a nuanced but important move away

1  LM Ocampo, ‘Building a Future on Peace and Justice: The International Criminal Court’ in K Ambos, J Large and M Wierda (eds), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development (Heidelberg, Springer, 2008) 9. 2  An ICL response to controlling war is based on a number of key assumptions about the relationship between war, law and peace that have their roots in Kant’s treatise of Perpetual Peace. Kant’s core premise herein was that peace could be achieved through the pacifying effects of law. 3  See O Thoms et al, The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners (Ottawa, University of Ottawa Centre for International Policy Studies, 2008); and C Brants, K Brants, and L Gould, ‘Selling the ICC: Imagery and Image Building in Uganda’ in C Brants, T Hol and D Siegel (eds), Transitional Justice Images and Memories (Farnham, Ashgate, 2013).

148  Lauren Gould from the grand aim of achieving ‘universal justice’ towards a narrower goal of ending the impunity of perpetrators by promoting, via its principle of complementarity, a domestication of ICL in which states are encouraged to carry out their own prosecutions and to build a national culture of accountability.4 This chapter explores how this shift is playing out in practice in Uganda, where, in the aftermath of the ICC’s first intervention, various (international) actors have pushed for the establishment of a national war court and the adoption of ICC-focused national laws and processes in order to meet the ICC’s complementarity standards. From a conflict studies perspective, this chapter focuses on the first case brought before the International Crimes Division (ICD) of the High Court of Uganda—the case of Thomas Kwoyelo. Kwoyelo was around 14 years old when the Lord’s Resistance Army (LRA) abducted him from his village in northern Uganda in 1987. As a child soldier, Kwoyelo, like thousands of other abductees, was indoctrinated and forced to commit many atrocities against his own Acholi people. Kwoyelo moved up through the ranks within the LRA and was a mid-level commander by the time he was captured by the Ugandan military in 2009. His case before the ICD is a first of its kind in several respects. Not only was he the first LRA combatant to apply for amnesty but not have it granted, he was also the first defendant ever to be charged before the ICD with offences relating to international war crimes.5 The Ugandan government, as well as the international non-governmental organisations (INGOs) and donors who pushed for establishment of the ICD, are keen to see Kwoyelo’s case successfully prosecuted. His anticipated trial has, however, also been met with strong opposition among a range of other actors within the public sphere in Uganda. Applying a critical discursive frame analysis to the contestation surrounding Kwoyelo’s case offers a fruitful approach to explore how international efforts to institutionalise ICL at a domestic level are being co-opted, contested and rejected by various actors, and how this is affecting particular social and political processes. Tracing some of the alternative frames that have developed to contest the dominant legal accountability frame evolving within the transitional justice process in Uganda, this analysis suggests that ICL’s legal categories of prosecution are not neutral labels that accurately reflect objective realities. Rather, I argue that they constitute semantic frameworks of power and authority that political actors can appropriate for political ends in processes of contentious politics. As seen in the case of Kwoyelo, by reforming its justice regime and framing Kwoyelo as a ‘war criminal’, 4  See S Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge, Cambridge University Press, 2014). 5 There are a few cases of LRA repeat offenders being denied amnesty. See L Mallinder, ‘Uganda at a Crossroads: Narrowing the Amnesty’ (2009) 1 Working Paper Series Beyond Legalism: Amnesties, Transition and Conflict Transformation Queen’s University Belfast 1, 61.

The Contestation of Complementarity in Uganda 149 the Ugandan government can produce the idea that once-abducted children, now adult members of the LRA, are to blame for the conflict. My findings suggest that the way in which such individuals are defined under ICL will be perceived by many within the public sphere as inaccurate and inequitable, because detailed understanding of their life histories throws into question their degree of legal responsibility for their actions. Furthermore, any precedent set by the Kwoyelo case will likely have crucial repercussions on: (1) rebel defection from the LRA in return for government amnesty; (2) the legal status and social identity of all ex-LRA combatants; and (3) the legitimacy of the broader transitional justice processes taking place in Uganda. The next section of this chapter explains the core theoretical components of the critical discursive approach to violent conflict and the role of framing therein. From these core components, three fundamental questions arise that guide the remainder of my analysis: (1) how has an international criminal legal frame of the violent conflict been produced in Uganda?; (2) how has it been translated into institutional policies and practices at a domestic level?; and (3) how are these policies and practices playing out locally? The evidence presented in this chapter is based on participant observation during the Juba Peace Talks in 2007, on in-depth policy and document analysis of the justice reforms taking place in Uganda and on nine months of field research conducted in Uganda.6 Semi-structured in-depth interviews and focus group discussions were held with 32 respondents, including former LRA combatants, internally displaced people, traditional and religious leaders, Ugandan lawyers, a member of the Ugandan Amnesty Commission, the Head of the War Crimes Prosecution Unit (WCPU) of the High Court in Uganda, the Assistant Registrar of the ICD, the directors of a number of (I)NGOs working on transitional justice, journalists, members of the ICC outreach team, Kwoyelo’s lawyer and Kwoyelo himself in the maximum-security Luzira Prison of Kampala. Distinctions between ‘formal’ and ‘informal’ views, ‘state’ versus ‘public opinion’ or, worse, ‘the voice of the people’ versus ‘power’ always fall short. So, my aim here was to interview a diverse range of respondents and present the patterns I discovered in their narratives, without making any generalised claims about categories of respondents.7 6  The author conducted field research in July–September 2009, October–December 2011 and January 2015. Other research was conducted March–May 2010 by Ariadne A ­ simakopoulos, a Conflict Studies and Human Rights Master student at Utrecht University. See A Asimakapoulus, ‘Justice and Accountability: Complex Political Perpetrators. Abducted as Children by the LRA in Northern Uganda’ (MA thesis, Utrecht University, 2010) 1–80. 7  To make sense of the large amount of evidence I collected (written text, transcribed interviews, minutes and field notes), I integrated them into the qualitative data analysis software program MAXQDA. I used both sensitising theoretical concepts and analytical induction to code and analyse my data in a systematic way. This allowed me to extract, compare and finally represent the complex web of signifying and legitimising narratives constructed and contested by various interpretive communities. Upon request, my data in MAXQDA can be made accessible for other researchers.

150  Lauren Gould II.  A CRITICAL DISCURSIVE APPROACH TO VIOLENT CONFLICT

The Ugandan case is a prime example of how civil wars are c­ haracteristically fought with the widespread involvement of the civilian population as well as rebel, state, regional and international actors. How this diverse set of actors is mobilised to participate in a war is a difficult and unresolved crucial question. The critical discursive approach to violent conflict tries to provide an answer by analysing the ‘discursive and institutional continuities that render violent conflict a legitimate and widely accepted mode of human conduct’.8 Discourse and its ability to frame, enable and justify particular policies and practices are seen as central in the lead-up to and continuation of war. Different bodies of literature address this process in different ways. Collective action theory, for example, illustrates how social movements create ‘collective action frames’ that are understood to ‘redefine social conditions as unjust and intolerable with the intention of mobilising potential participants, which is achieved by making appeals to perceptions of justice and emotionality in the minds of individuals’; they also put a moral claim on, for instance, the (il)legitimacy of violence.9 King notes the importance of gaining a wider audience for these ‘frames’ within violent conflict: Acquiring the power to define a hegemonic discourse about the conflict is a goal self-consciously pursued by belligerents. The aim is, in part, to convince outsiders of the rightness of one’s own cause and the perfidy of others, to demonstrate that the opposite side is composed only of ethnic militants, fanatical hard-liners, terrorists, separatists and so on. But it is also to control the entire vocabulary that observers and participants use when they speak about the origins of the dispute, the identities of the belligerents and what might count as a legitimate form of conflict termination. Labelling, in other words, is a political act.10

As stated by Demmers, ‘discourse is always an exertion of power’ and the asymmetrical access to (material) resources results in certain actors having more power than others to define a particular discourse on violent c­ onflict.11 At the same time, discourse is also always relational; it is constructed between crafters and their audience and therefore has to be both ‘socially meaningful’ as well as ‘politically functional’. The underlying assumption is Foucauldian: power is not ‘possessed’ by agents, but rather can be exerted when they mediate the discursive structures that define what constitutes acceptable agency and forms of behaviour that are seen as unacceptable

8  V Jabri, Discourses on Violence: Conflict Analysis Reconsidered (Manchester, M ­ anchester University Press, 1996) 1. 9 S Tarrow, Power in Movement: Social Movements, Collective Action and Politics ­(Cambridge, Cambridge University Press, 1998) 111. 10  C King, ‘The Micropolitics of Social Violence’ (2004) 3 World Politics 431, 452. 11  J Demmers, Theories of Violent Conflict (London, Routledge, 2012) 125.

The Contestation of Complementarity in Uganda 151 and in need of discipline.12 This mediation always goes hand-in-hand with resistance, contestation, transformation and rejection among various actors who compete to capture and spread their preferred framing of violence. This is far from merely a verbal game; discourse not only defines what deviant behaviour is, but also influences what is seen as an appropriate means of dealing with it. Critical discourse analysis is thus about ‘“the politics of portrayal”, examining how names and images are made, assigned and disputed, and how this battle at times translates into political and judicial measures and instruments (such as “terrorist listing”)’.13 From this perspective, I argue that one can derive the dominance of a particular discourse, from amongst an array of competing claims, by examining the extent to which it has become institutionalised, in terms of regulatory institutions, laws and policies that affect the day-to-day lives of those targeted. Not only are actors in and at war engaged in processes of framing and sense making, so too are so-called ‘outsiders’, including INGOs, donor governments, UN agencies, academics and international lawyers. In line with Foucault’s concept of substitutability, these actors are themselves subjects whose understandings have been constructed within particular meta-­ narratives that make them see violent conflict in a particular way, just as much as they are instigators of these meta-narratives. Parties to a conflict, on their part, often appropriate these meta-narratives to garner international support and allies, expand their hold on power and legitimise particular interventions. Drawing from De Goede and Simon, I refer to this multifarious diffuse set of actors, which at times ‘still hold together and exercise power’, as an ‘assemblage’.14 Importantly, this concept also includes the discourses, laws, norms and doctrines they produce which, in collaboration and competition, seek to provide ‘solutions’ to the violence committed. Unfortunately, far too often complex local variations, motives, histories and interrelationships are lost in the application of meta-narratives on violent conflict. This can have detrimental consequences for the effectiveness of the policies, laws and interventions they inform. Over the past decades, authors such as Richards, Duffield, Dexter, Bhatia and Demmers have mapped the shifts in meta-narratives on violent conflict.15 12  This idea of power has been at the core of Foucault’s historiography, particularly in his works Discipline and Punish and The History of Sexuality. 13 Demmers, Theories of Violent Conflict (2012) 127. 14 M Goede and S Simon, ‘Governing Future Radicals in Europe’ (2013) 2 Antipode 315, 317. 15 P Richards, Fighting for the Rainforest (London, Heinneman, 1996); M Duffield, Global Governance and the New Wars (London, Zed Books, 2014); M Bhatia, ‘Fighting Words: ­Naming Terrorists, Bandits, Rebels and Other Violent Actors’ (2005) 1 Third World ­Quarterly 5; H Dexter, ‘New War, Good War and the War on Terror: Explaining, Excusing and ­Creating Western Neo-interventionism’ (2007) 6 Development and Change 1055; J Demmers, ­‘Theorizing the Politics of Judgement’ in D Zarkov and H Hintjens (eds), Conflict, Peace, ­Security and Development: Theories and Methodologies (New York, Routledge, 2015).

152  Lauren Gould From colonial racism to the Cold War ideological stand-off, New ­Barbarism, ethno-nationalist conflict and the War on Terror, different international meta-narratives have arisen. Increasingly since the 1990s, sense has been made of the horrific realities of violent conflict by promoting the idea that there are ‘greedy’, ‘evil’ individuals in the world ‘out there’ who conceptualise, instigate, frame and plan violence for their own benefit. Coined as ‘new wars’, this diagnosis transforms the framing of warfare into an ­illegitimate mass abuse of human rights, a crime with universal jurisdiction. As C ­ handler observes, this produces the tendency to perceive internal conflicts as crimes to be policed, judged and righted rather than as political conflicts to be mediated.16 III.  FRAMING VIOLENT CONFLICT WITHIN THE INTERNATIONAL CRIMINAL JUSTICE REGIME

The connection between the new war meta-narrative’s focus on ‘criminality’ and the rise of an international criminal justice regime to respond to the violence perpetrated is evident. The most significant and permanent institutional development in this regard is the adoption of the Rome Statute by 120 states in 1998 and the resulting establishment of the ICC in 2002.17 The creation of the ICC has introduced a major discontinuity in the way in which violent conflict is dealt with. As the former ICC Chief Prosecutor, Moreno Ocampo, emphasised, ‘for centuries, conflicts were resolved through negotiations without legal constraints. In Rome in 1998, a new and entirely different approach was adopted. Lasting peace requires justice’.18 Since its inception, situations of violent conflict have increasingly been referred to the ICC by ‘outsiders’ to the conflict, such as the UN Security Council (eg, the case of Libya) and the ICC Prosecutor (eg, Côte d’Ivoire), but also by state parties involved in the conflict, through the principle of self-­referral (eg, Uganda). Referrals have led to numerous arrest warrants for state officials (eg, Muammar Gaddafi) and rebel actors (eg, Joseph Kony), who thereby become defined internationally as ‘war criminals’ and thus must be arrested and tried. In this regard, the international criminal justice regime— both in its laws and in the courts that enforce them—has introduced a dominant meta-frame with which various actors in conflict situations need to engage, in the sense that they make use of it, redefine it and compete with it. Since its establishment, advocates of the ICC have argued that the prosecution and imprisonment of those most responsible will not only bring 16 D Chandler, ‘Back to the Future: The Limits of Neo-Wilsonian Ideals of Exporting Democracy’ (2006) 3 Review of International Studies 475, 485. 17  This was achieved after 60 states ratified the statute. By 2015, a total of 123 states had ratified the statute. 18  Ocampo, ‘Building a Future’ (2008) 9.

The Contestation of Complementarity in Uganda 153 justice to victims, but will also contribute to an array of other goals, such as weakening external support for armed groups, bringing accountability issues surrounding the conflict into focus, helping to deter further crimes and advancing reconciliation in post-conflict situations.19 The latter is believed to be achieved by building consensus around a frame, according to which the political and militant leaders who planned the atrocities are stigmatised, while ‘good’ civilians can identify in their common victimhood and rebuild their lives and relationships. While these ideals are appealing, empirical evidence of the ability of the ICC to facilitate these processes and reframe local interpretations of violence is inconclusive, to say the least.20 One aspect of the ICC’s difficulties has been in establishing itself as a legitimate mechanism able to render impartial ‘truth’. Instead, it is often contested for being one-sided, a tool used by the ‘powerful’ to articulate who is to blame for the conflict, entrenching instead of ending impunity.21 More recently, it has been specifically accused of unfairly targeting African states, embodying the latest line of neo-colonial tools imposed on weak states by the powerful West.22 A critique of a different nature is that the ICC is unable to handle adequately those frequent messy situations in which the distinction between ‘perpetrator’ and ‘victim’, ‘leader’ and ‘follower’ is far from clear. ICL, for instance, does not recognise the specific category of ‘victimised’ children who grow up to be adult ‘perpetrators’. It seeks to protect child soldiers from conscription and prosecution, while also working to prosecute those who enslave children for the purpose of getting them to participate in armed conflict, but there are no specific guidelines or principles as to how abducted children who commit atrocities after they turn 18 should be legally treated. Instead, ICL prescribes for them the same treatment as for those who abducted them in the first place. This is clearly exemplified by the case of Dominic Ongwen, who was abducted by the LRA when he was 10 years old and who, at the time of writing, awaits trial before the ICC.23 Applying ICL to cases such as that of Ongwen loses sight of the complex interconnected levels of responsibility in the war in northern Uganda and raises doubts as to whether it will indeed have outcomes that match its stated aims. Faced with a growing awareness that the ICC does not invariably have a positive effect on the conflict situations in which it intervenes, an assembly of actors has recently started to adjust its narratives regarding the ICC. 19 

Thoms et al, The Effects of Transitional Justice Mechanisms (2008). P Hazan, ‘Measuring the Impact of Punishment and Forgiveness: A Framework for Evaluating Transitional Justice’ (2006) 861 International Review of the Red Cross 19, 19. 21  See S Nouwen and W Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’ (2010) 4 European Journal of International Law 941. 22  See Brants, Brants and Gould, ‘Selling the ICC’ (2013). 23  See E Baines, ‘Complex Political Perpetrators: Reflection on Dominic Ongwen’ (2009) 2 Journal of Modern African Studies 163, 177. 20 

154  Lauren Gould They argue that the ICC can contribute to ending impunity not by prosecuting perpetrators in The Hague, but by helping states prosecute them themselves. As Nouwen explains: Academics, ICC advocates and even ICC organs, giving complementarity a meaning beyond that of an admissibility rule in the Rome Statute, have argued that the principle embodies the ‘primary responsibility’ of states to investigate and prosecute crimes within the Court’s jurisdiction.24

States should therefore be encouraged—if not coerced—to implement legal and judicial reform and increase government compliance to ICL standards at a domestic level. This begs the question whether such domestic engagement will mitigate the critiques that the ICC faces and will lead to desired outcomes when ICL is applied in contentious (post-)conflict situations. Drawing on the critical discursive approach’s insight into the relationship between power, discourse, framing, institutions, and political and social outcomes, the remainder of this chapter analyses how this process is unfolding in Uganda by posing the following questions: (1) how has an international criminal legal frame of the violent conflict been produced?; (2) how has it been translated into institutional policies and practices at a domestic level?; and (3) how are these policies and practices playing out locally? IV.  POLITICS OF PORTRAYAL IN UGANDA

The roots of the civil war between the government and the LRA in northern Uganda lie in a north-south divide introduced during British colonial rule (1894–1962). The British ‘reified and essentialized an Acholi identity’ in the north as the Acholi became overrepresented in the civil service and the military.25 Once independence came in 1962, the subsequent political elites further entrenched this north-south divide through ethnic favouritism and violent political purges. When President Yoweri Museveni and his National Resistance Army (NRA) came to power through a military coup in 1986, he framed his rebellion as a southern Bantu war against the Acholi, whom he characterised as the embodiment of northern state power. Seen as the ethnic enemy, Acholi leaders were excluded from Museveni’s new National Resistance Movement government and the NRA launched a violent counterinsurgency in Acholiland. This established a serious, ongoing security threat among the Acholi people and led to the emergence of a number of rebellions, the last remaining being that of the LRA, which operates under the rule of Kony. 24 S Nouwen, ‘The ICC Intervention in Uganda: Which Rule of Law Does it Promote?’ (2012) 22 Legal Studies Research Paper Series University of Cambridge 1, 6. 25  See A Branch, ‘The Politics of Violence in Acholiland’ in A Branch (ed), Displacing Human Rights: War and Intervention in Northern Uganda (Oxford, Oxford University Press, 2011).

The Contestation of Complementarity in Uganda 155 From the outset, the Acholi bore the brunt of the conflict between the LRA and government military forces. Both parties committed grave atrocities against the population. Tens of thousands of people were abducted by the LRA and over two million people were displaced, many of whom were forced violently by the government into so-called ‘protected camps’. After the Juba peace talks between the government and the LRA started in 2006, relative stability returned to northern Uganda. However, after those same talks failed in 2008, the conflict continued beyond the borders of Uganda, encompassing parts of the Democratic Republic of the Congo (DRC), South Sudan and the Central African Republic (CAR). From the onset of the conflict, both LRA commanders and the Ugandan government have clearly engaged in creating ‘collective action frames’ to legitimate their violent campaigns. Although there was always a great discrepancy between the written and spoken objectives of the LRA and the violent military tactics of the organisation against the people they claimed to represent, the LRA commanders continued to diagnose the root of the Acholi population’s suffering and grievances in terms of the policies of President Museveni and his military. During his research on the LRA, Finnström came across letters and manifestos from the LRA to the population in northern Uganda.26 These included lists of historical grievances against the government and expressed the belief that the government was purposively exterminating the Acholi people by packing them into camps, with the assistance of international actors. Based on this frame, the LRA leaders claimed that their cause was a legitimate fight against President Museveni in order to promote a political existence for the Acholi people. With regard to mobilising their fighting force, the LRA commanders subjected new recruits to extreme indoctrination and continuous propaganda. Once abducted, children and adults were often initiated through a series of cruel beatings and were subsequently required to participate in rituals where they were convinced that Kony possessed powers to predict the future and defeat his enemies. The LRA also used frames of ‘chosen-ness’, ‘sacredness’, ‘ancestral homeland’, ‘fraternity’ and ‘liberation’ as key elements towards constructing identity boundaries and legitimising violence.27 As a former LRA combatant describes the indoctrination process: Kony makes many promises such as, ‘You, who were taken from school, we did not abduct you. We went and chose you; you are our brothers and sisters. Those stupid Acholi who do not want to fight with us, we do not need them. We want you, so we can fight and overthrow the dictatorship of Museveni. You are the new Acholi now, you are the Israelites and this is now the Promised Land. You crossed 26  S Finnström, ‘An African Hell of Colonial Imagination? The Lord’s Resistance Army in Uganda. Another Story’ in T Allen and K Vlassenroot (eds), The Lord’s Resistance Army: Myth and Reality (London, Zed Books, 2010) 170. 27  See for more examples Baines, ‘Complex Political Perpetrators’ (2009) 170–71.

156  Lauren Gould the Nile, so this movement is following the Bible. Next year we will overthrow and it will be you, the educated people, who will become minister and drive big cars’. Quite some people tend to believe him because he can be so convincing, you have to see it to understand.28

The official state discourse on the conflict, expounded by President Museveni and endorsed by a larger international audience, has always downplayed the repression and violence committed by the Ugandan armed forces. Instead, it focused on LRA brutality, particularly against children, and on the need to defeat the organisation militarily.29 In many accounts, the rebel group is framed as ‘bizarre’, and the violence it commits as simply irrational: ‘The Lord’s Resistance Army, Africa’s longest surviving insurgent group, which has a reputation for extreme brutality, is made all the harder to understand given their almost total lack of any political goals.’30 In 2001, the US went as far as putting the LRA on its Terrorist Exclusion List. In this regard, the LRA has been unable to articulate its political goals in a way that gains the sympathy of a larger audience. Its brutal actions negated any legitimate concerns or grievances it might have had for waging rebellion. President Museveni has had a keen interest in upholding a ‘barbaric’ and ‘terrorist’ frame of its LRA enemy because this has allowed him to continue to present himself—to his constituency and to the international community—as the sole legitimate power holder and the LRA as an illegitimate rebel group which needs defeating militarily. V.  PRODUCING AN INTERNATIONAL CRIMINAL LEGAL FRAME

For years, the assemblage involved in governing the violent conflict in northern Uganda considered it predominantly a military and at times a political issue (when the LRA and the government engaged in peace negotiations) rather than a legal one. Moreover, a blanket Amnesty Act adopted in 2000 ensured that a legal frame was kept at bay. The Amnesty Act was reluctantly established by the government after strong lobbying by Acholi stakeholders (religious, traditional and political elites) who saw it as a way to induce LRA combatants to lay down their weapons and to adequately deal with their predominantly forced participation. According to the Amnesty Act, ‘any Ugandan who has at any time since the 26th January 1986 engaged in or is engaged in armed rebellion against the Government of Republic of Uganda’ 28 Interview by Ariadne Asimakopoulos with former LRA combatant, Gulu, Uganda, 27 April 2010. 29  For a discussion of this ‘official discourse’, see S Finnström, Living in Bad Surroundings: War, History, and Everyday Moments in Northern Uganda (Durham, NC, Duke University Press, 2003) 136. 30  M Thomson, ‘Don’t Scream When the Knife Comes’, BBC Radio 4 Report, 17 February 2011, news.bbc.co.uk/today/hi/today/newsid_9400000/9400287.stm.

The Contestation of Complementarity in Uganda 157 will receive amnesty.31 How then has an international criminal legal frame been produced in Uganda? This process started in 2003 when, flying in the face of the Acholi ­support for amnesty, the Ugandan government surprised many observers with its ‘Referral of the Situation Concerning the Lord’s Resistance Army’ to the ICC. The ICC Prosecutor officially opened an investigation in 2004; one year later, the Prosecutor requested and the court issued arrest warrants against five senior LRA commanders (including Kony and former child soldier Ongwen). The Prosecutor argued that he had no case against the government and its military because the ICC’s jurisdiction stretches back no further than 2002 and that since then, ‘crimes committed by the LRA were much more numerous and of much higher gravity than those committed by the Uganda People’s Defence Force UPDF’.32 It is likely, however, that his decision was also influenced by the knowledge that if he were to target government forces, President Museveni might not cooperate with his work. In the wake of the arrest warrants, the Amnesty Act was amended to give the Minister of Internal Affairs the authority to exclude named individuals from the scope of amnesty, with approval of Parliament.33 The referral to the ICC, the arrest warrants and the amendment of the Amnesty Act clearly introduced an international criminal legal frame to the conflict in which the identity of the LRA commanders was reduced to that of war criminals rather than political and military combatants, with the Acholi cast as the LRA’s civilian victims. This narrative did not fit the Acholi’s understanding of the conflict; they see both the Ugandan government and the LRA commanders as key perpetrators, and the ICC soon faced severe criticism for its lack of impartiality.34 The ICC’s narrative did, however, fall within the longstanding military paradigm established by President Museveni and the Ministry of Defence, who saw ICC intervention as a way of enlisting international help for their military campaign in the name of arresting ‘war criminals’ and ‘enforcing international law’.35 In the wake of the ICC arrest warrants, a change in regional political alignments took place due to a peace agreement signed between the South

31  Between 2001 and 2006, 12,119 LRA combatants, including a number of commanders ranked higher than Kwoyelo, returned or were captured and received an amnesty certificate. A number of repeat offenders were denied amnesty. See Mallinder, ‘Uganda at a Crossroads’ (2009) 61. 32 LM Ocampo, ‘Statement by the Chief Prosecutor on the Uganda Arrest Warrants’, The Hague, 14 October 2005, www.icc-cpi.int/NR/rdonlyres/9AC37606-6662-448F-86897317E341E6D7/277305/Uganda_LMO_Speech_141020091.pdf. 33  The Minister has not yet done this, so those indicted by the ICC and Thomas Kwoyelo remain eligible for amnesty under Ugandan law. For a more detailed description of the relationship between the Amnesty Act and the ICD, see Nouwen, ‘The ICC Intervention in Uganda’ (2012) 7. 34  Brants, Brants and Gould (n 3). 35  Nouwen and Werner, ‘Doing Justice to the Political’ (2010) 949.

158  Lauren Gould Sudanese people and the Sudan government in Khartoum. The LRA lost regional support from the latter, became increasingly marginalised and returned to the negotiating table in Juba in 2006. There, however, Kony refused to sign a final peace agreement until the ICC arrest warrants had been lifted. Soon parties to the peace talks realised that the only sustainable way to achieve this was to challenge the warrants’ admissibility on grounds of complementarity. This would require commitment on behalf of the government to put in place domestic justice mechanisms, before which LRA leaders could appear. Hence, however unintended and contested, a legal accountability frame had become a dominant aspect of the peace negotiations, which had to be acknowledged and adhered to. VI.  INSTITUTIONALISING ICL AT A DOMESTIC LEVEL

One year into the Juba peace negotiations, the government and the LRA agreed to the following under agenda item three, ‘Accountability and Reconciliation’: Formal criminal and civil justice measures shall be applied to any individual who is alleged to have committed serious crimes or human rights violations in the course of the conflict; provided that, state actors shall be subjected to existing criminal justice processes and not to special justice processes under this Agreement.36

The annexure to the agreement specifies that ‘a War Crimes Division of the High Court of Uganda shall be established to try individuals who are alleged to have committed serious crimes during the conflict’.37 In spite of the apparent shift from international to national retributive justice, Kony was not confident about the prospects of the ICC’s withdrawal and in November 2008 he refused to sign the final peace agreement.38 In response, Museveni swiftly sought collaboration with the governments of the DRC, the CAR and South Sudan, and gained diplomatic and material support from the US to launch yet another military offensive, but this time in the name of ‘enforcing international law’. Although Kony escaped, the joint military mission did manage to capture a number of LRA commanders, including Thomas Kwoyelo. Kony retaliated by killing up to 865 civilians.39 36  Agreement on Accountability and Reconciliation between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement, Juba, 29 June 2007, clause 4.1, www.beyondjuba.org/BJP1/peace_agreements/Agreement_on_Accountability_And_Reconcilition.pdf. 37  Annexure of the Agreement on Accountability and Reconciliation between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement, Juba, 29 June 2007, clause 7. www.iccnow.org/documents/Annexure_to_agreement_on_Accountability_ signed_today.pdf. 38  Kony demanded further assurances on the exact process. It is, of course, difficult to speculate about Kony’s exact motives for pulling out of the peace negotiations. 39  ‘Trial of Death. LRA Atrocities in North-Eastern Congo’, Human Rights Watch, 2010, 5, www.hrw.org/sites/default/files/reports/drc0310webwcover_0.pdf.

The Contestation of Complementarity in Uganda 159 This created a complex situation, in which the LRA and the government signed a number of agreements, but no final peace accord was ratified and the war continued across regional borders. Under substantial pressure from the international community, the government pledged to implement a ­number of the agreements made under the agenda item ‘Accountability and ­Reconciliation’, including the establishment of the ICD of the ­Ugandan High Court, to fulfil the principle of complementarity of the Rome Statute. Since then, an assemblage has increasingly directed its agenda, advice, budgets and lobbying activities towards the realisation of the ICD, which came into being in 2008 (modelled on international tribunals), and the adoption of the ICC Act in 2010.40 This assemblage brings together an array of actors including international human rights NGOs, donor governments and pro-bono lawyers, who collaborate with Ugandan NGOs and legal ­professionals.41 In line with Foucault’s concept of substitutability, ­Nouwen argues that the international background of many of these actors can explain their push for complementarity: Most of these experts work at the international level, in international NGOs, courts and jurisdictions, and have assumed functional bias towards ‘the international’. Their automatic but incorrect assumption is that ‘international’ laws, standards, courts and practices are by definition better than domestic ones, and that ‘the international’ is by definition good for the rule of law, at the international and domestic level.42

The prosecutor, for his part, supported the establishment of the ICD as a way to meet the growing demand for impartiality on behalf of the ICC, his underlying assumption being that the ICC could retain its focus on the LRA top commanders, while the ICD could deal with state officials.43 ­However, this assemblage failed to realise that the reasons for impunity within Uganda itself was not due to the lack of a domestic legal basis for prosecution: Uganda has had an act criminalising grave breaches of the 1949 Geneva Conventions since 1964, and most of the crimes within the ICC’s jurisdiction are also criminalised under the Ugandan Penal Code. Rather, the impunity was due more simply to a lack of enforcement: no investigations, prosecutions or arrests of either state officials or rebel actors.44 The lack of domestic prosecution of rebel leaders seemingly changed in June 2010, when it was reported that Kwoyelo would be the ICD’s 40  ICD jurisdiction includes any offence relating to genocide, crimes against humanity, war crimes, terrorism, human trafficking, piracy and any other international crimes as may be provided for under the ICC Act, No 11 of 2010, the Geneva Conventions Act, Cap 363, the Penal Code Act, Cap 120, or any other penal enactments. 41  These actors included, among others, the International Coalition for the ICC, the International Criminal Justice Movement, the Public International Law & Policy Group and the Refugee Law Project. 42  Nouwen (n 24) 17. 43 Branch, Displacing Human Rights (2011) 189. 44  See for more details Nouwen (n 24).

160  Lauren Gould first case.45 Joan Kagezi, the Directorate of Public Prosecution’s (DPP) ­senior Principal State Attorney and Head of the War Crimes Prosecution Unit (WCPU) of the ICD, explained why the DPP is keen to see Kwoyelo successfully tried: We just believe the Kwoyelo case is going to be a test case for us; it is going to lay down a number of precedents because we are now going to consider the issues of amnesty vs. international law. If it lays down a precedent, the sky will be the limit. We will know whom to get, among those combatants who get amnesty and not.46

Significantly, other cases have been handled completely differently. Two well-known LRA Brigadiers (Sam Kolo and Bania Kenneth), both more senior than Kwoyelo, were granted amnesty, while General Major Caesar Acellam was exempted from ICD criminal proceedings because, reportedly, he is under Ugandan military protection in return for providing intelligence on the LRA. Kagezi admitted that no fixed format exists for mid-level commanders, especially those who were abducted as children, and that ‘they will be considered on a case-by-case basis’.47 Although ICD jurisdiction theoretically includes prosecution of state actors as well as rebels, this is unlikely given that the government has repeatedly insisted that it has dealt with crimes committed by its military through courts martial and executions.48 In addition, state officials often point to the absence of ICC proceedings against actors from the government’s side to highlight that they and the Ugandan military are exempt from legal accountability.49 What is clear from the above is that the government, with the assistance of the international community, is reforming its justice apparatus to be able domestically to frame a wide range of LRA combatants, not just the top commanders indicted by the ICC, as ‘war criminals’. However, the attempt to prosecute Kwoyelo before the ICD has become subject to deliberation and resistance among various actors in the public sphere in Uganda.

45 

‘Kwoyelo for War Crimes’, New Vision, 25 June 2010. by Ariadne Asimakopoulos with Joan Kagezi, Head of WCPU of the ICD, Kampala, Uganda, 10 May 2010. The ICC Act will not be used in Kwoyelo’s trial as it only came into effect in 2010 and does not have retroactive application. Therefore, Kwoyelo was charged with 12 grave breaches of the Geneva Conventions Act of 1964, including wilful killing (five counts), taking hostages (two), extensive destruction of property (two) and causing serious body harm (one); alternative accounts include murder (33 counts), kidnap with intent to murder (17), robbery with aggravation (one) and attempted murder (two). 47 Interview by Ariadne Asimakopoulos with Joan Kagezi, Head of WCPU of the ICD, Kampala, Uganda, 10 May 2010. 48  The International Crisis Group has strongly criticised the level of impunity among state actors: ‘The lack of judicial follow-up for army crimes coupled with the fear of victims to report them and the exclusion of military courts from the judicial mechanisms listed in the Juba Protocols amount to guaranteed impunity for senior military, even if common soldiers were quietly court-martialled and executed.’ See International Crisis Group ‘Northern Uganda: The Road to Peace, with or without Kony’, Africa Report 146, 2008, 10. 49  Nouwen (n 24) 27. 46 Interview

The Contestation of Complementarity in Uganda 161 To analyse the power of this contestation, I revisit a central question, namely, what counter-narratives have been produced and to what extent have they been institutionalised? VII.  PLAYING OUT LOCALLY

My data illustrate that different respondents from the war-affected Acholi region maintain competing narratives about actors such as Kwoyelo. When an array of Acholi respondents (including former LRA combatants, family members of the deceased and traditional and religious leaders) were asked who they believed were the main victims of the conflict, the majority answered ‘child abductees’. Respondents argued that abductees were forced to commit terrible crimes, the dead spirit therefore haunts them and they have been deprived of an education. Consequently, abductees should be given amnesty and be reintegrated into society. Their answers became less straightforward, however, when talking about former child soldiers who return as adults. It is at this moment when doubts arise about responsibility and victimhood. Acholi respondents who were not former abductees themselves, or who were not related to former abductees, tended to distinguish between those adult combatants who never accommodated themselves to the level of violence, who remain afraid and who seek escape, and those who participate actively and show eagerness toward their combat roles and their superiors. A number of explanations are given for this eagerness, including that LRA combatants are angry about their own abduction and take revenge by abducting others and being particularly cruel, and that they seek promotion in order to gain greater security and more food. Nevertheless, according to a majority of the Acholi respondents without ties to or experience as abductees, once an abductee orders others to fight, abduct, kill or loot, this individual becomes responsible for those actions and is a ‘perpetrator’. Others, however, argue that mid-level commanders remain ‘victims’ because they have been forced and trained from a young age to commit crimes. Those who uphold this frame are often family members of abductees or former abductees themselves. These respondents emphasise the heavy indoctrination and propaganda to which LRA combatants are subjected and argue that those who are abducted at a young age are unlikely to understand right from wrong in these complex, violent contexts, and in any case are not in a position to choose. According to a father of two abductees: Kwoyelo was abducted at a very young age. He was trained to do many bad things such as killing and looting and was not in a position to refuse. Everything he did must have been an order from a higher level.50 50 Interview by Ariadne Asimakopoulos with the parent of a former abductee, Awach, Uganda, 26 April 2010.

162  Lauren Gould Moreover, respondents who maintain the ‘victim’ frame refer to the fear of being caught while escaping, fear of the ICC and fear of rejection by family and community members as reasons for remaining with the LRA. Overall, we see that most respondents ascribe a reasonably high level of agency to those abductees who gained rank within the LRA. However, most respondents maintain different frames when defining a combatant’s level of responsibility, based on their (the respondent’s) position within society and/ or personal war experiences. Interestingly, only a minority of respondents supported bringing cases such as that of Kwoyelo before the ICD. Those few who were in favour stressed that a history of abduction should be taken into account during trial. Those against put forward a number of reasons that reflect the contentious political context in which Kwoyelo’s trial is set to take place. First, it is clear from many respondents’ answers that peace remains their main interest in defining how LRA combatants are framed and brought to justice. Many said that as long as the LRA forces have not laid down their weapons, they (the respondents) are not interested in retributive justice. It is believed that the LRA forces active in neighbouring countries will closely follow the shift from amnesty to applying ICL, and it is feared that this will impede defection and prolong the likelihood of the LRA returning to Ugandan soil. Respondents were also unified in their opinion that higher-ranked LRA commanders and military commanders should be the first to be subjected to ICL, not those whom the LRA abducted and the government failed to protect. Kwoyelo himself expressed great confusion about the fact that he was imprisoned while commanders, such as Brigadiers Kolo and Kenneth, were granted amnesty: These men were much more senior than I was, had much [more] responsibility and there was not even a single charge for them, not even by the ICC. Thus, those who actually abducted me are free now and I, the one who was abducted, am in prison.51

Other respondents highlighted the government’s responsibility: Actually our blame goes to the government because it failed to protect our ­children. It is the government’s failures that made these combatants to be abducted [sic] and forced to commit what they did.52

These quotes illustrate that, without first holding the instigators of the violence from both parties equally accountable, the trial of Kwoyelo is

51  Interview by Ariadne Asimakopoulos with Thomas Kwoyelo, Luzira Prison, Kampala, Uganda, 7 April 2010. 52  Author interview with Lacen Otinga (Village Chief), Gulu, Uganda, 2 August 2009.

The Contestation of Complementarity in Uganda 163 unlikely to reflect these respondents’ framing of the conflict and so the ICD will, along with the ICC, come to be seen as partial and a form of victor’s justice. It is also clear from respondents’ answers that the shift from granting amnesty to applying ICL is creating confusion among the grassroots population. In general, respondents are in favour of amnesty for lower-ranked combatants and do not reject amnesty for mid-level commanders, especially when asked whether it is fair to grant one commander amnesty while other ex-commanders are put on trial. The establishment of the ICD goes against this support and is creating concern among returned LRA combatants; they are starting to doubt whether their amnesty certificates will protect them against prosecution and trial by the ICD. Finally, a number of respondents emphasised that Kwoyelo’s legal status could affect the social identity of all former LRA abductees who have returned and who are trying to reintegrate into their communities: They will come to be seen more as criminals, as perpetrators, because our society does not understand our court system. For them, when you are arrested, you are already a criminal; you are already guilty. This sends a strong message.53

In line with the above narratives, there have been a number of institutional attempts to challenge Kwoyelo’s prosecution before the ICD. On 12 ­January 2010, for instance, members of Uganda’s Amnesty Commission visited Kwoyelo in prison and encouraged him to apply for amnesty. The public relations officer of the Amnesty Commission explained in an interview that although the Amnesty Act was amended to allow for the exclusion of the leaders of the rebellion, the Amnesty Commission provides amnesty to anyone who has not been indicted by the ICC.54 However, once a former combatant has applied for amnesty, the DPP has to certify that the combatant is not charged with any offence unrelated to war or armed rebellion before the combatant may be granted amnesty release. In Kwoyelo’s case, he was charged with, among other things, ‘kidnapping with intent to murder’. It is difficult to maintain that these crimes were not committed ‘in the cause of the conflict’, since kidnapping has been one of the main tactics of the ­rebellion.55 Nevertheless, the Amnesty Commission never heard back from the DPP when it sent a letter applying for amnesty for Kwoyelo, and his trial before the ICD was set to commence in July 2011.

53 ibid.

54  Interview by Ariadne Asimakopoulos with Moses Draku, Amnesty Commission, Gulu, Uganda, 20 April 2010. 55  As Nouwen explains, this would indicate a revolutionary reinterpretation of the Amnesty Act. In no other case has the DPP argued that crimes committed by an LRA member while part of the rebellion were not covered by the Amnesty Act. See Nouwen (n 24) 27.

164  Lauren Gould Before the actual trial began, however, Kwoyelo’s defence went to the Constitutional Court of Uganda to challenge the fact that their client was denied amnesty, arguing that indicting Kwoyelo while offering amnesty to others constitutes a violation of the constitutional guarantee of equality before the law. The Constitutional Court ruled in Kwoyelo’s favour, holding that he was entitled to amnesty and should be released. These orders were repeatedly ignored by the government and were then stayed by the Supreme Court to allow the DPP to appeal the ruling to the Supreme Court itself. Subsequently, it took nearly three years before the Supreme Court ruled in favour of the DPP, and Kwoyelo’s case is now once again set to commence before the ICD in 2017. During this entire time, Kwoyelo has been sitting in the maximum-security Luzira Prison in Kampala. One is left to infer from the above that although an assemblage has effectively advised and lobbied for the existence of the ICD and the adoption of the ICC Act in the name of complementarity, they have not been able to put effective pressure on the executive powers to implement the verdict of the Constitutional Court or to assure Kwoyelo of a fair and speedy trial. All the while, those who do not support prosecuting most former LRA combatants have seen their discursive and institutional powers to contest the dominant legal accountability frame repeatedly undermined. VIII. CONCLUSION

Kwoyelo’s case illustrates that the international criminal justice regime is a global-local arena, in which a variety of actors fight a discursive battle over legitimacy, justification of violence, blame and accountability. By tracing the micro-level dynamics of this process in Uganda, I have highlighted some of the detrimental effects of international efforts to respond to civil war by institutionalising ICL at a domestic level. The first of these effects concerns how ICL’s legal categories of prosecution are (inadvertently) presenting President Museveni with a powerful semantic and cognitive (and internationally legitimated) framework through which to articulate who is to blame for the conflict. As it currently stands, both the ICC and the ICD are prosecuting the LRA only, while allegations of atrocities committed by the government and its security forces have apparently been ignored or overlooked. If this remains the case, these international and domestic ICL institutions will continue to be viewed as partial and as a tool of the powerful, which will only serve to reinforce the enduring grievances that the Acholi population harbour against the government. The second effect that this chapter has touched upon relates to procedural fairness in the ICD’s application of ICL. Prosecuting Kwoyelo while not bringing criminal proceedings against other (more senior) LRA leaders is

The Contestation of Complementarity in Uganda 165 widely perceived as unequal and grossly unfair treatment. These inconsistencies will hardly serve to strengthen the legitimacy of the ICD. Moreover, it is creating legal uncertainty for those thousands of combatants who have an amnesty certificate, and will likely be followed closely by those who are still active within the LRA. The third issue pertains to the politics and practice under ICL of framing formerly abducted child soldiers who mature into mid-level commanders as ‘perpetrators’ to be prosecuted. Kwoyelo currently serves as a quintessential example of this and a potential precedent. This chapter has illustrated that the frames used within ICL simplify complex realities into clear-cut categories of ‘victim’ and ‘perpetrator’. In this process, it often obliterates contextual and phenomenological details and the ‘grey areas’ arising therefrom. My analysis illustrates that applying an individual ‘perpetrator’ frame to cases such as that of Kwoyelo does not reflect the struggle various actors within Uganda have in framing the identity and appropriate means of justice for abducted child soldiers who mature into commanders. People in n ­ orthern Uganda hold Kwoyelo responsible for his actions; however, his accountability is mitigated by the circumstances which gave rise to his ‘victim’ status. A justice approach that can only produce a simple ‘victim’/‘perpetrator’ or ‘guilty’/‘innocent’ frame provides very little room for the acknowledgement of these extraordinary circumstances. The possible trial of a mid-level commander at the ICD sends a very strong message that not just the leaders but also a wide range of LRA combatants are ‘war criminals’ who deserve to be punished. Acholi respondents fear that this could affect the legal status, and therefore the social identity, of all those former abductees who have returned to their homes. Rather than removing from society only those most responsible, applying this frame could contribute to the further ‘othering’ of a much larger segment of society already facing political and economic exclusion. One can argue that instead of domestic prosecution before the ICD, alternative justice approaches should be sought to account for the extraordinary circumstances in which children are forced to become adult perpetrators. Most importantly, the analysis presented in this chapter illustrates how an assemblage, including international actors conditioned by their own meta-narratives on the need for complementarity, has had the power to institutionalise legal and judicial reform in Uganda, but has not been able to improve government compliance. Meanwhile, those within the public sphere who question the dominant legal accountability frame have seen their power to contest it and/or end state impunity gradually weakened. This clearly exemplifies the need for ‘outsiders’ to empirically engage in a critical reflection on the political use and social impact of the international justice regime they promote, either at an international or a domestic level. A failure to do so is likely to entrench rather than break through cycles of exclusion, impunity and violence.

166  Lauren Gould REFERENCES Asimakapoulus, A, ‘Justice and Accountability: Complex Political Perpetrators Abducted as Children by the LRA in Northern Uganda’ (MA thesis, Utrecht ­University, 2010). Baines, E, ‘Complex Political Perpetrators: Reflection on Dominic Ongwen’ (2009) 2 Journal of Modern African Studies 163–91. Bhatia, M, ‘Fighting Words: Naming Terrorists, Bandits, Rebels and Other Violent Actors’ (2005) 26(1) Third World Quarterly 5–22. Branch, A, ‘The Politics of Violence in Acholiland’ in Displacing Human Rights: War and Intervention in Northern Uganda (Oxford, Oxford University Press, 2011) 45–89. Brants, C, Brants, K and Gould, L, ‘Selling the ICC: Imagery and Image Building in Uganda’ in C Brants, T Hol and D Siegel (eds), Transitional Justice Images and Memories (Farnham, Ashgate, 2013) 143–60. Chandler, D, ‘Back to the Future: The Limits of Neo-Wilsonian Ideals of Exporting Democracy’ (2006) 3 Review of International Studies 475–94. Demmers, J, Theories of Violent Conflict (London, Routledge, 2012). ——. ‘Theorizing the Politics of Judgement’ in D Zarkov and H Hintjens (eds), ­Conflict, Peace, Security and Development: Theories and Methodologies (New York, Routledge, 2015) 235–46. Dexter, H, ‘New War, Good War and the War on Terror: Explaining, Excusing and Creating Western Neo-interventionism’ (2007) 6 Development and Change 1055–71. Duffield, M, Global Governance and the New Wars (London, Zed Books, 2014). Finnström, S, Living in Bad Surroundings: War, History, and Everyday Moments in Northern Uganda (Durham, NC, Duke University Press, 2003). ——. ‘An African Hell of Colonial Imagination? The Lord’s Resistance Army in Uganda. Another Story’ in T Allen and K Vlassenroot (eds), The Lord’s Resistance Army: Myth and Reality (London, Zed Books, 2010) 74–89. Goede, M and Simon, S, ‘Governing Future Radicals in Europe’ (2013) 2 Antipode 315–35. Hazan, P, ‘Measuring the Impact of Punishment and Forgiveness: A Framework for Evaluating Transitional Justice’ (2006) 861 International Review of the Red Cross 19–47. International Crisis Group, ‘Northern Uganda: The Road to Peace, with or without Kony’, Africa Report 146, 2008. Jabri, V, Discourses on Violence: Conflict Analysis Reconsidered (Manchester, Manchester University Press, 1996). King, C, ‘The Micropolitics of Social Violence’ (2004) 3 World Politics 431–55. Mallinder, L, ‘Uganda at a Crossroads: Narrowing the Amnesty’ (2009) 1 Working Paper Series Beyond Legalism: Amnesties, Transition and Conflict Transformation Queen’s University Belfast 1–72. Nouwen, S, ‘The ICC Intervention in Uganda: Which Rule of Law Does it Promote?’ (2012) 22 Legal Studies Research Paper Series University of Cambridge 1–33. ——. Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge, Cambridge University Press, 2014).

The Contestation of Complementarity in Uganda 167 Nouwen, S and Werner, W, ‘Doing Justice to the Political: The International ­Criminal Court in Uganda and Sudan’ (2010) 4 European Journal of International Law 941–65. Ocampo, LM, ‘Statement by the Chief Prosecutor on the Uganda Arrest Warrants’, The Hague, 14 October 2005, www.icc-cpi.int/NR/rdonlyres/9AC37606-6662448F-8689-7317E341E6D7/277305/Uganda_LMO_Speech_141020091.pdf. ——. ‘Building a Future on Peace and Justice: The International Criminal Court’ in K Ambos, J Large and M Wierda (eds), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development (Heidelberg, Springer, 2008) 9–13. Richards, P, Fighting for the Rainforest (London, Heinneman, 1996). Tarrow, S, Power in Movement: Social Movements, Collective Action and Politics (Cambridge, Cambridge University Press, 1998). Thoms, O et al, The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners (Ottawa, University of Ottawa Centre for International Policy Studies, 2008). Thomson, M, ‘Don’t Scream When the Knife Comes’, BBC Radio 4 Report, 17 February 2011, news.bbc.co.uk/today/hi/today/newsid_9400000/9400287.stm.

168 

8 Discursive Proceedings and the Transitional Trial A View from the Extraordinary Chambers in the Courts of Cambodia CHERYL WHITE

I. INTRODUCTION

S

OME TRANSITIONAL JUSTICE theorists view trials as communicative spaces that engage their publics in the aftermath of mass atrocities. Mark Osiel argued that the transitional trial’s platform for courtroom storytelling, mediated by flexibly applied rules of legal procedure, fostered communal engagement with the social breakdown arising from mass crimes.1 Karstedt highlighted the significance of the visibility of victims in German war crimes trials starting in the 1960s compared to their relative absence at the International Military Tribunal at Nuremburg immediately after the Second World War. Through the agency of victim testimony, the later national trials communicated truths that could no longer be denied by society and precipitated a shift in public consciousness from collective amnesia regarding crimes of the Nazi era.2 The timing of the Auschwitz and Madjanek camp trials some decades after the war was critical, with the moral burden of response to their messages taken up by the young, educated elite who catalysed social and political change.3 How have modern internationalised transitional trials fared as communication platforms

1  M Osiel, Mass Atrocity, Collective Memory and the Law (New Brunswick, Transaction Publishers, 1997) 1–3, 295–96. 2  S Karstedt, ‘The Nuremburg Trial and German Society: International Justice and Local Judgement in Post-Conflict Reconstruction’ in DA Blumenthal and TLH McCormack (eds), The Legacy of Nuremburg: Civilising Influence or Institutionalised Vengeance? (Leiden, Martinus Nijhoff, 2008) 13, 33–34. 3  ibid 29–33.

170  Cheryl White within their subject societies? What role does the criminal procedure of transitional courts play in producing communicative trials? These questions are considered in this chapter through an analysis of the proceedings of the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC is the internationalised court formed in 2005 pursuant to an agreement between the United Nations (UN) and the Royal Government of Cambodia to bring senior leaders to trial and those most responsible for domestic and international crimes committed during the Khmer Rouge regime of 17 April 1975 to 6 January 1979.4 A national enabling law is the constitutive instrument creating the ECCC, which forms part of the Cambodian court structure.5 The Agreement established a framework for cooperation between the UN and the Cambodian government as to the conduct of the criminal proceedings in accordance with Cambodian law and procedure insofar as the national law is not inconsistent with international due process standards.6 While there is a blend of national and international senior officers at the Court, there is a majority of Cambodian judges in all Chambers, albeit subject to ‘supermajority’ findings in judicial decision-making.7 An estimated 1.5–1.7 million people or 20 per cent of the population died as the government of Democratic Kampuchea (the Khmer Rouge regime) attempted a rapid deconstruction of Cambodian society.8 Forced movements of the population to agrarian collectives, the destruction of former institutions, the abolition of faiths and cultural practices, and the brutal elimination of perceived enemies were hallmarks of the radical revolutionary regime.9 After the Khmer Rouge were ousted from power by the Vietnamese in 1979, a proxy war in Cambodia in the context of Cold War

4  Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, signed 6 June 2003, UN Doc A/RES/57/228B (2003) (hereinafter ECCC Agreement) art 1. 5  Law on the Establishment of the Extraordinary Chambers in the Courts in Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea Reach with amendments promulgated on 27 October 2004 (NS/RKM/1004/006 (27 October 2004) (hereinafter ECCC Law); see S Williams, Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional Issues (Oxford, Hart Publishing, 2012) 295. 6  ECCC Agreement, art 12. 7  The ECCC Law and the ECCC Agreement provide that unanimous decisions are to be attempted in all Chambers, but where this is not possible, a majority decision must include the affirmative vote of at least one international judge (ECCC Agreement, art 4; ECCC Law, art 14). The requirement of decision by supermajority was intended to counteract the possibility of executive interference in judicial decision-making or decisions inconsistent with international standards. 8  Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135, dated 15 March 1999 UN Doc No A/53/850-S/1999/231, para 35. 9  ibid paras 15–33; KD Jackson, ‘The Ideology of Total Revolution’ in KD Jackson (ed), Cambodia 1975–1978: Rendezvous with Death (Princeton, Princeton University Press, 1989) 37, 41–45.

Discursive Proceedings and the Transitional Trial 171 tensions in Southeast Asia from 1979–1989 inhibited any true reconciliation or open public discourse on the Khmer Rouge era. During this time, the Khmer Rouge regrouped and for another decade influenced the Cambodian political agenda. The lack of accountability of the Khmer Rouge leadership entrenched a culture of impunity in Cambodia. The Khmer Rouge revolution was erased from school curricula and forgetting the past became the political mantra of reconciliation under successive national governments for a society deprived of voice, rights and memory.10 In the face of suppression of this kind and in the absence of a fair and transparent national legal system, the creation of an internationally assisted justice platform permitting broad engagement with the past within Cambodia was especially significant. However, the formation of the ECCC was politically fraught, largely because the Cambodian government insisted upon majority control of the Court. The ECCC has also faced various operational problems, including funding shortages, some early corruption allegations and the threat of political interference in the investigation of cases, notably the investigations into Cases 003 and 004. Despite this background, the Court has now successfully convicted three former Khmer Rouge officials in two trials and the third, Case 002/02, is nearing completion. In addition, following the first trial, an independent population survey on perceptions of the ECCC revealed that 75 per cent of respondents believed the ECCC was ‘neutral’ and 77 per cent thought that the trial had been conducted ‘fairly’.11 Furthermore, 81 per cent saw the ECCC as helping to promote reconciliation, while 76 per cent believed the Court would have positive effects for victims and their ­families.12 The 2013 baseline study of victim participation in Case 002 by the Cambodian Human Rights and Development Association also found, inter alia, that, overall, the respondents strongly approved of the ECCC, with 92.5 per cent believing that the Court will help rebuild trust in Cambodia.13 Participating in the trial had brought hope and solidarity among the respondents whose perception of the ECCC contrasted with their view of the Cambodian justice system.14 More recent research showed that civil society group representatives have noted the impact of the ECCC in creating

10 S Linton, Reconciliation in Cambodia (Phnom Penh, Documentation Center of Cambodia, 2004) 82–96. 11  P Pham, P Vinck, M Balthazard and S Hean, After the First Trial: A Population-Based Survey on Knowledge and Perception of Justice and the Extraordinary Chambers in the Courts of Cambodia (Berkeley, Human Rights Center, School of Law, University of Calfornia, Berkeley, 2011) 26. 12  ibid 29. 13  N Kirchenbauer et al, Victims Participation before the Extraordinary Chambers in the Courts of Cambodia: Base-Line Study of the Cambodian Human Rights and Development Association’s Civil Party Scheme for Case 002 (Phnom Penh, ADHOC, January 2013) 32. 14  ibid 31, 33.

172  Cheryl White space for unprecedented public debate on the Khmer Rouge regime.15 For instance, Youk Chhang, Director of the Documentation Center of Cambodia, in a newspaper interview observed that the ECCC had precipitated a nationwide reflection on the Khmer Rouge era and ‘encouraged a culture of dialogue’ within Cambodian society as never before.16 In this chapter, I argue that the controversial court has been characterised by proceedings which are more discursive or dialogical than other courts at the international level. While the focus here is on the inquisitorial criminal procedure of the Court, other factors contributing to the institution’s communicative potential are also raised, such as the consistent engagement of civil society groups with the ECCC and the Court’s own efforts to ensure strong attendance of trial proceedings by visitors from all sectors of the population. In section II, I outline the factors shaping the procedural regimes of international courts, including the trend towards the greater visibility of victims in criminal proceedings. The major criminal procedure modes are then compared in general terms. The key features of Anglo-American adversarial criminal procedure applied in common law countries and the inquisitorial procedure characteristic of European civil law jurisdictions are discussed. Although elements of both systems were incorporated by international courts, adversarial procedure has been predominant. A review of the literature on how the application of adversarial procedure by the ad hoc international tribunals for the former Yugoslavia and Rwanda has been perceived by their subject societies follows. This includes criticism of the limited scope for hearing the victim in adversarial proceedings. While there was change towards more victim-oriented proceedings at the International Criminal Court (ICC), analysis of the Court’s approach to victim participation in proceedings reveals that the structural exigencies of adversarial procedure has similarly constrained the victim contribution to ICC trials. I then introduce the procedural scheme of the ECCC, highlighting its innovative victim-participation and reparations schemes. The expanded role of the victim at the ECCC is described with reference to the inclusion of the civil party action within the criminal proceedings. Difficulties encountered by the Court in implementing the victim-participation scheme are then explained, as well as the eventual amendment of victim-participation rights. Included here is analysis of the vigorous defence of civil party participation in proceedings by Judge Jean-Marc Lavergne on the grounds of more open

15  H Ryan and L McGrew, Performance and Perception: The Impact of the Extraordinary Chambers in the Courts of Cambodia (New York, Open Society Justice Initiative, 2016) 76–77. 16 K Hodal, ‘Khmer Rouge Survivor’s Tale Helps Cambodia Confront its Brutal Past’ The Guardian (24 January 2012) www.theguardian.com/world/2012/jan/24/khmer-rougesurvivor-film-cambodia.

Discursive Proceedings and the Transitional Trial 173 justice and social concern. The evolving ECCC reparation scheme is then explained. I show how the new approach to reparations awards allowed the Court to approve projects based upon consensus around victim welfare and argue that the awards reflect the communicative processes activated by the Court in response to civil party representations. What were the effects of the ECCC’s particular inquisitorial approach on the nature of trial dialogue? In section III, based on my doctoral study of ECCC trial transcripts,17 I discuss the trial dialogue around a sample of civil party statements and witness testimony to illustrate the breadth of the proceedings. I argue that judicial engagement with witnesses followed by co-prosecution and defence counsel examination expanded the trial dialogue beyond purely evidentiary matters. Furthermore, the inclusion of reparations hearings within the main trial transformed the proceedings into a public forum on the consequences of Khmer Rouge crimes as the Court engaged with the statements of victims as civil parties. In contrast to the focus on the forensic truth in the expressive adversarial trial, the discursivity of ECCC proceedings arguably provided a measure of dialogical truth more commonly associated with restorative justice mechanisms, such as Truth Commissions. Finally in section IV, I emphasise the significance of the ECCC’s discursive inquisitorial trial procedure in the context of the Court’s efforts to make the proceedings accessible to the wider Cambodian society. I identify the greater role of the victim in proceedings as the key factor in producing more discursive trials, which were enhanced by the hearing of reparations claims within trial proceedings. The reparations awards of Case 002/01 reflect a degree of consensus on victim needs following engagement with the subject by the Court through multiple channels of communication. II.  MODES OF CRIMINAL PROCEDURE AND TRANSITIONAL JUSTICE

A.  International Trial Procedure In 1993 and 1994, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were established by a UN Security Council resolution to address international crimes in the Balkans and Rwanda respectively.18 As the creators of the International Military Tribunal at Nuremburg in 1945 had done, under US leadership, adversarial criminal procedure was adopted by the 17  See CS White, Bridging Divides in Transitional Justice: The Extraordinary Chambers in the Courts of Cambodia (Cambridge, Intersentia, 2017). 18  UNSC Res 827 UN Doc S/RES/827 (25 May 1993); UNSC Res 955 UN Doc S/RES/955 (8 November 1994).

174  Cheryl White ICTY and subsequently the ICTR. Thus, the modern system of international criminal justice was based on the Anglo-American model. The adversarial model of procedure of the common law world features impartial adjudication, formal procedural rules and party control over the proceedings through partisan advocacy.19 Adversarial trial proceedings take the form of a contest or dispute which unfolds as two adversaries present their cases and challenge their opponent’s view of the case before a ‘relatively passive decision maker whose principal duty is to reach a verdict’.20 The structure of the trial is that of a clash between advocates—one prosecuting and the other defending the accused party.21 The truth-finding process is also dualistic, subject to judicial reasoning and the elimination of reasonable doubt.22 The inclusion of other parties to the proceedings poses normative and practical problems due to the construction of the trial as a battle between two sides only.23 While the ICTY and the ICTR became richly expressive in securing convictions of high-level perpetrators and the development of international norms, the strictures of adversarial truth-finding kept trial dialogue within a narrow evidentiary frame.24 The Courts also faced criticism for the ‘lack of accessibility’ of trial proceedings to their subject societies.25 Studies on local views of the ICTY revealed that negative perceptions of the ICTY increased over time among Bosnians, Croats and Serbs alike.26 Reasons given included the lack of inclusion of the local population, even as observers, and the application of adversarial criminal procedure unfamiliar to local legal professionals trained in the inquisitorial procedure of the civil law tradition.27

19  D Luban, Lawyers and Justice: An Ethical Study (Princeton, Princeton University Press, 1988) 58. 20  M Damaska, The Faces of Justice and State Authority: A Comparative Approach to Legal Process (New Haven, Yale University Press, 1986) 3. 21  B McGonigle Leyh, Procedural Justice? Victim Participation in International Criminal Proceedings (Cambridge, Intersentia, 2011) 74. 22 T Decaigny and P de Hert, ‘You Can Change Your Hair Colour, But Not Your Hair: Convergence in Inquisitorial and Adversarial Systems’ in C Kelk, F Koenraadt and D Siegel (eds), Veelzijdige gedachten. Liber amicorum Prof. C. Brants, vol 75, Willem Pompe Series (Utrecht, Willem Pompe Instituut for Criminal Law, 2013) 235, 239–40. 23  J Doak, ‘Victims’ Rights in Criminal Trials: Prospects for Participation’ (2005) 32 Journal of Law and Society 294, 296. 24  LA Dickinson, ‘The Promise of Hybrid Courts’ (2003) 93 American Journal of International Law 295, 301. 25  CP Trumbell IV , ‘The Victims of Victim Participation in International Criminal Proceedings’(2008) 29 Michigan Journal of International Law 777, 787. 26 The Human Rights Center and International Human Rights Clinic, University of California, Berkeley and Center for Human Rights, University of Sarajevo, ‘Justice Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors’(2000) 18 Berkeley Journal of International Law 102, 136–40; J Ramji-Nogales, ‘Designing Bespoke Transitional Justice’ (2010–2011) 32 Michigan Journal of International Law 26, 28. 27  Dickinson, ‘The Promise’ (2003) 144–47.

Discursive Proceedings and the Transitional Trial 175 The criminal procedure adopted by courts also has an effect on the role of the victim in trial proceedings. With the role of the victim in adversarial proceedings limited to that of witness, Dembour and Haslam reported that the testimony of the victim-witness at the ICTY was reduced to that which was precise, quantifiable and structured largely within a ‘dichotomy of truth or falsehood’.28 At the ICTR, Drumbl noted that the adversarial proceedings excluded non-probative facts which local audiences might have viewed as relevant, and any scope for victim storytelling was truncated.29 Storytelling may undermine adversarial process by diverting attention from the dual narratives developed by the prosecution and defence. In addition, witnesses complained of being poorly treated, deprived of voice and estranged by proceedings unlike those of the communal justice system of Rwanda.30 Clearly, the ICTY and the ICTR prioritised the broad goal of accountability for international crimes, but neglected the role that victims may play in trial proceedings. Against this background, the ICC’s statutory inclusion of victims’ rights to participation in trial proceedings, a reparations scheme and the creation of a victims’ trust fund heralded a shift towards more ‘victim-oriented’ international trials.31 The ICC activated victim-participation rights in trial proceedings beyond that of witness only, but in practice the constraints of the adversarial procedural model increasingly limited their operation. The presentation of views and concerns of victims in trial proceedings may be approved by ICC judges; however, it is not the equivalent of giving evidence, but rather to ‘assist the court in its approach to the evidence of the case’.32 Victims’ legal representatives may provide additional information to the Court, but they speak to bolster the evidentiary process and not as auxiliary prosecutors.33 In addition, reparations hearings are severed from trial proceedings and hearings are not automatic; they proceed upon a request by a victim or are initiated by a motion of the Court. Thus, there is no actual right to reparation.34 28  M Dembour and E Haslam, ‘Silencing Witnesses? Victim-Witnesses at War Crimes Trials’ (2004) 15 European Journal International Law 151, 162–63. 29 MA Drumbl, Atrocity Punishment and International Law (Cambridge, Cambridge University Press, 2007) 162–63, 176–77. 30  A Des Forges and T Longman, ‘Legal Responses to Genocide in Rwanda’ in E Stover and HM Weinstein (eds), My Neighbour, Myself: Justice and Community in the Aftermath of Mass Atrocity (Cambridge, Cambridge University Press, 2004) 49, 56. 31 L Moffett, Justice for Victims before the International Criminal Court (London, Routledge, 2014) 90. 32  Prosecutor v Lubanga, Decision on the Request by Victims a/ 0225/06, a/0229/06 and a/0270/07 to Express their Views and Concerns in Person and to Present Evidence during the Trial, Trial Chamber 1, Case No ICC-01/04-01/06 (26 June 2009) para 25. 33  Prosecutor v Lubanga, Decision on the Manner of Questioning Witnesses by the Legal Representatives of Victims, Trial Chamber 1, Case No ICC-01/04-01/06 (16 September 2009) paras 25, 29. 34 Moffett, Justice for Victims (2014) 162.

176  Cheryl White The major alternative to adversarial procedure is the inquisitorial procedure of civil law systems. Inquisitorial proceedings are not contests but judicially led investigative actions where counsel for the defence and prosecution have subordinate roles.35 Judicial officers, as state authorities, control the pre-trial investigation and trial proceedings to faithfully uncover the truth as to what happened.36 Objectivity in the pursuit of a kind of ontological truth requires judicial investigation of inculpatory and exculpatory evidence.37 Witnesses may give testimony in narrative form and in some civil law jurisdictions victims may join the proceedings as civil parties to the criminal action, with a right to compensation.38 There is greater scope for storytelling through the narrative testimony of witnesses which is not rigidly constrained by inflexible procedural rules. Thus, theoretically, inquisitorial procedure admits a greater degree of discursivity in trial proceedings.39 ICTY judges from civil law countries who have outnumbered those of common law jurisdictions put the case for more inquisitorial elements in proceedings to offset the delays inherent in adversarial international trials and to provide more expeditious hearings.40 This brought the emergence of a two-dimensional approach to international criminal procedure in order to harness the purest elements of both procedural systems.41 Civil law procedure has also been activated in some hybrid and internationalised in situ courts such as the East Timor Panels and the ECCC.42 Such courts comprise a blend of national and international elements in terms of their composition and applicable law. However, the East Timor Panels drew extensively from the ICC system. The ECCC, on the other hand, retained much of its national character. B. Criminal Procedure at the Extraordinary Chambers in the Courts of Cambodia Cambodia’s former status as a protectorate of France brought civil law criminal procedure to Cambodian courts. The ECCC applies Cambodian 35 

McGonigle Leyh, Procedural Justice? (2011) 73. Decaigny and de Hert, ‘You Can Change Your Hair’ (2013) 239. 37  McGonigle Leyh (n 21) 71. 38 The most notable example is the civil party action of France discussed further in section 2.B.i. 39  See M Bohlander, ‘Language, Culture, Legal Traditions and International Criminal Justice’ (2014) 12 Journal of International Criminal Justice 491, 505, 512. 40  R Vogler, ‘Making International Criminal Procedure Work: From Theory to Practice’ in R Henham and M Findlay (eds), Exploring the Boundaries of International Criminal Justice (Farnham, Ashgate, 2011) 106. 41  ibid 107. 42 Williams, Hybrid and Internationalised Criminal Tribunals (2012) 249–300; Williams outlines distinctions between hybrid and internationalised courts based on their legal and jurisdictional foundations. 36 

Discursive Proceedings and the Transitional Trial 177 law and inquisitorial procedure, albeit modified to permit the prosecution of mass atrocity crimes in accordance with international standards.43 i.  The Civil Party Action Cambodian criminal procedure makes provision for civil action in criminal proceedings.44 While the ECCC’s founding documents contained no requirement for inclusion of the civil party action within the criminal proceedings, the Court’s procedural rules (Internal Rules) incorporated a civil party participation scheme.45 The procedural embrace of the civil party action by the ECCC afforded victims participation rights in trial proceedings exceeding that of all other UN-supported courts. Civil parties may also claim reparations which the Court addresses within the main trial proceedings. The civil party action recognises the accused person as answerable to both the individual harmed and the public law.46 Lapie attributed the justification for the action in France to the Frankish idea of monetary compensation as the first attempt at modifying the lex talionis, the law of retaliation.47 The action civile as opposed to the action publique is for the purpose of reparation of damage caused by a criminal offence. It is available only to those who have personally suffered harm as a direct consequence of the crime.48 The notion of criminal justice as punitive and restorative is thus embedded through an action retaining civil character before the criminal tribunal within a common process. The Court, however, gives judgment on two separate actions: civil and criminal. In practice, the civil petitioner may alert the prosecution to the commission of a criminal offence, provide valuable evidence for the trial and permit a degree of relief to victims by means of participation and reparation.49 The civil party action recognises certain victim-participation rights to trial proceedings, including the pre-trial phase. These are generally available as an incident of the victim’s claim for compensation. While the rights of civil parties vary between civil law jurisdictions, they may include the right to be heard in court without taking an oath, to examine the dossier or case file, to make requests for certain investigations (although limited to their civil

43 

ECCC Agreement, art 12.2. Criminal Procedure Code of the Kingdom of Cambodia 2007, arts 2, 5 and 13. 45  Extraordinary Chambers in the Courts of Cambodia, Internal Rules (adopted 12 June 2007) r 23 (hereinafter ECCC Internal Rules). 46  McGonigle Leyh (n 21) 79. 47 PO Lapie, ‘The Partie Civile in the Criminal Law of France’ (1928) 10 Journal of Comparative Legislation and International Law 33, 45. 48  J Larguier, ‘The Civil Action for Damages in French Criminal Procedure’ (1964–65) 39 Tulane Law Review 687, 695. 49  Lapie, ‘The Partie Civile’ (1928) 36. 44 

178  Cheryl White claim), to be represented by counsel, to put questions to witnesses, to lead and challenge evidence and to make closing arguments.50 However, the civil claim is subordinate to the criminal proceedings. A platform from which the victim voice could be heard in ECCC trial proceedings was highly significant in the context of the long-term impunity of the Khmer Rouge and the collective amnesia that had affected Cambodian society, either by the necessity of non-reflection during the period of rebuilding crushed lives after the revolution or the insistence upon forgetting by successive governments. Prior to the formation of the ECCC, a number of population surveys revealed strong support for trials of Khmer Rouge officials, but these did not indicate how victims would engage with the proposed court beyond witnessing retributive justice.51 The civil party action brought victims forward as representatives of a previously hidden constituency in Cambodia. The civil party body came from within and beyond Cambodia. It included members of the Cambodian diaspora who became refugees as a result of Khmer Rouge policies, Cambodian survivors still living within the country, and family members of Cambodians and foreigners who died at the hands of the Khmer Rouge. Due to funding constraints, there was no properly functioning victims’ service unit at the ECCC until 2008. In light of this, there was a conscious decision by ECCC staff to capitalise on the established networks and experience of civil society groups working with victims in communities.52 Non-governmental organisations (NGOs) helped victims in their thousands to apply for admission as civil parties or victim complainants. They held education programmes in villages, counselled victims as they testified and in some cases helped fund civil parties’ legal representation.53 ii.  Implementing the Civil Party Scheme The original version of the Internal Rules permitted victims to join the criminal action with individual civil party status if they had suffered injury

50 

McGonigle Leyh (n 21) 80. Reconciliation (2004) 60–61; L McGrew, ‘Truth, Justice, Reconciliation and Peace in Cambodia: 20 Years after the Khmer Rouge—Research Paper Presented to the Peace Research and Education Association 2000 Conference, Kingston, Ontario, 3 June 2000 (unpublished); Khmer Institute for Democracy, Survey of the Khmer Rouge Regime and Khmer Rouge Tribunal (KID, 2004) http://www.bigpond.com.kh/users/kid/KRG-Tribunal.htm; W Burke-White, ‘Preferences Matter: Conversations with Cambodian People on the Prosecution of the Khmer Rouge Leadership’ in J Ramji and B Van Schaak (eds), Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian Courts (Lewiston, Edwin Mellen Press, 2005) 97–126. 52  JD Ciorciari and A Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Ann Arbor, University of Michigan Press, 2014) 237–38. 53  E Stover, M Balthazard and KA Koenig, ‘Confronting Duch: Civil Party Participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia’ (2011) 93 International Review of the Red Cross 503, 515–16; McGonigle Leyh (n 21) 220. 51 Linton,

Discursive Proceedings and the Transitional Trial 179 (physical, material or psychological) as a direct consequence of crimes before the Court.54 At that time, the civil petitioner’s party status attracted procedural rights similar to those of the charged person during the investigation or the accused at trial. Those rights accrued from the pre-trial investigation. As the co-investigating judges prepared the ECCC’s first case, the trial of Kaing Guek Eav (alias Duch), civil parties submitted requests for specific investigations, attended the crime site (a Khmer Rouge detention centre known as S-21) and participated in the re-enactment of certain events at Choeung Ek, an execution site on the outskirts of the capital.55 Thus, recognition and inclusion of the victim occurred from the outset of the Duch case (also referred to as Case 001).56 In March 2008, the ECCC Pre-trial Chamber confirmed the right of legally represented civil parties to participate in provisional detention appeals and linked civil party inclusion in trial proceedings to the ECCC’s ‘stated pursuit of national reconciliation’.57 The Chamber declared that unlike the ICC’s prescriptive approach towards victim participation, the ECCC proceedings were to be ‘fair and adversarial and preserve a balance between the rights of parties’.58 Where the balance was in jeopardy, the Chamber could act to restore it. More broadly, however, the Internal Rules required that ECCC proceedings be conducted ‘within a reasonable time’ and ultimately this determined the nature and extent of civil party participation.59 In the Duch trial, 90 civil parties were represented by four teams of lawyers who, at trial, questioned witnesses in concert with up to five judges, the co-prosecution and the co-defence. The questioning of witnesses by the civil party lawyers was initially uncoordinated, repetitious and frequently strayed off topic.60 Even so, journalist and international tribunal monitor

54 

ECCC Internal Rules, r 23(2), (6). Order Indicting Kaing Guek Eav (alias Duch) Office of the Co-Investigating Judges (Case File No. 001/18-07-2007—ECCC-OCIJ (8 August 2008) para 9; Ian MacKinnon, ‘Khmer Leader Leads Judges to Killing Fields’ The Guardian (27 February 2008), www.theguardian.com/world/2008/feb/27cambodia.warcrimes; Rosalind Ryan, ‘Torture Victims Meet Top Khmer Rouge Inquisitor’ The Guardian (28 February 2008), www.theguardian.com/ world/2008/feb27/cambodia. 56  Co-Prosecutors v Kaing Guek Eav (alias Duch), Trial Chamber, Case File No 001/18-072007-ECCC/TC. 57  Co-Prosecutors v Nuon Chea Decision on Civil Party Participation in Provisional Detention Appeals, Pre- Trial Chamber, Case No 002/19-09-2007-ECCC/OCIJ (PTC01) (20 March 2008) paras 37–40, citing United Nations General Assembly Resolution 57/228 and the Preamble to the ECCC Internal Rules. 58  ECCC Internal Rules, r 21(1)(a). 59  ibid r 21(4). 60  MS Kelsall et al, Lessons Learned from the ‘Duch’ Trial: A Comprehensive Review of the First Case Before the Extraordinary Chambers in the Courts of Cambodia (Honolulu, Asian International Justice Initiative, East-West Center, December 2009) 32. 55 Closing

180  Cheryl White Thierry Cruvellier compared ECCC civil party representation to the predicament of the victim at the ICTY: At the end of the day, even though it was messy and the representation was often poor, it seems that it did bring to the trial a dimension considered missing at the other tribunals … Anyone who says that this is not an interesting experiment here at the ECCC forgets how frustrated victims were in the ICTY.61

The Trial Chamber President confirmed that civil parties were entitled to pose questions to witnesses ‘in support of the prosecution’ as long as they were not repetitious, ‘longwinded’ or irrelevant.62 The Court then imposed time limits on witness questioning by the counsel teams in the interest of fair and expeditious proceedings.63 In a ruling sought by civil party representatives on their right to make submissions on sentencing and to question the accused or certain witnesses on the accused’s character, the Trial Chamber by a majority (four to one) ruled that the civil party right to participate in proceedings in support of the prosecution stemmed from the right to reparations upon a conviction of the accused. It was not a right to be interpreted to confer a general right of equal participation with the co-prosecutors.64 However, in a dissenting decision, Judge Jean-Marc Lavergne disagreed with the distinction made by the majority between proceedings pertaining to guilt, and proceedings as to sentence which had the effect of denying standing to victims to participate. Judge Lavergne prefaced his findings by explaining the challenge facing the ECCC in maintaining a balance, on the one hand, between the requirement of fair and expeditious trial with respect for the rights of the accused, and, on the other hand, the right of victims to participate in a trial which aims, inter alia, to contribute to the fight against impunity of the perpetrators of the most serious crimes.65 While he noted the need for some adaptation stemming from the difficulties in implementing a civil party system not

61  A Bates, ‘Transitional Justice in Cambodia: An Analytical Report’ (London, British Institute of International and Comparative Law, October 2010) 68, citing his interview record with T Cruvellier, journalist and commentator on international trials, including the Duch trial. 62  Co-Prosecutor v Kaing Guek Eav Duch, Transcript of Trial Proceedings, Trial Chamber, Case File No 001/18-07-2007/TC, Trial Day 31, 22 June 2009) 92–95. 63 Kelsall, Lessons Learned (2009) 32. 64  Co-Prosecutors v Kaing Guek Eav (alias Duch), Decision on Civil Party Co-lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character ‘Duch’, Trial Chamber, Case File No 001/18-07-2007-ECCC-TC (9 October 2009) para 42. 65  Co-Prosecutors v Kaing Guek Eav (alias Duch), Decision on Civil Party Co-lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character ‘Duch’, Dissenting Decision, Trial Chamber, File No 001/18-07-2007ECCC/TC (9 October 2009) para 3.

Discursive Proceedings and the Transitional Trial 181 designed for the trial of mass atrocity crimes and involving potentially large numbers of individual civil parties, he asked: How far can one go without breaching the spirit of the law, or fundamentally distorting the meaning of the involvement of civil parties before the ECCC and the purpose of the trial as a whole, characterised by the coexistence of two interrelated actions, namely criminal and civil actions?66

The majority also held that because the hearing of character evidence was for the purpose of determining aggravating or mitigating circumstances in relation to any eventual sentence and not related to reparation, in general, the civil parties had no right to participate.67 Lavergne maintained that excluding the civil parties from proceedings dealing with the character of the accused was not only at odds with Cambodian law and the Internal Rules, but also with the interests of justice. He argued that the interests of justice extend beyond establishing the objective culpability of the accused and that all parties, including the civil parties, have an interest in understanding what motivated the relevant criminal conduct for the purpose of avoiding its repetition.68 The Judge raised a duty in the court to the civil parties, particularly in the circumstances of delayed justice in Cambodia and in terms of what they could contribute to the truth-finding process. He noted that it was not only important for victims to contribute to the trial process by putting questions to witnesses, but that there should be debate within the ‘serenity of a court of justice’, which included the substantive contribution of civil parties sharing their knowledge of the accused. Moreover, the Khmer Rouge use of the abstract organisational entity Angkar to manipulate the population made the civil parties continuing participation in proceedings particularly significant on social grounds.69

66  Co-Prosecutors v Kaing Guek Eav (alias Duch), Decision on Civil Party Co-lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character ‘Duch’, Dissenting Decision, Trial Chamber, Case File No 001/18-072007-ECCC/TC (9 October 2009) para 4. 67  Co-Prosecutors v Kaing Guek Eav (alias Duch), Decision on Civil Party Co-lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character ‘Duch’, Trial Chamber, Case File No 001/18-07-2007- ECCC/TC (9 October 2009) paras 46–47. 68  Co-Prosecutors v Kaing Guek Eav (alias Duch), Decision on Civil Party Co-lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and witnesses Testifying on Character ‘Duch’, Dissenting Decision, Trial Chamber, Case File No 001/18-072007- ECCC/TC (9 October 2009) para 28. 69 Angkar was the fictional, mystical body portrayed by the Khmer Rouge leadership as transforming the country into a morally pure agrarian state. In reality, as confirmed by the accused in Case 001 (Kaing Guek Eav), it was a front for the Standing Committee of the Communist Party of Kampuchea led by Pol Pot; Co-Prosecutors v Kaing Guek Eav (alias Duch), Decision on Civil Party Co-lawyers’ Joint Request for a Ruling on the Standing of Civil Party

182  Cheryl White Lavergne added that civil party participation in the Romano-Germanic tradition, encompassing their contribution to character evidence, was not considered a violation of the ‘equality of arms principle’ or at odds with the notion of fair trial.70 Furthermore: [I]n a difficult context in which the credibility of the Chambers is scrutinised and in which the administration of justice by the ECCC is supposed to serve as an example for the Cambodian Courts, it is important to be able to maintain public trust; a goal which would be more easily attained if the Chambers ensure respect for the rights of victims who have applied to be joined as civil parties.71

With over 4,000 civil party applications received as the ECCC’s second trial approached, the Court amended the civil party participation scheme.72 In 2010, amendments to the Internal Rules provided that individual civil party participation was limited to the pre-trial investigation phase. Thenceforth, civil party participation during trials was collective, through two colead legal representatives (one Cambodian and the other international).73 A reduction in civil party rights was inevitable in view of the practical difficulties of distilling the views of a large victim group. Notwithstanding the amendments to the victim-participation scheme, the hearing of reparations claims within the trial proceedings, together with the Court’s approach to witness and civil party testimony as discussed in section III, kept the interests of victims before the Court. iii. Reparations The civil party reparations scheme at the ECCC must be distinguished from that of regional human rights courts, which pursuant to the principle of state responsibility may order states to redress gross violations of their citizens’ rights under human rights law. The ECCC cannot compel the Cambodian

Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character ‘Duch’, Dissenting Decision, Trial Chamber, Case File No 001/18-07-2007-ECCC/TC (9 October 2009) para 31. 70  Equality of arms is concerned with procedural equality between the parties to the proceedings. See A Cassese, International Criminal Law, 2nd edn (Oxford, Oxford University Press, 2008) 384–86. In this case, the defence had maintained that the accused had to face multiple accusers apart from the co-prosecution, as the civil parties exercised their rights to participation in the trial proceedings. 71  Co-Prosecutors v Kaing Guek Eav (alias Duch), Decision on Civil Party Co-lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and witnesses Testifying on Character ‘Duch’, Dissenting Decision, Trial Chamber, Case File No 001/18-072007- ECCC/TC (9 October 2009) para 33. 72  7th Plenary Session Concludes Extraordinary Chambers in the Courts of Cambodia, Press Release (9 February 2010). 73 ECCC Internal Rules (Rev 8) (adopted 9 February 2010 and amended 17 September 2010) r 12 ter, 23(3).

Discursive Proceedings and the Transitional Trial 183 government to make reparations to victims of crimes before the Court and, unlike the ICC, it has no trust fund to finance awards against accused persons or any other national or international body. The nature of reparations available to civil parties is governed by the Internal Rules, which provide that: The purpose of the civil party action is to: (a) Participate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution; and (b) Seek moral and collective reparations.74

The original version of the Internal Rules limited reparations awards to moral and collective reparations drawn against the assets of the accused.75 Where the accused person was indigent, the Court could do little other than recognise the value of proposed reparations projects in principle. In Co-Prosecution v Kaing Guek Eav (alias Duch), the Trial Chamber found that the indigence of the accused meant that the publication of statements of his apologies or expressions of remorse during the trial was ‘the only tangible means by which he could acknowledge his responsibility and the collective suffering of victims’.76 However, in 2010, the Internal Rules were amended to authorise the ECCC’s Victims Support Section (VSS) to develop and implement ‘non-judicial measures in the form of projects to address the broader interests of victims’.77 The amendments provided that the VSS could work with the co-lead civil party lawyers in identifying reparations projects that the Court might endorse, provided that funding for those projects was secured from external donors in advance of the trial judgment.78 In Case 002/01, the trial of Nuon Chea and Khieu Samphan, the two most senior surviving Khmer Rouge leaders, the Trial Chamber gave effect to the new reparations provisions.79 Following civil party representations at trial and deliberations between the VSS, co-lead lawyers and potential donors, the Court considered the viability of 13 projects submitted as reparation requests. It approved 11 of the proposed projects. Two projects were not endorsed because the Chamber concluded that they were insufficiently funded. The approved projects included public memorials, the construction and maintenance of a regional community peace learning centre, mental health programmes (one offering testimonial therapy), permanent exhibitions on

74 

ECCC Internal Rules (Rev 8), r 23(1). ibid r 23(11). 76  Co-Prosecutors v Kaing Guek Eav (alias Duch), Judgment, Trial Chamber, Case File No 001/18-07-2007 (26 July 2010) para 668. 77  ECCC Internal Rules (Rev 8), r 12 bis (3). 78  ibid r 23 quinquies (3)(b). 79  Co-Prosecutors v Nuon Chea and Khieu Samphan, Judgment, Trial Chamber, Case File No 002/19-09- 2007/ECCC/TC (7 August 2014). 75 

184  Cheryl White aspects of Case 002/01, educational material for teachers on the Khmer Rouge regime, and wide distribution of the trial judgment with accompanying informational material. The Court viewed the projects as ‘contributing to the rehabilitation, reintegration and restoration of the dignity of civil parties’ and acknowledged the support of donors as demonstrating ‘solidarity with victims of the Khmer Rouge era’.80 III.  TESTIMONY AND TRIAL DIALOGUE AT THE ECCC

Notwithstanding the implementation difficulties outlined above, how did the ECCC’s application of inquisitorial procedure affect the nature of trial dialogue? This section considers the communicative dynamics of narrative testimony, the scope of examination of the civil parties and witnesses, and the exercise of the accused’s right of reply to testimony. From trial transcripts, a selection of civil party statements and witness testimonies are discussed to illustrate the breadth of trial dialogue and its resonance in Cambodia. A.  Civil Party Statements In Case 001, 22 civil parties made statements to the Court during the proceedings to substantiate their reparations claim. The civil parties faced examination by the judges and the co-prosecution and co-defence counsel after giving their statements.81 The accused had a general right of reply to witness testimony and it was possible for the civil parties to put questions to the accused. Their testimony in narrative form, followed by the Court’s discursive engagement with it, transformed the proceedings into a public forum around the stories of the civil parties. Within the forum, the personal and social histories of the civil parties gave concrete expression to the wideranging effects of the Khmer Rouge regime and the decades of silence that followed its overthrow. Civil party and French citizen Antonya Tioulong’s statement on her efforts to discover the fate of her Cambodian sister and brother-in-law over the period 1974 to 1994 is illustrative. As guardian of her sister’s children in France, Antonya’s relentless search communicated to the Court the void created at the micro-level by national oppression and

80 

ibid para 1116. Case 002/01, while the judges retained control of the proceedings and at times asked substantive questions, they assigned the questioning to one of the parties which made the proceedings more adversarial than in Case 001; see S Vasiliev, ‘Trial Process at the ECCC: The Rise and Fall of the Inquisitorial Paradigm in International Criminal Law?’ in SM Meisenberg and I Stegmiller (eds), The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law (The Hague, Asser Press, 2016) 389, 421–22. 81  In

Discursive Proceedings and the Transitional Trial 185 inaction at the geopolitical level to press for Khmer Rouge accountability for their crimes. International co-prosecutor De Wilde said that her statement, delivered with such dignity and courage, had left him speechless.82 The accused, Duch, who assumed responsibility for the alleged crimes, described it as a powerful testimony of a family’s suffering and a document of living history of value to researchers seeking to understand the crimes of the Khmer Rouge.83 While the civil parties made up only a fraction of the Khmer Rouge victim constituency, they spoke as special representatives of those they knew who had died at the hands of the regime, and vicariously for those not selected to speak. As Lavergne in his dissenting decision inferred, their presence contributed to the sanctity of the justice process as they represented those destroyed by the regime. Civil party Neth Phally’s gentle, private ceremony to release his brother’s spirit at the end of his testimony and in which the court acquiesced was just one demonstration of this. In subsequent cases (Case 002/01 and Case 002/02), the civil parties were permitted to make ‘statements of suffering’ following their testimony as witnesses in the substantive proceedings.84 In addition, ‘victim impact hearings’ were held for the purpose of determining reparations.85 In Case 002/01, 15 civil parties as representatives of their collective made statements demonstrating the diverse effects of the multiple forced transfers of people under the regime. Civil parties who were children at the time of the evacuations spoke of lost childhoods, the loss of educational opportunity, the pain of seeing parents waste away in Khmer Rouge camps and the trauma of witnessing arbitrary killings.86 In the trial currently in progress, Case 002/02, the charges include genocide against the Cham minority and ethnic Vietnamese in Cambodia during the regime, as well as forced marriage and rape.87 Civil party statements will contribute substantively to the proceedings.

82  Co-Prosecutors v Kaing Guek Eav (alias Duch), Transcript of Trial Proceedings, Trial Chamber, Case File No 001/18-07-2007-ECCC/TC, Day 60 (18 August 2009) 39. 83  ibid 40. 84  Nuon Chea and Khieu Samphan (Decision on Request to Recall Civil Party TCCP-187 for Review of Procedure Concerning Civil Parties’ Statements of Suffering and Related Motions and Responses (E240, E240/1,E250/1, E267, E267/1 and E267/2) 002/19-09-2007/ ECCC/TC (2 May 2013) para 14. 85  ECCC Internal Rules r 23 bis; ‘The Purpose of Hearing Victims’ Suffering’ www.eccc.gov. kh/en/blog/2013/06/07/purpose-hearing-victims-suffering, citing reasons given by the Co-Lead Lawyers. 86  For example, the testimonies of Aun Phally and Yim Roumdoul: Co-Prosecutors v Nuon Chea and Khieu Samphan, Transcript of Trial Proceedings, Trial Chamber, Case No 002/1909-2007- ECCC/TC Trial Day 184, (27 May 2013) 36–38; Trial Day 186 (30 May 2013) 43–52. 87  Co-Prosecutors v Nuon Chea and Khieu Samphan, Decision on Additional Severence of Case 002 and Scope of Case 002/02, 002/19-09-2007/ECCC/TC (4 April 2014); see AT Cayley, ‘Prosecuting Mass Atrocities at the Extraordinary Chambers in the Courts of Cambodia’ (2012) 11 Washington University Global Studies Law Review 445, 458.

186  Cheryl White Ethnic Vietnamese civil parties, for example, have made statements concerning the regime’s escalating policy of forced expulsion of Vietnamese minorities from Cambodian territory.88 The proceedings mediated by the inquisitorial judges took on aspects of restorative justice as the civil parties put questions to the accused following their statements, and they in turn addressed him/them. Under the revised civil party representation scheme in Case 002/01 in which the two accused denied criminal responsibility, questions from the civil parties to the accused even induced significant concessions. Nuon Chea, Deputy Secretary of the Communist Party of Kampuchea and second only to Pol Pot in the Khmer Rouge leadership, admitted in a response to civil party Yim Roumdoul that he held ‘moral responsibility’ for the events occurring during the regime and expressed his condolences to the victims suffering their effects.89 For the majority of civil parties who participated in Case 001, the ECCC experience was generally positive, with most viewing the trial proceedings as fair and respectful.90 The lack of reparations for individuals was disappointing for some civil parties, but Ryan’s recent study of the ECCC’s impact encompassing Case 002 revealed additional positive results. These included a sense of empowerment, and increasing rights awareness and understanding of Cambodian history among participating civil parties, as observed by supporting NGO representatives.91 B.  The Victim-Witness The narrative testimony of witnesses frequently brought the crimes, their context and consequences into sharp relief. For instance, in Case 001, the testimony of witness Bou Thon, who lost her husband and four children to the regime, resounds through the trial transcripts. At trial, the illiterate and dignified woman’s testimony brought a compassionate response from the accused. Cruvellier captured the intensity and import of her testimony this way: Bou Thon talks and talks. But instead of making me drowsy, her story grips my attention. She uses fragments of dialogue and description to recreate the banality

88  L Nguyen and C Sperfeldt, ‘Victim Participation in International Criminal Trials: Ethnic Vietnamese Civil Parties at the Extraordinary Chambers in the Courts of Cambodia’ (2014) 14 Macquarie Law Journal 97, 113. 89  Co-Prosecutors v Nuon Chea and Khieu Samphan, Transcript of Trial Proceedings, Trial Chamber, Case No 002/19-09-2007- ECCC/TC, Trial Day 186 (30 May 2013) 84. 90  Stover, Balthazard and Koenig, ‘Confronting Duch’ (2011) 532–33. 91  Ryan and McGrew, Performance and Perception (2016) 94.

Discursive Proceedings and the Transitional Trial 187 of camp life, and to evoke how the twin obsessions of hunger and interrogation hung over everything.92

The Court also trawled discursively beyond the facts tested in witness testimony. Following the evidence of witness Vann Nath on his incarceration, interrogation and torture during the regime, he was asked by Judge Lavergne: How have you dealt with the trauma of your experience at S-21, and why did you choose to testify to events at S-21 through paintings, as well as the book you wrote, and by your involvement in a documentary film?93

The witness explained his determination that if he survived the regime, he would record the events he had witnessed so that younger generations would know of the suffering and injustice the innocent had endured. He spoke of the importance of confronting and recording the suffering and injustice of the regime in his creative works to prevent the recurrence of such events. He had sought to educate the young on an important period in Cambodian history and fill the void left by the silence of their parents, for whom discussing the past had been too painful.94 The narrative testimony of witnesses also brought to the surface the complexity of international crimes and the depth of their effects. An example of this was the testimony of Professor François Bizot, who was called to give evidence on conditions at a Khmer Rouge detention camp which was supervised by Duch. In 1971, while researching Cambodian Buddhism with two Khmer assistants, Bizot was arrested as a CIA spy by a Khmer Rouge cadre and was detained for three months at the detention site known as M-13. Bizot described the privations of life in the camp, the shackling of prisoners and the ‘terrifying atmosphere of fear and death’ that pervaded the facility.95 Ultimately, however, Duch engineered Bizot’s release when convinced of the prisoner’s innocence. Bizot spoke of the disquiet he felt at having known someone who was a torturer, but who had protected him.96 The duality of Duch’s existence and his inability to ‘step back from or out of’ the regime to which he had committed himself left a permanent imprint on Bizot’s life, which he seemed compelled to communicate in court. The discursive examination of his testimony by the Court in the internationalised

92  T Cruvellier, The Master of Confessions: The Making of a Khmer Rouge Torturer (New York, Harper Collins, 2014) 204; Co-Prosecutors v Kaing Guek Eav (alias Duch), Trial Transcript, Trial Chamber, Case File No 001/18-07-2007-ECCC/TC, Day 58 (12 August 2009) 3–16. 93  Co-Prosecutors v Kaing Guek Eav (alias Duch), Trial Transcript, Trial Chamber, Case File No 001/18-07- 2007-ECCC/TC, Day 45 (15 July 2009) 53–54. 94  ibid 54, 89. 95  Co-Prosecutors v Kaing Guek Eav (alias Duch), Transcript of Trial Proceedings, Trial Chamber, Case File No 001/18-07-2007/TC, Day 7 (9 April 2009) 46. 96  ibid 48.

188  Cheryl White proceedings shed a nuanced light on the nature of the perpetration of crimes under Khmer Rouge ideology. The exercise of the right of reply by the accused to witnesses of fact could be equally revelatory. For instance, to the evasive testimony of Mam Nai, an interrogator of detainees of the infamous Khmer Rouge detention facility known as S-21, Duch replied: ‘Don’t be afraid of death—just tell the truth! We reconstructed ourselves for the revolution, now we must change for humanitarian reasons—more than a million people died at the hand of the CPK.’97 The Court then gave Mam Nai the opportunity to reconsider his evidence in light of the rebuke of the accused. Something of the ritual value of the trial in the Durkheimian sense was present in the exchanges that ensued, although not solely through the process of judgment and sentencing, but also through restorative confrontation and dialogue. C.  The Expert Witness The Court’s engagement with expert testimony also illustrates the breadth of trial discussion. After presentation of the psychological report on the accused by clinical psychologist Dr Sironi-Guilbaud and Cambodian psychiatrist Professor Ka Sunbaunat, the experts were asked to explain their use of the words ‘paranoid drift of the regime’ in their report. Sironi-Guilbaud explained that Duch, along with his countrymen, had to adapt to the traumatic change imposed on society by the Khmer Rouge leadership’s amplification of the presence of enemies in Cambodia as a manifestation of their own paranoia.98 Ka concurred: During the regime, the whole population had to adapt psycho-politically. I remember when we were first sent to the so-called liberated zone it was clear that the Khmer Rouge inhabited a different mental world. They demanded that we be ever vigilant against pessimism and false notions of peace. They fostered a mindset of mistrust in everyone.99

Sironi-Guilbaud noted that adaptation took different forms depending on the position and personal psychology of the individual. Some, like Duch, adapted by being zealous, until denial no longer protected him.100 Thus, in

97  CPK refers to the Communist Party of Kampuchea, the organisation behind the Khmer Rouge regime in Cambodia. Co-Prosecutors v Kaing Guek Eav (alias Duch), Trial Transcript, Trial Chamber, Case File No 001/18-07-2007-ECCC/TC, Day 45 (15 July 2009) 64. 98  Co-Prosecutors v Kaing Guek Eav (alias Duch), Transcript of Trial Proceedings, Trial Chamber, Case File No 001/18-07-2007/TC, Day 68 (1 September 2009) 18–19. 99  ibid 20–21. 100  ibid 19, 56.

Discursive Proceedings and the Transitional Trial 189 the controlled environment of the Court, the trial conversation traversed issues which had not been raised in public fora and delved deeply into the psyche of a regime whose legacy continues to pervade Cambodian society. Trauma and victim recovery from the Khmer Rouge regime was also explored in expert witness testimony. Dr Chhim Sotheara, a psychiatrist with the Transcultural Psychosocial Organisation (TPO) in Cambodia, was called to give evidence during the reparations proceedings. Chhim faced extensive examination by the judges and other court actors. He communicated his findings on trauma and post-traumatic stress syndrome (PTSD) based on decades of clinical experience with Cambodian survivors of the regime. When questioned on the TPO’s work with victims within their communities, Chhim linked the proceedings of the ECCC to the process of reconciliation in Cambodia. He explained that the long-term impunity of the Khmer Rouge meant that in villages, victims continued to live in close proximity to their tormentors. To date, the TPO had only been able to develop programmes to assist victims in addressing the trauma they have suffered. However, Chhim testified that programmes aimed at reconciling victims and perpetrators in communities were foreseeable now that the ECCC trials, recognised by victims as credible national justice, were being held.101 The Court also sought evidence from Chhim on the victim/perpetrator equation that had emerged in trial discussions. The witness answered from his experience of clinically treating former guards of the S-21 detention complex in Phnom Penh. The Khmer Rouge leadership relied on a workforce of Cambodian youths to enforce their policies through a system of agrarian collectives and security centres. The S-21 guards were recruited when they were aged around 12 or 13. Chhim explained that the guards had suffered as a result of the regime’s insistence that they assume a collective identity, punish so-called ‘enemies’ and enforce the dissolution of the traditional family unit.102 As the Court examined Chhim’s evidence, the discursive proceedings illuminated the plight of some lower-level perpetrators in the aftermath of the regime as a further layer of victimisation.103 While factual or forensic truth provides some recognition of the past, as the South African Truth and Reconciliation Commission noted in its 1998 report, the complex, multi-faceted nature of truth includes ‘social dialogue truth, as the truth of experience that is established through interaction, discussion and debate’.104 It is arguable that in the course of engaging with

101  Co-Prosecutors v Kaing Guek Eav (alias Duch), Transcript of Trial Proceedings, Trial Chamber, Case File No 001/18-07-2007 Day 64 (25 August 2009) 53–54. 102  ibid 56–57. 103  See Linton (n 10) 75–88. 104  Truth and Reconciliation Commission of South Africa Report, (1998) Volume 1, 113, citing Albie Sachs, ‘Healing a Nation’ in A Boraine and J Levy (eds), Cape Town: Justice in Transition (Cape Town, Justice in Transition, 1995), 105.

190  Cheryl White the narrative testimony of witnesses, the ECCC went some way towards expanding the theoretical framework of accountability beyond forensic process to facilitating dialogue which connected the trials to broader social needs. The significance of the ECCC’s discursive trials must also be considered in the context of the Court’s efforts to ensure that its proceedings were inclusive and accessible to the wider community. Although the ECCC outreach function was not funded until 2009, as the Duch trial began in February 2009, the Public Affairs Section publicised the open nature of the proceedings and arranged free transport to the site. The Court has the largest viewing area of all the courts making up the international criminal justice system, including the ICC. During each day of the trial, the viewing gallery and auditorium attached to the Trial Chamber, which seats up to 500, had a near to capacity audience.105 As the trials continued, the visitation programme was expanded to include the ECCC Study Tour designed to deepen the understanding of the broader population about the Khmer Rouge trials, as well as to ensure that rural dwellers with little access to media coverage of the trials were better informed.106 From the start of Case 001 to the end of 2011, over 100,000 people visited the ECCC either to view the proceedings or as part of the Study Tour.107 The attendance rate by Cambodians primarily increased for Case 002.108 The accessibility of the proceedings was also enhanced by the use of television to broadcast developments at the Court and make the content of trial proceedings digestible for the wider Cambodian audience.109 IV. CONCLUSION

The activation of inquisitorial criminal procedure at the ECCC with its less restrictive approach to testimony and examination produced more discursive proceedings than we normally see in international trials. The potential space for mediated dialogue in trial proceedings, based on the ECCC precedent, particularly the Duch trial, suggests there is scope for some narrowing of the theoretical divide between restorative and retributive transitional justice processes.

105 

Ciorciari and Heindel, Hybrid Justice (2014) 240–41. Chambers in the Courts of Cambodia, ‘ECCC Study Tour’, www.eccc. gov.kh/en/tags/topic/577. 107  Extraordinary Chambers in the Courts of Cambodia, ‘ECCC Surpasses 100,000 Visitors Milestone’, http://eccc.gov.kh/en/artcles/eccc-surpasses-100000-visitors-milestone. 108  Ciorciari and Heindel (n 52) 241. 109  C Sperfeldt, ‘Broadcasting Justice: Media Outreach at the Khmer Rouge Trials’ (2014) 15 Asia Pacific Issues 6–7. 106  Extraordinary

Discursive Proceedings and the Transitional Trial 191 A key factor in producing more discursive proceedings was the expanded scope for hearing the victim voice within the trial, not only as witness, but as civil claimant, and with those claims heard during the trial proceedings. Judge Lavergne’s defence of victim participation in proceedings recognised both the substantive contribution victims could make to the proceedings and the social significance of their inclusion. Grounded in principles underlying the civil party action and a conception of justice beyond the expressivism of criminal punishment, his judgment and ECCC practice add to the debate on the role of the victim in international criminal proceedings. The collective reparations awards of Case 002/01 provide tangible outcomes of victim inclusion in the public sphere of justice with potential follow-on effects within the larger society. The approved projects resulting from the civil parties’ representations at trial, combined with communications between ECCC staff and external funding bodies, reflect a measure of consensus on social needs in the aftermath of the conflict, such as the need to address ongoing PTSD and disseminate facts revealed at trial in school materials. Thus, the ECCC’s adaptive approach to reparations contributes to the literature on how reparations awards may be transformative in transitional societies. The ECCC’s efforts to make its proceedings accessible to the Court’s public enabled greater transmission of trial communications. The Court’s capacity for adaptation to its context together with inclusive, discursive and accessible proceedings may explain the institution’s apparent increasing local legitimacy. REFERENCES Bates, A, Transitional Justice in Cambodia: An Analytical Report (London, British Institute of International and Comparative Law, October 2010). Bohlander, M, ‘Language, Culture, Legal Traditions and International Criminal Justice’ (2014) 12 Journal of International Criminal Justice 491–513. Burke-White, W, ‘Preferences Matter: Conversations with Cambodian People on the Prosecution of the Khmer Rouge Leadership’ in J Ramji and B Van Schaak (eds), Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian Courts (Lewiston, Edwin Mellen Press, 2005) 97–126. Cassese, A, International Criminal Law, 2nd edn (Oxford, Oxford University Press, 2008). Cayley, AT, ‘Prosecuting Mass Atrocities at the Extraordinary Chambers in the Courts of Cambodia’ (2012) 11 Washington University Global Studies Law Review 445–59. Ciorciari, JD and Heindel, A, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Ann Arbor, University of Michigan Press, 2014). Cruvellier, T, Master of Confessions: The Making of a Khmer Rouge Torturer (New York, HarperCollins, 2014).

192  Cheryl White Damaska, M, The Faces of Justice and State Authority: A Comparative Approach to Legal Process (New Haven, Yale University Press, 1986). Decaigny, T and de Hert, P, ‘You Can Change Your Hair Colour, But Not Your Hair: Convergence in Inquisitorial and Adversarial Systems’ in C Kelk, F Koenraadt and D Siegel (eds), Veelzijdige Gedachten Liber amicorum Prof. C. Brants, vol 75, Willem Pompe Series (The Hague, Boom Lemma uitgevers, 2013) 235–44. Dembour, M and Haslam, E, ‘Silencing Witnesses? Victim-Witnesses at War Crimes Trials’ (2004) 15 European Journal International Law 151–77. Des Forges, A and Longman, T, ‘Legal Responses to Genocide in Rwanda’ in E Stover and HM Weinstein (eds), My Neighbour, Myself: Justice and Community in the Aftermath of Mass Atrocity (Cambridge, Cambridge University Press, 2004) 49–68. Dickinson, LA, ‘The Promise of Hybrid Courts’ 2003) 93 American Journal of International Law 295–310. Doak, J, ‘Victims’ Rights in Criminal Trials: Prospects for Participation’ (2005) 32 Journal of Law and Society 294–316. Drumbl, MA, Atrocity Punishment and International Law (Cambridge, Cambridge University Press, 2007). Hodal, K, “Khmer Rouge Survivor’s Tale Helps Cambodia Confront its Brutal Past” The Guardian (24 January 2012), www.theguardian.com/world/2012/jan/24/ khmer-rouge-survivor-film-cambodia. Human Rights Center and International Human Rights Clinic, University of California, Berkeley and Center for Human Rights, University of Sarajevo, ‘Justice Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors’ (2000) 18 Berkeley Journal of International Law 102–50. Jackson, KD, ‘The Ideology of Total Revolution’ in KD Jackson (ed), Cambodia 1975–1978: Rendezvous with Death (Princeton, Princeton University Press, 1989) 37–78. Karstedt, S, ‘The Nuremburg Trial and German Society: International Justice and Local Judgement in Post-conflict Reconstruction’ in DA Blumenthal and TLH McCormack (eds), The Legacy of Nuremburg: Civilising Influence or Institutionalised Vengeance? (Leiden, Martinus Nijhoff, 2008) 13–35. Kelsall, MS et al, Lessons Learned from the ‘Duch’ Trial: A Comprehensive Review of the First Case before the Extraordinary Chambers in the Courts of Cambodia (Honolulu, Asian International Justice Initiative, East-West Center, December 2009). Kirchenbauer, N et al, Victims Participation before the Extraordinary Chambers in the Courts of Cambodia: Base-Line Study of the Cambodian Human Rights and Development Association’s Civil Party Scheme for Case 002 (Phnom Penh, ADHOC, January 2013). Lapie, PO, ‘The Partie Civile in the Criminal Law of France’ (1928) 10 Journal of Comparative Legislation and International Law 33. Larguier, J, ‘The Civil Action for Damages in French Criminal Procedure’ (1964–65) 39 Tulane Law Review 687–700. Linton, S, Reconciliation in Cambodia (Phnom Penh, Documentation Center of Cambodia, 2004). Luban, D, Lawyers and Justice: An Ethical Study (Princeton, Princeton University Press, 1988).

Discursive Proceedings and the Transitional Trial 193 MacKinnon, I, ‘Khmer Leader Leads Judges to Killing Fields’ The Guardian (27 February 2008), www.theguardian.com/world/2008/feb/27cambodia.warcrimes. McGonigle Leyh, B, Procedural Justice? Victim Participation in International Criminal Proceedings (Cambridge, Intersentia, 2011). Moffett, L, Justice for Victims before the International Criminal Court (London, Routledge, 2014). Nguyen, L and Sperfeldt, C, ‘Victim Participation in International Criminal Trials: Ethnic Vietnamese Civil Parties at the Extraordinary Chambers in the Courts of Cambodia’ (2014) 14 Macquarie Law Journal 97–126. Osiel, M, Mass Atrocity, Collective Memory and the Law (New Brunswick, Transaction Publishers, 1997). Pham, P, Vinck, P, Balthazard M and Hean, S, After the First Trial: A PopulationBased Survey on Knowledge and Perception of Justice and the Extraordinary Chambers in the Courts of Cambodia (Berkeley, Human Rights Center, School of Law, University of California, 2011). Ramji-Nogales, J, ‘Designing Bespoke Transitional Justice’ (2010–11) 32 Michigan Journal of International Law 1–72. Report of the Group of Experts for Cambodia Established pursuant to General Assembly Resolution 52/135 (15 March 1999) UN Doc No A/53/850- S/1999/231. Ryan, H and McGrew, L, Performance and Perception: The Impact of the Extraordinary Chambers in the Courts of Cambodia (New York, Open Society Justice Initiative, 2016). Ryan, R, ‘Torture Victims Meet Top Khmer Rouge Inquisitor’ The Guardian (28 February 2008), www.theguardian.com/world/2008/feb27/cambodia. Sperfeldt, C, ‘Broadcasting Justice: Media Outreach at the Khmer Rouge Trials’ (2014) 15 Asia Pacific Issues 6, www.eastwestcenter.org/sites/default/files/private/ api115.pdf. Stover, E, Balthazard, M and Koenig, KA, ‘Confronting Duch: Civil Party Participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia’ (2011) 93 International Review of the Red Cross 503–46. Trumbell, CP, ‘The Victims of Victim Participation in International Criminal Proceedings’ (2008) 29 Michigan Journal of International Law 777–826. Vasiliev, S, ‘Trial Process at the ECCC: The Rise and Fall of the Inquisitorial Paradigm in International Criminal Law ?’ in SM Meisenberg and I Stegmiller (eds), The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law (The Hague, Asser Press, 2016) 389–433. Vogler, R, ‘Making International Criminal Procedure Work: From Theory to Practice’ in R Henham and M Findlay (eds), Exploring the Boundaries of International Criminal Justice (Farnham, Ashgate, 2011) 105–28. White, CS, Bridging Divides in Transitional Justice: The Extraordinary Chambers in the Courts of Cambodia (Cambridge, Intersentia, 2017). Williams, S, Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional Issues (Oxford, Hart Publishing, 2012).

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9 Unmet Expectations and the Legitimacy of Transitional Justice Institutions The International Criminal Tribunal for the Former Yugoslavia and the Extraordinary Chambers in the Courts of Cambodia RAY NICKSON

I. INTRODUCTION

A

N IMPORTANT ASPECT of a transitional justice institution’s legitimacy—whether it is accepted as a right and valid authority—is the extent to which it addresses expectations about justice. As such, legitimacy is fundamental to transitional justice institutions having a lasting positive impact. Outcomes such as education, reconciliation and reformation will be almost impossible to realise if the institutions promoting or pursuing them are deemed illegitimate. If the institution is not accepted as legitimate, for example, its work may be dismissed and ignored. The legitimacy of transitional justice can be discussed in reference to a number of factors, eg, the fairness of procedures and outcomes. This chapter adopts a different approach to discussing legitimacy in transitional justice by highlighting the role of expectations. Such expectations are held by members of transitional societies broadly and by victims more specifically, as well as by international donors and actors in the justice process. This chapter argues that transitional justice is beset by an expectation problem: expectations regarding what institutions of transitional justice will achieve frequently do not equate with the outcomes those institutions can provide. This discrepancy was the most readily observed issue among staff working in and with two international courts: the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Extraordinary ­Chambers

196  Ray Nickson in the Courts of Cambodia (ECCC). They saw it in manifestations of disappointed expectations among a variety of groups, including members of transitional societies and victims of mass crimes more specifically. It was also apparent in the expectations of international donors and court staff. This chapter is based on a study of the ICTY and the ECCC. Both courts reflect official, judicial responses to mass violence, war crimes and crimes against humanity. As courts are the most prominent instruments of transitional justice, their ability to satisfy expectations in post-conflict contexts and solicit legitimacy is essential. Notwithstanding important differences between the ICTY and the ECCC—eg, international versus hybrid, close temporal proximity to conflict versus greater temporal distance from conflict, adversarial versus inquisitorial—the commonalities of the expectation problem as identified for both courts overshadow these differences. Interviews were conducted with judges, prosecutors, defence counsel, registry staff, outreach staff, justice-oriented non-governmental organisations (NGOs) and victim advocacy groups for both institutions. Overall, 58 interviewees across both locations informed this research. Interviews were conducted in 2011 and 2012, at various locations throughout the Netherlands, the successor states of the former Yugoslavia and Cambodia, and many interviewees participated in multiple interviews.1 The chapter begins by examining the variety of anticipated outcomes for transitional justice and shows that transitional justice institutions are frequently lumbered with many, sometimes conflicting, expectations about what they will achieve. The insights of transitional justice practitioners from the courts and NGO staff are then used to highlight the complexity and pervasiveness of this problem. Finally, the chapter critically examines the current practice of expectation management and suggests improved approaches. Enhancing expectation management is important, as unmet and unaddressed expectations can have a negative impact on legitimacy for transitional justice institutions. It is argued that a more active consideration of expectations in the practice of transitional justice will reduce such ‘expectation problems’ and enhance the legitimacy of transitional justice institutions. II.  THE EXPECTED OUTCOMES OF TRANSITIONAL JUSTICE

While this research represents the first in-depth examination of an expectation dilemma in transitional justice, the issue of expectations has been 1  Interviewees are referred to throughout this chapter by affiliation (or location in the case of NGOs) and role, eg, ICTY Prosecutor. Participants have been sequentially numbered to identify them when different participants are cited, eg, ICTY Prosecutor #1, ICTY Prosecutor #2. In addition to the ICTY and the ECCC, participants were also included from the Bosnian War Crime Chamber (BWCC), as these staff in their specific roles supported the work of the ICTY.

Expectations and Legitimacy 197 observed previously.2 This has been especially true of international criminal trials, which are often saddled with diverse expectations for justice that they are not necessarily well-equipped to deliver. It has been suggested that, because international tribunals had such large ambitions initially, they have become foci for ‘disappointment and even cynicism’.3 For example, Drumbl claims that: ‘Criminal trials may offer the lure of the easy solution to the complexities of mass atrocity. But this lure may create unrealistic expectations and, in the end, lead to disappointing results.’4 Similarly, Landsman has warned that the result of (often unrealistically) high expectations for what prosecutions will achieve may be ‘a serious backlash against democratic institutions’.5 And Humphrey cautions that if the law reaches ‘beyond what it is capable of achieving [it leaves itself] open to criticism for raising expectations too high and hence failing to attain justice’.6 It is clear, then, that unmet expectations can impact on the perception, and hence the legitimacy, of transitional justice institutions. To better understand why expectations have been flagged as problematic, it is useful to consider the myriad goals that have been attached to transitional justice. The goals of, and expectations for, transitional justice are largely analogous. Goals and expectations both reflect the anticipated outcomes of transitional justice institutions. In fact, the distinction between what are considered goals and what are considered expectations may reflect more the authority of the individual or institution that holds them than any difference in terms of what outcomes they represent. What are considered to be goals are more frequently associated with claims made by institutions, academics and elites. Affected communities and groups such as victims, on the other hand, are said to hold expectations. As this research demonstrates, the goals found in the literature about transitional justice, canvassed below, are also reflected in the expectations that were observed by interviewees for this research. All groups, including international agencies and legal elites, were seen by interviewees as having expectations for these institutions. Many beneficial outcomes have been attributed to the work of trials in the transitional justice process. It has been claimed that—more than mechanisms such as truth commissions—trials elevate rights to a central concern 2  K McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’ (2007) 43 Journal of Law and Society 411. 3  D Hafner and E King, ‘Beyond Traditional Notions of Transitional Justice: How Trials, Truth Commissions and Other Tools for Accountability Can and Should Work Together’ (2007) 30 Boston College International and Comparative Law Review 91, 92. 4  MA Drumbl, ‘Restorative Justice and Collective Responsibility: Lessons for and from the Rwandan Genocide’ (2002) 5 Contemporary Justice Review 5, 18. 5  S Landsman, ‘Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions’ (1996) 59 Law and Contemporary Problems 81, 85. 6  M Humphrey, ‘From Victim to Victimhood: Truth Commissions and Trials as Rituals of Political Transition and Individual Healing’ (2003) 14 Australian Journal of Anthropology 171, 181.

198  Ray Nickson of proceedings.7 Humphrey believes that trials may serve to promote moral renewal among affected communities,8 while it has also been suggested that they ‘serve as purification ritual of the body politic’.9 Other practical effects and benefits of trials in transitional justice are assumed to include promotion of the rule of law, redress for victims, accountability, enhancement of democracy, education and deterrence.10 Trials are now a dominant feature of transitional justice. Among international lawyers and activists, ‘trials of selected individuals, preferably undertaken at the international level, constitute the favoured and often exclusive remedy to respond to all situations of genocide and crimes against humanity’.11 Similarly, such trials are said to have ‘gained normative currency’ among the aforementioned groups.12 Fletcher and Weinstein remarked that ‘events of the last decade suggest that many diplomats and human rights advocates conceive of international criminal trials as the centrepiece of social repair’.13 In the wake of mass atrocity, however, trials are capable of delivering rather limited forms and quantities of justice. According to Aukerman, trials are best suited to achieving only a few goals of transitional justice.14 Trials may be ill-suited to address manifold expectations for justice in such a situation, including, for example, establishing or discovering the truth.15 Fletcher and Weinstein note that while trials may acknowledge the truth, they are not necessary for its discovery,16 and Humphrey states that ‘although trials can play a vital role in establishing the truth of individual acts of atrocity … they tend to break down in the face of massive systemic atrocity’.17 It has been remarked that trials, rather than establishing truth, provide incomplete histories and may even distort the truth.18 Trials, then, can be poor avenues for the discovery of truth, as their legal formalities, rules against certain

7 

ibid 184. ibid 183. 9  LE Fletcher and HM Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Human Rights Quarterly 573, 599. 10 TD Olsen, LA Payne and AG Reiter, ‘The Justice Balance: When Transitional Justice Improves Human Rights and Democracy’ (2010) 32 Human Rights Quarterly 980, 997; MJ Aukerman, ‘Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice’ (2002) 15 Harvard Human Rights Journal 39, 41. 11  Drumbl ‘Restorative Justice’ (2002) 7. 12  MA Drumbl, ‘Toward a Criminology of International Crime’ (2003) 19(1) Ohio State Journal on Dispute Resolution 263, 265. 13  Fletcher and Weinstein, ‘Violence and Social Repair’ (2002) 578. 14  Aukerman, ‘Extraordinary Evil’ (2002) 39. 15  R Nickson, ‘Great Expectations: Managing Realities of Transitional Justice’ (PhD thesis, Australian National University, 2013). 16  Fletcher and Weinstein (n 9) 589. 17  Humphrey, ‘From Victim to Victimhood’ (2003) 172. 18  G Simpson, ‘Didactic and Dissident Histories in War Crimes Trials’ (1997) 60 Albany Law Review 801. 8 

Expectations and Legitimacy 199 types of evidence and narrow focus mean that an incomplete and legally constrained picture emerges in court. Trials also operate within limited timeframes, so that the information available to them can be incomplete, and often set arbitrary parameters regarding what timeframes will be examined. This can lead to proceedings that look at crimes through a narrow window, outside of the context in which offences occurred. The ability of trials to satisfy expectations may also be restricted by the absence of certain stakeholders, such as victims from the proceedings, or the removal from affected communities and nations to international courts or courts not located in the country itself.19 Trials also often give preference to jurisprudential considerations, such as establishing a particular form of conduct as an offence, over other expectations that are more important for victims, post-conflict communities, and others with an interest in a trial’s outcomes. Moreover, courts are limited in their capacity to respond to expectations regarding prosecutions and must be selective in terms of who is charged and tried. This is necessary for a number of practical reasons, such as the availability of evidence and the possibility of apprehension of the defendant. The selection of defendants from what is likely to be a large pool of offenders is not an insurmountable objection for transitional justice trials. As Posner and Vermeule explain, such selections are also made in the criminal justice systems of established democracies, and prosecutors face similar difficulties in selecting defendants when prosecuting large, hierarchically structured criminal enterprises in national jurisdictions.20 But such selections may not reflect expectations for widespread or encompassing prosecutions, or for expectations that direct perpetrators (and not only senior leaders) will be held accountable. This disparity can be problematic for transitional justice, as institutions are likely to be evaluated against the expectations that are held of them. A.  The Expected Outcomes of the ICTY and the ECCC The ICTY and the ECCC have each been burdened with considerable expectations. These have most frequently been expressed as goals: outcomes the 19 But see Karstedt, who argues that the visibility of victims in transitional justice has improved considerably since the end of the Second World War: S Karstedt, ‘From Absence to Presence, From Silence to Voice: Victims in International and Transitional Justice since the Nuremberg Trials’ (2010) 17 International Review of Victimology 9. See also Hagan and Kutnjak Ivkovic, who observe support for trials in international or foreign locations: J Hagan and S Kutnjak Ivkovic, ‘War Crimes, Democracy, and the Rule of Law in Belgrade, the Former Yugoslavia, and Beyond’ (2006) 605 Annals of the American Academy of Political and Social Science 129. 20 EA Posner, and A Vermeule, ‘Transitional Justice as Ordinary Justice’ (2004) 117 ­Harvard Law Review 761, 800.

200  Ray Nickson institution should provide. For the ICTY and the ECCC, the diverse goals promoted by both the institutions and various commentators have included: demonstrating accountability; providing acknowledgement; empowering victims; establishing the truth; building the rule of law; facilitating reconciliation and healing; securing peace; educating people about conflict and human rights norms; deterring future atrocities; and aiding development.21 However, a review of the various studies that have sought to examine the impact of both institutions suggests that the ICTY and the ECCC have had limited success in achieving most of these expected goals. Beginning with one of the very first studies that sought to examine attitudes towards the ICTY—interviews with 32 Bosnian judges and prosecutors conducted by the Human Rights Center, Berkeley22—research has consistently raised concerns about the role of the ICTY and its capacity to achieve the diverse goals and expectations that have been attached to it. Later studies have questioned the ICTY’s contribution with regard to meeting expectations of deterrence,23 educating people about the conflict,24 appropriately punishing offenders25 and contributing to a shared truth about the conflict.26 Nettelfield found a positive impact of the ICTY on expectations such as democratisation, political participation and the internalisation of human rights norms in Bosnia.27 But these effects are countered by research focusing on other successor states of the former Yugoslavia.28 This has led such commentators as David Tolbert, head of the International

21  Nickson, ‘Great Expectations’ (2013), drawing from an extensive review of the literature, a content analysis of media articles over a 20-year period, and close textual analysis of the ICTY’s and the ECCC’s website and publications. 22  The Human Rights Center and the International Human Rights Law Clinic, University of California, Berkeley, and the Centre for Human Rights, Sarajevo, ‘Justice, Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors’ (2000) 18 Berkeley Journal of International Law 102. 23 S Kutnjak Ivkovic, ‘Justice by the International Criminal Tribunal for the Former Yugoslavia’ (2001) 37 Stanford Journal of International Law 255. 24  D Saxon, ‘Exporting Justice: Perceptions of the ICTY among the Serbian, Croatian and Muslim Communities in the Former Yugoslavia’ (2005) 4 Journal of Human Rights 559. 25  R Hodzic, ‘Living the Legacy of Mass Atrocities: Victims’ Perspectives on War Crimes Trials’ (2010) 8 Journal of International Criminal Justice 113. 26  K Zoglin, ‘The Future of War Crimes Prosecutions in the Former Yugoslavia: Accountability or Junk Justice?’ (2005) 27 Human Rights Quarterly 41. 27  LJ Nettelfield, ‘From the Battlefield to the Barracks: The ICTY and the Armed Forces of Bosnia and Herzegovina’ (2010) 4 International Journal of Transitional Justice 87. See also LJ Nettelfield, Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State (New York, Cambridge University Press, 2010). 28  P McMahon and D Forsythe, ‘The ICTY’s Impact on Serbia: Judicial Romanticism Meets Network Politics’ (2008) 30 Human Rights Quarterly 412; M Spoerri and A Freyberg-Inan, ‘From Prosecution to Persecution: Perceptions of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Serbian Domestic Politics’ (2008) 11 Journal of International Relations and Development 350.

Expectations and Legitimacy 201 Center for ­Transitional Justice, to claim that ‘in several important respects, it [the ICTY] has failed to make a difference in the region itself’.29 Reflecting the more limited operation of the ECCC when compared to the ICTY, there have been fewer studies examining either its impact or how well expectations have been addressed at the ECCC. Three studies, however, provide some insight into expectations, operation and outcomes; two are studies that sought the views of victim participants and the third was a population-based survey of attitudes to the ECCC. Interestingly, the first study to seek the views of victim participants found that their motivations matched many of the expectations that were discovered in the research presented here: expectations of justice, truth, acknowledgement and memory.30 Pham et al’s study with victim participants found that at least one in three participants felt that the trial had not met their expectations. Importantly, victim participants who were more involved with the ECCC were more likely to be disappointed. This led the authors to conclude that the participation of victims in the trial was unlikely to address expectations of healing, closure and reconciliation.31 In the population-based survey of attitudes to the ECCC, it was clear that Cambodians held significant expectations about the ECCC establishing truth (86 per cent of respondents) and that this truth was necessary for reconciliation (64 per cent).32 The third relevant study again sought the views of victims who participated as parties.33 Interestingly, many of the initial motivations that were identified by victim participants were not punitive or retributive. The study noted that four motivations were most apparent among victim participants: to learn more about what happened to them and their family; to tell their story; to educate the world; and a desire to seek justice. This suggests that many expectations were initially for justice outcomes that were not confined to a narrow understanding of a trial’s function. Indeed, many of these motivations—a need to know, a need to tell and

29  D Tolbert, ‘The International Criminal Tribunal for the Former Yugoslavia: Unforeseen Successes and Foreseeable Shortcomings’ (2002) 26 Fletcher Forum of World Affairs 7. 30 P Pham, P Vinck, M Balthazard, J Strasser and C Om, ‘Victim Participation and the Trial of Duch at the Extraordinary Chambers in the Courts of Cambodia’ (2011) 3 Journal of Human Rights Practice 264. 31 See Karstedt for generally unrealistic expectations of healing: S Karstedt, ‘The Emotion Dynamics of Transitional Justice: An Emotion Sharing Perspective’ (2016) 8 Emotion Review 50. 32  P Pham, P Vinck, M Balthazard, S Hean and E Stover, ‘So We Will Never Forget: A Population Based Survey on Attitudes about Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia’ (Berkeley, Human Rights Center, University of California, ­Berkeley, 2009). 33  E Stover, M Balthazard and K Koenig, ‘Confronting Duch: Civil Parties Participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia’ (2011) 93 International Review of the Red Cross 503.

202  Ray Nickson a need to educate—are reflected in expectations identified by court professionals in the current study. Following the conclusion of the trial, however, the same respondents expressed dissatisfaction with the level of punishment, perhaps suggesting that the ECCC failed to adequately meet either punitive or broader expectations. While the experience of the ECCC for many victim participants in that study was positive, these experiences reflect a level of participation in proceedings that most victims and community members will never access.34 III.  THE EXPECTATION PROBLEM

Most of the court professionals interviewed highlighted an expectation problem when asked to identify issues that affected how the work of the ICTY and the ECCC was received. Their descriptions of what they deemed to be an expectation problem referred to the amount of expectations, the extent of expectations and the fact that these were often inappropriate. There was no consensus either: what was considered too high by some was seen as wholly inappropriate by others. A total of 28 interviewees (out of 58) directly stated that there were ‘too many expectations’ for criminal trials and many more said the same indirectly—a prosecutor at the ECCC stated that ‘there are too many expectations, as for like changing or improving the rule of law, there are too many’.35 The expectation problems as expressed by the interviewees broadly fell into three categories. The first was expectations regarding the scope of justice, which included such issues as: punishment and sentencing;36 which crimes or individuals would be prosecuted, in particular high-ranking individuals;37 and that those prosecuted would be convicted.38 A second type covered expectations regarding what can be called ‘answers’, ie,

34  The trial of Comrade Duch in Case 001 involved a relatively small number of victims compared to the numbers who are entitled to be victim participants for the Chambers’ subsequent defendants. Additionally, the rights afforded for victim participation have been restricted following Case 001 and are not replicated at other similar institutions. Victims were also provided with greater participation and access because the ECCC was located in Cambodia. As long as equivalent trials in The Hague are conducted for other conflicts, victims will rarely enjoy direct access to trials. 35  ECCC Prosecutor #1. 36  ECCC Victim Support #1. 37  ICTY Outreach #6. This expectation did not only exist at an individual level: ‘Croatia expected one big spectacular case for all the, you know, the people who are to be blamed for what happened in Vukovar, for somebody really big to be indicted and for their suffering to be recognised and through huge sentences. And it did not happen. And those guys who were indicted for the Ovcar crimes that happened in the vicinity of Vukovar, they were not the highest ranking officials or officers. So it was perceived as a failure of the prosecution and the ICTY as a whole’ (ICTY Outreach #5). 38  ECCC Media #1.

Expectations and Legitimacy 203 e­xplanations of what had happened. This included expectations such as: that broad questions about the conflict would be answered;39 that individual questions of victimisation would be answered;40 and that there would be an opportunity to tell one’s own story of victimisation in proceedings.41 A final type of expectations concerns those who sought ‘justice as a better future’.42 These included hopes for reconciliation, that trials would deter future ­violence43 and that trials would educate.44 There was, however, concern among interviewees that many of these expectations were out of step with what the ICTY or the ECCC could provide. This resulted in an expectation gap between anticipated and likely outcomes of proceedings. A.  The Scope of Justice Expectations about the scope of justice were frequently seen as problems. These, as with most of the two other types of expectations, were believed to be held by a broad cross-section of people affected by the courts, including victims, the general public and international elites (such as UN officials, major international NGOs, leading US and European politicians etc). Interviewees believed that many people found the sentences handed down by both the ICTY and the ECCC to be too lenient. This view was expressed more frequently with respect to the ICTY, likely reflecting the fact that the ICTY had sentenced many more individuals than the ECCC (which had sentenced only one person at the time of research). Several participants in the study spoke of the distress victims expressed following disappointed expectations of punishment and sentence, with some victims claiming they would never have participated as witnesses if they had known that sentences would be in the range of those that were eventually imposed. As a victim support officer noted, victims had told her that ‘if we had even dreamed that it was possible that the accused would get such a small sentence we would never have testified’.45 Interviewees provided two explanations for this expectation gap. The first was that people expected sentences to reflect their domestic experience of punishment. This was noted by an outreach officer at the ICTY, who stated ‘there is concern about … discrepancies between national 39 

ECCC Media #1. Former Yugoslavia NGO #2. 41  Cambodia NGO #6, ICTY Media #2. 42  This term is borrowed from Clifford Shearing’s research, which found that victims frequently desired ‘justice as a better future’. C Shearing and J Froestad, ‘Beyond Restorative Justice—Zwelethemba, A Future-Focused Model Using Local Capacity Conflict Resolution’ in R Mackay, M Bosnjak, J Deklerck, C Pelikan, B Van Stokkom and M Wright (eds), Images of Restorative Justice Theory (Frankfurt, Verlag fur Polizeiwissenschaft, 2007). 43  Cambodia NGO #5. 44  BWCC Prosecutor #1. 45  ECCC Victim Support #1. 40 

204  Ray Nickson jurisdictions and the [ICTY]’.46 The second explanation was that people expected sentences to be commensurate with their suffering. A victim support officer observed that victims ‘want the suffering of the perpetrator to be proportionate to their own’.47 Expectations regarding prosecution included expectations that senior leaders, direct perpetrators and the majority of offenders would be prosecuted. Interviewees commonly raised the issue that expectations had been for a much higher number of prosecutions at both courts. As an outreach officer said, ‘victims for long thought and expected that the ICTY would try virtually all war criminals’.48 But victims were not the only group to hold this expectation. According to an NGO worker in Cambodia, for example, people wanted more prosecutions as ‘a lot of people died during that time and just a few people to be prosecuted is not enough’.49 Most interviewees thought that a focus on senior leaders was appropriate. However, it was noted that even the prosecution of a senior figure responsible for a wide variety of crimes was only likely to (somewhat) satisfy the victims of the crimes specifically charged and prosecuted. A judge stated that victims whose experiences were not addressed through prosecution would ask: ‘“Who is going to recognise my pain, my suffering?” Nobody, because [this victim] he fell out of the [indictment] and this causes frustration and unhappiness.’50 According to many interviewees, victims of crimes committed by the same defendant but not prosecuted found very little solace in any symbolic value of trials. Further, victims, local communities, NGO staff and even parts of the international community were seen as expecting convictions. The obviousness of crimes might have contributed to this expectation: ‘Everywhere we go, people will say … “There is evidence all over this country about what happened. Why do we need these proceedings? We know they’re all guilty”.’51 B.  Answers and Explanations The expectation of answers and explanations was directed at the conflict, and included societal and personal questions. These expectations correspond with the idea that trials will uncover the ‘truth’. In Cambodia, they were often given voice in the hope that trials would answer ‘why did Khmer kill Khmer?’ This was encapsulated by one NGO worker in Cambodia, who stated that Cambodians ‘do not really want to know who, but why? Why 46 

ICTY Outreach #6. ECCC Victim Support #1. 48  ICTY Outreach #2. 49  Cambodia NGO #11. 50  ICTY Judge #2. 51  ECCC Media #1. 47 

Expectations and Legitimacy 205 did they commit the crime? Why did it happen?’52 Similar expectations that trials would answer broad, societal questions were evident for the ICTY, but expressed less frequently. This may reflect the context of those conflicts that attended the dissolution of Yugoslavia and the competing histories that have resulted. However, one interviewee from a prominent victim-oriented NGO in Bosnia noted that the ‘truth’ was precisely what victims wanted. Expectations about individual questions were deeply held by victims, as the professionals in courts and NGOs noted. This concerned questions relating to the fate of loved ones, particularly details of how they died and the location of their remains. A victim, who also acted as the representative for a victims’ organisation, made this clear: ‘the main sentence [voiced by victims] was “I want to know whether he suffered a lot before he died”. This is what most of us were hoping to find out but we actually never found out’.53 These expectations were often disappointed. Given the constraints of trials—their limited focus and jurisdiction, their need to be conducted efficiently and their restriction to matters that are capable of a legal determination—it seems to have been inevitable that most victims who held these expectations would be disappointed. C.  A Better Future Expectations for a better future were mainly concerned with affected communities after conflict. Many of these expectations—for reconciliation, prevention of future violence and education—were interconnected and were far more future-oriented than expectations for answers/explanations or justice. A victim support officer at the ECCC described how witnesses, particularly victims, would assert that ‘they are testifying in the hope that if they do this now, maybe it will have a preventative effect, maybe no other woman will have to go through their experience, maybe no other parents will lose a child’.54 This preventative effect was closely related to the expectation that the ICTY and the ECCC had important educative functions. Interviewees frequently noted that people spoke of ‘learning from the courts’. A prosecutor working in Bosnia and Herzegovina (BiH) felt that it was incumbent upon the ICTY and similar institutions to educate about the conflict: ‘normally education [schools] is what teaches history, but this just can’t happen in Bosnia, it has to be the court’.55 In a divided country like BiH, institutions

52 

Cambodia NGO #11. Former Yugoslavia NGO #2. 54  ECCC Victim Support #1. 55  BWCC Prosecutor #1. 53 

206  Ray Nickson such as schools were not sufficiently impartial and had failed in their efforts to explain the conflict in a nation where three competing histories of the conflict continue to exist. In Cambodia the expectation that trials would be educative was just as prevalent. Following the Chamber’s first trial, it was felt that people were more familiar with events and history, particularly concerning the Tuol Sleng prison (the focus of the first trial) than they had been previously: ‘a lot more people are familiar now with [Tuol Sleng] than what they were before’.56 The ICTY and the ECCC were also both considered to play an educative role by spurring and promoting other educative endeavours. The ECCC was considered by no fewer than eight interviewees in Cambodia to have laid open a traumatic past that had previously been a taboo subject for most Cambodians. IV.  APPROPRIATE AND INAPPROPRIATE EXPECTATIONS

A common view among respondents was that people’s expectations did not correlate with what courts could provide. This was frequently expressed as ‘inappropriate’ expectations, but was also labelled as ‘unrealistic’ and ‘wrong’, and these terms were used synonymously. It was unrealistic to expect courts to establish reconciliation and it was therefore also inappropriate to expect it. For these same reasons, it was wrong to expect outcomes that were unrealistic or inappropriate. Interviewees did not believe that only local communities held inappropriate expectations of transitional justice trials, and an ICTY judge divulged that inappropriate expectations were also held by the international community. The most common expectation that interviewees perceived as inappropriate was whether courts would contribute to reconciliation. Two NGO workers in Cambodia advised that ‘it is inappropriate to expect tribunals to provide any sense of national reconciliation’ and explained that because ‘direct perpetrators still live in the same communities as victims, a trial at the national level will not change the amount of resentment or anger in these relationships’.57 A second inappropriate expectation according to interviewees was that trials would produce truth. One lawyer working in Bosnia described this as a ‘weird concept’ that ‘is pretty much impossible’ to achieve.58 There was agreement among the respondents that legal processes did not produce broad or contextual historical truth, as they were focused on establishing an individual’s guilt. Because of the function of criminal courts, many interviewees felt they were not adequately equipped

56 

ECCC Media #1. Cambodia NGO #3 and #4. 58  BWCC Defence #1. 57 

Expectations and Legitimacy 207 to u ­ ndertake the necessary work for a balanced and accurate history of the respective conflict. Interestingly, truth was considered by other respondents to be an appropriate expectation. In respect of the ECCC, two NGO representatives commented that ‘it is appropriate to expect that international tribunals should shed some understanding on various conflicts’.59 Such responses focused less on the narrow function of criminal trials and more on their larger role in society. They considered it incumbent upon transitional justice institutions to help define and explain the conflict for current and future generations. In interviews, it was apparent that some division existed between legal staff and others on this issue: legal staff were frequently more restrictive about what was appropriate and were more reluctant to include expectations that did not reflect narrow trial goals, whereas others such as NGO staff saw courts in a broader context. A defence lawyer limited appropriate expectations of a criminal court in this way: ‘The only appropriate expectation is to determine the guilt or the innocence of the accused as charged by the prosecutor.’60 Another defence lawyer reduced the appropriate functions and expectations towards international justice even further: The most appropriate expectations are that they will hold accountable those highest ranking officials suspected of the most serious violations of international humanitarian law, and that they not try to address every crime nor write the history of the conflict.61

These views were also reflected in the opinions of judges and prosecutors, who stressed the functions of criminal trials generally and specifically for international criminal justice. However, trials do have roles in society, be they stable democracies or societies in transition. Expectations that transcend strictly legal concepts of a court’s functions were thus considered not only less likely to be satisfied by trials, but were also deemed ‘inappropriate’. This point is illustrated by perceptions of expectations for reconciliation, which were more commonly associated by participants with international stakeholders than local communities. Reconciliation was often touted as an expected outcome of the ICTY and the ECCC, but not a realistic one. V.  CURRENT MANAGEMENT AT THE ICTY AND THE ECCC

For most respondents, the solution to the expectation problem was to manage people’s expectations, and many interviewees commented on the need to ‘manage expectations’. Eight interviewees specifically used the phrase

59 

Cambodia NGO #3 and #4. ICTY Defence #3. 61  ICTY Defence #4. 60 

208  Ray Nickson ‘managing expectations’ of the trials.62 A greater number talked about and advocated activities aimed at doing just that. Thus, the late establishment of an outreach unit at the ICTY was considered to have hampered the capacity to manage expectations: ‘[Had outreach been established sooner] we would have managed to manage the expectations … of the victims and other people who felt or expected that the ICTY would have just finished the whole job.’63 An NGO worker in Cambodia believed that managing expectations was necessary to avoid disappointment: ‘it could get dangerous because then you have people who are disappointed when their expectations aren’t managed enough’.64 Managing expectations was also seen as a tool for encouraging a broader conception of transitional justice: ‘expectations do need to be managed so that there is not a belief that tribunals like the [ICTY] are the most important mechanism for creating peace and security after conflict’.65 As these responses illustrate, recognition that courts and tribunals should not be invested with every expectation and goal for transitional societies is important. However, this might be difficult to avoid when only one official institution, such as a court, is tasked with the transitional justice response to the conflict. Many participants provided their insights regarding how expectations could, or should, be managed. An overwhelming majority of those cited outreach or similar public information campaigns as the way that expectations could be best managed.66 One ICTY outreach officer declared that ‘outreach is fundamental in getting the court’s message out and managing expectations about what it can or cannot do’.67 The purpose of outreach was considered multi-dimensional: it would translate actual judgments from legalese into an intelligible form for a wider audience, while ‘getting the message across: what the actual judgment means’.68 Outreach also had to be contextually relevant to the location, culture and conflict of the recipient communities. Outreach efforts had to be tailored to their audience: [The] most important thing about outreach: that you actually have to create it in accordance with the realistic needs of the country that you are dealing with … it has to approach many different people at the same time … [it is] very important to define a programme for each of the different segments of the society. And each one of them has to be defined differently, taking into account different needs and expectations of the people.69 62  Cambodia NGO #14, Cambodia NGO #19, ICTY Media #1, ECCC Outreach #1, ICTY Defence #6, Cambodia NGO #5, ICTY Outreach #2 and International NGO #1. 63  ICTY Media #1. 64  Cambodia NGO #14. 65  ICTY Defence #6. 66  ICTY Judge #1, BWCC Defence #1, BWCC Prosecutor #1, ICTY Outreach #2 and ICTY Outreach #1. 67  ICTY Outreach #2. 68  ICTY Prosecutor #2. 69  ICTY Media #1.

Expectations and Legitimacy 209 The second most common suggestion for managing expectations was not to raise them in the first place. An outreach officer thought that ‘care must be taken by those who are involved in creating policies of such tribunals to avoid raising unrealistic expectations … both in terms of its legal and extralegal mandate’.70 Mainly two expectations about the scope of justice were seen in need of being managed. The first was an expectation mostly mentioned by the participants from the ICTY: that the ICTY would hand down convictions for the most serious crimes, in particular for genocide.71 The second expectation, regarding reparations, was an issue at both courts, but was observed more acutely at the ECCC because of that institution’s internal rules. Additionally, there was consensus on the ‘seed’ or origin of these expectations as identified by participants.72 The first was the expectation of victims that the crime committed against them should be the most severe, and acknowledged as such by the ICTY. Significantly, this manifested itself as severe dissatisfaction when courts did not declare crimes to be genocide. One interviewee was furious about the loose usage of the label genocide, coupled with the importance that donors and media placed on the concept: [Genocide] has become a political currency almost. To the extent that the victims have been kind of included into that wager of what is genocide, and what happened to me is not bad enough because it is not called genocide and therefore I wasn’t afforded true justice. It is very dangerous. But it was created and it was created mainly among the Bosnian Muslim population and it was created clearly and mainly because of the politicians and the religious segments … So the term is completely de-legalised, it is cheapened, it is politicised and it has had a complete opposite effect and a very negative effect on the society there. Especially in terms of expectations—especially for victims—and that is what makes me angry the most: that they did this.73

Another interviewee concurred that managing expectations for genocide convictions was necessary, in particular as the achievements of the courts were not recognised: I think that the misuse of genocide is one of the big issues that we face in this area [managing expectations]. I mean, we have seen it over and over. And the Krajisnik case is a good example where we charged I think 28 counts and we got convictions on 27 if my memory is correct and had convictions, for crimes against humanity, for extermination, and for very serious crimes and we didn’t succeed in proving

70 

ICTY Outreach #2, ICTY Outreach #1 and Cambodia NGO #9. On the power of the term ‘genocide’, see WA Schabas, ‘Commentary on Paul Boghossian “The Concept of Genocide”’ (2010) 12 Journal of Genocide Research 91. 72  For further discussion, including an extensive examination of the role of media in expectations, see Nickson (n 15). 73  ICTY Media #1. 71 

210  Ray Nickson genocide … It was seen as a kind of failure by the victims and others because genocide is the crime of crimes.74

Media and public figures were seen to fuel expectations when painting a genocide conviction as anything less than an insult to victims. In these circumstances, transitional justice institutions have a considerable task in re-aligning expectations about acknowledgement through convictions. As interviewees pointed out, other crimes against humanity should not be seen as a lower level of offending than genocide.75 The issue of reparations was less common concerning the ICTY, though a victims’ advocacy group representative stated that it remained a goal that had not yet been achieved.76 Because reparations were included within the mandate of the ECCC, the issue was more prevalent there. According to interviewees, the ECCC unwittingly raised expectations by offering reparations, without fully explaining their scope and limit. The ECCC adopted a reparations programme of providing for only ‘moral and collective’ reparations;77 however, the scope of such reparations was not adequately explained to people who sought the benefit of them. Representatives of various NGOs shared this opinion: The civil base—from my observations of the case 001 appeals—the civil parties expressed disappointment over reparations and a lot of them were simple folk who have difficulty understanding what moral and collective reparations are. But that is all the court could ever give them.78

The issue of reparations thus became a source of widespread disappointment, as one respondent stated: ‘reparation is a really big issue. I mean that was a really big dissatisfaction with the court: the judges didn’t decide on any of the civil party requests’.79 The interviewee went on to explain that they were now tasked with managing civil party expectations as a result. By offering reparations that did not correspond to common understandings of reparations, the ECCC needed to clearly explain what could be provided under this scheme. A court official agreed with this assessment by

74 

International NGO #1. ICTY Media #1 and International NGO #1. 76  Former Yugoslavia NGO #2. 77  At the initial sentencing of Comrade Duch on 26 July 2010, the fifth revision to the Internal Rules was in operation for the ECCC, which provided moral and collective reparations, with the cost borne by convicted persons: Internal Rules [Revision 5] 2010 (Cambodia) r 23. In subsequent revisions of the Internal Rules, r 23 was altered to remove the clause requiring the cost to be borne by the convicted persons: Internal Rules [Revision 8] 2011 (Cambodia) r 23 (rule amended 17 September 2010). In its original format, r 23 was practically inoperable in respect to Duch, who had no funds or assets that could be seized to pay for collective and moral reparations. This has since been rectified to some extent with the creation of a fund to support reparation awards. 78  Cambodia NGO #14. 79  Cambodia NGO #19. 75 

Expectations and Legitimacy 211 NGO workers: ‘We have to deal with managing expectations of the reparations with civil parties, whether they receive anything or they don’t.’80 Both expectations and the ensuing dissatisfaction testify to the fact that the scope of justice figures prominently in general as well as in victims’ expectations. However, they also pose nearly intractable problems of such a management of expectations. VI.  IMPROVING EXPECTATION MANAGEMENT

Managing expectations emerges as an important task in transitional justice. While it can often be an appropriate and necessary response, it nevertheless comes with problems. Managing expectations was consistently described by respondents in terms of top-down management: they have expectations and we must manage them. Respondents perceived expectations of those below (often victims) to be managed by those above (often prosecutors and tribunal staff). Managing expectations meant shaping or changing the expectations of affected communities so that they more closely reflected institutionally realistic expectations—the outcomes that particular institutions were most suited and able to achieve. At present, there is no underpinning strategy for dealing with expectations. Responses are ad hoc and remedial—almost exclusively reacting to disappointed expectations as opposed to pre-empting the potential for disappointed expectations and the need to manage them. This concerns expectations for convictions for genocide for the ICTY and expectations regarding reparations for the ECCC. Importantly, expectation management strategies should include efforts to explain the limitations of trials. When these efforts are conducted, they can pre-emptively work to manage expectations before disappointment has taken root, provided they are conducted from the outset of transitional justice efforts. An example of such an effort was the Bridging the Gap conferences hosted by the ICTY. These conferences brought together communities and court staff in the location of crimes to discuss the work of the courts in a dialogue among the various groups. Although these conferences were not designed to manage expectations, they had considerable success in that regard. Similarly, collaboration by the ECCC with NGOs in Cambodia had a comparable effect on expectations. Both appear to have been the result of more consultative approaches to explaining the limitations of trials and exploring complementary justice activities. To improve the management of expectations, it is proposed that expectations should be addressed with reference to three categories: expectations that can be satisfied by the courts themselves; expectations that should and

80 

ECCC Outreach #1.

212  Ray Nickson could be better addressed by other institutions; and, finally, expectations that cannot be met at all. This management approach seeks to avoid valuebased, normative assessments about what expectations are appropriate and moves beyond dismissing expectations when they do not conform to what trials can provide. This approach to expectation management can be adopted into the current operation of outreach at the ICTY and the ECCC and other institutions as a method to better confront the issue of expectations. A.  Responding to Expectations that Courts Can Satisfy The first category of management responds to expectations that directly match the function and role of courts. These expectations might include fair and transparent trials, evidence-based prosecutions, the sanction of criminal behaviour and the denouncement that this entails. Such otherwise ‘ordinary’ expectations should not be overlooked, as for many transitional societies, these may be novel concepts when corruption and persistent conflict have been present. Addressing these expectations may well be fundamental for legitimacy, as they reflect democratic, rule-based ideals that members of transitional societies will likely want to achieve. This category of management would entail communication to stakeholders about the role and function of criminal proceedings, the justification for any prosecutorial strategies (particularly in relation to the selection of defendants, indictments and charges), and the reasoning behind sentencing, as well as the execution of sentences. It would also require modesty on the part of the institution and its advocates regarding the scope of the contributions that trials can make: measured claims based on the likely outcomes of trials given their function and limited resources. Expectations addressed in this category mainly concern the scope of justice and the quest for answers/explanations. The ICTY and the ECCC are both capable of responding to expectations about the accountability or impunity of senior leaders. Both institutions could respond to these expectations by highlighting the efforts they have made to achieve accountability and reduce impunity. Moreover, both should seek to inform their audiences (domestic and international) that senior leadership is the focus of proceedings and explain the reasons for this selection. B.  Responding to Expectations that Alternative Institutions Can Address The next category requires identification of expectations that trials are illsuited to achieve. Managing these expectations involves clear communication regarding the limitations of trials and should ideally encourage a dialogue about other institutions, measures and responses that might better address these expectations. Courts can act as facilitators or contributors to

Expectations and Legitimacy 213 other measures that respond to these expectations, but such efforts would be unlikely to be driven by prosecutions and trials themselves. Thus, the expectation of answers to questions beyond the individual guilt or innocence of an accused is unlikely to be adequately satisfied through prosecutions. The prosecution of Radovan Karadzic and Ratko Mladic was never likely to reveal answers to questions about the individual fate of lost loved ones for the many thousands of survivors. Courts could manage these expectations by not only recognising and clearly enunciating the limited contribution a trial can make, but also by encouraging discussion of what might better satisfy this expectation. Such an effort might include measures like truth projects, the work of the International Commission for Missing Persons or the opportunity for conferencing between victims and direct perpetrators. This approach relates to the concept of holism in transitional justice—that transitional justice efforts ought to incorporate multiple approaches rather than single institution responses.81 Collaboration that would form part of this response was done well by the ECCC, which worked closely with civil society groups to pursue a diverse range of justice initiatives that sought outcomes such as reconciliation, truth-telling, societal healing, memorialisation and others. Similarly, the Bridging the Gap conferences run by the ICTY were an important opportunity for dialogue among stakeholders: victims, local communities, NGOs, court staff and relevant international agencies. Although interviewees did not claim that these conferences had been designed as a means of managing expectations, they did perform this function well, especially in comparison to less direct forms of engagement (court publications, official announcements and court websites) between the ICTY and those affected by its work. By providing a forum where the operation, function, role and contribution of the ICTY could be more adequately explained and related to local communities, the Bridging the Gap conferences provide an example of how outreach units can serve to manage expectations in their current operations. Significantly, by permitting a dialogue between stakeholders and the ICTY, such conferences can also function as a means for the professionals to uncover what expectations are held for trials. Importantly, this level of management requires work with the courts, but not by the courts. This means that such management can take place in collaboration with or alongside courts by other institutions, organisations and social movements. In this way, institutions should be looking for pathways to assist additional justice efforts aimed at addressing expectations unsuited to criminal trials. Rather than asserting that an expectation is inappropriate, this entails seeking new paths to the realisation of these expectations. It also

81 See P Clark, ‘Hybridity, Holism, and “Traditional” Justice: The Case of the Gacaca Courts in Post-genocide Rwanda’ (2007) 39 George Washington International Law Review 765.

214  Ray Nickson requires that official institutions of transitional justice recognise that very often the institution is inappropriate for the expectations, and not the other way around. While an expectation may be inappropriate with reference to a court, that same expectation is itself appropriate for transitional justice mechanisms more broadly. C.  Expectations that Cannot Be Addressed Expectations may also exist which cannot be accommodated. In this third category of expectation management, it is necessary to clearly identify such expectations and provide an explanation as to why. Kutnjak Ivkovic observed considerable support for the death sentence to be imposed by the ICTY, an expectation that of course had no prospect of being met. This led Kutnjak Ivkovic to postulate that many respondents would be disappointed by the available sentences.82 Expectations that conflict with human rights norms like capital punishment cannot be met by courts with international participation. Here, expectation management would require considered explanation of the international opposition to capital punishment and the reasons for it. It is only in respect to these types of expectations that it will be appropriate not to promote pathways for their realisation, and these expectations should be discouraged. But this still needs to be achieved in a dialogue with those who hold such expectations. VII. CONCLUSION

Expectations and legitimacy in transitional justice are interconnected. The legitimacy of an institution is based partly on its responsiveness to the expectations of the people it is supposed to serve. This implies that such expectations are treated as legitimate in the first instance. But these expectations may not align with what a given institution can realistically achieve or contribute. If we accept that transitional justice institutions should serve affected communities in the wake of violence (rather than abstract notions of justice), then there is a need for them to be responsive to the expectations of those affected communities. While it is unlikely ever to be possible to satisfy all expectations for transitional justice, it is surely feasible that transitional justice could be more responsive to expectations. This includes considering expectations as guiding markers for the operation of transitional justice institutions, while also working more effectively and collaboratively in explaining what expectations might be addressed. Expectations that exist 82 

Kutnjak Ivkovic, ‘Justice by the International Criminal Tribunal’ (2001).

Expectations and Legitimacy 215 beyond that scope require alternative responses. These may or may not be conceived and implemented with the assistance of existing transitional justice institutions. These disconnects—between expectations and likely outcomes—must be overcome for transitional justice to more effectively satisfy various stakeholders (victims, local communities, international donors, institutions and their staff and others). By adopting an approach to expectation management that recognises the three categories identified here, overcoming these disconnects could be undertaken more successfully within the current structure of most transitional justice courts. But recognising the limits of courts and seeking alternative pathways to meet expectations of justice also adds weight to calls for a more holistic approach to justice in transition. Such an approach eschews the dominance of legal and prosecutorial responses and instead favours justice measures—for example, truth commissions, lustration and restorative practices—drawn from diverse understandings of how to respond to mass atrocity. As interviewees in this research noted, the ICTY or the ECCC could not address many of the expectations for justice. A measure of modesty in claims of what international criminal trials can do is required. ­Ignatieff has recommended that ‘it is best to be modest about what trials can achieve’.83 Transitional justice trials are frequently conducted in societies and systems without the benefits of established national judicial procedures; consequently, legitimacy is important. Furthermore, tribunals or courts are one institution among many that might contribute to transitional justice, and one dimension in the much larger process of transition. This should be prominent in people’s minds when thinking about or discussing the possible contributions international criminal trials can make in post-conflict societies.84 What is required is a dialogue with stakeholders as to why some expectations may be addressed by the institution, some should be addressed in alternative forums and some cannot be addressed at all. If institutions of transitional justice can never satisfy some expectations or aid in the realisation of others in alternate venues, we should question the selection of those institutions as venues for providing transitional justice. In continued efforts to ensure the legitimacy of transitional justice, expectations should be considered as genuinely legitimate, especially as they can reflect deeply held needs and outcomes for individuals and communities who have survived mass atrocities.

83 M Ignatieff, The Warrior’s Honor: Ethnic War and the Modern Conscience (London, Chatto & Windus, 1998) 184. 84  K McEvoy, ‘Letting Go of Legalism: Developing a Thicker Understanding of Transitional Justice’ in K McEvoy and L McGregor (eds), Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Oxford, Hart Publishing, 2008) 30.

216  Ray Nickson REFERENCES Aukerman, MJ, ‘Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice’ (2002) 15 Harvard Human Rights Journal 39–97. Clark, P, ‘Hybridity, Holism, and “Traditional” Justice: The Case of the Gacaca Courts in Post-genocide Rwanda’ (2007) 39 George Washington International Law Review 765–837. Drumbl, MA, ‘Restorative Justice and Collective Responsibility: Lessons for and from the Rwandan Genocide’ (2002) 5 Contemporary Justice Review 5–22. ——. ‘Toward a Criminology of International Crime’ (2003) 19 Ohio State Journal on Dispute Resolution 263–82. Fletcher, LE and Weinstein, HM, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Human Rights Quarterly 573–639. Hafner, D and King, E, ‘Beyond Traditional Notions of Transitional Justice: How Trials, Truth Commissions and Other Tools for Accountability Can and Should Work Together’ (2007) 30 Boston College International and Comparative Law Review 91–109. Hagan, J and Kutnjak Ivkovic, S, ‘War Crimes, Democracy, and the Rule of Law in Belgrade, the Former Yugoslavia, and Beyond’ (2006) 605 Annals of the American Academy of Political and Social Science 129–51. Hodzic, R, ‘Living the Legacy of Mass Atrocities: Victims’ Perspectives on War Crimes Trials’ (2010) 8 Journal of International Criminal Justice 113–36. Human Rights Center and the International Human Rights Law Clinic, ­University of California Berkeley, and the Centre for Human Rights, Sarajevo, ‘Justice, Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors’ (2000) 18 Berkeley Journal of International Law 102–66. Humphrey, M, ‘From Victim to Victimhood: Truth Commissions and Trials as Rituals of Political Transition and Individual Healing’ (2003) 14 Australian ­ ­Journal of Anthropology 171–87. Ignatieff, M, The Warrior’s Honor: Ethnic War and the Modern Conscience ­(London, Chatto & Windus, 1998). Karstedt, S, ‘From Absence to Presence, From Silence to Voice: Victims in International and Transitional Justice since the Nuremberg Trials’ (2010) 17 International Review of Victimology 9–30. ——. ‘The Emotion Dynamics of Transitional Justice: An Emotion Sharing Perspective’ (2016) 8 Emotion Review 50–55. Kutnjak Ivkovic, S, ‘Justice by the International Criminal Tribunal for the Former Yugoslavia’ (2001) 37 Stanford Journal of International Law 255–346. Landsman, S, ‘Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions’ (1996) 59 Law and Contemporary Problems 81–92. McEvoy, K, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’ (2007) 43 Journal of Law and Society 411–40. ——. ‘Letting Go of Legalism: Developing a Thicker Understanding of Transitional Justice’ in K McEvoy and L McGregor (eds), Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Oxford, Hart Publishing, 2008) 15–45.

Expectations and Legitimacy 217 McMahon, P and Forsythe, D, ‘The ICTY’s Impact on Serbia: Judicial Romanticism Meets Network Politics’ (2008) 30 Human Rights Quarterly 412–35. Nettelfield, LJ, Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State (New York, Cambridge University Press, 2010). ——. ‘From the Battlefield to the Barracks: The ICTY and the Armed Forces of Bosnia and Herzegovina’ (2010) 4 International Journal of Transitional Justice 87–109. Nickson, R, ‘Great Expectations: Managing Realities of Transitional Justice’ (PhD thesis, Australian National University, 2013). Olsen, TD, Payne, LA and Reiter, AG, ‘The Justice Balance: When Transitional Justice Improves Human Rights and Democracy’ (2010) 32 Human Rights Quarterly 980–1007. Pham, P, Vinck, P, Balthazard, M, Hean, S and Stover, E, ‘So We Will Never Forget: A Population Based Survey on Attitudes about Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia’ (Berkeley, Human Rights Center, University of California Berkeley, 2009). Pham, P, Vinck, P, Balthazard, M, Strasser, J and Om, C, ‘Victim Participation and the Trial of Duch at the Extraordinary Chambers in the Courts of Cambodia’ (2011) 3 Journal of Human Rights Practice 264–87. Posner, EA and Vermeule, A, ‘Transitional Justice as Ordinary Justice’ (2004) 117 Harvard Law Review 761–825. Saxon, D, ‘Exporting Justice: Perceptions of the ICTY among the Serbian, Croatian and Muslim Communities in the Former Yugoslavia’ (2005) 4 Journal of Human Rights 559–72. Schabas, WA, ‘Commentary on Paul Boghossian “The Concept of Genocide”’ (2010) 12 Journal of Genocide Research 91–99. Shearing, C and Froestad, J, ‘Beyond Restorative Justice—Zwelethemba, A FutureFocused Model Using Local Capacity Conflict Resolution’ in R Mackay, M Bosnjak, J Deklerck, C Pelikan, B Van Stokkom and M Wright (eds), Images of Restorative Justice Theory (Frankfurt, Verlag fur Polizeiwissenschaft, 2007) 16–34. Simpson, G, ‘Didactic and Dissident Histories in War Crimes Trials’ (1997) 60 Albany Law Review 801–39. Spoerri, M and Freyberg-Inan, A, ‘From Prosecution to Persecution: Perceptions of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Serbian Domestic Politics’ (2008) 11 Journal of International Relations and Development 350–84. Stover, E, Balthazard, M and Koenig, K, ‘Confronting Duch: Civil Parties Participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia’ (2011) 93 International Review of the Red Cross 503–46. Tolbert, D, ‘The International Criminal Tribunal for the Former Yugoslavia: Unforeseen Successes and Foreseeable Shortcomings’ (2002) 26 Fletcher Forum of World Affairs 7–19. Zoglin, K, ‘The Future of War Crimes Prosecutions in the Former Yugoslavia: Accountability or Junk Justice?’ (2005) 27 Human Rights Quarterly 41–77.

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Part III

Beyond the Courts: Creating Public Spheres of Testimony

220 

10 Witness Testimony and the Incommensurability of Truth in Argentina ANTONIUS CGM ROBBEN

I. INTRODUCTION

A

T 10:30 on the morning of Tuesday 9 March 2010, 10 handcuffed defendants entered the Federal Court in Buenos Aires. They were part of a group of 17 retired policemen and army officers accused of torturing and disappearing 184 Argentine civilians during the military dictatorship. These human rights violations occurred between 1976 and 1979 in three secret detention centres, codenamed El Club Atlético, El Banco and El Olimpo. Six defendants requested permission to leave the courtroom because they did not want to attend the day’s testimony of the ex-­disappeared Ana María Careaga, and were duly returned to the backroom by the security guards. The handcuffs of the remaining four men were removed, and they walked slowly to the rows of seats facing the four judges. They glanced upwards to see which relatives were present in the upper-level public gallery, raising a hand in acknowledgement or smiling wryly. On other trial days I had seen relatives leaning perilously across the balustrade that gave a bird’s-eye view of the courtroom, but this time I joined the relatives and sympathisers of Ana María Careaga who were in the ground-floor gallery that was separated from the courtroom by a glass wall. The two audiences were kept apart as a precaution because of occasional shouting matches, and pushing and shoving inside the drab court building. The court president Jorge Alberto Tassara gestured everyone to sit down and asked Ana María Careaga to take the witness stand. She was 16 years old and three months’ pregnant when she was abducted on 13 June 1977 for being a member of the forbidden Guevarist Youth that operated under the control of the ­Marxist People’s Revolutionary Army guerrilla organisation. In a calm voice, Ana María Careaga testified how two men in plain clothes dragged her into a car at the intersection of Corrientes Avenue and Juan

222  Antonius CGM Robben B Justo Avenue, and took her to the Club Atlético (Athletic Club) secret detention centre that belonged to the Federal Police, but was under the command of the Argentine Army. She was stripped of her clothing and given identification number K 04. She narrated how she had been given pills to control her heartbeat during the electric shocks to her body, and how she had held her breath with each discharge to control the pain. The interrogators also hung her with her hands and feet tied to a rack. When the lesions from the torture became too great, she was taken to the infirmary and returned to the torture room after treatment. The image that had struck her most during her four months of captivity was the sight of the emaciated captives. It reminded her of a Nazi concentration camp. She was finally released on 30 September 1977. She went into exile first to Brazil and later to Sweden. Amnesty International physicians identified more than 100 scars on her body caused by torture. Club Atlético remained operative between March 1976 and December 1977, after which the building was demolished to make room for a highway overpass. Archaeologists excavated the site in 2002 and found the small cells that were described by Careaga and other survivors. Their narratives, unbelievable as they seemed to many people at the time, could now be verified by retracing step by step the passage of the blindfolded disappeared down the building’s stairway, past the sound of interrogators playing table tennis and into the 0.60 x 1.60 metre cubicles where the abducted civilians were kept before they were tortured. There was also visual evidence provided by members of Club Atlético’s prisoner council. These disappeared were allowed to walk around without a blindfold, perform household chores and watch television. They remembered the blue tiles that were found later in the excavation and that gave further credence to their testimonies. Ana María Careaga’s testimony at the Federal Court in March 2010 was interspersed with reflections about her horrifying experience at Club ­Atlético. She explained that she had been tortured to acquire information and to depersonalise her. She identified her torturers who came by such nicknames as Baqueta (ramrod), Dr K, Kung Fu and Fuhrer. After ending her testimony, she answered the questions of the prosecutor, the complainant’s lawyer, the defendants’ lawyer and several judges. She stepped down from the witness stand after four hours of testimony, with only one 15-minute break at 11:30.1 What made Ana María Careaga’s testimony remarkable was not so much the composed manner in which she spoke about her terrible ordeal, which she had narrated multiple times in the last 38 years, but her PowerPoint presentation that analysed the repressive infrastructure of special task

1  See a summary of the court testimony in: 210 audiencia—Declaró Ana María Careaga; cels.org.ar/wpblogs/abo/2010/03.

Witness Testimony and Truth 223 forces and secret detention centres, and the operating procedures of abduction and torture. She occupied multiple roles as victim, survivor, eyewitness and expert witness, switching from a personal account of her torture to an analysis of state terrorism in Latin America, and then to the presentation of hearsay evidence, illustrated with a photograph of an excavated torture room. Her roles represented the many twists and turns in her life as a political actor, disappeared person, torture victim, ex-disappeared, exile and human rights activist. Through the decades, she had accumulated much knowledge to understand her predicament and situate it within a highly personal as well conceptual frame of understanding. This vast mental archive and her comprehensive insight were mobilised in the courtroom to help convict the culprits. The physical and psychological violence to which Ana María Careaga and tens of thousands of Argentine civilians were subjected was not random but systematic. The structure of state repression only became visible gradually through a piecemeal reconstruction in different public arenas during and after the dictatorship, such as press conferences, fact-finding missions, truth commissions and criminal trials, each with their particular styles of presentation and communication. Eyewitnesses produced testimonies that gave an increasing coherence to their experiences and slowly revealed the state terror. Their credibility was raised by external proof such as supporting testimonies, and documentary and material evidence. This chapter analyses how testimonial narratives in Argentina changed from the times of authoritarian rule to today’s democracy because of the different fora in which they were presented. Disappearances had been occurring in Argentina since 1970, when the Argentine military tried to crush the armed insurgency. A systematic repression began only after the military coup of March 1976. The nationwide wave of disappearances went largely unreported due to censorship. Press conferences and denunciations abroad became the principal means of publicising the state of affairs in Argentina. Fact-finding missions visited Argentina, producing reports that attempted to delineate the repression. In addition, testimonial narratives were published during the regime’s latter years. They were succeeded by declarations to a truth commission after the turn to democracy in December 1983 and at the 1985 trial against the junta commanders. Pressure from military rebellions resulted in several amnesties and presidential pardons between 1986 and 1990 that ended the prosecution of perpetrators. These so-called impunity laws were overturned by the Supreme Court in 2005 and 2007, after which more than 1,000 defendants were prosecuted. Witnesses, such as Ana María Careaga, have been providing testimonies for more than three decades under different political circumstances. They moulded their testimonies to the different settings, creating a heterogeneous truth composed of both narratives with a strong emotional veracity to convince people of their unimaginable suffering and limited accounts able

224  Antonius CGM Robben to stand the burden of proof. Careaga’s 2010 testimony is emblematic of the struggle with various forms of testimonial truth, where the narrative recollection of extreme personal duress is complemented by an analysis that draws on the accumulated knowledge of nearly four decades. This chapter argues that the desire for truth cannot be satisfied exclusively by the usual instruments of transitional justice, such as international fact-finding missions, truth commissions and criminal courts, because of the incommensurability of different types of truth. Transitional justice requires the acknowledgement of non-judicial experiential truths, often set in an emotional language banned from the courtroom, which can provide a narrative veracity for the witnesses and the general public alike. II.  INTERNATIONAL FACT-FINDING MISSIONS

Diplomatic reports about massive disappearances in Argentina were circulating worldwide soon after the military seized power in March 1976. Governments had been aware of similar repressive methods in Chile since the 1973 coup of General Pinochet, but could not fathom their extent in Argentina. Amnesty International therefore organised a fact-finding mission in November 1976. The delegation heard personal accounts by relatives about more than 100 disappearances, and their report included excerpts of these testimonies, such as that by 72-year old Rosa Daneman de Edelberg, at whose home her granddaughter Bettina Tarnopolsky was staying: At 1.00 o’clock in the morning of 15 July [1976], plainclothed persons came to my house, bringing my son-in-law, Hugo Tarnopolsky, who knocked on the door and asked us to open it saying, ‘Open up, Nona, it’s Hugo’. When I opened it, I met my son-in-law and the plainclothes men who said they were the police and, with threats and blows, they asked for my grand-daughter, Bettina Tarnopolsky … After they had violently locked me out on the patio, I heard them taking away my grand-daughter, half-dressed, since most of her clothes were in her room.2

The report concluded that ‘merely on the suspicion of subversion, a citizen may be arrested or abducted, held for a long period incommunicado, tortured and perhaps even put to death’.3 The report contains a list of disappeared in which Ana María Careaga and her sister Claudia Mabel figure as having been abducted on 14 September 1976.4 Despite these and other testimonies that appeared in the news media, it would take three years before the disappearance method was described

2  Amnesty International, Report of an Amnesty International Mission to Argentina, 6–15 November 1976 (London, Amnesty International Publications, 1977) 28. 3  ibid 48. 4  ibid 73.

Witness Testimony and Truth 225 clearly. In April 1979, the New York Bar Association sent a fact-finding mission to Buenos Aires to investigate the fate of disappeared Argentine lawyers. They spoke with high-ranking commanders and human rights organisations, but could not gather any material evidence or inspect places that had been denounced as secret detention centres.5 The report reads like a legal document and does not include any verbatim testimonies. Within five months of the visit by the New York lawyers, the InterAmerican Commission on Human Rights (IACHR) of the Organization of American States (OAS) travelled to Argentina. The commission’s international weight opened doors to President Rafael Videla and former Argentine presidents, the three-man military junta, and prominent leaders of religious congregations, labour unions, human rights organisations and suspended political parties. The delegation visited Argentina’s five largest cities and attracted thousands of people, who deposited 5,580 denunciations.6 The commission was also given access to the Navy Mechanics School or ESMA (Escuela de Mecánica de la Armada), which was suspected of housing a secret detention and torture centre. Before the visit, however, the Navy had moved the disappeared captives to The Silence, a former retreat of the Archbishop of Buenos Aires, located on an island in the River Plate estuary.7 The IACHR report appeared in April 1980. It substantiated its conclusions with many testimonies that had been recorded during the site visit, such as the following excerpt from a statement by Sergio Hugo Schilman that was taken on 18 September 1979 in the sanatorium where he was recuperating following his torture by the provincial police in the city of Rosario: They began to apply electric shocks to me, I suppose it must have been the picana (cattle prod), I never experienced anything like it before. Unfortunately I still have many scars from it; at the same time as they applied the cattle prod, which they first used on my armpits, and then further down on much more sensitive areas, my genitals, they hit me; it was a very large group of people apparently judging from the uproar of voices in the room.8

The verbatim transcription shows the jumps in the event’s chronology, the narrative disjunctions and the reflective interludes that are characteristic of oral accounts of traumatic experiences. Such testimonies maintain an inner

5  OH Schell, Jr , ‘Report of the Mission of Lawyers to Argentina April 1–7, 1979’ (1979) Record of the Association of the Bar of the City of New York 473, 503. 6  G Fernández Meijide, La historia íntima de los derechos humanos en la Argentina (Buenos Aires, Subamericana, 2009) 112, 115. 7  Comisión Interamericana de Derechos Humanos (CIDH), El informe prohibido: Informe sobre la situación de los derechos humanos en Argentina (Buenos Aires, OSEA and CELS, 1984) 12, 17; H Verbitsky, El Silencio (Buenos Aires, Editorial Sudamericana, 2005). 8 Quote from IACHR, Report on the Situation of Human Rights in Argentina (Washington DC, Organization of American States, 1980) ch 5, section D: Unlawful use of force and torture, www.cidh.org/countryrep/Argentina80eng/chap.5.htm#D. See also CIDH, El informe prohibido (1984) 224.

226  Antonius CGM Robben tension between factual information and intimate sensation that involves different types of truth, one evidential and the other experiential. Other accounts in the IACHR lack this stream-of-consciousness narrative because they were given a coherence of time and place during their transcription or were presented as such by the witnesses, who had acquired a familiarity with juridical discourse. Note, for example, the following denunciation about the disappearance of Hugo Tarnopolsky, already reported by Amnesty International: On July 15, 1976, at approximately 2 am, armed individuals, identifying themselves as police officers, came to the home of Rosa Daneman de Edelberg, at 3475 Sarmiento Street, 5th floor, apartment J, Buenos Aires. As she went to answer the door, she heard the voice of the owner’s son-in-law say ‘Open the door, it’s Hugo’. The men who were dressed in civilian clothing immediately asked for ­Bettina ­Tarnopolsky, 16 [years] of age, who was living temporarily in the apartment. They locked up Mrs. Edelberg on the patio, from where she heard Bettina’s screams. Once the ‘police’ left, she found that her granddaughter and son-in-law were no longer there, and objects of value, cash and the identity card of the owner of the house had disappeared also.9

The contrast with Rosa Daneman de Edelberg’s testimony to the Amnesty International fact-finding mission, reproduced at the beginning of this section, is clear: the 1976 testimony is an emotional narrative, while the 1979 one is a formal statement. By September 1979, relatives of the disappeared had already presented numerous writs of habeas corpus prepared by lawyers to Argentine courts and had given testimony to the missions of Amnesty International and the New York Bar Association. The IACHR’s transcriptions and formal case statements transformed empathetic accounts into judicial testimonies, imposing a discursive structure on a disjunctive narrative that might harm their credibility as proof. The IACHR report’s rhetorical combination of emotional narratives and neutral case statements was probably intentional in order to persuade the OAS to take action against member state Argentina. The discursive contradiction in the official report was exploited by the Argentine military government in its November 1980 reaction: ‘The most spectacular and impressive aspect of the Report is the presentation throughout most of its chapters of “examples”, in the form of denunciations.’ These had been received since 1976 and collected during the country visit in September 1979:10 The choice of denunciations is objectionable. Many of them appear to have been selected because they contain sensational details presumably designed to create an 9  Quote from IACHR, Report on the Situation (1980) ch 3, section C: Some cases of the disappeared, www.cidh.org/countryrep/Argentina80eng/chap.3a.htm. See also in CIDH (n 7) 85. 10 Government of Argentina, Observations and Criticisms Made by the Government of Argentina with Regard to the Report of the Inter-American Commission on Human Rights on the Situation of Human Rights in Argentina (Washington DC, OAS, 1980) 22.

Witness Testimony and Truth 227 impression with greater impact. It does not matter that these are unproven allegations, and all this is apart from the question of the good and bad faith in which the unknown claimant has acted.11

The above critique by the Argentine government was directed not only at the credibility of the testimonies but also at the IACHR report’s argumentation, namely drawing general conclusions from selected examples: [I]f in fact the idea was to formulate general criteria on the basis of individual cases, the procedure was incorrect. If, on the other hand, those individual cases are cited for purposes of objectivity, the effect is the opposite; a subjective and biased account cannot yield to an objective and dispassionate recounting of events.12

The tension between highly personal accounts, general conclusions and political consequences became resolved in testimonio narratives by survivors that manifested individual hardship as collective suffering and summoned a call to action. III.  TESTIMONIOS

Testimonio narratives are personal accounts of violent events by witnesses with clear political motives and objectives. They became very popular in Latin America during the 1980s. Testimonios are not autobiographies, life histories or memoirs because the narrators tried to verbalise the oppression and suffering experienced by many people. They gave a voice to the voiceless, countered the denial of any wrongdoing by military dictatorships and hoped to mobilise international protests against Latin America’s repressive regimes.13 The first Argentine testimonio appeared in France in 1979 under the title Le diable dans le soleil (The Devil in the Sun). Written by the Argentine journalist-in-exile Carlos Gabetta, it did not become available in Argentina until November 1983 under the title Todos somos subversivos (We Are All Subversives).14 The book is a collection of interviews, edited by Gabetta, with parents searching for their children, former disappeared and released prisoners. The interviewees were chosen from all social layers of Argentine society to convey that anyone, irrespective of class or social status, could be considered a subversive by the Argentine military.

11 

ibid 2. ibid 27. 13  J Beverley, Testimonio: On the Politics of Truth (Minneapolis, University of Minnesota Press, 2004) 29, 44; GM Gugelberger, ‘Introduction: Institutionalization of Transgression: Testimonial Discourse and Beyond’ in GM Gugelberger (ed), The Real Thing: Testimonial Discourse and Latin America (Durham, NC, Duke University Press, 1996). 14  C Gabetta, Todos somos subversivos (Buenos Aires, Editorial Bruguera, 1983). 12 

228  Antonius CGM Robben Ana María Careaga was also interviewed. She described in very graphic terms the ways in which she had been tortured in Club Atlético, how she tried to control her respiration when given electrical shocks and was administered pills to prevent heart failure. The account is interspersed with selfreflections that enhance empathy in the reader, as in the following description of how she reacted to the torture: I didn’t scream. Now I come and think of this, it seems incomprehensible, after having been there for four months, listening to the terrified screams of people being tortured, I come and think why is it that I didn’t scream, but in the end, before such great physical and psychic suffering, everyone reacts in a different way and creates distinct defenses. It is certain that I didn’t scream, but I believe that this was worse because they believed that it was to challenge them and that angered them even more.15

This narrative situates Ana María Careaga’s personal conduct amidst the different responses to torture by other captives to convey the predicament of all disappeared. She spoke about the cramped cells, the relations among the inmates, the poor food and the daily regime in ways that are also recognisable in later testimonios.16 The first-person testimonio accounts tried to convince the readers that the incomprehensible and unimaginable was nevertheless true. Ana María ­Careaga explained in her 1979 interview with Carlos Gabetta that this problem worried her even during captivity: On one occasion, talking softly with my cellmate, we commented how difficult it was going to be to explain, if once we would leave, to be able to convey in the best possible manner, in the most understandable way, the situation and the life that were led in there. They try to accomplish that a human being stops being one, that he turns into an animal, in a constantly humiliated object through acts and words. We could not imagine how we were going to tell to what extent we lived constantly enclosed in a cell, in darkness, without being able to see, to speak, to walk, and experiencing a thousand different sentiments, often being delirious out of hunger.17

Authors of testimonios gave free rein to their emotions because they wanted to persuade their readers rather than to convince them with evidence that could stand up to a judicial inquiry. The account’s content was generally accurate, but the particular narrative form highlighted the subjective experience and the message was partisan. Testimonio accounts are a form of 15 

ibid 160, 161. eg, M Bonasso, Recuerdo de la Muerte (Mexico City, Ediciones Era, 1984); A Vázquez and I Vázquez, Con vida los llevaron: 12 historias del tiempo de violencia (Buenos Aires, Ediciones La Campana, 1984); LJ Bondone, Con mis hijos en las cárceles del ‘proceso’ (Buenos Aires, Editorial Anteo, 1985); A Portnoy, The Little School: Tales of Disappearance and Survival in Argentina (Pittsburgh, Cleis Press, 1986); M Seoane and H Ruiz Núñez, La noche de los lápices (Buenos Aires, Editorial Contrapunto, 1986). 17 Gabetta, Todos somos subversivos (1983) 165, 166. 16 See,

Witness Testimony and Truth 229 creative nonfiction in the sense that personal information is presented in a dramatic manner through the use of literary techniques, such as flashbacks, inner monologues and moral judgements. Testimonio narratives were circulating widely during the first years after Argentina’s return to democracy in December 1983, and when the National Commission on Disappeared People (CONADEP) was installed by President Raúl Alfonsín to examine whether or not there were still disappeared persons alive in Argentina. The reports of Amnesty International, the IACHR and the testimonios provided a testimonial context that must have influenced the CONADEP truth commission when it solicited depositions and wrote its final report. IV.  THE CONADEP TRUTH COMMISSION

The CONADEP truth commission was installed to inquire into the fate of the disappeared persons. The commission did not find anyone alive in secret detention, yet could not prove their assumed death with material evidence, other than through inference from the discovery of mass graves with unidentified human remains. Oral testimony by ex-disappeared and eyewitnesses of abduction therefore constituted the core of proof and made rhetorical persuasion crucial. The choice of the renowned Argentine novelist Ernesto Sábato as the commission’s president suggests an early concern about how the findings should be presented in the most convincing way. The opening sentences of the report demonstrate this awareness: ‘Many of the events described in this report will be hard to believe. This is because the men and women of our nation have only heard of such horror in reports from distant places.’18 The solicitation of voluntary depositions about these unbelievable events was of central importance because the truth commission could not subpoena witnesses. A climate of fear still reigned in Argentina, making people who had never visited the human rights organisations during the dictatorship reluctant to testify. The truth commission set up office at the General San Martín Cultural Center, situated among the cinemas and theatres in the heart of Buenos Aires, which conveyed an atmosphere of transparency and trustworthiness. Branch offices were established in Argentina’s major cities. The CONADEP invited Argentine citizens through radio and television announcements to offer their confidential depositions about the disappearances to CONADEP staff.19 Survivors of disappearances, many relatives 18 CONADEP, Nunca Más: The Report of the Argentine National Commission on the ­Disappeared (New York, Farrar, Straus & Giroux, 1986) 9. 19  E Crenzel, La historia política del Nunca más. La memoria de las desapariciones en la Argentina (Buenos Aires, Siglo Veintiuno Editores, 2008) 69.

230  Antonius CGM Robben who had been searching for their loved ones, civilians who had witnessed abductions or seen bullet-ridden bodies and even a handful of individuals who had participated in the repressive operations came forward. Truth commission interviewers asked survivors about the period between abduction and re-appearance: where had they been held, how had they been treated, who had been their captors, who else had been present in the secret detention centre and what had been their fate. The depositions of searching relatives were important in order to acquire an accurate record of the disappeared and determine the functioning of state authorities. Particular attention was paid to the judiciary to understand how the Argentine state could carry out its repression with impunity and why the thousands of habeas corpus requests were not properly addressed by the courts. The truth commission came to the following conclusion: ‘Instead of acting as a brake on the prevailing absolutism as it should have done, the judiciary became a sham jurisdictional structure, a cover to protect its image.’20 Although some forensic evidence was collected from government archives and through the exhumation of mass graves, the oral testimonies by witnesses were paramount. Their verbalisation of sensorial experiences became regarded as the most authentic expression of narrative truth. ‘The evocation of smells and sounds, the tactile impressions, and the sight that succeeded in deceiving the blindfold or hood, were their instruments to reconstruct the topography of horror, the identity of those responsible, and that of other captives.’21 Such testimonies maximised the empathy of the listener and gave an emotional truth to accounts. Take, for example, the description given by Norberto Liwski, who was abducted on 5 April 1978: For days they applied electric shocks to my gums, nipples, genitals, abdomen and ears. Unintentionally, I managed to annoy them, because, I don’t know why, although the shocks made me scream, jerk and shudder, they could not make me pass out. They then began to beat me systematically and rhythmically with wooden sticks on my back, the backs of my thighs, my calves and the soles of my feet. At first the pain was dreadful. Then it became unbearable. Eventually I lost all feeling in the part of my body being beaten. The agonizing pain returned a short while after they finished hitting me.22

The report’s prologue mentions that such quotes were ‘selected solely in order to substantiate and illustrate our main arguments’, but this ­justification undervalues the impact on the readers.23 The quotes are t­ypographically highlighted through indentation and the use of a smaller font.24 The report’s

20 

CONADEP, Nunca Más (1986) 387. La historia (2008) 72. 22  CONADEP (n 18) 22. 23  ibid 7. 24 CONADEP, Nunca Más: Informe de la Comisión Nacional sobre la Desaparición de Personas (Buenos Aires, EUDEBA, 1984). 21 Crenzel,

Witness Testimony and Truth 231 rhetorical weight rests on the testimonies and turns the victims into the truth commission’s main focus. Furthermore, the report’s polyphonic narrative counterbalances the commission’s authoritative voice, according to Phelps: Thus there is a constant tension between the stories themselves, which are stories of disorder and chaos, of a world in which nothing was predictable, of ‘voids’ and phantasmagoric sensations and images, and the report, which explicitly puts the stories in an order.25

The narrative excerpts intersperse a well-organised description of the repressive infrastructure and the stages from abduction to torture, disappearance and assassination. After several hundred pages of compelling testimony woven through the report’s master narrative by the literary hand of the commission’s president Ernesto Sábato, the final recommendations begin with the sentence: ‘The facts presented to this Commission in the depositions and testimonies speak for themselves.’26 By pronouncing the oral narratives as self-evident, the commission intended to dispel any doubt in the reader and reinforce the recommendation that ‘the courts process with the utmost urgency the investigation and verification of the depositions’.27 The impression made on Argentine society by the report was deep, and most Argentines favoured prosecution of the perpetrators. The horrendous tales of torture and suffering in the commission’s report, corroborated in the media by interviews with ex-disappeared, prepared the grounds for a trial against the nine junta commanders who had ruled Argentina between 1976 and 1982. Given the persistent denial of any wrongdoing by the military, Argentine society had no position to fall back on than the confirmation in court of the human rights violations. People’s belief in the court’s verification process made judicial truths carry more weight than public truths. The Argentine truth commission had given voice to the lived experiences of victim-survivors, but had only limited means to establish their veracity because witnesses could not be subpoenaed, the accused could not be held in custody and sentences could not be imposed. V.  CRIMINAL TRIALS

Raúl Alfonsín won the October 1983 presidential race convincingly and made good on his electoral promise to bring the Argentine military to justice. Within days of his inauguration on 10 December 1983, he not only created the CONADEP truth commission but also ordered the Supreme Council of

25  TG Phelps, Shattered Voices: Language, Violence, and the Work of Truth Commissions (Philadelphia, University of Pennsylvania Press, 2004) 89, 90. 26  CONADEP (n 18) 446. 27 ibid.

232  Antonius CGM Robben the Armed Forces to prosecute the three military juntas that had been in power between March 1976 and June 1982. The members on the military’s supreme court were unwilling to try their peers, stalled the proceedings and declared on 21 September 1984 that they could not pass judgment before the 21 October deadline. It can hardly be a coincidence that on the previous day, the truth commission had presented its final report to the Argentine government, accompanied by 70,000 people, under the motto ‘punishment for the guilty’.28 The military supreme court’s announcement resulted in the Federal Court of Appeals ruling that now a civilian court could put the nine junta commanders on trial. The Buenos Aires Federal Court of Criminal Appeals leaned heavily on the work of the truth commission and selected the 670 most solid cases presented in the final report. Public hearings began on 22 April 1985. The opening week of proceedings began with the testimony under oath by Argentine politicians, high-ranking officers and foreign specialists. Adriana Calvo de Laborde became the first survivor of torture and disappearance among the 800 witnesses for the prosecution to be heard by the court. She had already deposited her denunciation at the CONADEP truth commission, but was now facing aggressive defence lawyers and judges intent on acquiring reliable testimonies. Adriana Calvo de Laborde told the court that on 4 February 1977, 10 heavily armed men entered her house in the city of La Plata. After they searched the house, they asked her some questions and then ordered her to accompany them. Her 18-month-old son was handed to the care of her neighbours. Once in the car, she was pushed to the floor, covered with a sweater and told that she would be killed. After a 10-minute drive, the car arrived at its destination. She was blindfolded and her hands were tied behind her back, despite her being visibly pregnant. At this moment in the testimony, she was asked by Judge Guillermo Ledesma if she knew where she had been taken and whether or not she had been tortured. She responded that she had been threatened and beaten, but not tortured. She did, however, hear how other captives were tortured with an electric prod and by nearly drowning them. The judge asked her how she knew. She responded that she knew from the sound, by hearing the sound of running water and the gasping for breath.29 The testimony continued with more questions about the place and conditions of detention, the presence of other captives and the brutal interrogations by the torturers. She said that one man had been tortured for days in a systematic way. The interrogators were not under the influence of drugs or alcohol, but were conscious of what they were doing. 28  ACGM Robben, Political Violence and Trauma in Argentina (Philadelphia, University of Pennsylvania Press, 2005) 322. 29  A Calvo de Laborde. ‘Testimonio de la señora Calvo de Laborde’ (1985) El Diario del Juicio, 29 April, 30.

Witness Testimony and Truth 233 After they abandoned the man in a corridor, he was then tortured for hours by several drunken guards to make him say that his mother was ‘a bitch’s daughter’ (una hija de puta). She apologised to the judge for repeating the vulgar expression: Calvo de Laborde: I regret having said this. But I believe that it is important because here [in this courtroom] they have talked about excesses, and supposedly these are excesses. The rest, the cold and cruel torture, was an act of service, was due obedience. Judge Ledesma: I ask you, madam, that you tell facts without qualifications. Calvo de Laborde: Sir, this was a fact. Judge Ledesma: I take your emotion into account. There is no doubt that the fact was real, but we are talking about your qualification afterwards. Calvo de Laborde: I apologize, Your Honor.30

The incommensurability of the judicial truth and the experiential truth is apparent in this exchange between judge and witness. This being the first testimony by an ex-disappeared, Judge Guillermo Ledesma wanted to set a standard for the many heart-wrenching testimonies to come in the following months, and curb the display of emotions, feelings and value judgements that might cloud the due process. For the witness, however, a dispassionate testimony undermined the veracity of the intensely lived experience that included sounds, smells, nausea and fear. Adriana Calvo de Laborde was thus guided towards a testimony that differed significantly from her deposition at the CONADEP truth commission, where she had been heard by empathetic CONADEP staffers instead of contentious interlocutors. She and comparable witnesses had to balance and separate two partly overlapping narratives: one emotional and lived to create a narrative truth; and the other factual to provide an evidential truth. The contrast became apparent in the CONADEP deposition and court testimony about one of the most painful and indelible episodes in her life. Adriana Calvo de Laborde was moved several times to other secret detention centres after her abduction on 4 February 1977. On 15 April, she was taken to the Pozo de Banfield centre by two men and a disappeared captive named Lucrecia. Adriana was nearly nine months’ pregnant and already in labour when she entered the patrol car. She was told they were going to a hospital. As the contractions came faster, she said that she could no longer stop the birth. The men laughed, saying that it did not matter because they were going to kill her and her baby anyway. The men continued driving, but finally stopped when the baby was about to be born. She remained

30 

ibid 31.

234  Antonius CGM Robben blindfolded and handcuffed, struggling to remove her knickers to deliver the baby in the back of the car: Thanks to the forces of nature, the birth was normal. The only assistance I received was when ‘Lucrecia’ tied the umbilical cord which was still linking me with the child as there was nothing to cut it with. No more than five minutes later we drove on, supposedly in the direction of a hospital. I was still blindfolded and my child was on the seat.31

She narrated the same distressing event more than a year later while testifying in the trial against the nine junta commanders: My baby was born well, she was very tiny, she was hanging from the umbilical cord because she had fallen from the seat. She was on the floor. I asked them to, please, hand her to me so that I could have her with me, but they didn’t give her to me. Lucrecia asked for a rag to the one sitting in front, who cut a dirty rag and with that they tied the umbilical cord, and continued on their way. Three minutes had passed. My baby was crying, I continued with my hands behind my back, with my eyes covered.32

The difference in detail between the two accounts is remarkable. The court testimony is much more self-conscious than the CONADEP deposition. Moreover, the deposition focuses mostly on the personal experiences of Adriana Calvo de Laborde, whereas the court testimony revolves around demonstrable evidence, such as the places of detention, the nature of the interrogation, the number and identity of captors and captives, and repeated questions about when she had been blindfolded and what she had actually seen with her own eyes. The narration to a court with a prosecutor eager to make his case, hostile defence lawyers trying to discredit it, inquisitive judges who wanted hard proof and an audience that listened in horror was served with close attention to detail and a precise, almost procedural, chronology intended to enhance its judicial truth value. How was the testimony transcribed in the verdict? Adriana Calvo de Laborde is case no 1 in a list of 700 cases. The description states that she was abducted on 4 February 1977, at about 12:00 am by armed personnel of a security or armed force, as corroborated by two neighbours. Several appeals, including a writ of habeas corpus, were made by two relatives, but to no avail. The court considers it proven that she was held captive under inhuman circumstances at four different secret detention centres run by the Buenos Aires Provincial Police and under the control of the First Army Corps, as corroborated by the testimony of four fellow-captives, including her husband. The court also considers it proven, by the testimonies of persons who shared captivity with her, ‘such as by the pronouncements by

31  32 

CONADEP (n 18) 291. Calvo de Laborde (n 29) 32.

Witness Testimony and Truth 235 Caracoche de Gatica who happened to be under similar circumstances, that was given birth to a baby girl’.33 The bewildering delivery on the back seat of a patrol car by Adriana Calvo de Laborde is reduced to the bare fact of the birth, denuded of the inhuman circumstances that apparently could not be authenticated by independent testimony and therefore did not figure in the case description. What counted were the abduction, the clandestine detention without being charged with any crime and the negative response to the habeas corpus request. Without the CONADEP deposition and the verbatim transcription of the court testimony, we would never have known what was behind the statement that Calvo de Laborde had delivered a baby in captivity. Five of the nine junta members on trial, including General Videla and Admiral Massera, were convicted in December 1985. The 1984 ruling that a civilian court could prosecute the nine commanders resulted in a flood of accusations that worried President Alfonsín. To protect the budding democracy, Alfonsín passed the Final Point Law through Congress, which put a 60-day statute of limitations on new accusations. The law was accepted in December 1986, but failed to dispel the growing discontent among indicted low-ranking officers and non-commissioned officers who had carried out orders given by their commanders. After a military rebellion, a Due Obedience Law was passed in June 1987 that reduced the accused to high-ranking commanders. Alfonsín’s successor President Carlos Menem proceeded along the same path by pardoning hundreds of indicted officers and guerrillas in 1989, and releasing the five convicted junta members in 1990.34 A 20-year interlude of impunity but certainly not of testimonial silence began because the human rights movement continued to look for new ways to discover the truth about the disappearances and prosecute the perpetrators in its wake. In 1996, an innovative causeway was found in the creation of truth trials (juicios por la verdad histórica) based on rulings by the IACHR that family members have a right to know about the fate of their disappeared relatives.35 These trials did not pursue accountability but truthfinding. The criminal prosecution of alleged perpetrators was impossible because of the amnesty laws, but witnesses could be summoned by the court to testify under oath about the cause of death of the disappeared and the whereabouts of their remains. Argentine military officers and searching relatives were thus not each other’s opponents as accused and claimants, but they stood formally on an equal footing as witnesses before the court. The truth trials seemed to be a classic double bind: suspected perpetrators

33 Camara Nacional de Apelaciones en lo Criminal y Correccional Federal de la Capital Federal, La Sentencia (Buenos Aires, Imprenta del Congreso de la Nación, 1987) vol 1, 304. 34 Robben, Political Violence (2005) 331, 338. 35  See IACHR, ‘Right to the Truth’, www.oas.org/en/iachr/expression/showarticle. asp?artID=156&lID=1.

236  Antonius CGM Robben who refused to answer the judge’s questions would be accused of perjury and would risk a four-year prison sentence, while those who refused to appear in court would be charged with the obstruction of justice, detained for two days to reconsider and then sentenced to 30 days in jail if they still refused to cooperate. Some officers were arrested, but the Argentine Supreme Court soon ruled that they could not be forced to give self-­incriminatory testimonies.36 Many truth trials were held in major Argentine cities, but the outcomes were inconclusive. Nevertheless, these public hearings served to gather new oral evidence and keep the issue of the disappeared in the public eye in Argentina. The trials also revealed the ambiguous status of the witnesses. Searching relatives, former disappeared and agents of state repression were summoned by the court as witnesses without prejudice, but were expected to act as litigants over the truth. Engaged in a contest of credibility, silence and denial were interpreted as admissions of guilt and were treated as perjury on the basis of the findings of the CONADEP truth commission, the sentences of criminal trials in the 1980s and evidence provided by other witnesses. The truth trials had served their purpose when a federal judge declared in 2001 that the amnesty laws were unconstitutional, and Congress followed suit in 2003. The Supreme Court derogated Alfonsín’s amnesty laws in June 2005 and Menem’s presidential pardons in 2007. The first defendant was put on trial in 2006, and by December 2013 a total of 520 persons had been convicted and 60 persons absolved, while 1,069 persons had been at least indicted, of whom 525 were on trial.37 The court testimonies of the 2010s were not duplicates of those given in the mid-1980s. They manifested the accumulated knowledge of decades of archival research, forensic investigations, oral history and long-awaited revelations by perpetrators, but they were also products of self-reflection and the distance of time. Aged mothers, barely able to step on the witness stand, could no longer recall many details of the abductions that marked their lives. Testimonial transformations were most noticeable among those w ­ itnesses, such as Ana María Careaga, who had adjusted the framing of their horrifying experiences through the decades to new conceptual understandings.

36  ACGM Robben, ‘Testimonies, Truths, and Transitions of Justice in Argentina and Chile’ in AL Hinton (ed), Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence (New Brunswick, Rutgers University Press, 2010); N Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia, University of Pennsylvania Press, 2005) 104, 107. 37  Procuración General de la Nación, Informe sobre el estado de las causas por violaciones a los derechos humanos cometidas durante el terrorismo de Estado, 2014, www.fiscales.gob.ar/ lesa-humanidad/wp-content/uploads/sites/4/2014/01/Informe_Lesa_Humanidad_20_diciembre_2013.pdf.

Witness Testimony and Truth 237 Careaga’s earliest testimonies were contextualised in Latin American authoritarianism, while her testimony during the 2010 trial was framed through the concept of genocide. Several times she described El Club Atlético centre as a concentration camp and emphasised that the captors were particularly cruel towards Jewish Argentines. The verdict of the Club Atlético trial was read on 21 December 2010. Twelve defendants received life sentences, four were sentenced to 25 years in prison and one defendant was absolved. Ana María Careaga commented that: Justice has been done … but there is also annoyance at having to accept that it was not considered proven that this repressor with the pseudonym Kung Fu had worked there, despite that everything we went through contradicts with the criteria of justice.38

This acquittal was therefore appealed. Furthermore, even though the prosecution had requested a genocide conviction, the court sentenced the defendants for crimes against humanity.39 We can safely assume that the latter sentence would have satisfied Ana María Careaga 20 years earlier, but, given new historical insights and interpretive frameworks, the verdict no longer conformed to her present understanding of the past as reflected in her multi-layered testimony. VI. CONCLUSION

Testimonies by survivors of abduction, torture and disappearance have time and again been crucial in changing the course of justice in Argentina, because justice is not confined to the courtroom and judicial truth is only one among many. Fact-finding missions, truth commissions and criminal courts have different relations to testimony. All three use testimony to determine human rights violations and criminal offences, but the first centres on the responsibilities of states to respect people’s constitutional rights, the second on acknowledging the suffering of survivors, and the third on prosecuting perpetrators. These objectives result in partially overlapping but still different testimonies because fact-finding missions, truth commissions and criminal courts follow different procedures with respect to witnesses. These procedural differences concern other ways of presiding over the hearings,

38 A Dandan, ‘La patota de Miara y Guglielminetti tuvo su condena’, Página/12 (22 December 2010), www.pagina12.com.ar/diario/elpais/1-159138-2010-12-22.html; accessed 21 November 2014. 39 ACGM Robben, ‘From Dirty War to Genocide: Argentina’s Resistance to National ­Reconciliation’ (2012) Memory Studies 305, 315.

238  Antonius CGM Robben gathering evidence, weighing the veracity of the testimonies and presenting the outcomes of the inquiry. Testimonies can therefore only unfold within the structural parameters and contextual limitations set by these three platforms, as has been shown in the Argentine case. The fact-finding missions that visited Argentina were operating under the restrictions of a military dictatorship that thwarted access to locations and witnesses. They had only limited knowledge of the reigning repression and spoke with many searching relatives, but few ex-disappeared, while the Argentine junta played a politics of deception and denial. The missions grappled with the presentation of their findings in a neutral way. In particular, the report by the IACHR shows the struggle to convince public opinion and at the same time maintain judicial decorum by alternating emotional and formal testimonies. However, the CONADEP truth commission was unambiguous in its moral condemnation of individual perpetrators and the authoritarian state by combining a formal description of the repressive structure with experiential testimonies that showed compassion for the victims of state terrorism. Finally, criminal courts have been seeking to redress grievances during the past three decades by putting the accused on trial. Although important from a legal perspective, court procedures inevitably restrict the testimonial deployment of the lived experiences and therefore exclude non-judicial truths. The simultaneous appearance of four types of testimony in Argentina during the mid-1980s—namely autobiographical narratives, testimonios, the CONADEP declarations and the eyewitness accounts at the commanders’ trial—demonstrates the incommensurability of their partial truths. Individual experiences that are rendered through creative narratives that embrace the entire sensorium, and testimonios that are composites of multiple personal predicaments may reflect truth as the authors see it, but fail to share a common denominator with courtroom and truth commission testimonies. In fact, courts do not take the declarations of truth commissions at face value, as was shown in Argentina. The prosecutor of the 1985 trial of the junta commanders took the most convincing cases of the CONADEP report and then carried out an independent judicial verification. In fact, the two pairs of testimony are viewed askance by both sides. Autobiographical narratives and testimonios appeal to notions of human compassion and moral indignation that legitimise their call for prosecution and justice because of their emotional, empathetic and experiential truth. Yet, judicial truth requires dispassionate, evidential testimonies that provide the kind of proof and discourse considered proper in a court of law, and casts sensorial evidence of smell, touch, taste and other bodily sensations by the wayside of judgment because of their incommensurability. Transitional justice does not end with the conviction of perpetrators, the judicial acknowledgement of suffering and restorative measures for victim-survivors; it also needs room for non-judicial truths that reveal what remained unsaid in the courtroom.

Witness Testimony and Truth 239 REFERENCES Amnesty International, Report of an Amnesty International Mission to Argentina, 6–15 November 1976 (London, Amnesty International Publications, 1977). Beverley, J, Testimonio: On the Politics of Truth (Minneapolis, University of ­Minnesota Press, 2004). Bonasso, M, Recuerdo de la Muerte (Mexico City, Ediciones Era, 1984). Bondone, LJ, Con mis hijos en las cárceles del ‘proceso’ (Buenos Aires, Editorial Anteo, 1985). Calvo de Laborde, A, ‘Testimonio de la señora Calvo de Laborde’ (1985) El Diario del Juicio 29 April, 29, 33. Camara Nacional de Apelaciones en lo Criminal y Correccional Federal de la ­Capital Federal, La Sentencia, 2 vols (Buenos Aires, Imprenta del Congreso de la Nación, 1987). Comisión Interamericana de Derechos Humanos (CIDH), El informe prohibido: Informe sobre la situación de los derechos humanos en Argentina (Buenos Aires, OSEA and CELS, 1984). CONADEP, Nunca Más: Informe de la Comisión Nacional sobre la Desaparición de Personas (Buenos Aires, EUDEBA, 1984). CONADEP, Nunca Más: The Report of the Argentine National Commission on the Disappeared (New York, Farrar, Straus & Giroux, 1986). Crenzel, E, La historia política del Nunca más. La memoria de las desapariciones en la Argentina (Buenos Aires, Siglo Veintiuno Editores, 2008). Dandan, A, ‘La patota de Miara y Guglielminetti tuvo su condena’, Página/12 (22 December 2010), www.pagina12.com.ar/diario/elpais/1-159138-2010-12-22. html. Fernández Meijide, G, La historia íntima de los derechos humanos en la Argentina (Buenos Aires, Subamericana, 2009). Gabetta, C, Todos somos subversivos (Buenos Aires, Editorial Bruguera, 1983). Government of Argentina, Observations and Criticisms Made by the Government of Argentina with Regard to the Report of the Inter-American Commission on Human Rights on the Situation of Human Rights in Argentina (Washington DC, OAS, 1980). Gugelberger, GM, ‘Introduction: Institutionalization of Transgression: Testimonial Discourse and Beyond’ in GM Gugelberger (ed), The Real Thing: Testimonial Discourse and Latin America (Durham, NC, Duke University Press, 1996) 1–19. IACHR, Report on the Situation of Human Rights in Argentina (Washington DC, Organization of American States, 1980). Phelps, TG, Shattered Voices: Language, Violence, and the Work of Truth Commissions (Philadelphia, University of Pennsylvania Press, 2004). Portnoy, A, The Little School: Tales of Disappearance and Survival in Argentina (Pittsburgh, Cleis Press, 1986). Procuración General de la Nación, Informe sobre el estado de las causas por violaciones a los derechos humanos cometidas durante el terrorismo de Estado, 2014. www.fiscales.gob.ar/lesa-humanidad/wp-content/uploads/sites/4/2014/01/ Informe_Lesa_Humanidad_20_diciembre_2013.pdf. Robben, ACGM, Political Violence and Trauma in Argentina (Philadelphia, University of Pennsylvania Press, 2005).

240  Antonius CGM Robben ——. ‘Testimonies, Truths, and Transitions of Justice in Argentina and Chile’ in AL Hinton (ed), Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence (New Brunswick, Rutgers University Press, 2010) 179–205. ——. ‘From Dirty War to Genocide: Argentina’s Resistance to National Reconciliation’ (2012) Memory Studies 305–15. Roht-Arriaza, N, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia, University of Pennsylvania Press, 2005). Schell, Jr, OH, ‘Report of the Mission of Lawyers to Argentina April 1–7, 1979’ (1979) Record of the Association of the Bar of the City of New York 473–503. Seoane, M and Ruiz Núñez, H, La noche de los lápices (Buenos Aires, Editorial Contrapunto, 1986). Vázquez, A, Polvo enamorado (Buenos Aires, Editorial Contrapunto, 1988). Vázquez, A and Vázquez, I, Con vida los llevaron: 12 historias del tiempo de ­violencia (Buenos Aires, Ediciones La Campana, 1984). Verbitsky, H, El Silencio (Buenos Aires, Editorial Sudamericana, 2005).

11 Faces of Truth Journalism, Justice and War KEES BRANTS AND CHRISJE BRANTS

I. INTRODUCTION

B

Y THEIR VERY nature, criminal justice and journalism are part of the public sphere in the original sense of the German term Öffentlichkeit, which not only encompasses transparent and rational public debate on matters of public interest but also presupposes a public sufficiently informed and willing to engage in rational debate.1 As such, criminal justice and journalism share both a commitment to the truth and a framework of procedural and professional rules to ensure that what is eventually produced in a court’s verdict or a journalistic report is, if not the absolute truth—for who shall say what that is—then at least a version of events that can be accepted by those directly concerned and by the public at large as truthful. This, in its turn, depends on the transparency of the truth-finding process and the independence and integrity of those engaged in it. But although there are few journalists and probably even fewer judges and prosecutors who would admit to not putting a search for the truth at the heart of their work, in practice the Enlightenment logic that underpins their professional endeavours gives rise to insoluble dilemmas in the relationship between truth-finding, journalism and justice. While the tenability of the Enlightenment concept of Öffentlichkeit in late modernity has been questioned on many fronts,2 its problems are particularly salient in the field of (reporting on) armed conflict and crimes against humanity, and international criminal justice. This chapter addresses these problems, which are interrelated but can nevertheless be separated into four different issues. The first is the changing nature of both war and journalism. The second is the rationality that is presupposed in Enlightenment discourse and the increasing challenge of

1 

cf J Habermas, Strukturwandel der Öffentlichkeit (Neuwied, Luchterhand, 1962). eg, J Dryzek, Deliberative Democracy and Beyond: Liberals, Critics, Contestations (Oxford, Oxford University Press, 2000). 2  See,

242  Kees Brants and Chrisje Brants emotional concerns in journalism and criminal law—and in the case of war and mass atrocity, the emotional stakes are higher than normal because of the cruel and bloody nature of events and the vast number of victims. Third, while journalism and justice may both be part of the public sphere and therefore a matter of public interest, the end goals of each are very different: journalists seek, within the parameters of their professional ethic, to uncover truthful information that will both inform and interest the public; the imperative of a court is to find the legal truth (ie, reliable and provable evidence) about a specific event within the much more confining procedural rules of fair trial in order to reach a final verdict on guilt or innocence. The fourth issue is the potential clash of interests that ensues from this difference, in which legal and journalistic truth-finding may become incompatible if journalists refuse to testify at the trial of suspected war criminals. It is a course they are entitled to take to protect their sources, and thus their independence and freedom to gather information, but one that could result in preventing the court from reaching a verdict that is acceptable as the truth. In the coming pages we examine these four issues and the very real consequences they have in practice, in the hope of shedding some light on the relationship between international criminal justice and journalism. We ask what the role of journalists is in reporting on situations of armed conflict and how the changing faces of war, journalism and dissemination technology affect what could be termed the classic situation. War is no longer always a conflict between states with armies of uniformed soldiers, but neither are those who report on it always the (international) correspondents of yesteryear travelling with such armies. Electronic technology has provided any citizen so inclined with the means to flash information from a war zone around the world at the press of a button on a mobile phone. What does this mean for the norms that are assumed to govern professional journalistic behaviour and for the reliability of that information? Indeed, the preliminary question has become: who is a journalist? The answer has implications for the protection that journalists in situations of war are afforded under international law and for the question whether, and why, journalists should refuse to testify before an international criminal court. A fundamental issue that has always lain at the heart of both journalism and (criminal) law is that the professional procedural rules of both are designed to channel emotions, promote objectivity and therefore reinforce truth-finding and the legitimacy of the result; in other words, to prevent the encroachment of emotionality on the rational paradigm of Öffentlichkeit. But in the light of changing circumstances, is it still tenable to assume that personal and emotional considerations can be prevented from obscuring objective truth-finding? And, finally, we ask what this may mean for the transparency and legitimacy of international criminal justice that depend to a large extent on the information and imagery disseminated by the mass media.

Faces of Truth 243 II.  TRUTH AND THE JOURNALISTIC PARADIGM

In a democracy, journalists are not merely people who tell stories. Because they are regarded as one of the cornerstones of the public sphere, more is expected of them and the media they work for than of ‘ordinary’ individuals. These expectations are not prescribed by law or government regulation, which would be incompatible with the freedom of expression, but flow from the specific responsibilities that attach to the functions of the media in a democracy. To enable and promote public debate, they must provide information about relevant occurrences and opinions in a way that reflects their diversity and allows citizens to make sense of society, and they must critically monitor the claims and achievements of the powers that be.3 The important role thus assigned to journalists and the freedom to give meaning to that role are based on trust in their integrity, sense of social responsibility and the due care they take in providing truthful information. A claim to not only seek but also provide the truth when reporting what goes on in the world forms the core of the journalistic paradigm.4 ­ Journalists derive their authority and trustworthiness from their assumed professional ability to give a reliable representation of global or local events, which in its turn depends on norms and practices that guide the profession and guarantee accurate interpretation and representation. Objectivity as a norm, which developed in the US with the rise of the mass-circulation press and soon followed in European journalism, became the leading ideology from the 1920s onwards: in order to be factual and reliable and to reach and inform as large and diverse a population as possible, journalists must be independent from political and economic pressures, impartial, balanced and fair, separate facts from opinions, check facts with other verifiable sources and hear both sides in any conflict. The norm of objectivity functions, among other things, to safeguard journalists from criticism about their reporting, even if the public legitimacy of their performance requires that they be transparent, or at least accountable. However, although journalists claim to provide the truth, they continually make choices in their selection and representation of facts and people as to what and who is news, and how this should be interpreted. As publics have no means of knowing what choices journalists make, both transparency and accountability have regularly been contentious issues.5 Moreover,­ 3  J Blumler and M Gurevitch, ‘Political Communication Systems and Democratic Values’ in J Lichtenberg (ed), Democracy and the Mass Media (Cambridge, Cambridge University Press, 1990). 4 As explained, eg, in M Broersma, ‘A Refractured Paradigm: Journalism, Hoaxes and the Challenge of Trust’ in C Peters and M Broersma (eds), Rethinking Journalism: Trust and ­Participation in a Transformed News Landscape (London, Routledge, 2013). 5 De McQuail, Media Accountability and Freedom of Publication (Oxford, Oxford ­University Press, 2003).

244  Kees Brants and Chrisje Brants journalists often have to deal with the economic pressures of audience demands that may run counter to the role that the journalistic paradigm implies, and with colleagues competing for scoops and ‘hot’ news. Such pressures are greatly exacerbated by the phenomenon of 24/7 ‘rolling news’, which requires the permanent delivery of ‘new’ facts and images, and updates on ongoing events.6 At the same time and based on their special significance in and for democracy as important producers of meaning and reliable ‘symbol handlers’, journalists claim certain prerogatives in their information gathering. In particular, they claim access to government information that is in the public interest and the privilege to protect their sources. The former demands open and transparent politics, while the latter sits uncomfortably with the journalistic principle of transparency. Yet, if journalists always had to name or, in the case of secret information, expose those from whom they obtain relevant information, (potential) sources may dry up and democratic debate about matters of public interest may be compromised, for which reason this journalistic privilege is recognised by the European Court of Human Rights.7 However, the very existence of such prerogatives presupposes that journalists not only subscribe but also adhere to the professional ethics of objective and reliable truth-finding with a view to informing and sustaining public debate. Electronic media have created the opportunity to dislodge the traditional top-down model of much mass communication. One of the consequences of technological developments is the appearance of citizen-journalists, who have breached the monopoly of the regular journalist to decide what news is, who produces it and who defines its content and frame.8 With their smartphones, blogs and tweets, they play an important role, both as informers of debate and as mobilisers of opinion.9 But the deprofessionalisation and subsequent democratisation of news-gathering raises the question of reliability. This has become increasingly pertinent with the appearance of ‘iterative journalism’, where what is presented as factual news has no basis in checked facts, but in rumour or ‘truthiness’, not of ‘reliable sources’ but of unknown ones or ‘experience experts’.10 Where the reliability of the traditional news

6  The so-called CNN factor also means that politicians and diplomats react to such journalism by basing reactions and decisions on news reports, which in itself leads to a cycle of ever more breaking news combined with a lack of continuity as each ‘new’ event pushes the last one literally out of the picture. 7  Goodwin v UK Series A No 17488/90 22 (1996) EHRR 123. 8  As the editor of Dutch public TV news Hans Laroes lamented in his farewell biography De littekens van de dag. Kracht en zwakte van de journalistiek en het nieuws van morgen (Amsterdam, Uitgeverij Balans, 2012). 9  PN Howard and MM Hussain, ‘The Upheavals in Egypt and Tunisia. The Role of Digital Media’ (2011) 3 Journal of Democracy 35. 10 K Brants, ‘Media, politiek en de spiraal van wantrouwen’ in B Snels and N Thijssen (eds), De Grote Kloof. Verhitte politiek in tijden van verwarring (Amsterdam, Uitgeverij Boom, 2008).

Faces of Truth 245 media was based predominantly on trust—in the integrity and independence of journalists and the professionalism of their news-gathering methods—the different applications of the internet have created a much more complex situation. That trust must now be invested in those who have no name and no claim to authority, who lack transparency or accountability, have no sources others can check and in many cases obviously do not adhere to the professional rules of the journalistic paradigm. However, media and journalism are not only in a state of flux because of the internet. Even among professional journalists, the norm of factuality has to compete with the saleability of emotion in a commercialised and competitive media market. Journalists are pressured by their employers into being more responsive and empathic to the demands of consumers and into more market-driven reporting. Increasingly, as the angle that frames the news, the public interest must compete with what the public is interested in and the human interest and emotion that feed such concerns. Although one could question whether acting in the public interest, for the public cause, was ever the (only) norm, it is certainly no longer the only leading principle of professional journalism.11 III.  TRUTH-FINDING IN A MINEFIELD

Although war reporters are subject to all the pressures that now beset news reporting, and contradictions between the professional and the personal occur whenever and wherever journalists report events that are morally shocking, all of this is considerably compounded by the circumstances of war and the occurrence of atrocities. The situation has become even more complicated now that warfare in the late twentieth and the twenty-first centuries is no longer defined as standing armies facing each other in international conflict, but is more likely to consist of paramilitary, guerrilla and terrorist activities or military intervention by international forces. Ideally in a situation of war, reporters are expected to do two things: to personally witness and seek the truth about who does what, how and, if possible, why, and then to report truthfully and objectively on what they have seen.12 In authoritarian countries where press freedom is limited or non-existent, finding the truth is always difficult, while in war it is dangerous. Despite often being romanticised, the war reporter’s witnessing function results in many being killed or injured. The second function, truth-telling, is less lifethreatening, but making sense of and contextualising the theatre of war is

11  Some would argue that it has withered away: see, eg R, McChesney, Rich Media, Poor Democracy: Communication Politics in Dubious Times (Urbana, University of Illinois Press, 1999). 12  S Allen and B Zelizer, ‘Rules of Engagement: Journalism and War’ in B Zelizer and S Allan (eds), Reporting War: Journalism in Wartime (London, New York, Routledge, 2004).

246  Kees Brants and Chrisje Brants no easy matter either, ‘since there are a lot of lies, spin and confusion in the fog of war, and it is often hard to discern the truth or to communicate truths when censorship is at play’.13 As Winston Churchill remarked 70 years ago, ‘in wartime the truth is so precious, that she should always be attended by a bodyguard of lies’.14 Or, as a more hackneyed aphorism goes, the first casualty in war is the truth. Phillip Knightley’s historical overview shows how, in the course of more than 150 years, war correspondents have served various and often conflicting roles: muckrakers, propagandists, myth-makers and critical and objective reporters.15 If, in the 1850s, the freelancer William Howard Russell was free to expose in The Times the atrocious conditions and military blunders under which British troops suffered during the Crimean War (1853–56), by the time of the Boer Wars at the end of the nineteenth century, correspondents were more likely to be part of the army (and subject to both censorship and martial law). During the First World War, governments were at pains (though not always successfully) to keep journalists away from the dreadful realities of the frontlines, while the later stages of the Second World War saw them uniformed and with the troops, although unarmed and with a status of their own. Their reports were nevertheless censored and were expected to be both partisan and patriotic. Over the past 50 years, war reporting has seen significant developments. The Vietnam ‘model’ allowed journalists to accompany the troops, hear their critical comments and disclosures, and report, like investigative journalist Seymour Hersh, on the burning of villages and slaughter of villagers, as occurred in My Lai. Having learnt the lesson that such free and critical reporting, even if sympathetic to the troops in general, did not mean enhanced support for the war as such, Margaret Thatcher’s government introduced the accreditation of those journalists they felt were more amenable to the British position and military action during the Falklands War in 1982. The system of accreditation was subsequently refined by the US military with the introduction of news pools during the Gulf War in 1991, giving a limited number of war correspondents accompanied access to the battlefield, who informed the others and produced the ‘pack journalism’ that resulted in a more uniform story. The year 2003 saw the introduction of embedded journalism in Iraq and later Afghanistan, when war correspondents accompanied, and were supervised by, specific units. Journalists were in a safer environment, but could also be better controlled as to their

13  D Kelner, ‘War Correspondents, the Military and Propaganda: Some Critical Reflections’ (2008) 2 International Journal of Communication 297. 14  Comment by Churchill to Stalin during the Tehran Conference in 1943. See AC Brown, Bodyguard of Lies (New York, Harper & Row, 1975) 1–10. 15  P Knightly, The First Casualty: The War Correspondent as Hero and Myth-Maker. From the Crimea to Kosovo (Baltimore, John Hopkins University Press, 2002).

Faces of Truth 247 whereabouts, while being with the troops usually meant a more prominent human interest frame in their reporting and a focus on the US or UK side of the story. Non-embedded correspondents, of whom there were fewer, usually focused their reporting more on the local population and were generally more critical of military action.16 IV.  SOCIAL MEDIA: HELP AND HINDRANCE

However, while independent journalists, unlike their embedded counterparts, are free to move around and are much less indebted to official (military) sources, the difficulties and dangers of accessing a war zone often mean that such freedom of movement exists in theory only. Moreover, living up to the journalistic paradigm is also affected by the increasing number of sources, particularly in recent civil wars, all with their own agenda and their own side of the story, and all with some form of electronic communication with which to reach the war reporter or the global public in a more or less unscripted fashion. That is the paradox of present-day war reporting: new technologies allow journalists to see more, but they tend to know less. The (still) official authorities have their own propaganda apparatus, invite selected reporters, fake news, hack data and sites, use social media like YouTube, Instagram, Facebook and Twitter, place trolls or so-called sock puppets with a fake identity, and with all that hinder war correspondents if they try to see beyond the officially provided truth. Islamic State and other rebel groups have their own (in some cases highly professional) media teams, who film everything that could help put their side of the story over, attract funding, influence diplomatic opinion or simply frighten the hell out of everybody. They also make extensive use of social media. While social media have the added advantage of enabling participants on both sides of the conflict to directly disseminate their own, by definition partisan, versions of the truth, bypassing the professional journalists, the latter are not the only people with the means or inclination to report from war zones. The spread of electronic technology has given rise to a form of civic journalism in which anyone with a computer or mobile phone and access to the internet can disseminate reports and images of conflict and atrocity. Such citizen-journalists can have the public interest and the truth in mind, but they are not bound by the professional norms and codes of conduct that are meant to ensure the public is objectively and truthfully informed about

16  J van Klink, ‘“Media in Bed with Our Tough Guys”: The Impact of Embedded Journalism in Afghanistan on Dutch Newspaper Stories of ISAF’ (Master’s thesis, Leiden University, 2007); B Werdmuller, ‘“The Truth is the First Casualty”: How Does Embedded Journalism Influence the News Coverage of TFU in the Period 2006–2010?’ (Master’s thesis, Leiden ­University, 2012).

248  Kees Brants and Chrisje Brants events. They tweet, ‘YouTube’, fake or ‘Facebook’ their own reality, all with their own motives: sensation, support for a cause, accidental witness, sorrow or anger. And to complicate things, they can be trolls with an impersonated identity. To a great extent, citizen-journalism is driven by emotions, subjectivity and partisanship, making it non-professional in more than one sense. According to one Dutch war reporter, local citizen-journalists—out of fear, ideology or nonchalance—rarely show the corruption or atrocities of rebel groups dominant in their own area.17 And finally there are military blogs or ‘milblogs’, on which military personnel give first-hand accounts of their activities and feelings. Their origins lie in the dissemination of ‘reality’ as captured by the soldier’s digital camera, images that still more or less required the authoritative backing of traditional media to reach the public at large—as with the photos of the Abu Ghraib scandal, again revealed by Seymour Hersh. Now blogs and Facebook pages can be direct sources without ‘mediation’ by professional journalists. Social media in present-day warfare function as an extension of the public sphere, usually more ‘real’ and empathic, and often seen as more ‘reliable’ and hence truthful. But they do not pass the litmus test of the journalistic paradigm; in fact, they sometimes blatantly break with all thinkable norms. Normally, each represents only one source, not independent, not checked, not contrasted with another source and thus not reliable, or at best there is no way of knowing. At the same time, all the different sources do not add up to a single truth, somewhere in the middle. This is where the journalistic profession claims its raison d’etre in the multifaceted world of Twitter, Facebook and YouTube, based on the idea that only adherence to the norms of professional journalism can guarantee reliable and objective truthfinding. But if the embedded war reporter loses one form of independence, the unembedded journalist faced with an inaccessible war zone and news that is only indirectly accessible via uncheckable local sources loses another. In this uncertain world, the journalist has little left on which to stake his or her claim as a reliable truth-finder. Nor can he or she perform the role of gatekeeper and sense-maker. Technology has given the public itself the possibility of aggregating and selecting the information and opinions it is interested in, open to or which it happens to encounter online; a journalist’s report or interpretation is only one among many. These multiple and competing representations of reality not only undermine the professional authority of journalism, but professionalism must also compete with the journalist’s own moral indignation and emotions. Reporting warfare has always created a moral problem for journalists. They feel sympathy for and empathy with the victims, but realise that impartiality and other professional elements of the journalistic paradigm prohibit them from 17  Oral communication by Dutch public television war correspondent Lex Runderkamp at a conference in Amsterdam on the dilemmas of reporting war, 12 March 2014.

Faces of Truth 249 taking sides. They witness atrocities and feel the need to point the finger at the perpetrators, while at the same time knowing that there are often two or more sides to a story and that a victim one day can be a perpetrator the next. Take, for instance, the Canadian journalist and film-maker Nancy Durham, who discovered she had been taken in by a young freedom fighter claiming to have joined the Kosovo Liberation Army because of the gruesome murder of her family by Serb forces. Although unverifiable at the time—‘for security reasons’, the girl refused to be interviewed in the village where this was said to have taken place—the interview nevertheless featured in Durham’s 1999 documentary Saviour of Kosovo, which was shown by the Canadian Broadcasting Corporation (CBC) and widely praised for its personal touch. It later became apparent that the atrocities never took place (indeed, the family was alive). Durham confronted the Kosovar freedom fighter, only to be told that they should both be happy: the girl had told her story of Kosovo, ­Durham had a successful documentary. Not long afterwards, CBC broadcast ­Durham’s next film, The Truth about Rajmonda: A KLA Soldier Lies for the Cause, exposing the lie that she and the girl had sold to the public. This case highlights the dangers of personal empathy and emotion that may lead a journalist to be economical with professional requirements of objective truth-finding: not verifying a story by relying on one source, not checking ‘facts’ and not hearing the other side.18 The human suffering that journalists see as war reporters leads some to take a stand according to their own moral values. Over the past 20 years, the dilemma of coping with the conflicting demands of human emotions and professionalism has resulted in two, relatively small and ambivalent, movements among the profession: ‘peace journalism’, which takes sides with all possible victims in a conflict and strives for a peaceful solution (particularly propagated by Johan ­Galtung), and ‘journalism of attachment’, first coined by British Broadcasting Corporation (BBC) reporter Martin Bell in Bosnia, which sides with those who are portrayed as the main victims of a war as opposed to the main culprits.19 In both, empathy triumphs over objectivity. V.  THE INTERNATIONAL LEGAL STATUS AND PROTECTION OF JOURNALISTS

Despite the many problems in practice, it should not be forgotten that ­professional journalists are still the only potentially neutral people whose

18  On the story of Durham’s two documentaries and the debate it encouraged among journalists, see T Regan, ‘Conned in Kosovo: A CBC Reporter’s Dilemma’ (1999) Christian Science Monitor (13 September). 19 N Ruigrok, ‘Journalism of Attachment; Dutch Newspapers during the Bosnian War’ (PhD dissertation, University of Amsterdam, 2005).

250  Kees Brants and Chrisje Brants specific job it is to report objectively and truthfully on war and war crimes. Without them, we would not even be able to begin to judge whether what interested parties are telling the public bears any relation to the reality on the ground—be it military or humanitarian. Some conflicts would probably escape our attention; there would also be no way of discovering the atrocities that are subject to the jurisdiction of international criminal courts and tribunals. Indeed, since the advent of such international criminal justice, these are the very situations that belligerents go to great lengths to hide from public scrutiny. And it is not only ‘terrorists’, jihadists, paramilitary groups and ‘rogue state’ generals who bring murder and destruction to the jungles of Congo, the deserts of Sudan or the towns of Iraq and Syria who have something to hide. Journalists also reveal the reality of euphemisms behind which governments and military institutions of ‘good’ democratic states shelter: war on terror, collateral damage, ‘enhanced’ or, more misleading because the word implies progress, ‘advanced’ interrogation techniques. Moreover, ‘in the information era, images and news can have a decisive impact on the outcome of armed conflicts’20 and, we would add, on the occurrence and possible outcome of international criminal trials, and thus on the definition of ‘victims’ and ‘perpetrators’. It is for these reasons that journalists are afforded protection under international law. Unsurprisingly, perhaps, war-reporting has become even more dangerous for journalists than it already was. Increasingly, they have become specific targets because of the work they do. ‘The spectrum of interference is wide: it ranges from access denial, censorship and harassment to arbitrary detention and direct attacks against media professionals.’21 According to the Committee to Protect Journalists (CPJ),22 72 journalists were killed in 2015 for the simple reason that they were journalists;23 many more have died, but the CPJ has been unable to establish a definite link between their profession and their deaths. Of the 72 killed in 2015, 50 were murdered (targeted killing, whether premeditated or spontaneous) and 17 were caught in crossfire in combat zones. Notably, according to CPJ statistics, 92 per cent were local, while an increasing number (43 per cent) were publishing via internet and 32 per cent via television. Syria has become by far the deadliest country for journalists, with 14 killed in combat situations in 2015 and 17 in 2014; 54 journalists are still missing. It is difficult to say how many of these are

20  Interview with Robin Geiss of the International Committee of the Red Cross, speaking during the 14th regular session of the UN Human Rights Council in Geneva (2010), www.icrc. org/eng/resources/documents/interview/protection-journalists-interview-270710. 21  Interview with Robin Geiss (2010). 22  The Committee to Protect Journalists is an independent, non-profit organisation based in New York that promotes press freedom worldwide and has compiled statistics on, among other things, the targeting of journalists during armed conflict since 1992. See www.cpj.org. 23  At the time of writing (2017), the year 2015 is the most recent for which complete statistics are available.

Faces of Truth 251 citizen-journalists, but that they are among the dead is practically certain, as ‘CPJ deliberately does not have a rigid definition of who a journalist is. Our cases include staff journalists, freelancers, stringers, bloggers, and citizen journalists—people who cover news on public affairs through any media’.24 Given that professional journalists are frequently unable to access combat zones, citizen-journalists are sometimes the only people on the ground providing information, so that their inclusion is no more than logical. Considering the truth-finding function of journalism and the fact that ‘shoot the messenger’ appears to be a regular tactic in war situations, the protection of journalists under international law has become an issue of some urgency. In 1949, Article 4 A (4) Protocol I of the Third Geneva Convention, drawing on the practice of the Second World War, afforded special protection to journalists accredited to the armed forces (and wearing military uniform). Upon capture, they are entitled to the same status and treatment as prisoners of war as are military personnel. The war correspondents envisaged here are the equivalents of embedded journalists. In 1977, following changing practices of journalism, notably during the Vietnam War, when journalists were at pains to distinguish themselves from the American forces and certainly no longer wore uniform, Article 79 of Additional Protocol 1 afforded to journalists who are not war correspondents in the legal sense the same protection as enjoyed by civilians, which means that any intentional attack on a journalist constitutes a grave breach of humanitarian law. Although from the point of view of independent, neutral journalism, embedded journalists are the less professional and comparable to the accredited journalists of yesteryear,25 and despite the actual protection afforded by the troops, their legal protection is thus greater than that afforded to other journalists (including non-professionals). It could be argued that war correspondents have less protection, because attacking them is a military act, since the other side cannot easily distinguish them from soldiers, but this no longer holds true. For the very reason that they may become legitimate targets, embedded journalists (like many non-embedded professionals) wear distinctive protective gear rather than uniforms, usually blue and marked with big white letters: PRESS. They also carry written proof of accreditation. However, whatever the status of the journalist and whatever his or her clothing, as ever the law in books is not the same as the law in action and is decidedly a far cry from journalistic practice and the reality of armed combat. So different has warfare and journalism become since 1977, let alone

24 www.cpj.org./killed/2015.

25  H Farthofer, ‘Journalists in Armed Conflicts: Neutral Observers and Their Rights in International Humanitarian Law’ (2014) 2(3) International Relations and Diplomacy 227. See also A Balguy-Gallois, ‘Protection des journalistes et de médias en période de conflit armé’ (2004) 86 International Review of the Red Cross 37.

252  Kees Brants and Chrisje Brants 1949, that these provisions of international humanitarian law, with their distinctions between war correspondents as equivalents of military personnel and other reporters on armed conflict, seem totally out of date. There is quite a difference between being a prisoner of war in a conflict between nation states and being kidnapped by armed militia in Syria or Iraq, while the practice of being identifiable as a journalist, whether embedded or not, professional or non-professional, has become dangerous in itself, precisely because journalists provide information and images that warring parties sometimes would rather did not reach the public. In times when even Red Cross personnel are deliberately attacked, there is little reason to suppose that the law will protect journalists. And finally, it will protect no one if it is not enforced. While enforcement has become the prerogative of international criminal courts, as yet the deliberate targeting of journalists has not featured in any specific indictment as a war crime. VI.  A DILEMMA OF TRUTH IN INTERNATIONAL CRIMINAL PROCESS

The messy contradictions that can obscure objective, neutral and truthful reporting from war zones and can put journalists in danger seep into international criminal proceedings in several ways. Journalists and other media personnel have stood trial for being part of the propaganda machine that accompanies and serves to obscure the nature of atrocities. However, comparable to the case of Hans Fritzsche, head of radio propaganda in Nazi Germany, and of Julius Streicher, editor of the anti-Semitic Der Stürmer (who were tried at Nuremberg), the prosecutions of journalists and corporate personnel of Radio Mille Collines for their role in inciting to the genocide that took place in Rwanda26 form examples of an interesting abuse of the journalistic paradigm that falls outside the scope of this chapter. What concerns us here is that free journalism provides information on the context of conflicts in which atrocities have occurred and, as noted by the International Tribunal for the former Yugoslavia (ICTY), ‘the information uncovered by war correspondents has on more than one occasion provided important leads for the investigators of this Tribunal’.27 Where journalists have specific information regarding grave violations of human rights, they may find themselves subpoenaed to testify before an international tribunal. This issue involves a number of different, conflicting interests that go to the heart of both the assumptions about the privilege not to testify and its relationship to reporting on modern conflict and the journalistic paradigm. 26 ICTR-01-68; ICTR-96-3; ICTR-97-32; ICTR-05-84—all cases can be found at www. unictr.org/en/cases. 27  Prosecutor v Radoslav Bradjanin, IT-99-36-AR73.9, Appeals Chamber, 11 December 2002.

Faces of Truth 253 If called as witnesses before an international court or tribunal, journalists might claim immunity from testifying, as recognised in most domestic jurisdictions and under international law.28 This could hamper judicial truth-finding as, without the journalist’s testimony, it might be impossible to reach a (guilty) verdict. On the other hand, they might choose to give evidence, and a number of international correspondents have done just that, which could violate the professional norm that journalists should never divulge information about their sources for fear of endangering journalistic truth-finding in future. The first position is one of professionalism, while the second is often prompted by personal moral and/or emotional motives: empathy with victims or a desire to see a war criminal or génocidaire convicted at all costs, including acting contrary to the norms that govern one’s own profession. However, if for the journalist the decision whether or not to testify is a conflict between private and public interests, in the context of (international) criminal justice, there is also a conflict between two public interests. The journalistic privilege has nothing to do with the journalist as a person, but with the journalist as a species, as the personification of the free media. It has long been recognised in law that the freedom of expression as an underlying condition for democratic public debate is dependent on the ability of the mass media to process information independently. This means that in principle journalists should not be forced to act as instruments of the justice process. To make them such, or even seem to be such, is to endanger their independence and ability to gather and thus to disseminate information that is in the public interest (justice being in the public interest per se). Even in the interests of judicial truth-finding, journalists should not put themselves in, or be forced into, a situation that is likely to compromise that independence, such as handing over journalistic material to be used as evidence, naming sources or testifying to the circumstances in which those sources provided material. However, while the primary objective of prosecution and trial is to establish the truth about guilt or innocence so that the guilty are convicted and punished, it is not truth at any cost. Among other things, if justice is to be regarded as legitimate (also one of the public interests of a democratic society), it requires a transparently fair trial, of which one of the principles is that the defendant be able to challenge the evidence—at an international

28  Refusing a court order to hand over documents or appear as a witness, or refusing to answer questions as a witness is a criminal offence (either a specific crime or contempt of court) in most countries, but they do afford journalists a privileged status that allows them to protect their sources and material, and, in principle, exempts them from testifying. This is also the position in human rights law, as literally scores of decisions by, eg, the European Court of Human Rights confirm.

254  Kees Brants and Chrisje Brants court through cross-examination. If the evidence is held by a journalist who refuses to testify, it cannot be challenged and therefore cannot be used to secure a conviction. In terms of public interest, then, the phenomenon of the journalist-witness is a question of if, when and why the public interest in legitimate (international) justice should override the public interest in freedom of expression and democratic debate. The answer according to the law is, as so often, a balancing act. The journalistic privilege is by no means absolute and there are situations in which journalists can be compelled to divulge their information to the criminal justice authorities and/ or the courts. The public interest in free and independent media does not always prevail over the public interest in justice or vice versa. This is the case in domestic law and in international criminal law; it was also the issue at stake in the case of Jonathan Randal. In 1993, Randal, a journalist with the Washington Post, published an interview with a Serb politician about the ongoing war in Bosnia. In it, Radoslav Brdjanin appeared to advocate ethnic cleansing, albeit in ambiguous terms.29 Later, when prosecuting Brdjanin for, inter alia, genocide, the Prosecutor at the ICTY obtained a statement from Randal vouching for the accuracy of both interview and quotes. The article was introduced as evidence. But when the defence insisted that Randal be called to testify and subject to cross-examination, he refused, arguing that testifying would endanger himself and other journalists and would hinder them in their future work.30 The Trial Chamber dismissed this argument: granting journalistic privilege to Randal would not only prejudice the defendant, who would not be able to cross-examine him, but also undermine the Tribunal’s ability to reach accurate judgments now and in future; moreover, testifying about an article already in the public domain would not mean an added risk to the journalist or his work.31 On this last point, the Court remarked acidly that he who makes a claim in public should not subsequently try to avoid a public challenge to its accuracy.32 This is a pertinent point, but the real issue was not, as the Prosecutor claimed, the accuracy of the article. Randal had also told the prosecution that Brdjanin had smiled ‘knowingly’ when reference was made to the ‘final solution’ and had struck the journalist as

29  J Randal, ‘Preserving the Fruits of Ethnic Cleansing: Bosnian Serbs, Expulsion Victims See Campaign as Beyond Reversal’ (1993) Washington Post (11 February) A34. 30  ‘Written Submissions on Behalf of Jonathan Randal to Set Aside “Confidential Subpoena to Give Evidence” Dated 29 January 2002’, 9 May 2002; “Prosecution’s Response to ‘Written Submissions on Behalf of Jonathan Randal to Set Aside “Confidential Subpoena to Give Evidence” Dated 29 January 2002’, 9 May 2002; ICTY, Trial Chamber Decision of 7 June 2002, para 29; all court documents on the Brdjanin case (IT-99-36) can be found at www.icty.org/ cases/party/673/4. 31  Trial Chamber decision of 7 June 2002, paras 25–27 and 32. 32  Decision of 7 June, para 26.

Faces of Truth 255 ‘sinister’, and it was this on which the Prosecutor planned to base the proof of specific intent to commit genocide on the part of Brdjanin. Randal appealed and the issue of journalistic privilege was decided by the Appeals Chamber. It cited with approval the US Ninth Circuit Court of Appeal on ‘society’s interest in protecting the integrity of the newsgathering process [that justifies] some incidental sacrifice of sources of facts needed in the administration of justice’33 and the European Convention on Human Rights on the ‘vital public watchdog role of the media’ and the fact that compelling journalists to testify may hinder ‘the ability of the press to provide accurate and reliable information’.34 It goes on to say that, given these considerations, ‘society’s interest in protecting the integrity of the newsgathering process is particularly clear and weighty in the case of war correspondents’, whose information is ‘essential to keeping the international public informed about matters of life and death’ and sometimes ‘vital’ to the course of international criminal justice. ‘The Appeals Chamber will not unnecessarily hamper the work of professions that perform a public interest.’35 The fact that Randal’s potential evidence concerned not only published information also weighed heavily: ‘to publish the information obtained from an interviewee is one thing … but to testify against the interviewed person on the basis of that interview is quite another’. War correspondents must be perceived as independent observers, not potential witnesses for the prosecution, for the consequences would be twofold: they may have difficulty in gathering significant information in future, being unable to find willing interviewees or even being denied access to conflict zones; and they may ‘shift from being observers of those committing human rights violations to being their targets’.36 They should therefore only be required to testify if the evidence sought is of ‘direct and important value in determining a core issue of the case’ and is unobtainable by any other means.37 Randal was not called to give evidence and Brdjanin was acquitted of the charge of genocide. VII.  CONTRADICTIONS AND CONSEQUENCES

In determining, as it puts it, ‘how the course of justice can be adequately assured without unnecessarily hampering the newsgathering function of war correspondents’, the decision by the ICTY Appeals Chamber, while providing an eminently clear explanation of the dilemma, also has logical

33 

Schoen v Schoen, 5 F 3d 1289, 1292 (9th Cir 1993). Goodwin v UK (n 7). 35  Brdanin Case, Appeals Chamber Judgment, 3 April 2007, www.icty.org/case/brdanin/4, §38. 36  ibid §43. 37  ibid §50. 34 

256  Kees Brants and Chrisje Brants consequences that go further than the court may have intended. From a practical point of view, testifying is not only a question of sources drying up. While perpetrators of human rights violations appear considerably less keen to allow the media access to certain areas that is not necessarily because journalists have testified at the Tribunals, more likely it is due to increased awareness that the international criminal courts mean business. It is also true that war reporters are increasingly at risk of losing their lives. Yet that risk cannot be the decisive argument: it is a professional hazard and while any court should be wary of putting journalists in even more danger than they are already, it remains the price that is paid for democratic debate and independent media. More important is the normative reason for granting immunity from testifying: the media and the courts have different functions to play in a democracy and journalists cannot serve as the long arm of the law in judicial truth-finding without endangering their own independent truth-finding and information function. Mutatis mutandis, this is the same argument that allows the Red Cross absolute immunity from testifying,38 which derives directly from the principles of neutrality and impartiality that underpin a duty of confidentiality towards warring parties. If it were perceived that there was any likelihood or possibility that the International Committee of the Red Cross (ICRC) would breach that duty—for example, if its staff were to testify—warring parties would deny the ICRC access to their facilities.39 Of course, the media and the Red Cross differ significantly, in that the latter is an international body with its own mandate from the international community to work for the better implementation of international humanitarian law. The news media have no such status, but their ‘mandate’ with regard to ensuring the free flow of information is nevertheless firmly grounded in human rights law. Berman argues that even the Red Cross position under the International Criminal Court (ICC) Statute is a step too far, because witness testimony is so crucial to securing convictions at international criminal tribunals that the witnesses most likely to have probative evidence must be available.40 But that is to rate securing convictions, even in an international trial, automatically above other principles of international law. The Appeals Court rejects this reasoning with regard to journalistic privilege: the truth that is to be found at trial is not the truth at any price. However, if we accept this, there are three further consequences. The first is that, logically, journalists should never be compelled to testify. The second

38 Rule 73, §4. This rule is based on a decision by the ICTY: Prosecutor v Simić et al, IT-95-9-PT, ‘Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness’, 27 July 1999 (ICRC Decision). 39  ICRC Decision (1999). 40  E Berman, ‘In Pursuit of Accountability: War Correspondents, and Evidentiary Privileges in International Criminal Tribunals’ (2005) 80(241) New York University Law Review 241.

Faces of Truth 257 is that local journalists, upon whom war correspondents so often depend and are the most likely to be hurt or killed, need greater protection than official war correspondents. The latter have a choice—leave or stay—that is not open to the former. The third is that there seems to be no logical reason to exclude citizen-journalists from the category of war reporters protected by the journalistic privilege. American courts have already recognised bloggers as having immunity from testifying, reasoning that those who do a journalist’s work, ie, contribute to public knowledge and debate, should be treated as journalists.41 Indeed, the Appeals Chamber does not entirely rule this out, defining war correspondents as ‘individuals who, for any period of time, report … from a conflict zone on issues relating to the conflict’,42 although there is also mention of ‘the work of professions that perform a public interest’ (emphasis added). But all of this only applies because the reasoning of the Appeals Chamber for granting journalistic privilege is firmly grounded in the journalistic paradigm: journalism is in the public interest because it provides accurate information to the public (and in this case the international criminal justice authorities) and because journalists are neutral observers who should not rely on single or unverifiable sources and should be objective and fairminded in the reporting of facts which they have checked and doublechecked. These are of course normative aspirations and they underpin the normative reasoning of a court. However, as we have seen in the first half of this chapter, developments in both armed conflict and communication technology have meant that in reporting from war zones, the situation on the ground is often very far removed from the norm. VIII. CONCLUSION

The vast majority of the members of the society where atrocities have occurred, but also the vast audience of the world at large, do not attend trials and are dependent on reports by the media, of the trial itself, and in particular of the events that led to it and the context in which they took place. Journalists provide both information and interpretations, and so also determine the initial discourse that frames a particular conflict and, within it, the definitions of atrocities, perpetrators and victims. In that sense, they could even be said to set the initial agenda for international criminal trials. The transparency of international criminal justice, and thus its legitimacy,

41 

Court of Appeal of the State of California, 26 May 2006, www.eff.org. Brdjanin Case (n 35) §29. Throughout the case, both the prosecution and the Court refer to ‘war correspondents’, but the term is used loosely rather than in the strict legal sense of the Geneva Protocol. 42 

258  Kees Brants and Chrisje Brants therefore depends largely on how journalists report on the crimes and criminals over which international courts and tribunals have jurisdiction and on the role that journalists may play in bringing perpetrators to justice. This becomes very clear in the ICTY Appeal Chamber’s decision in the case of Randal: war correspondents are presumed to obtain and disseminate accurate information about conflicts, and this is essential for keeping the international public informed and often vital for the process of international justice. However, like journalistic discourse, legal discourse equates the role of the media with the classic perspective of the professional (international) war reporter, filing independent articles with a newspaper or sending images and spoken reports to respectable broadcasters around the world. It is on this presumed free flow of information—a presumption grounded in the journalistic paradigm—that the transparency of international criminal justice depends and that forms the rationale for the existence of the journalistic privilege. War reporters may claim to present an objective truth because they are presumed to act on the basis of professional rules, which include the use of reliable and verifiable sources, and journalists have privileges because journalism is considered bound by ethical rules and standards that guarantee independent, objective, accurate and verifiable reporting, which, if they were forced to act for, or identify with, one or the other party in a conflict, would become impossible or have a ‘chilling effect’ on their work. But the reality on the ground is very different. It is the reality of the embedded journalist or of the war correspondent who, without access to the conflict zone, must rely on blogs and other unverifiable information, or whose story is based on press releases and planted fake news by interested parties or on ‘what the taxi driver said’ in a town many miles from where the news event is happening. Add to this the fact that many of the sources upon which war correspondents of necessity depend are more interested in disseminating their own propaganda or what they regard as an a priori incontestable version of the truth that needs no verification. Moreover, by far the greatest part of the information about conflict and atrocity comes (often via the internet) from local and citizen-journalists. Citizen-journalists in wartime, who certainly run greater risks, are almost always partisan, but that is not to say that their information cannot be just as accurate as that of the professional journalist. The difference is that they are neither bound to nor often inclined to accept the validity of objective truth-finding norms, so that we conclude that they are unreliable. But if journalists are not always journalists and objective truth-finding can become clouded by political sentiment and/or personal emotion, if technological and political interventions influence and complicate the multifacetedness of ‘the’ truth, this has far-reaching consequences for issues of reliability and transparency not only for journalism but also for transitional justice. International criminal courts seek to realise transparency through

Faces of Truth 259 publicly accessible and visibly fair trials—trials that are also neither seen to be victors’ justice nor dependent on the whims of the international community, but that make clear what legitimises their taking place against a particular defendant and ensure that immunity from punishment for mass atrocities is a thing of the past: justice done and seen to be done. For that reason, some journalists have chosen not to maintain professional silence, but to testify voluntarily, among them important British correspondents who uncovered evidence of atrocities in the former Yugoslavia such as Martin Bell—the same reporter who coined the concept of journalism of attachment of which the decision to testify is one manifestation. Bridging the gap between the personal and the professional in this way may serve to enhance truth-finding at an international criminal court in a specific case. But it does not solve the problem that the legitimacy and transparency of international criminal justice in general depend to a great extent on media reporting and that there is an increasing distance between what happens on the ground and the presumptions of objectivity, reliability and verifiability that underpin the legitimacy and transparency of the media. This seems to leave us with rather a stark choice: either we recognise that the journalistic paradigm is no longer a viable ideal or we continue to base the concept of journalism and the attendant protection and legal privileges on a normative ideal that has become far removed from a reality beset by contradictions and ambiguity, particularly in the context of armed conflict. In the first case, nobody receives protection and all can be compelled to testify. In the second, all those reporting from combat zones, be they BBC correspondents, bloggers or mobile photographers, should benefit from the protection that the public interest function of journalism confers on its practitioners, and no journalist should ever be compelled to testify before an international criminal court. The very absoluteness of such solutions makes them untenable. To relinquish the journalistic paradigm is to give up a democratic ideal which, however bad in practice, is—to paraphrase Winston Churchill once again— the best we’ve got. To protect all journalists absolutely from the practical demands of international criminal process would be to sometimes render judicial truth-finding impossible, although granted only in a very few, exceptional cases. There is probably no other option than to recognise both the dilemma of the reliability of journalism in situations of war and the reality that the present ubiquity of sources has opened the door to a wide and diverse variety of descriptions and interpretations of war. But we should also realise that this very diversity presents a picture of ‘the’ truth that is way beyond, and in its totality far more reliable, than what traditional journalism has ever been able to provide. If only for that reason, journalists of all kinds and persuasions should be provided protection. At the same time, while it is highly undesirable from a professional point of view—and potentially detrimental to the journalistic truth—to force a journalist to divulge

260  Kees Brants and Chrisje Brants his or her (confidential) information in court, there may be cases of such gravity in which the journalist is the only source of evidence where this option could be considered. Whether journalists testify voluntarily or not is a question each must answer according to his or her own conscience. REFERENCES Allen, S and Zelizer, B, ‘Rules of Engagement: Journalism and War’ in B Zelizer and S Allan (eds), Reporting War: Journalism in Wartime (New York, Routledge, 2004) 3–21. Balguy-Gallois, A, ‘Protection des journalistes et de médias en période de conflit armé’ (2004) 86 International Review of the Red Cross 37–67. Berman, E, ‘In Pursuit of Accountability. War Correspondents, and Evidentiary Privileges in International Criminal Tribunals’ (2005) 80(241) New York University Law Review 241–77. Blumler, J and Gurevitch, M, ‘Political Communication Systems and Democratic Values’ in Judith Lichtenberg (ed), Democracy and the Mass Media (Cambridge, Cambridge University Press, 1990) 269–89. Brants, K, ‘Media, politiek en de spiraal van wantrouwen’ in B Snels and N Thijssen (eds), De Grote Kloof. Verhitte politiek in tijden van verwarring (Amsterdam, Uitgeverij Boom, 2008) 163–91. Broersma, M, ‘A Refractured Paradigm: Journalism, Hoaxes and the Challenge of Trust’ in C Peters and M Broersma (eds), Rethinking Journalism. Trust and Participation in a Transformed News Landscape (London, Routledge, 2013) 28–45. Brown, A, Bodyguard of Lies (New York, Harper & Row, 1975). Dryzek, J, Deliberative Democracy and Beyond: Liberals, Critics, Contestations (Oxford, Oxford University Press, 2000). Farthofer, H, ‘Journalists in Armed Conflicts: Neutral Observers and Their Rights in International Humanitarian Law’ (2014) 2(3) International Relations and Diplomacy 227–34. Habermas, J, Strukturwandel der Öffentlichkeit (Neuwied, Luchterhand, 1962). Howard, P and Hussain, M, ‘The Upheavals in Egypt and Tunisia: The Role of ­Digital Media’ (2011) 3 Journal of Democracy 35–49. Kelner, D, ‘War Correspondents, the Military and Propaganda: Some Critical Reflections’ (2008) 2 International Journal of Communication, 297–330. Knightly, P, The First Casualty: The War Correspondent as Hero and Myth-Maker. From the Crimea to Kosovo (Baltimore, John Hopkins University Press, 2002). Laroes, H, De littekens van de dag. Kracht en zwakte van de journalistiek en het nieuws van morgen (Amsterdam, Uitgeverij Balans, 2012). McChesney, R, Rich Media, Poor Democracy: Communication Politics in Dubious Times (Urbana, University of Illinois Press, 1999). McQuail, D, Media Accountability and Freedom of Publication (Oxford, Oxford University Press, 2003). Randal, J, ‘Preserving the Fruits of Ethnic Cleansing: Bosnian Serbs, Expulsion ­Victims See Campaign as Beyond Reversal’ (1993) Washington Post (11 F ­ ebruary) A34.

Faces of Truth 261 Regan, T, ‘Conned in Kosovo: A CBC Reporter’s Dilemma’ (1999) Christian Science Monitor (13 September). Ruigrok, N, ‘Journalism of Attachment: Dutch Newspapers during the Bosnian War’ (PhD dissertation, University of Amsterdam, 2005). Van Klink, J, ‘“Media in Bed with Our Tough Guys”: The Impact of Embedded Journalism in Afghanistan on Dutch Newspaper Stories of ISAF’ (Master’s thesis, Leiden University, 2007). Werdmuller, B, ‘“The Truth is the First Casualty”: How Does Embedded Journalism Influence the News Coverage of TFU in the Period 2006–2010?’ (Master’s thesis, Leiden University, 2012).

262 

12 Memory Laws Regulating Memory and the Policing of Acknowledgement and Denial MARLOES VAN NOORLOOS

I. INTRODUCTION

I

N 2014, IN the context of the Ukraine conflict that was stirring up all kinds of memories and sensitivities related to the region’s past, the ­Russian President Vladimir Putin signed a law to criminalise expressions that distort the Soviet Union’s role in the Second World War, as well as denial of Nazi crimes.1 Meanwhile, France is still in the middle of a debate on the prohibition of denying the Armenian genocide, whereas in Turkey, individuals have been jailed for acknowledging that event. Laws that prohibit the denial—or, the other way around, the acknowledgement—of gross human rights violations are, to some, important means of consolidating the ‘truth’ about such atrocities, making sure certain facts can no longer be publicly contested. To others, they are attempts by the state to fix an official truth while outlawing other versions of history, thus consolidating the state’s power in determining what should be regarded as ‘truth’. Such laws—which I term ‘memory laws’—may thus play a role in determining the extent of the public sphere within which the memory of such conflicts is discussed. As they deal with the legacy of gross human rights violations, they can also be regarded as transitional justice mechanisms. A pertinent question is whether memory laws actually ‘succeed’ in shrinking this public space for contestation—to answer this, more empirical research is needed. For now, let us start by critically considering the motives states may have to prohibit such speech in the aftermath of gross human rights violations. These motives are aptly illustrated in the European

1  Reuters.com, 5 May 2014, www.reuters.com/article/us-russia-putin-nazi-law-idUSBREA4 40IV20140505.

264  Marloes van Noorloos Court of Human Rights (ECtHR) case of Perinçek v Switzerland,2 where a ­politician’s conviction for denying the Armenian genocide was judged a violation of freedom of expression. This case makes clear that memory laws raise several pressing questions: how can it be determined which groups shall be protected and over how many generations? Is it even possible to set limits to the public sphere after a certain lapse of time? Which mass atrocities—and what kinds of expressions about those atrocities—should be put beyond contestation? Is it possible to adopt memory laws while protecting the public sphere of contestation over the past from becoming so restricted that ‘coming to terms with the past’ implies repressive practices? This contribution analyses the motives for prohibiting denial or acknowledgement of gross human rights violations, as illustrated by the Perinçek case, in order to consider the implications such laws may have for the public sphere in which truth and memory of past conflicts are debated. II.  MEMORY LAWS

I define ‘memory laws’ as (criminal, civil or administrative) laws that implicitly or explicitly prohibit or restrain expressions about gross human rights violations in the past. They may be targeted at denial or at acknowledgement of what happened. Laws can be explicitly tied to a situation (such as the criminalisation of ‘Holocaust denial’) or can be formulated in a more general manner (such as ‘incitement to hatred’ legislation that several states interpret as including genocide denial).3 Most research in this field has focused on denial, particularly Holocaust denial. Whereas negationists deny that mass human rights violations happened at all, revisionists contest conventional views about the interpretation of, and responsibility for, such crimes, which is thus more difficult to separate from historiography.4 Besides negation, laws sometimes also extend to minimisation, justification or glorification of gross human rights violations—which may include atrocities in the present and the future. Cohen has identified different forms of denial: literal denial of the facts, interpretive denial (giving the facts a different meaning; euphemisms, blaming the other party, isolating the facts as incidents, etc.) and implicatory

2 ECtHR, Perinçek v Switzerland, 17 December 2013; ECtHR, Perinçek v Switzerland (Grand Chamber) 15 October 2015, App No 27510/08. 3 This is also required for EU Member States: see the Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law [2008] OJ L 328/55. 4 E Fronza, ‘The Punishment of Negationism: The Difficult Dialogue between Law and Memory’ (2006) Vermont Law Review 609, 614.

Memory Laws 265 denial (denying the moral or political implications of the facts, including appeals to higher loyalties and advantageous comparisons).5 Hennebel and Hochmann point to the distinction that is made in German scholarship between ‘bare denial’ and ‘aggravated denial’; the latter explicitly targets a group of people (eg, by accusing them of lying).6 In his research on the idea vocabulary of genocide denials, Charny has identified various methods commonly used by deniers of known genocides, which include, amongst other things: denying the facts of the genocide by transforming them into other kinds of events (such as security measures or military operations); depicting the perpetrators as victims and charging the victims with being perpetrators; insisting that the full data are not available (for example, denying the authenticity of documents or claiming that not-yet-opened archives will show a different picture); and relativism that mitigates the horror of events (for example, by comparing them to natural disasters).7 Such strategies may also appear simultaneously within one piece of ‘research’, whereas authors have been known to progress from literal denial (by which they soon make a mockery of themselves) towards more sophisticated forms of denial.8 Charny mentions as a separate form of genocide denial the classification of activities in other categories than genocide, mostly as wars; such arguments sometimes go together with justifications— for example, explaining the events as self-defence against rebellion.9 III.  MEMORY LAWS AS TRANSITIONAL JUSTICE MECHANISMS

One of the rationales most frequently put forward in favour of memory laws is that such expressions offend, defame and marginalise the victim group; the laws are meant to protect their feelings of secure existence (which may be threatened by such expressions).10 This line of reasoning is often applied not 5  S Cohen, States of Denial: Knowing about Atrocities and Suffering (Cambridge, Polity Press, 2001). 6 L Hennebel and T Hochmann, ‘Introduction: Questioning the Criminalization of Denials’ in L Hennebel and T Hochmann (eds), Genocide Denials and the Law (New York, Oxford University Press, 2011). On bare denial and hate speech, see also RA Khan, ‘Holocaust Denial and Hate Speech’ in L Hennebel and T Hochmann (eds), Genocide Denials and the Law (New York, Oxford University Press, 2011) 77. 7  IW Charny, ‘The Psychology of Denial of Known Genocides’ in IW Charny (ed), G ­ enocide: A Critical Bibliographic Review. Volume 2 (London, Mansell Publishing, 1991) 3, 14–15. 8  IW Charny, ‘A Classification of Denials of the Holocaust and Other Genocides’ (2003) 1 Journal of Genocide Research) 11, 14. 9  ibid 22–23. 10  L Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven, Yale University Press, 2001) 219; B Swart, ‘Denying Shoah’ in P Alldridge and CH Brants (eds), Personal Autonomy, the Private Sphere and Criminal Law: A Comparative Study (Oxford, Hart Publishing, 2001) 161.

266  Marloes van Noorloos only to victims’ relatives and survivors but also to the group as a whole (as in ‘the Jewish community’), including later generations. The link between the denial of grave crimes and the defamation of victim groups can in p ­ articular be found in the idea that distorting the facts of such crimes is actually a means of accusing the victims of lying about what happened. Indeed, some Holocaust denial takes the vicious form of explicitly accusing eyewitnesses of being untrustworthy and merely out to obtain compensation.11 Transitional justice mechanisms, including criminal trials and truth commissions, may play a role in bringing out this ‘truth’ (though some mechanisms are arguably more appropriate for this task than others). Not only can transitional justice create knowledge about the facts and circumstances of gross human rights violations, it can also help to turn knowledge into official acknowledgement of what happened: the knowledge becomes officially sanctioned and enters the public sphere.12 After a long stream of lies and denial, such truth-telling can thus have intrinsic value. With acts so abhorrent that it is hard to believe they really happened and subjugated victim groups who have long experienced denial and disbelief of their accounts from other sectors of society, acknowledgement is crucial.13 Denial of such grave crimes can add insult to injury exactly because the victims are— again—not believed. In this sense, memory laws are also transitional justice mechanisms, aimed at coming to terms with the legacy of gross human rights violations from the past. Law thus ‘becomes a space in which the collective memory is defined’.14 Truth-telling is not only vital for victims and their next of kin, but also for society as a whole to come to terms with its past. This is exemplified by the development of the ‘right to the truth’ in international law, which not only includes the right of victims/relatives to know the truth, but also implies a collective right for society.15 The Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (2005), as developed by independent expert Orentlicher at the request of the UN Commission on Human Rights, specifically set forth a duty for the state to preserve memory: A people’s knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in fulfilment of the State’s duty 11  D Fraser, ‘“On the Internet, Nobody Knows You’re a Nazi”: Some Comparative Legal Aspects of Holocaust Denial on the WWW’ in I Hare and J Weinstein (eds), Extreme Speech and Democracy (Oxford, Oxford University Press, 2009) 511. 12 Cohen, States of Denial (2001) 225 (referring to a speech by Thomas Nagel). 13  MU Walker, ‘Truth Telling as Reparations’ (2010) 4 Metaphilosophy 525, 536–37. 14 Fronza, The Punishment of Negationism (2006) 611. 15  Annual Report of the Inter-American Commission on Human Rights 1985–1986, OEA/Ser.L/V/II.68, Doc 8 rev 1, ch V; IACtHR, Moiwana Community v Suriname Series C No 124 (2005) para 204; Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, E/CN.4/2005/102/Add.1 (2005); Office of the United Nations High Commissioner for Human Rights, Study on the Right to the Truth, E/CN.4/2006/91 (2006).

Memory Laws 267 to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.16

In the eyes of critics, memory laws are a means to lay down one truth and to distinguish this from falsehood: a way of fixing history. The argument then goes that such laws can silence scientific criticism of common historical interpretations. Especially when questions of interpretation of, and responsibility for, atrocities come to the fore, it is difficult after all to speak of ‘the’ historical truth that should be preserved. If transitional justice is viewed as a process whereby different views and interpretations about what happened are continuously debated and contested among different actors,17 it becomes clear why a public sphere in which those different visions can be set forth and discussed is so vital. It is particularly the role of the state in proclaiming such ‘truths’ that is regarded as problematic—the role of the authorities in ruling out certain narratives. However, there is also a different, more subtle version of the ‘truth v ­falsehood’ rationale: memory laws may be means of confirming the sacral status of what happened—Holocaust denial laws form a clear example of this.18 In a way, they resemble blasphemy laws: denial of such acts is an expression that goes against everything society stands for—an attack on that which is regarded as sacred. Thus, in some jurisdictions Holocaust denial is criminalised separately (or is the only form of genocide denial that is prohibited), because of: [T]he very magnitude of the rupture that the Holocaust caused to liberal and Enlightenment sensibilities. In this regard, to deny the Holocaust is not simply to offend a single group or the historical record; it is to insult the very notions of meaning upon which the liberal concept of public discourse is predicated.19

According to Margalit and Motzkin, the Holocaust has come to be viewed as a ‘negative myth of origin for the postwar world’, by which they mean that we have come to view it as ‘both a caesura that separates us from the pre-Holocaust past and as the point in time and place at which the world of our values has originated’, thus serving a mythical function in society.20 I will come back to this later.

16  Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (2005) Principle 3, http://ap.ohchr.org/documents/alldocs. aspx?doc_id=10800. 17  See C Brants, ‘Introduction’ in C Brants, A Hol and D Siegel (eds), Transitional Justice: Images and memories (Aldershot, Ashgate, 2013) 1. 18 Douglas, The Memory of Judgment (2001) 220. 19  ibid 217. 20  A Margalit and G Motzkin, ‘The Uniqueness of the Holocaust’ (1996) 1 Philosophy & Public Affairs 65, 80.

268  Marloes van Noorloos States may use various mechanisms to encourage opening up and confronting the past in the public sphere and to guard collective memory against extinction, but they also use transitional justice mechanisms to restrict debate about the past and to close it off from public scrutiny. Transitional justice has an important ‘forward-looking’ function in terms of reforming democratic institutions and reforming the larger societal structures that generated the conflict in the first place.21 This can include legislative changes in the field of civil and political rights, such as freedom of expression; however, the sensitivities involved in—and states’ negative experiences with— freedoms such as speech, association and assembly may also lead to harsh restrictions to these freedoms as a way of achieving reconciliation and preventing future atrocities. See, for instance, the broad Rwandan laws on genocide denial and genocide ideology, which cover many types of challenges to the government’s ideas on the genocide and reconciliation. The country’s experience with hate speech before and during the genocide seems to have played a role in the way in which freedom of speech has come to be viewed afterwards. Opposition figure Victoire Ingabire, for instance, was convicted and sentenced to 15 years’ imprisonment for, amongst other things, drawing attention to Hutu victims during a genocide memory ceremony.22 Memory laws can be means of disconnecting the old repressive regime from the modern regime—the current regime that has acknowledged the violence from the past now protects that memory (for example, Holocaust denial laws in Germany). A state may thus attempt ‘to redeem its claims of legitimacy through acts of coerced remembering, in which the history of past crimes remains ever present and in which the law serves as the muscle of memory’.23 But this can also work the other way around, as with prosecutions for acknowledging the Armenian genocide in Turkey: sometimes, the ideologies (in this case the nationalist ideas) underpinning the state are closely connected to repression of the memory of past atrocities. IV.  PERINÇEK V SWITZERLAND

The ECtHR case of Perinçek v Switzerland aptly illustrates many of the dilemmas involved in memory laws. Mr Perinçek, doctor of law, was a Turkish national and leader of the Worker’s Party (now Patriotic Party) in Turkey. He had participated in various conferences in Switzerland, where

21  J Balint, ‘Dealing with International Crimes: Towards a Conceptual Model of Accountability and Justice’ in A Smeulers and R Haveman (eds), Supranational Criminology: Towards a Criminology of International Crimes (Antwerpen, Intersentia, 2008). 22 www.bbc.com/news/world-africa-25371874. 23  Douglas (n 10) 220.

Memory Laws 269 he denied that the Ottoman Empire had perpetrated genocide against the Armenian people in 1915 and later on. He called the Armenian genocide an ‘international lie’, but did not call into doubt the idea that massacres and deportations had taken place against the Armenians: however, he stated that massacres were committed on both sides as part of a ‘battle between peoples’ in which the Turks and the Kurds were defending their homeland against Armenians provoked to violence by imperialist powers. In ­Switzerland, Perinçek was criminally convicted for genocide denial (which is mentioned under the offence of racial discrimination; the provision in ­question is drafted broadly and does not mention any specific genocide). Both the ECtHR’s Chamber and its Grand Chamber judged that this conviction violated Perinçek’s freedom of expression (Article 10 of the European Convention on Human Rights (ECHR)), though their reasoning focused on different aspects. They both pointed out that the aim of this conviction had been to protect the honour of the relatives of victims—a legitimate aim. However, for various reasons, the Court in both instances judged the measure to be disproportionate to the aim pursued. According to the Grand Chamber, a balance needs to be achieved between the right to freedom of expression and the right to private life (Article 8 ECHR), which includes ‘the rights of Armenians to respect for their and their ancestors’ dignity, including their right to respect for their identity constructed around the understanding that their community has suffered genocide’ (para 227). First of all, Perinçek’s expressions concerned a question of great interest to the general public—and as the Court consistently ruled, the authorities’ freedom to prohibit expressions which fall within this sphere of public debate is rather small (except when the utterances contain calls for hatred or intolerance, which was not the case according to the Court). Second, the statements were made in the Swiss geographical context, where (in contrast to Turkey) the debate about this issue was not particularly tense or historically charged and had not led to serious friction between Turks and Armenians. The Grand Chamber held that the justification for criminalising Holocaust denial—which the Court did find a proportionate restriction of freedom of expression—lies in the historical context, especially in states that have experienced the horrors themselves, Holocaust denial assumes a dangerous connotation related to an anti-democratic ideology and to anti-Semitism. In contrast, the Court held that there is not such a direct link between the Swiss state and the possible consequences denial of the Armenian genocide. Furthermore, the long lapse of time between the events and the expressions plays a role: as time goes on and there are fewer survivors, the need for legal regulation will lessen. Third, the Grand Chamber did not find the expressions so wounding to the dignity of the victims and survivors and their descendants as to require criminal law measures in Switzerland, since the statements were directed

270  Marloes van Noorloos against imperialist powers rather than against Armenians. Finally,24 the Swiss courts’ argumentation did not make it clear whether Perinçek was convicted for questioning the legal qualification of the events (by reference to Swiss and international law on genocide) or for disagreeing with the consensus within Swiss society about their characterisation. The Swiss Federal Court—disagreeing with the court in the second instance—had judged that there was a broad consensus in the community about the characterisation of the 1915 events as genocide, which was reflected in political declarations and was formed on the basis of a wide consensus among historians. As a result, it was irrelevant to delve into the appropriate legal classification of the events. Whereas the ECtHR’s Chamber felt forced to delve into the question of whether such a general consensus in society indeed could have existed, the Grand Chamber refused to do so. It merely noted that if the Swiss courts meant to say that the prevailing views in Swiss society were the reference point, then the applicant’s conviction was particularly problematic because it would make it impossible for speakers to express ideas that diverge from those of the authorities or any sector of the population (para 271). The argumentation of the Court, while shedding light on various reasons for (and against) criminalising denial of gross human rights violations, also reveals the problems behind those reasons. In the following text, I will delve further into these arguments. V.  PROTECTING THE HONOUR OF VICTIMS: MEMORY LAWS AS HATE SPEECH OR DEFAMATION

A central reason in favour of prohibiting denial of human rights atrocities, which the ECtHR readily accepts, is to protect the honour of the relatives of victims. This is an argument that is often heard in discussions about the criminalisation of denial. Indeed, memory laws are often linked to— or immersed in—hate speech and group defamation laws: in Switzerland, denial of the Armenian genocide is also classified under the offence of ‘racial discrimination’. There are different versions of this argument (just as there are different rationales behind hate speech laws). First of all, denial of genocide can be viewed as a way of defaming the memory of deceased persons25—an

24  The Grand Chamber also uses three further arguments, which are less relevant for the purposes of this contribution and will thus not be discussed: (a) the lack of consensus among Council of Europe states about the criminalisation of such denials; (b) the lack of international legal obligations for Switzerland to prohibit such speech; and (c) the fact that a criminal conviction is a particularly serious type of interference with freedom of expression. 25  Hennebel and Hochmann, ‘Introduction’ (2011) xliv.

Memory Laws 271 a­ rgument which the Grand Chamber accepts in principle (but which is eventually overruled by freedom of expression considerations). Second, there is the idea of denial as a means of rehabilitating the repressive regime and thus posing a threat for society in the future. In Stanton’s ‘eight stages of genocide’, denial of genocide is included as the final stage: ‘Denial is the eighth stage that always follows a genocide. It is among the surest indicators of further genocidal massacres.’26 Denial starts with the perpetrators themselves—concealing the evidence and inventing euphemistic terms for atrocities is an important tactic used in carrying out genocide— and current denial is thus regarded as a continuation of the perpetrators’ original tactics and thereby even as a continuation of the genocide itself.27 Holocaust denial, for instance, is often regarded as a means of rehabilitating Hitler’s regime and image, and as bringing back anti-Semitic politics.28 Whereas this may be the intention of certain speakers, whether there is a real chance that such rehabilitation will happen is another question—this risk probably lessens after a certain lapse of time. How strong should the causal link between negationist speech and potential oppression or violence in the present and the future be in order to justify criminalising such speech? Or, alternatively, if the speaker’s intention to continue the perpetrators’ goals can be proven, is this in itself a reason to prohibit the speech, notwithstanding the potential consequences? But if so, how can such an intention be discerned—is every expression of every type of denial automatically intended to continue a repressive regime? The assessment of the potential consequences of such expressions is dynamic, depending on the political, historical and social context—as the ECtHR’s Grand Chamber also clearly states. Yet the Court’s argument that denial is especially dangerous in societies where the atrocities were actually perpetrated (which the Court uses to argue why it does accept convictions for Holocaust denial in countries such as Germany, Austria and France) also raises questions. First of all, as the dissenting judges Spielmann, Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kuris (para 7) hold, what does this imply for the way in which European countries are to deal with denial of, for example, the Rwandan genocide? Second, with all present-day means of communication, coupled with the presence of diaspora communities from different sides, can the impact of an expression be confined to a certain state only? The Grand Chamber does take this into account, but argues that the 26  GH Stanton, ‘The 8 Stages of Genocide’, 1998, www.genocidewatch.org/aboutgenocide/ 8stagesofgenocide.html. 27 L Douglas, ‘From Trying the Perpetrator to Trying the Denier and Back Again: Some Reflections’ in L Hennebel and T Hochmann (eds), Genocide Denials and the Law (New York, Oxford University Press, 2011) 49. 28  An argument also used by the ECtHR: ECtHR, Garaudy v France (inadmissible), 24 June 2003, App No 65831/01; ECtHR, Witzsch v Germany (inadmissible), 13 December 2005, App No 7485/03.

272  Marloes van Noorloos strict proportionality test inherent in Article 10 ECHR ‘requires a rational connection between the measures taken by the authorities and the aim that they sought to realise through these measures, in the sense that the measures were reasonably capable of producing the desired result’ (para 246). Though it can be applauded that the Court strictly assesses whether speech can actually lead to certain consequences, it still leaves open the question of how such a strict test would turn out if it were applied to Holocaust denial cases (up until now, the Court has not applied such a test in these cases). Can denial indeed cause a greater danger in the countries where the horrors happened, or is this assessment in itself highly contextual? As the argument goes, Holocaust denial can be a driver for anti-Semitism:29 deniers accuse the Jewish population of lying about the past, which may eventually lead (again) to hatred and even violence against them. Yet one might also expect people, even those with an inclination to support racist viewpoints, to turn their backs on these deniers because their viewpoints are so absurd— especially in those societies that have radically broken with their atrocious past and especially after a long lapse of time. This depends on how they frame their viewpoints, but also on the prevalence and form of anti-Semitism in a particular society. In the West, Holocaust denial has long been practised by individuals and small fringe groups in a loose network that draws on a standard ideological repertoire that is regarded as illegitimate by the greater part of the societies in which they operate.30 Nevertheless, more recently Holocaust denial has also been practised by more powerful figures, such as the former Iranian President Mahmoud Ahmadinejad. This already points to a more globalised phenomenon (with expressions going around the world through various types of media and being picked up by readers in other continents); thus, it cannot simply be stated that countries by definition have more to fear from denial on their own soil of their ‘own’ genocides. In cases of state-organised denial, such as Turkey (in states that have not made this radical break), or in cases where denial is prevalent in broad sections of society, concerns about the actual effects of denial in the public sphere are more pertinent, but the role of the ‘denier state’ in dealing with memory laws is, of course, also radically different. A third version of the ‘defamation/hate speech’ argument is that the human dignity of survivors, victims’ relatives and/or group members must be protected—the idea is then to prevent direct psychological harm caused by the expressions. As was set out previously, such speech can be threatening to people who have directly experienced the atrocities. It is particularly painful because for them, the idea that the truth will finally come out after

29  Human Rights Committee, Faurisson v France, Comm No 550/1993, UN Doc CCPR/ C/58/D/550/1993 (1996). 30  Cohen (n 5).

Memory Laws 273 years of gross human rights violations is extremely important. The propaganda, euphemisms and lies of authoritarian regimes cause a strong need among the victims of such crimes to bring out the truth, however painful that may be.31 If victims are—again—not believed and face the burden of proof to convince the outside world of what happened to them, they will find it extremely hard to achieve closure.32 And yet this argument leads to a crucial issue: which groups should be protected and for how long—only direct victims and their next of kin? Or perhaps the whole ethnic, religious or other group that they belong to? In other words, how wide is the scope of this argument and for how long can it play a role? The Grand Chamber also delved into this issue, arguing that: [A] distinction needs to be drawn between, on the one hand, the dignity of the deceased and surviving victims of the events of 1915 and the following years and, on the other, the dignity, including the identity, of present-day Armenians as their descendants. (Paragraph 155)

It follows the Swiss courts in their finding that many of the descendants, especially those in the Armenian diaspora, construct their identity around the genocide. Denial laws may thus be means to protect this identity and thereby protect human dignity (though Perinçek’s expressions, according to the Grand Chamber, were not virulent enough to have a severe impact on the group’s identity and thus to significantly damage their human dignity). The close relationship between memory laws and identity (as well as identity politics) can go in different directions over time. As people become further detached in time from the atrocities, it may sometimes become easier to acknowledge what happened in the past, as public sensitivities can fade away over generations. However, sensitivities may become even stronger over time—especially when a society has experienced a period of (even state-imposed) amnesia and the legacy of certain atrocities has not been discussed in the public sphere.33 At the same time, maintaining such control over official history and alternative accounts ‘becomes increasingly difficult after the passage of time’.34 As stated before, for the ECtHR, this time element was also a factor (though not necessarily decisive): the Court suggested that since so much time had passed since 1915, the need for the law to prohibit expressions was less apparent, even though it was still a pressing issue for Armenians. In other case law regarding historical sensitivities,

31  M Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick, Transaction Publishers, 1997) 269. 32 S Garibian, ‘Taking Denial Seriously: Genocide Denial and Freedom of Speech in the French Law’ (2008) 2 Cardozo Journal of Conflict Resolution 479. 33  See Natalia Maystorovich Chulio, ch 13 in this volume; see also W Veraart, ‘Redressing the Past with an Eye to the Future: The Impact of the Passage of Time on Property Rights Restitution in Post-Apartheid South Africa’ (2009) 1 Netherlands Quarterly of Human Rights 45. 34  RG Teitel, Transitional Justice (New York, Oxford University Press, 2001) 105.

274  Marloes van Noorloos the ECtHR has also referred to the time factor in a similar manner—such as in Vajnai v Hungary,35 where a Hungarian demonstrator was convicted for wearing a red star. Besides the argument that the star merely symbolised lawful left-wing political movements instead of totalitarian groups, the Court noted that: [A]lmost two decades have elapsed from Hungary’s transition to pluralism and the country has proved to be a stable democracy … there is no evidence to suggest that there is a real and present danger of any political movement or party restoring the Communist dictatorship … The Court … accepts that the display of a symbol which was ubiquitous during the reign of those regimes may create uneasiness amongst past victims and their relatives … It nevertheless considers that such sentiments, however understandable, cannot alone set the limits of freedom of expression.36

A similar argument came back in Lehideux and Isorni v France concerning an advertisement that justified the actions of Philippe Pétain (chief of state in the Vichy regime). The Court held that: [E]ven though remarks like those the applicants made are always likely to reopen the controversy and bring back memories of past sufferings, the lapse of time makes it inappropriate to deal with such remarks, forty years on, with the same severity as ten or twenty years previously. That forms part of the efforts that every country must make to debate its own history openly and dispassionately.37

The Court thus takes the view that even though there may be strong sensitivities about a situation lying further in the past which may offend people, this cannot as such provide a reason to legally restrict debate about such issues. Again, however, it should be noted that in cases regarding real Holocaust denial (as opposed to Lehideux and Isorni’s justificatory expressions), the Court never mentions this argument; the Grand Chamber holds that such denial invariably connotes an anti-democratic ideology and anti-­ Semitism. States that have experienced such horrors may even have a ‘special moral responsibility to distance themselves from the mass atrocities that they have perpetrated or abetted by, among other things, outlawing their denial’ (para 243). VI.  ACCUSING THE VICTIMS OF LYING

We have seen that denial of gross human rights violations is regarded as a means of defaming victim groups because they are thereby accused of lying 35 ECtHR, Vajnai v Hungary (2008) 50 EHRR 44. See also ECtHR, Lehideux and Isorni v France (Grand Chamber), Reports 1998-VII (1998). 36  ibid para 49. 37  ECtHR (Grand Chamber), Lehideux and Isorni v France, 23 September 1998, para 55. See also ECtHR, Orban and others v France, 15 January 2009, App No 20985/05.

Memory Laws 275 about what happened, thus adding insult to injury. If a speaker explicitly adds this accusation to a denial claim, this could be a reason to speak of ‘aggravated denial’, which is particularly serious because it also targets a group of people.38 The Perinçek case, however, shows that it is not always clear from an expression whether a speaker is actually accusing a group of lying. At first sight, it needs little imagination to see an accusation of lying in Perinçek’s qualification of the Armenian genocide as an ‘international lie’. For the judges Vučinić and Pinto de Albuquerque (partly dissenting to the Chamber’s judgment), these words contributed to the conclusion that ­Perinçek must have had the intention to accuse ‘the victims and the world’ of falsifying history, of labelling the Armenians as the aggressors and thus justifying the genocidal politics of the Ottoman state: ‘Les expressions ­“mensonge international”, “historische Lüge” et “Imperialistische Lüge” qu’il a employees … revenaient à traiter les victimes de menteurs’ (para 25).39 Yet when looking at the context of this expression, one may also conclude that Perinçek’s aim was merely to take a stance against what he regarded as imperialistic tendencies—he virulently criticised the ‘imperialistic’ actions by the West and Tsarist Russia against the Ottoman Empire in the past and linked it to the alleged current attempts by the US and Europe to impose a certain view of history. The Grand Chamber thus concluded that Perinçek did not call for hatred or intolerance. It gets still more difficult when a speaker does not explicitly accuse anyone of lying, but merely makes a ‘factual’ assertion (‘bare denial’).40 Holocaust deniers often imitate the conventions of normal historical scholars, building up extensive factual arguments with footnotes etc; as such, it becomes even more difficult to distinguish bad intentions while at the same time also guarding the freedom of ‘real’ historical research.41 Whether the speaker’s real aim was this malicious can sometimes be assessed by reference to his or her other speeches and actions—thus, courts can try to assess this intention by looking very closely at the context and the position of the speaker. The Swiss courts in the Perinçek judgment inferred such dishonest motives from the fact that Perinçek identified himself with Talaat Pasha, architect of the Armenian genocide. The ECtHR’s Second Section took note of Perinçek’s identification with Pasha, but judged rather legalistically that he was only convicted for genocide denial, not justification or relativisation of genocide (so the Court did not have to deal with the question whether he had justified the atrocities). The Grand Chamber held

38 

Hennebel and Hochmann (n 6). expressions “international lie”, “historische Lüge” and “Imperialistische Lüge” amount to treating the victims as liars.’ 40  Khan, ‘Holocaust Denial and Hate Speech’ (2011). 41  Douglas (n 10) 235. 39 ‘The

276  Marloes van Noorloos that there was not enough evidence ‘that the applicant’s membership in the so-called Talaat Pasha Committee was driven by a wish to vilify the Armenians and spread hatred for them rather than his desire to contest the idea that the events constituted genocide’ (para 186). It may be questioned whether the Court would also use such arguments in the context of the Holocaust: what if a defendant denied that these atrocities constituted genocide and meanwhile state that he identified himself with Hitler? VII.  THE GENERAL CONSENSUS

Some states restrict memory laws to a limited number of mass atrocities (eg, those atrocities which have been perpetuated or supported by the state itself), so that the law still leaves open the debate about other historical events.42 In this regard, the argument could be made that certain historical occurrences have attained a special ‘sacral’ status, such as the Holocaust has in the West, thus marking a radical break in time. Yet the question of how the law can put certain ‘truths’ beyond contestation and not others gives rise to complex dilemmas, especially in cross-cultural contexts where different groups may regard different events as ‘sacral’ and may not share each other’s sensitivities. The Swiss courts in the Perinçek case, noting that the wording of the Swiss law was not limited to denial of specific genocides, tried to solve this by pointing to the ‘general consensus’ that existed in society about the characterisation of the Armenian atrocities as a genocide. According to the Swiss courts, it was not necessary for the purposes of this case that the Armenian genocide be recognised as a genocide by an international court or that expert witnesses be called upon for proof that it was a genocide; the Armenian genocide is a proven historical fact recognised by the Swiss legislature and there is a general consensus in society (especially within the academic community) about its legal characterisation as genocide. The use of the general consensus argument is understandable from the viewpoint that without it, the courts in denial cases will run the risk of being asked to judge on the truth or falsity of the historical facts at issue. The trial against Holocaust denier Ernst Zundel in Canada shows how badly this can turn out: the criminal procedure gave the defendant the chance to contest the facts of the Holocaust—facts that were already well known— to the fullest, calling in witnesses and casting doubt on every little detail.43 Though the trial ‘seeks to reaffirm the shared memory that the negationism questions’,44 it runs a risk of failing to do so because ‘the law ultimately will remain less interested in safeguarding history than in preserving the 42 

Khan (n 6) 94. Douglas (n 10). 44  Fronza (n 4) 611. 43 

Memory Laws 277 c­onditions of its own complex normativity and discursive neutrality’.45 Relying on criminal law to deal with genocide denial can thus ‘contribu[e] to the erosion of the very boundary between truth and falsehood that the law has been asked to police’.46 The extent to which a criminal trial runs these risks is also dependent on the domestic legal context (eg, adversarial versus inquisitorial systems).47 In Europe, law-makers and courts have tried to solve this by treating the Holocaust as an indisputable fact about which so much consensus exists that proof in court is not required. However, in the present case, this led the Swiss courts first to consider whether the Armenian genocide could also be viewed as such an indisputable fact—and to do this, in turn, they needed to assess whether an equal consensus exists. This was, according to the Swiss Federal Court, a question about the general characterisation of the events—among the broad community, as reflected in political declarations, and as based on a wide academic consensus among historians. This is a different issue than the strictly legal characterisation or the existence of international court rulings.48 As such, the courts in fact tried to refrain from writing history themselves (which they would have had to do if they would not have concluded that the Armenian genocide was an indisputable historical fact).49 Yet in the view of the ECtHR’s Second Section, there was an important distinction between the Perinçek case and past ECtHR cases on Holocaust denial: in those cases, it was decisive that concrete historical facts were denied that had been clearly established by an international court.50 This argument was not followed by the Grand Chamber (para 243), whose argument for distinguishing Holocaust denial from the present case focused on the historical context. Indeed, the requirement of ‘clearly established historical facts’ may turn out to be unfair: the question whether gross human rights violations have been acknowledged as such by an international tribunal (or even brought to justice before an independent tribunal at all) is, after all, dependent on many factors that may be rather arbitrary and politically motivated—as becomes clear from the aftermath of the Armenian genocide itself. In any case, proving gross human rights violations in a criminal court is fraught with difficulties. Because of the incentives of parties in the trial

45 

Douglas (n 10) 256. ibid 261. 47  RA Khan, Holocaust Denial and the Law: A Comparative Study (New York, Palgrave Macmillan, 2004). 48 International courts have never dealt with the Armenian genocide; however, various persons have been convicted for the Armenian massacres before Turkish military courts. See VN Dadrian, ‘The Documentation of the World War I Armenian Massacres in the Proceedings of the Turkish Military Tribunal’ (1991) 4 International Journal of Middle East Studies 549. 49  In this regard, the ECtHR’s Grand Chamber itself explicitly states that it is not its task to determine whether the massacres and mass deportations can be characterised as genocide under international law—as the dissenting judges Spielmann, Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kuris note, the Court is particularly timid in this regard. 50  Perinçek v Switzerland (n 2) para 117. 46 

278  Marloes van Noorloos and the confined legal categories, because of the selectivity in cases and the risks as regards the political dimension of the truth as set forth by international tribunals, one may ask whether it is a good idea at all to base the regulation of expressions after mass atrocity on the historical truth that comes out of such procedures.51 Of course, such historical ‘truths’ may be revisited in later trials where debates may be reopened. Yet this would then mean that memory laws need the same fluidity, which brings with it much legal uncertainty and a further potential ‘chilling effect’ on freedom of speech. This uncertainty, however, is even more pressing when one takes the general consensus in society as a starting point. When is there enough consensus in society and in politics about the correct interpretation of the past and when is this based on a sufficient academic consensus? Also, the decision whether or not to support a political declaration to this end can itself be guided by political rather than truth motives, as the Swiss courts also stated. Moreover, the general consensus argument hides from view those atrocities that the greater part of society is not yet willing to face or that have not received equal attention for political reasons, as Belavusau argues— narratives that ‘were deprived of equal competition on the “free market of historiographies”’, such as atrocities of the winning parties to a conflict.52 Indeed, memory laws leaving the narratives of groups of victims out while protecting others can convey the message that what happened to them is not worthy of acknowledgement. Also, in multi-culturalised societies, judges and law-makers may not yet be well acquainted with the historical ‘sacred spheres’ of groups that do not belong to the majority, which can easily lead to misunderstandings. In that regard, the Grand Chamber is right to point out that the ‘consensus in society’ requirement would be very problematic with regard to the freedom to express dissenting views. Should we then leave this all to the legislature—in the sense of accepting only those denial laws that refer to specific genocides as laid down in the text of the law (as suggested in the partly concurring and partly dissenting opinion by Judge Nussberger)? This will, however, lead to similar problems of minority voices and memories having a hard time being accepted. VIII.  FACTS AND INTERPRETATION

Setting certain mass atrocities beyond contestation seems to set clear, defined limits to speech. However, what should be done when someone contests 51  See Osiel, Mass Atrocity (1997); MA Drumbl, Atrocity, Punishment and International Law (New York, Cambridge University Press, 2007); RA Wilson, Writing History in International Criminal Trials (New York, Cambridge University Press, 2011). 52 U Belavusau, ‘Historical Revisionism in Comparative Perspective: Law, Politics, and Surrogate Mourning’, EUI Working Paper 12/2013, available at ssrn.com/sol3/papers. cfm?abstract_id=2368955, 2.

Memory Laws 279 certain isolated facts, or contests the interpretation of or responsibility for these facts? Perinçek’s argument was that he only questioned the legal characterisation of the Armenian atrocities as genocide, and did acknowledge the massacres and deportations as such. For the ECtHR’s Second Section, this made his case different from most of the Holocaust denial cases it had been confronted with, where defendants denied the gas chambers and other facts that have been clearly established.53 The Grand Chamber noted that ‘it can hardly be said that by disputing the legal qualification of the events, the applicant cast the victims in a negative light, deprived them of their dignity, or diminished their humanity’ (para 156), though it did accept that Perinçek actually did more than that—he also justified those acts in the name of selfdefence (rather than merely denying their legal characterisation). However, according to the Grand Chamber, however, he did not do so in a way that relativised their gravity or presented the acts as right. What should we think of this distinction between denial of the facts and disputing the legal characterisation of these facts? Is Perinçek’s interpretive denial less serious than literal denial? We have seen that it is not merely knowledge, but particularly acknowledgement that is vital in transitional justice processes and that concerns facts, interpretation and implications. This becomes very clear in the Perinçek case: for many, real acknowledgement of the Armenian atrocities is acknowledgement as genocide. However, going down the road of prohibiting all types of speech that call interpretations into question raises more difficulties than criminalising literal denial: judging on interpretive issues brings the courts even closer to interfering in academic freedom.54 It is not always so easy to distinguish between literal, interpretive and implicatory denial. Depending on the context, questioning the appropriate legal category may also be a covert way of making people doubt what happened. Interpretive differences can be very sensitive and may also be used in malicious ways that are actually meant to justify (implicatory denial) or trivialise the facts and rehabilitate the regime that caused them—take, for instance, revisionist arguments that juxtapose different crimes (such as the Rwandan ‘double genocide’ theory).55 According to Charny: One discerns a point where the hairsplitting clearly obscures the genocidal event as a reality and banishes moral outrage and sensitivity to the infamy of the event and its tragedy … These disputations and definitional controversies take on appearances of legitimate intellectual-scholarly differences when they are basically

53 See also ECtHR, Lehideux and Isorni v France (Grand Chamber), Reports 1998-VII (1998). 54  Belavusau, ‘Historical Revisionism’ (2013). 55  In the Rwandan context, this refers to the thesis that the Rwandan genocide is equivalent to the atrocities committed by the Rwandan Patriotic Front against Hutus.

280  Marloes van Noorloos contrived gimmicks and manoeuvers, at times quite malicious, to get away with denying crimes of genocide.56

Yet trying to differentiate ‘malicious’ from ‘honest’ motives for engaging in such discussions is an arduous task for the authorities, as has been argued in the previous section. An argument against punishing interpretive denial is that the use of such laws can lead to endless legal fights over the appropriate category to apply to a particular situation—especially over the concept of genocide, which has increasingly gained a symbolic status as representing ultimate evil (and, in the eyes of some, bringing with it a duty for the international community to intervene by using force).57 In many ongoing debates about history, it is questionable whether such juridification—with opponents labelling each other as criminal deniers if they refuse to use the appropriate qualification—adds to society’s coming to terms with its past.58 Historical and legal interpretations change over time: new facts and previously silenced narratives come to the fore, which lead to other interpretations and competing visions. Indeed, every generation rewrites the past from its own perspective with new insights about who is (most) responsible and what should be the appropriate legal qualification of events. This process is indeed not necessarily innocent and may be used for malicious motives, sometimes even by powerful parties such as states themselves. However, memory laws can easily target expressions that are actually part of a normal process of re-interpretation rather than malevolent distortions. The authorities may still regard such issues—for instance, about the responsibility of different actors in a conflict—as too sensitive to discuss and thus label them as ‘malicious’, acting upon their own political interests in setting forth certain interpretations and silencing others. Therefore, one may ask whether a potentially repressive instrument such as the criminal law is the right tool to separate less benign forms of historiography from free speech, and thus to regulate the way in which past atrocities are discussed in the public sphere. IX. CONCLUSION

Criminal laws on acknowledgement and denial of gross human rights violations can be regarded as very particular transitional justice mechanisms, which can play a role in determining the scope of the public sphere within which the memory of such conflicts is discussed. State authorities may have different rationales for adopting memory laws or for using them in particular ways. 56 

Charny (n 8) 23–24. See L van den Herik, ‘Over Anti-Genocide Paparazzi en de mythische aantrekkingskracht van het G-woord’ (2011) 3 RM Themis 89. 58  A Robben, ‘From Dirty War to Genocide: Argentina’s Resistance to National Reconciliation’ (2012) 5 Memory Studies 305. 57 

Memory Laws 281 Memory laws are strongly related to one of the core goals of transitional justice: ‘truth-telling’ in the sense of turning knowledge into an official acknowledgement of what happened. They aim to counter the widespread denial that tends to accompany gross human rights violations, in order to protect the honour of victim groups and to safeguard collective memory within society as a whole. This does, however, raise the question of which groups to protect and over how many generations (especially in situations where the generation that has effectively lived through the atrocities is no longer there). After a certain lapse of time, it can become more difficult to set limits to the public sphere, whereas one may also expect the risks for public order (the risk that the repressive regime will be rehabilitated) to become smaller. Though peoples’ sensitivities about the past may sometimes heighten in later generations—especially as regards aspects of the past that have been covered up before—the justification for restricting free discussion about the past arguably becomes weaker over time. Even though memory laws may serve ostensibly laudable goals, depending on their exact formulation, they risk making the public sphere of contestation over the past so small that ‘coming to terms with the past’ in turn leads to the repression of basic freedoms. Indeed, when the ‘sacred sphere’ covered by memory laws is large, the public sphere thereby shrinks, and spaces for contestation and varying interpretations become so small that transitional justice may turn against itself. In the fluid public sphere of transitional justice, ‘truths’ are continuously contested and new interpretations emerge. This process may also be used by people and groups with less benign motives who try to blur the boundary between truth and falsehood in order to defame victim groups and claim legitimacy for atrocious regimes. However, they often do so in sophisticated ways, such as by putting forward arguments relating to interpretations of historical events rather than clearly lying about facts. Trying to differentiate ‘malicious’ from ‘honest’ motives for engaging in such discussions is an arduous task. Using a repressive instrument such as the criminal law to set limits to the public sphere can lead to a situation where political interests in setting forth certain interpretations and silencing others seep through, especially when such laws extend to interpretive and implicatory denial. Criminal trials based on denial laws, depending on the type of procedural system, also run the risk of becoming vehicles in the hands of defendants to bring doubts about the past—even about facts that have long been established—into the public sphere (though they are actually meant as a tool for closing off such discussions). Indeed, the ECtHR’s judgment itself may have inadvertently cast such doubts about the Armenian genocide—in this respect, it is interesting to note that the dissenting judges Spielmann, Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kuris felt the need to express: ‘That the massacres and deportations suffered by the Armenian people constituted genocide is selfevident. The Armenian genocide is a clearly established historical fact.’

282  Marloes van Noorloos The Perinçek case makes it clear that the choice for putting certain atrocities beyond contestation and not others results in complex dilemmas, especially in cross-cultural contexts where different groups may regard different events as ‘sacral’ and may not share each other’s sensitivities. The ECtHR, even with its elaborate argumentation in this case, has great difficulties in justifying how its older case law on Holocaust denial can be reconciled with these new questions before it—and it is not difficult to predict what kinds of challenges the future will bring. The use of memory laws as a kind of ‘backstop’, as a means of safeguarding the ‘truths’ set forth in other transitional justice mechanisms such as international criminal trials and truth commissions, also gives rise to dilemmas: the ‘truths’ set forth by these mechanisms may be incomplete or politicised. Memory laws that restrict the public sphere by taking into account the sensitivities of some groups but not others can convey the message that what happened to the groups that have been ignored is not worthy of acknowledgement. The range of acknowledged narratives changes over time (new criminal trials cover new terrains, for example), but if memory laws follow such fluid transitional justice processes, this could create much legal uncertainty and have a further potential chilling effect on the public sphere where such narratives are discussed. These are some first thoughts about the potential of memory laws as transitional justice mechanisms; detailed empirical research (eg, about the impact that criminal trials have on the way in which certain aspects of history are discussed and valued) is necessary in order to determine the real impact of such laws on the public sphere in which truth and memory of past conflicts are debated. For now, I conclude that because of all the challenges involved, the potential of memory laws to police the public sphere after mass atrocity is disputable. The challenges posed may turn out to be insurmountable problems, which the regulation of collective memory by means of a crude instrument such as criminal law inevitably poses. REFERENCES Balint, J, ‘Dealing with International Crimes: Towards a Conceptual Model of Accountability and Justice’ in A Smeulers and R Haveman (eds), Supranational Criminology: Towards a Criminology of International Crimes (Antwerp, ­Intersentia, 2008) 311–34. Belavusau, U, ‘Historical Revisionism in Comparative Perspective: Law, Politics, and Surrogate /Mourning’, EUI Working Paper 12/2013, available at: papers.ssrn. com/sol3/papers.cfm?abstract_id=2368955. Brants, C, ‘Introduction’ in C Brants, A Hol and D Siegel (eds), Transitional Justice: Images and Memories (Aldershot, Ashgate, 2013) 1–14.

Memory Laws 283 Charny, IW, ‘The Psychology of Denial of Known Genocides’ in IW Charny (ed), Genocide: A Critical Bibliographic Review. Volume 2 (London, Mansell Publishing, 1991) 3–37. ——. ‘A Classification of Denials of the Holocaust and Other Genocides’ (2003) 1 Journal of Genocide Research 11–34. Cohen, S, States of Denial: Knowing about Atrocities and Suffering (Cambridge, Polity Press, 2001). Dadrian, VN, ‘The Documentation of the World War I Armenian Massacres in the Proceedings of the Turkish Military Tribunal’ (1991) 4 International Journal of Middle East Studies 549–76. Douglas, L, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven, Yale University Press, 2001). ——. ‘From Trying the Perpetrator to Trying the Denier and Back Again: Some Reflections’ in L Hennebel and T Hochmann (eds), Genocide Denials and the Law (New York, Oxford University Press, 2011) 49–74. Drumbl, MA, Atrocity, Punishment and International Law (New York, Cambridge University Press, 2007). Fraser, D, ‘“On the Internet, Nobody Knows You’re a Nazi”: Some Comparative Legal Aspects of Holocaust Denial on the WWW’ in I Hare and J Weinstein (eds), Extreme Speech and Democracy (Oxford, Oxford University Press, 2009) 511–37. Fronza, E, ‘The Punishment of Negationism: The Difficult Dialogue between Law and Memory’ (2006) Vermont Law Review 609–26. Garibian, S, ‘Taking Denial Seriously: Genocide Denial and Freedom of Speech in the French Law’ (2008) 2 Cardozo Journal of Conflict Resolution 479–88. Hennebel, L and Hochmann, T, ‘Introduction: Questioning the Criminalization of Denials’ in L Hennebel and T Hochmann (eds), Genocide Denials and the Law (New York, Oxford University Press, 2011) xvii–li. Khan, RA, Holocaust Denial and the Law. A Comparative Study (New York, ­Palgrave Macmillan, 2004). ——. ‘Holocaust Denial and Hate Speech’ in L Hennebel and T Hochmann (eds), Genocide Denials and the Law (New York, Oxford University Press, 2011) 77–108. Margalit, A and Motzkin, G, ‘The Uniqueness of the Holocaust’ (1996) 1 Philosophy & Public Affairs 65. Osiel, M, Mass Atrocity, Collective Memory, and the Law (New Brunswick, ­Transaction Publishers, 1997). Robben, A, ‘From Dirty War to Genocide: Argentina’s Resistance to National ­Reconciliation’ (2012) 5 Memory Studies 305–15. Stanton, GH, ‘The 8 Stages of Genocide’, 1998, www.genocidewatch.org/ aboutgenocide/8stagesofgenocide.html. Swart, B, ‘Denying Shoah’ in P Alldridge and CH Brants (eds), Personal Autonomy, the Private Sphere and Criminal Law: A Comparative Study (Oxford, Hart ­Publishing, 2001) 161–79. Teitel, RG, Transitional Justice (New York, Oxford University Press, 2001). Van den Herik, L, ‘Over Anti-Genocide Paparazzi en de mythische aantrekkingskracht van het G-woord’ (2011) 3RM Themis 89–96.

284  Marloes van Noorloos Veraart, W, ‘Redressing the Past with an Eye to the Future: The Impact of the Passage of Time on Property Rights Restitution in Post-Apartheid South Africa’ (2009) 1 Netherlands Quarterly of Human Rights 45–60. Walker, MU, ‘Truth Telling as Reparations’ (2010) 4 Metaphilosophy 525. Wilson, RA, Writing History in International Criminal Trials (New York, ­Cambridge University Press, 2011).

13 Challenges to the Movement to Exhume the Missing Victims of the Spanish Civil War and Francoist Dictatorship NATALIA MAYSTOROVICH CHULIO

I. INTRODUCTION

T

HE VIOLENT AND turbulent period of the Spanish Civil War and post-war dictatorship silenced the defeated Republicans. The Amnesty Law 46/1977 maintained this state of affairs, which culminated in the ‘Pact of Silence’, effectively putting victims in a state of limbo and depriving them of legal mechanisms to seek justice. However, more recently the endeavours of the Association for the Recovery of Historical Memory (ARMH) to exhume mass graves for the purpose of locating, identifying and providing recognition for victims have changed the situation. Through the advancement of victims’ rights and the expansion of international human rights law, the exhumation movement has gained visibility and led to political and legal changes domestically. The Convention on Enforced Disappearance (2006) has provided opportunities for legal reform and contributed to the formulation of the Law of Historical Memory (Ley 52/2007). This law provides an avenue to recover missing graves, but fails to create jurisdictional responsibility, which has resulted in social, political, judicial and institutional barriers for exhumations. This can be attributed to the legacies of the past and the continued tensions in relation to how the past is investigated or commemorated. This chapter draws upon ethnographic observations and interviews conducted in Spain in an attempt to extrapolate key issues impacting the exhumation of mass graves in Spain. It raises two questions: who has the power to define victimhood? And has the exhumation of mass graves contributed to justice, and if so how?

286  Natalia Maystorovich Chulio II.  HUMAN RIGHTS AND ENFORCED DISAPPEARANCE

Transitional justice is the implementation of judicial and non-judicial measures in order to redress legacies of mass human rights abuses in post-conflict societies. These policies can range from criminal prosecutions to truth commissions, reparations programmes and various other institutional reforms. The Spanish transition to democracy was heralded by an institutional and legal denial of the past in the form of the Amnesty Law (Ley 46/1977), which was negotiated by the political elites as a compromise for a new democratic order. The purpose of the amnesty was to smooth the transition to democracy on the basis that existing divisions within society could escalate into further violence. It has been referred to as a ‘pact of silence’, whereby a ‘full stop’ policy silenced all references to the past.1 The dominant discourse implies that society was ‘risk-adverse’, fearing a repetition of past violence, which prevented more proactive transitional justice policies from being applied.2 Since 1985, European courts and the Spanish Audiencia Nacional (AN) have applied universal jurisdiction with respect to human rights violations, noting its importance to the rule of law, transparency and justice. Through the expansion of the field of transitional justice, international humanitarian and human rights law has provided mechanisms for national courts to apply international law in the domestic context. This expression of ‘legal globalisation’ through the progressive expansion of transnational legal structures and discourses3 is also an example of the recent socio-legal phenomenon of ‘judicial activism’ as opposed to ‘judicial formalism’. The application of universal jurisdiction has called into question the legitimacy of amnesty laws, with the landmark case in 1998 against ­General Pinochet establishing four points of law with respect to human rights. First, human rights are universal in nature and universal jurisdiction can be applied. This means that they do not have to be included in national legislation as they are held in international law. Second, enforced disappearance and the families’ ‘right to know’ are continuous. Third, the application of amnesty for gross human rights violations is invalid. Fourth, state leaders do not have immunity against prosecution for gross human rights violations. 1  AB de Brito et al, The Politics of Memory: Transitional Justice in Democratizing Societies (New York, Oxford University Press, 2001); P Aguilar, Memory and Amnesia: The Role of the Spanish Civil War in the Transition to Democracy (New York, Berghahn Books, 2002); H Graham, ‘The Spanish Civil War 1936–1939: The Return Republican Memory’ (2004) 68(3) Science and Society 313; U Urdillo, ‘Impunity for Enforced Disappearances in Contemporary Spain’ (2011–12) 6(1) Interdisciplinary Journal of Human Rights Law 41. 2  P Aguilar, ‘Justice, Politics and Memory in the Spanish Transition’ in AB de Brito et al (eds), The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford, Oxford University Press, 2001); Aguilar, Memory and Amnesia (2002). 3  M Humphrey, ‘The Politics of Trauma’ (2010) 32 Arts: The Proceedings of the Sydney University Arts Association 37.

Challenges to the Movement to Exhume the Missing Victims 287 The Pinochet case is believed to have been a trigger in the social movement to recover the disappeared in Spain, highlighting the hypocrisy of a Spanish judge seeking to charge a foreign dictator over crimes not yet dealt with in Spain. In 2008 the same judge of the AN, Baltasar Garzón, began an investigation into the crimes of the Franco regime and authorised the exhumation of mass graves. The judge utilised the precedent of previous applications of universal jurisdiction and relatives’ ‘right to know’, which had been codified in the Law of Historical Memory (Ley 52/2007). However, due to growing tension amongst various social groups, the case was suspended pending an investigation into whether the judge had exceeded his judicial authority. This case demonstrates the lack of judicial independence or activism supported by members of the Spanish judiciary.4 It would appear that the Spanish judiciary is highly formalistic, as Garzón was found to have exceeded his authority by making law.5 This is an example of the power held by groups such as Manos ­Limpios (Clean Hands, a fascist organisation) in defining and controlling the legal discourses of transitional justice through a narrow reading of the law. The legal argument was that, given that all crimes of the period had been amnestied, no investigation could be carried out. However, the Amnesty Law states that an investigation must take place in order for amnesty to be applied. It has been proposed that there is an ‘immense contrast between Spain’s attitude to those who tortured, killed or repressed in Franco’s name and those that did the same elsewhere’,6 alluding to cases against Pinochet in 1998 and the Argentine naval officer Adolfo Scilingo in 2005. This can be attributed to the power of the Francoist discourse of the war as having been in defence of Spain from those who would seek to destroy it. Over the past 20 years, the ‘right to truth’ or ‘right to know’ has come to include forced disappearances.7 This has been established in various human rights institutions, protocols, agreements and conventions. The preamble to the International Convention of the Protection of All Persons from Enforced Disappearance (ICPPED), adopted by the United Nations (UN) General Assembly in December 2006, confirms ‘the right of any victim to know the truth about the circumstance of an enforced disappearance and

4 See www.interights.org/garzon/index.html for further details on the case of Garzón v Spain, 29 June 2012. 5  M Langer, ‘The Diplomacy of Universal Jurisdiction: The Political Branches and Transnational Prosecution of International Crimes’ (2011) 105 American Journal of International Law 1; P Burbridge, ‘Waking the Dead of the Spanish Civil War: Judge Baltasar Garzon and the Spanish Law of Historical Memory’ (2011) 9 Journal of International Criminal Justice 753. 6  G Tremlett, Ghosts of Spain: Travels through a Country’s Hidden Past (London, Faber &Faber, 2006). 7 D Groome, ‘The Right to Truth in the Fight Against Impunity’ (2011) 29(1) Berkeley Journal of International Law 175.

288  Natalia Maystorovich Chulio the fate of the disappeared person’.8 This is supported in case law (Blake v Guatemala),9 where the government was found to have violated Article 5 in relation to Article 1(1) of the American Convention of Human Rights when it failed to investigate the disappearance of a journalist.10 The importance of exhuming mass graves lies in the ability to create transparency and to bring what was hidden to the surface, both metaphorically and literally. It is a mechanism of justice for victims and their relatives as it provides an opportunity to locate, identify and rebury the missing, and seek the truth as to the manner of their deaths. Despite the exhumation of mass graves being conducted in Latin American countries and the former Yugoslavia, the situation in Spain did not come to international attention until 2002. Originally, the ARMH sought to coordinate the investigation and exhumation of mass graves to provide a balanced narrative of the past. However, after failing to achieve political change through advocacy with the Aznar government, it changed its tactics to legal mechanisms by challenging the state through international institutions. With the aid of various legal actors, it brought to light the failure of the Spanish government to effectively deal with the disappeared victims of the war and former regime. Additionally, coverage in the national and international media of the plight and injustice experienced by the victims provided momentum for public debate. In August 2002, the ARMH put its case to the UN Working Group on Enforced or Involuntary Disappearance of Persons (UNWGEIDP). It presented information in relation to approximately 30,000 disappeared persons on behalf of their relatives who held a ‘right to truth’, whereby the state had failed in its duty to investigate and aid in the location of the missing. It presented the lack of interest by the state and the judiciary as proof of continued injustice and inequality for the missing.11 At the time, this action enabled the movement to utilise heightened international ‘sensitivity’ due to recent high-profile conflicts. The UNWGEIDP made a recommendation, which was not binding on the Spanish state, with reference to two cases, on the grounds that instances of enforced disappearance occurring prior to the formation of the UN did not fall under its purview.12 To date, only a handful of cases have been included on this basis. What is surprising about this decision is that, despite the continuing nature of the crime enforced disappearance, cases prior to the formation of the UN cannot be included. This highlights an ineffectual

8 

See www.ohchr.org/EN/HRBodies/CED/Pages/ConventionCED.aspx. Blake v Guatemala, Inter-American Court of Human Rights (IACtHR), 2 July 1996. 10  Groome, ‘The Right to Truth’ (2011). 11  M Davis, ‘Is Spain Recovering its Memory? Breaking the Pacto de Olvido’ (2005) 27(3) Human Rights Quarterly 858. 12 ibid. 9 

Challenges to the Movement to Exhume the Missing Victims 289 aspect of international law and the UN as a body; in spite of reforms culminating in the opening up of humanitarian law, its scope and purview are often limited. III.  EXHUMATIONS IN SPAIN AND THE MATERIALITY OF THE BODY

Exhumations to recover the civil war dead were first conducted in Spain between 1978 and 1981. A spontaneous movement was instigated by family members to locate their disappeared relatives in various locations throughout Spain; these included Navarra, Soria, La Rioja and Palencia.13 The arrival of democracy in Spain occurred without any institutional or technical support for the numerous exhumations which took place across the nation.14 Then, on 23 February 1981, a military coup d’etat took place, led by Cornel Antonio Tejero, who, as he stormed the Spanish Parliament, demanded that ‘the whole world remain silent’. The resulting fear of a return to repression in post-civil war Spain ensured a lack of support for the movement and it ceased.15 This shows the extent of the deep-seated trauma of Spain’s recent past: the experience of even a failed coup in 1981 could force a nation to retreat to a policy which silenced its society. The contemporary recovery of human remains initially emerged as a social movement, evolving into a highly politicised and legalised movement seeking justice for those victims left at the margins of Spanish history. Notably, the catalyst for this expansion was the personal endeavour of a Madrid-based journalist and the co-founder of the ARMH, Emilio Silva, who publicly sought to recover the remains of his grandfather in 2000 from a mass grave in León. This has contributed to what Ferrándiz has called the ‘explosion of memory politics’ and historical memory in Spain, with numerous novels, films, documentaries and media reports providing exposure and a platform to discuss the past.16 The politics of exhumation raises the issue of transparency, accountability and justice for the missing and repressed victims as they challenge the legal and political denial of civil rights. As the objectives of groups such as the ARMH take more legalised forms in their attempts to redress the injustices

13  I Fernández de Mata, ‘From Invisibility to Power: Spanish Victims and the Manipulation of their Symbolic Capital’ (2008) 9(2–3) Totalitarian Movements and Political Religions 253; F Exteberría Gabilondo, ‘Exhumaciones contemporáneas en España: las fosas comunes de la Guerra Civil’ (2012) 18 Boletin Galego de Medecina Legal e Forense 13. 14  Exteberría Gabilondo, ‘Exhumaciones’ (2012). 15  ibid; I Lafuente, ‘Prologo de Isaias Lafuente’ in E Silva and S Macías (eds), Las Fosas de Franco: Los republicanos que el dictador dejo en las cuentas (Madrid, Las Temas de Hoy, 2009); Fernández de Mata, ‘From Invisibility’ (2008). 16  F Ferrándiz, ‘The Return of Civil War Ghosts: The Ethnography of Exhumations in Contemporary Spain’ (2006)22(3) Anthropology Today 7.

290  Natalia Maystorovich Chulio of the past, inevitably challenges to the movement have transpired in the political, institutional, judicial and social contexts. Through the exhumations, the AMRH utilises newly acknowledged rights of victims to bring about social, legal and political change by publicly calling to historical account the 1936 military mobilisation against a democratically elected government, its supporters and those civilians caught in the crossfire. This has culminated in symbolic changes and reparations: condemnation of the past violence (2002), financial reparations to republican soldiers and widows, the Law of Historical Memory (2007) and changes to the national narrative by including the vanquished. More recently, the movement to exhume the dead in post-conflict countries may be viewed as a new form of transitional justice or a ‘second transition of justice’.17 Through the recovery of the dead in Spain, new narratives are formulated which include those segments of society repressed first by civil war, then by dictatorship and yet again through the transition. By working with what is left from the past,18 archaeology generates a destabilising force against undemocratic situations by making things public.19 The process of bodily recovery provides evidence of violence through marks visible on the skeleton, creating a new narrative about the vulnerability of the victim. However, dominant discourses of exhumation as revenge, the guilt of all parties to the conflict and infighting between different associations create persistent challenges. While some support is noted during exhumation, cases of resistance by authorities, politicians and judges are commonplace.20 References to ‘materiality’ and ‘symbolic capital’ of the dead body see the body as something that can be manipulated to maintain existing beliefs or create new meanings.21 Mass graves can never be neutral as new meanings of the past are constructed by exposing what was previously hidden.22

17  V Druliolle, ‘Democracy Captured by its Imaginary: The Transition as Memory and Discourses of Constitutionalism in Spain’ (2008) 17(1) Social and Legal Studies 75. 18  M Shanks, Culture/Archaeology (Oxford, Polity Press, 2001); M Shanks, Archaeology/ Politics (Oxford, Blackwell, 2004). 19  B Latour, From Realpolitik to Dingpolitik—or How to Make Things Public (Cambridge, MA and Karlsruhe, Z Center for Art and Media, 2005). 20  D Íñiguez and J Santacana, Les Fosses d’Albinyana: Guerra civil 1936–1939 (Calafell, Llibres de Matrícula, 2003); AB Martin et al, ‘El patrimonio arqueológico de la Guerra Civil en Cataluña’ (2002) 10 Apuntes de Arqueología. Boletín del Ilustre Colegio de Doctores y Licenciados 14; EG Ballbé and DW Steadman, ‘The Political, Social and Scientific Contexts of Archaeological Investigations of Mass Graves in Spain’ (2008) 4(3) Archaeologies: The Journal of World Archaeological Congress 420. 21  K Verderey, The Political Lives of Dead Bodies (New York, Columbia University Press, 1999); L Renshaw, Exhuming Loss: Memory, Materiality and Mass Graves of the Spanish Civil War (Walnut Creek, CA, Left Coast Press Inc, 2011); Fernández de Mata (n 13). 22 A Buchli and G Lucas, Archaeologies of the Contemporary Past (London, Routledge, 2001).

Challenges to the Movement to Exhume the Missing Victims 291 In Spain, this has come in the form of a resistance to Francoist discourse, which has enabled the forging of links between the living and the dead.23 The materiality of the body and its ‘symbolic or cultural capital’ allows a particular type of narrative to be constructed around the victims. Increasingly, exhumation is seen to provide a vehicle for transparency, transitional justice and reconciliation in post-conflict societies, as the dead body as a ‘political object’ constructs ‘worlds of meaning’.24 Thus, the importance of remains is not in their physicality, but in the way we consider of them through our relations to death and how their importance is interpreted.25 The exhumation provides bodily evidence of brutality through the traces left on the remains, providing concrete proof of the vulnerability of these victims. This is coupled with the testimonies told at the gravesite by relatives and those present, which serve to provide collaboration of the evidence unearthed. The opening of Franco’s mass graves ‘has brought the intimate experience of defeat … into the open, challenging the hegemonic history of the victors. Bones, visible and palpable and imprinted with violence, testify that the Francoist repression was virulent and widespread—something that many Spaniards refuse to accept’.26 This links in to a shifting paradigm: trauma, victimhood and history are no longer understood through the eyes of the victor, but through the memory of the vanquished victim. However, it fails to raise the issue of the impact of the status of victims in relation to effectively challenging the past in a real way in order to provide genuine justice for the victims. Moreover, given the current climate in Spain, the continued impact of exhumations is questionable. To date, the Spanish and Autonomous ­Governments have failed to deal effectively with victims of the civil war and the former regime as they remain left out of the dominant discourse and policy debate. The literature on exhumations in Spain supports the idea that the efforts by government bodies and the judiciary to ‘impede the recovery efforts’ are politically motivated. With recent changes to government funding, associations such as the ARMH have found themselves in a precarious position with few prospects for change or support due to the economic downturn and austerity measures. Arguing for fiscal responsibility, the current government has maintained general support for this action, creating issues for these groups in terms of legitimately claiming that it is the government’s responsibility to fund and assist in the investigation and exhumation of mass graves. 23 Renshaw, Exhuming Loss (2011); D Muro, ‘The Politics of War Memory in Radical Basque Nationalism’ (2009) 32(4) Ethnic and Racial Studies 659. 24 Verderey, The Political (1999). 25 ibid. 26 I Fernández de Mata, ‘The Rupture of the World and the Conflicts of Memory’ in C Amargo (ed), Unearthing Franco’s Legacy: Mass Graves and the Recovery of Historical Memory in Spain (Notre Dame, Notre Dame University Press, 2010) 280.

292  Natalia Maystorovich Chulio IV.  CHALLENGES TO THE EXHUMATION OF MASS GRAVES

The Law of Historical Memory (2007) delivered great hope that the past could now be examined through exhumations and legal investigations to establish facts about past crimes, and that this would provide recognition to victims and their families and would enable public debate about the past to break the historical and institutionalised silence. However, this has not come to pass because of the ambiguous language of the law and the fact that no official body has the authority to deal with legal breaches. This ambiguity allows various interest groups to claim authority over investigations and exhumations depending on different factors. Through my fieldwork, I identified various challenges and impediments to the investigation and exhumation process. These come in the form of political opposition, legal resistance, institutional opposition, bureaucracy and lack of support at a local and a national level (both officially and from the general community). This means that, despite the desire, commitment and persistence of associations, volunteers and relatives, the objective of exhumation is not guaranteed. There are two key requirements to the success of locating a grave for the purpose of conducting an exhumation: access to information and obtaining the relevant authority. V.  ACCESS TO INFORMATION

Access to information is imperative for transparency, accountability and social justice to flourish. It is also vital to the success of locating the missing in mass graves. During the investigative process, research is conducted at local town and city councils (Ayuntamientos); the primary document sought is the death certificate (Acto de Defuncion) to discover those who may have died during or after the civil war. Scanning through all the death certificates issued from 1936 to 1986 allows a list of possible disappeared persons from this period to be compiled. The reason for such an extensive search is the nature of the Francoist repression, for many disappearances were not registered for fear of reprisals. Richards has argued that in ‘the mining town of Asturias more than 50 per cent of victims were recorded in the civil registries after 1975, the year of Franco’s death’.27 The individuals working at the council play a large role in providing access to the archives and documents. In some cases, details have been deemed sensitive and blacked out, while in other cases they have simply copied the certificates as they are. For example, while in Grajal de Campos, a worker in the council remained in the room as we scanned documents for persons 27  M Richards, A Time of Silence: Civil War and the Culture of Repression in Francoist Spain, 1936–1945 (Cambridge, Cambridge University Press, 1998) 31.

Challenges to the Movement to Exhume the Missing Victims 293 who may have been killed during or after the civil war. We were watched quite closely and he huffed sporadically as if frustrated by our activities. While scanning the handwritten document, I could not make out where the person had died and I asked my colleague to look. It turned out that the person had died in a convent. The man responded ‘yes the nuns also died’ in a sarcastic manner. At this point, he asked why we were looking through these documents, to which we explained that we were university researchers looking for possible missing victims from the civil war period. After some time had elapsed, a gentleman in his late sixties entered the room and asked what we were looking for. We replied in a similar manner and, as we had finished looking at the documents, we asked if we could copy the relevant death certificates. A second council employee assisted in photocopying, reviewing the documents and identifying people known to have disappeared. He pointed to one certificate, saying that this was the former mayor with ties to the republican movement: ‘This one yes, this one no … he was a republican mayor before the war I think he disappeared in ‘36.’ This experience was striking as one would expect the man, who grew up during the height of Francoist repression, to be more hostile in comparison to the younger man, who would have had little or no experience of the period. This contradicted arguments around generational responses to social movements whereby attitudes and responses to actions are seen as generationally tied.28 However, in Spain it is not so much a matter of shared responses and action based on generational grouping as familial and political ideology that plays the greater role. Access to affidavit documents can provide more detailed information as to the exact location of the grave, with testimony in relation to whom the individuals were and their ages at the time of their death. However, sometimes pertinent details will be missing regarding the location, as was our experience when we attended the Judge’s Chambers (Juzgados) in Sahagún. Because of difficulties that had arisen during our search for a mass grave in Escobar de Campos, we sought further clarification of its location. We located two statements taken in 1936 in relation to the discovery of three men found dead on the road from Grajal de Campos to Escobar de Campos. These statements were difficult to obtain, as the two women working in the chambers disputed whether we should be allowed to make copies. They claimed that no request could be made as we were not related to the victims. We provided a signed order from a judge, who had granted the ARMH access to any documents or information relevant to these three individuals under the auspices of the Law of Historical Memory. We also cited the Law of Patrimony, which stipulated that the documents were part of the public

28  K Mannheim, ‘The Problem of Generations’ in P Kecskemeti (ed), Essays on the S ­ ociology of Knowledge (Oxford, Oxford University Press, 1952).

294  Natalia Maystorovich Chulio record 25 years after the death of the individual, or 50 years after the date the document was created if a person has not died. In return, they quoted another Law of Patrimony, which makes it possible for relatives to make documents private on the basis that it could prejudice their good name and standing in the community. To this we responded that the Law of Historical Memory 2007 provides relatives and investigators with access to documents which would assist in the location and exhumation of mass graves. In the end, we got our copies, but one of the women was not happy about it. I later discussed what had occurred at the Judge’s Chambers, asking if new laws did not in fact supersede old ones in Spain. The Vice-President of the ARMH explained that while the more recent law overrides previous legislation, on occasion public officials and those with authority utilise outdated legislation to limit access to information, as they hold the power at that level. This interaction highlights the issues around transparency, given that there is no institutional accountability for officials. VI.  OBTAINING THE RELEVANT AUTHORITY

Before conducting a search for a mass grave, the ARMH must obtain consent to excavate and exhume. During preliminary investigations in ­Carmenes, we discovered that it was believed that there were three bodies in the grave where we were originally advised that there were two. While we were obtaining testimony from the mayor, he told us that everyone in the town has always said that they came in the middle of the night and buried three bodies: ‘Here the only information that the town has … is what I have been telling you, there is no more. Not who they were, nor if they were young or old. They brought three people and they buried the three of them in the same grave.’ Given that the ARMH was not aware of the third man and did not have permission from the family, the mayor did not feel comfortable giving permission for the association to proceed with the exhumation: ‘If I authorise you [to exhume] and three people are found and what happens with the third? The town doesn’t want any problems … no cost or headaches.’ The Vice-President of the ARMH stated that the Association would take full responsibility and deal with any issues that might arise. They would attempt to get in touch with the family, but, in the meantime, they would excavate the grave with permission and if three bodies were uncovered, they would cover it up pending permission from the third victim’s family. The Vice-President was clear on the importance of at least confirming the location and number of bodies in order to proceed. Because the contents of mass graves cannot always be predicted, information may be inaccurate or surroundings may have changed in the last 80 years; there are instances when the grave is not there or the relatives seeking to open the grave are not related to the individuals contained within.

Challenges to the Movement to Exhume the Missing Victims 295 The official from the town alluded to this when he asked: ‘another thing, what happens if you remove the bodies and they are not who you were looking for?’ This is why DNA identification is an important part of the exhumation and identification process. It is at this point that the relatives can be sure that they are related to the victim or not. During an interview, we heard of an instance when this had occurred. ‘There was an exhumation where two women, Isabel and Asuncion … were looking for their brothers and they believed they had found [them]’. However, DNA identification later confirmed that they were not their brothers. Permission to exhume at sites can be complicated by the multiple authorities and legal regulations that control any given location. First there is the problem of obtaining permission from several families if the grave contains many victims, then there are multiple government, church and local authorities to ask for authority to conduct the exhumation. For example, if an exhumation is conducted in a cemetery near a highway or freeway, this can require multiple permissions and the criteria for exhumation vary. When an exhumation is being conducted near an Autovias A-XX (Highway) and Autopista AP-XX (Freeway), it can only be conducted at more than 100 metres from the road and falls under the purview of the national government. Additionally, if the actual grave is in a cemeterio (Cemetery), this requires additional permission from the relevant authority. This can create confusion as the cemetery can fall under three different jurisdictions: the Ayuntamientos Municipales (Municipal Councils) or Eclesiasticos (Ecclesiastics)—eg, Obispado de Astorga (Bishop of Astorga) or provincial government; if they fall under ‘historical/archaeological heritage’, they fall under the jurisdiction of the relevant council. Moreover, if the site is declared a crime scene, then it would fall under the purview of a local judge. This makes the situation of exhuming highly problematic, as the ARMH must often deal with any number of authorities, increasing the likelihood of institutional impediments. Judges can claim jurisdictional authority declaring a grave to be a crime scene for investigation. This means that judges can either assist or hinder the excavation, exhumation and identification process at any point in time. In our experience, the judge in the exhumation of Escobar de Campos was accommodating and granted the Association access to any documents and information that could aid in the exhumation process. According to Gassiot Ballbé and Wolfe Steadman, this is not always the case and judges have been known to impede the process. They discuss a case in Andalucía where a ‘local judge had jurisdiction over the remains [in La Guijarrosa] and allowed for the excavations, yet suddenly refused to permit the exhumation’.29 Finally, exhumations conducted on privately

29 

Ballbé and Steadman, ‘The Political’ (2008) 440.

296  Natalia Maystorovich Chulio owned farmland or property require permission from the landowner. In one instance when the ARMH had sought to conduct an exhumation on private property, the owner provided permission, only to change his mind the day before the excavation was to commence. The Vice-President recounted: ‘When you have the team put together and you’re ready to go, well the owner of the property is going to cause problems and not give you permission or they have to wait for their son to arrive from, I don’t know where. They say, “It’s just that I have to ask my son”. Christ man, you have someone dead from the war, why do you want them there, your son wants them at home?’ In Escobar de Campos, the ARMH was required to obtain permission from the landowner as the exhumation was on a farm, and then from the relevant authority, which presided over the road. In other exhumations such as in Chaherrero (Avila), we requested permission from five different authorities. This shows the difficulties surrounding transparency, which can impede the process of investigation, excavation and exhumation. The situation in Spain is highly bureaucratic and at times the exhumation team must await responses from authorities, which delays the process of social justice for the relatives of the missing. The Law of Historical Memory adds new ambiguity with respect to obtaining permission to excavate because of the inconsistency of jurisdiction over civil war graves and remains. Gassiot Ballbé and Wolfe Steadman have similarly discovered that civil war graves can fall under various jurisdictions, providing an ‘avenue of obstruction … for the purpose of rejecting proposed excavations’ and exhumations.30 These multiple authorities and regulations are both highly confusing for those seeking access and provide opportunities to exploit or block investigations and exhumations, and hinder transparency for social justice. VII.  VICTIMS AND MEMORY: THE LEGACIES OF SILENCE

The 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power defines victims as any ‘persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights’. The law is a mechanism that establishes rights and protects those under its jurisdiction. Human rights are viewed as an entitlement recognised internationally to be universal in nature, and fall under the obligation of states to protect individuals from breaches to those basic rights on the basis of a shared humanity. 30 

ibid 435.

Challenges to the Movement to Exhume the Missing Victims 297 The victims of the Spanish Civil War and Francoist repression have emerged despite a lack of legal and social recognition. The trauma of these individuals has recently been recounted through public and private testimony, making it possible for the movement to recover the victims bodily through exhumation. The images of the bodies located, exhumed and reburied have the power to create undisputable proof of the violence and trauma experienced. Humphrey argues that the notion of trauma is well established within contemporary politics as ‘it brings violence to the surface of history’.31 The ‘age of anxiety’ thesis whereby focus shifted from victor to victims has contributed to the success of the movement in generating some public support.32 Fernandez de Mata (2008) claimed that the enforced silence imposed by the transition further ruptured the worlds of the repressed and exacerbated the suffering of victims. The transition contributed to a situation whereby transparency, accountability and social justice are unattainable goals, given the political and institutional denial of the past. The traumatic experience of Spain remained hidden behind the closed doors of homes and within the confines of a shared memory, or was not discussed, which led to the generational breakdown of knowledge.33 However, this breakdown is by no means complete, as evidenced through the tensions and divisions within Spanish society that continue to be passed down generationally. This can explain the strong responses by politicians, the judiciary and even the public in response to the exhumation of mass graves. In an interview with Emilio Silva, he recalls a man saying: ‘You people, walk! If we had of killed you, you wouldn’t be bothering us now.’34 This statement demonstrates how the transition has failed to provide justice in Spain: the deep wounds of those who were victimised and repressed have not been healed, for they have not been justified as victims and remain an inconvenient truth that has escaped the pact of silence. During discussions at an excavation site, one gentleman remarked ‘if they are there they must have done something’. This follows the discourse instigated by Franco against the vanquished through repetitious propaganda, which claimed that the republic and reds were to blame for the war, destruction the moral fibre of society and political violence. The movement to exhume aims to heal the trauma of the past by cultivating transparency and social justice for the repressed and missing. Despite continued attempts to challenge the transition and dominant discourses of the past, it is clear that attitudes to reconciliation and exhumation are often apathetic or in

31 

Humphrey, ‘The Politics of Trauma’ (2010) 38. Fassin and R Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood (Princeton, Princeton University Press, 2009). 33  Renshaw (n 21). 34  J Labayani, ‘Entravista con Emilio Silva’ (2001) 9(2) Journal of Spanish Cultural Studies 143. 32  D

298  Natalia Maystorovich Chulio some instances hostile, a continued and omnipresent effect of the traumatic experience of the Spanish Civil War, which has led to the current situation of continued denial by segments of Spanish society. VIII.  THE HIERARCHY OF VICTIMHOOD IN SPAIN

‘The status of victimhood brings with it certain dispensations and political advantages: the victim is deserving of sympathy, support.’35 In Spain, ­however, victims have been differentiated based on the type of ‘cultural capital’ they have within a social context, ranging from complete innocence to those deemed complicit in their demise. This hierarchy of victimhood follows similar patterns to notions around innocence in studies conducted in Northern Ireland and other general criminological studies. At the top of the hierarchy stand the political victims who are deemed to be completely ‘innocent’. They are viewed as the ultimate innocent victims, going about their daily lives when they are met by a violent fate. They accorded the rank of children in terms of their ‘blamelessness’, simply having been at the wrong place at the wrong time. They invoke feelings of helplessness within the general population and serve as evidence of a shared humanity. These innocent victims have greater social capital and invoke greater public support with respect to justice, reparations and compensation. With the support of the political elite, the media and the general public, the nationalist victims of the civil war hold the position of ‘innocent’ victim. The ‘innocent’ victims lie at the ‘apex of a hierarchy of victimhood and become a symbol around which contested notions of past violence are constructed and reproduced.36 Similarly, other theorists have claimed that the ‘innocent’ victim is placed at the ‘apex of a hierarchy of victimhood’, making them a symbol with which to contest notions of violence and suffering as they are constructed and reproduced.37 Correspondingly, this has been the case for nationalist victims, their innocence manipulated through discourses of the state to legitimate the Franco regime’s position. These ‘good’ victims are seen as having given their life to God and Country in their fight against the ‘anti-Spanish’ elements of society. On 4 April 1940, an orden (order) was passed, providing the right to the relatives of missing nationalists to seek state assistance in the location, exhumation, reburial and c­ ommemoration of their dead.

35  M Smyth, ‘Victims and Victimhood in Northern Ireland’ in A Guelke and F Stephen (eds), A Farewell to Arms? Beyond the Good Friday Agreement, 2nd edn (Manchester, Manchester University Press, 2006) 20. 36  K McEvoy and K McConnachio, ‘Victimology in Transistional Justice: Victimhood, Innocence and Hierarchy’ (2012) 9(5) European Journal of Criminology 527. 37  ibid 532.

Challenges to the Movement to Exhume the Missing Victims 299 The order provides the following: ‘Towns Councils adopt measures to guarantee the respect for the locations where the victims of the Marxist revolution lie.’ This order of support for the nationalist victims utilises words such as mártires (martyrs), homenaje (homage), tierra sagrada (sacred land), asesinadas (assassinated) and nuestra Cruzada (our Crusade) to refer these victims, revealing religious connotations to the holy crusade as Franco’s discourse argued for a return to the golden era of Spain’s history. Words such as ‘martyrs’ and ‘assassinated’ underline the great sacrifice these men made to protect Spain from its Marxist or red elements. Meanwhile, the vanquished have experienced ‘absolute marginalisation [as] social p ­ ariahs … to the extreme’.38 Terms such as ‘dominación roja’ (red domination) are used to discredit the ‘other’ side who had repressed the good Catholic and nationalist Spanish for far too long. Through a rigorous process of ­‘othering’, the defeated legitimated the reframing of the war as a necessary strategy of national cleansing.39 So, the disappeared were implicated in their own demise for supporting or contributing to activities in support of the republic. This differentiation was utilised by those with the power to allocate resources to certain victims and completely disregard others. During an interview with Marco Gonzalez, Vice-President of the ARMH, he claimed that legal, political and social mechanisms both from the past and the present maintain injustices against the vanquished victims. He made reference to the order of 1940, pointing out that one side received compensation and justice for their dead, while the other remained largely ignored and repressed. This has yet to be rectified and there appears to be little prospect of the Spanish state and general population supporting such action: Is there any law that prohibits you if you know where a mass grave of the people from the Right is, with priests, with nuns … assassinated by the reds, is there any law that prohibits you to exhume them? No I tell you, no, there are four or five official bulletins of the state which have provided access to public funds to search for those graves, have them exhumed and rebury them in a cemetery, they have built monuments, paid homage to them and then given available positions of work to their sons and grandsons.40

During debates attempting to raise the issue of the injustice experienced by the vanquished, those opposed often claimed that both sides committed violence. However, this argument appears somewhat unbalanced: while both sides committed atrocities, one side has received and continues to receive support and justice for its victims. The vanquished are left with no or little official acknowledgement of their suffering and no hope for future ­reconciliation or reparations. 38 

Fernández de Mata (n 13). Renshaw (n 21) 60–61. 40  Author interview with Marco Gonzalez, Vice-President of ARMH, 28 August 2012. 39 

300  Natalia Maystorovich Chulio The vanquished victims have been placed into two categories: the paseado (‘walked’, the second group in the overall hierarchy) and those who had a juicio sumario (summary trial, the third group in the hierarchy). The former are often believed to be more innocent, as they received no trial and were usually taken to a field, cemetery or road and executed. The latter received military or civil trials with the application of retrospective laws, derogated laws and military codes; they had no opportunity to mount a defence and were usually tried in large groups. The use of group trials by the Franco regime was common practice, serving strategic objectives to eliminate and prevent any possibility of retaliation or rebellion by destroying the power structures and anyone associated with the republican movement.41 This differentiation between victims is similar to that of Right and Left victims, as it places them in contradictory positions. It further highlights the importance of victimhood being not only acknowledged but also valued. ‘There is, within the historical memory [movement], a dangerous confusion in the differentiation between the victims. The victims of an execution like those friends of my grandfather were no different to those men we are looking for in Escobar.’ Due to long-held notions regarding the links between justice and the judiciary and the right to a fair trial, it is clear how the general public could have a misconceived notion of guilt regarding those victims who received a trial. There is a general expectation that the judicial system provides an impartial service in the pursuit of justice. However, as we have just seen, what is known of the period is that there was little legality as the regime attempted to destroy their enemies. Tamarit Sumalla has noted that death sentences were politically motivated and handed down under military justice codes. He has described this as a form of ‘upside-down’ justice and ‘a blatant misuse of legal apparatus’.42 Issues surrounding the legality of trials were raised in one of our interviews: ‘At least they had a trial but … what trial did they have? A trial without legal guarantees that’s just to begin … a trial against the only law of the time, the laws of the Republic, they applied military codes to civilians, codes repealed from the eighteenth and nineteenth centuries in the twentieth century … that’s to say that they had no veneer of legality.’ The power to control discourses around victimhood can limit transparency as public support is generated against certain groups. This has been the experience of the exhumation movement as arguments are raised at the site against the work being conducted as unnecessary or illegitimate. It is not uncommon for someone to yell out ‘if you are going to do it, it needs to be

41  JM Tamarit Sumalla, Historical Memory and Criminal Justice in Spain: A Case of Late Transitional Justice (Cambridge, Intersentia, 2013). 42  ibid 51.

Challenges to the Movement to Exhume the Missing Victims 301 legal’ or ‘why don’t you let things be?’, implying that those undertaking this type of work are merely stirring up trouble. IX.  THE HIERARCHY OF GRIEF

Theoretical epistemologies regarding the ‘hierarchy of grief’ and the importance of symbolic capital where ‘a life becomes, or fails to become, a publicly grievable life’ are of paramount importance when regarding the status awarded to the repressed victims of Spain.43 The stigmatisation of victims through association with the Reds or Republicans provided ‘immediate justification of their legal or extra-legal execution’, thereby limiting their symbolic capital within society.44 The experience of repression and the hierarchy of grief it produced remained a constant theme during interviews. Relatives of the disappeared consistently contest the historical annihilation of victims by talking about their relative’s personal qualities—he was un buen hombre (a good man) or el pueblo le quería mucho (he was well liked in the town). What becomes clear is the relatives’ concern with justifying the victim’s worth within society to raise his or her cultural capital as an innocent victim. During one interview, at the excavation site of Escobar de Campos, the respondent drew a comparison between his uncle who was liked and respected in the town—‘a lot of people there, the whole town liked him a lot, the priest, the police from there’—and a second uncle who was a good man but talked too much: ‘my other uncle Benacio he was a good man, he was killed because he liked to talk’. Here the deaths of individuals like Benacio are justified by their complicity in their demise because they talked too much and should have known better. Similarly, in another interview the respondent described a man who disappeared in the town of Santa María de Paramo; his disappearance was accepted by the town as he had a bad reputation for fighting: ‘By the end of ‘36 a man was killed from the town, but he had a bad reputation for fighting and after a while he was found in a ditch.’ This is further evidence that, during the civil war period, people became conditioned to their coercive environment and submitted to notions of guilt, as though talking too much or being argumentative justified their disappearance. It is also common to hear people saying ‘well he must have done something [to be buried there]’. This discourse of guilt was garnered through the official discourse of the regime with which people had to agree and comply. Without the support of the public, however, the success of these dominant 43  J Crumbaugh, ‘Are We All (Still) Angel Blanco? Victimhood, the Media Afterlife, and the Challenge for Historical Memory’ (2007) 75(4) Hispanic Review 365. 44  Fernández de Mata (n 13) 256.

302  Natalia Maystorovich Chulio discourses would be questionable. There have been similar findings in relation to the disappeared in Argentina.45 What these comments show is that the discourse of repression and the nationalist ideologies remain prevalent within Spanish society. The transitional period and amnesty have played an important role in legitimating and maintaining discourses of the past through an enforced silence of victims not yet publicly acknowledged. These republican victims were seen as having challenged the status quo and the ruling class. The various changes provided by the republic—such as the right for women to vote, their position with respect to religion, the legalisation of divorce and changes to land rights—changed the rights of the peasants and the working class. These changes were viewed as a challenge to the values held by the conservative ruling elites of Spain. They were murdered because they had stirred things up at a local level, they had tried to change the conditions of work, they tried to improve the position of the underdogs—they had faced up to caciques and corrupt leaders.46 Discourses of guilt regarding the destruction of the values and ideologies of Spain were utilised to legitimate the demise of the vanquished. Similar notions of guilt have been ascribed to the disappeared in Argentina, highlighting the widespread use of delegitimising discourses utilised by authoritarian regimes to legitimate their actions. Fernandez de Mata holds that Spanish society believed these victims to be guilty of something, through specific discourses of violence on the basis of victim culpability. Unfortunately, this does not make it any easier for their relatives to navigate the terrain as they seek transparency and accountability from the Spanish state. X.  CONCLUDING REMARKS

Exhuming victims of mass atrocities provides an avenue for transparency and accountability; for bringing into the open that which had been hidden. The exhumation movement has provided voice and space to silenced victims at the margins of Spanish history and society. It has thus linked them to the official public discourse about the past and has raised questions about the need for justice. In this way, exhumations generate a counter-narrative for victims long silenced by the dictatorship and the amnesia agreed upon during the transition. However, while the process of exhuming mass graves provides an avenue for transparency and accountability in the arena of social justice, it is by no means a guaranteed end result. In the case of Spain, the exhumation movement has created a public space for voices silenced through ­government 45  See M Feitlowitz, “We Know Nothing. It isn’t Taught”: Secret Histories of Argentina’s Dirty War’, Agni, No 54, Amnesty International Fortieth Anniversary, 2001, 225–33. 46  Fernández de Mata (n 13) 257.

Challenges to the Movement to Exhume the Missing Victims 303 policy and public complicity, but it has been unable to generate genuine long-lasting change for the victims and their relatives. To date, social, political and legal changes have been symbolic, given the failure to institute mechanisms to support newly acquired rights of victims. To an extent, the exhumation process provides social justice for relatives as a counter-­ narrative that publicly refutes dominant discourses as the vulnerability of the remains is revealed. For the relatives, the return of their missing has been found to be their primary concern. Town by town, the exhumation site serves as a pedagogical lesson as locals surround the site to learn the truth of what happened in their town. The hope remains that, with enough time, the movement will garner the requisite public support to force the Spanish state to meet its legal requirements to these victims. While the political elites maintain power to define victimhood, these victims will remain at the margins of the legal system. Without widespread acknowledgement, the inclusion of groups previously excluded from the nation’s narrative and with no genuine truth and reconciliation policies, the wounds of the past will continue to pass from generation to generation. In order to successfully gain public support, the old discourses from the past need to be challenged primarily through derogation of the Amnesty Law. Transparency, accountability and justice will only be truly achieved when the social capital of the victim is raised through an official acknowledgement of their status as innocent and an official rejection of previous dominant discourses of the past. Spain would benefit from reviewing the actions undertaken in other countries such as Germany in order to combat the attitudes of society in relation to the repressed victims from their recent past. REFERENCES Aguilar, P, ‘Justice, Politics and Memory in the Spanish Transition’ in AB de Brito et al (eds), The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford, Oxford University Press, 2001) 92–118. ——. Memory and Amnesia: The Role of the Spanish Civil War in the Transition to Democracy (New York, Berghahn Books, 2002). Barahona de Brito, A et al (eds), The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford, Oxford University Press) 92–118. Balfour, S and Quiroga, A, The Reinvention of Spain: Nation and Identity since Democracy (Oxford, Oxford University Press, 2007). Besolí, A et al, ‘El patrimonio arqueológico de la Guerra Civil en Cataluña’ (2000) 10 Apuntes de Arqueología. Boletín del Ilustre Colegio de Doctores y Licenciados 14–16. Brewer, JD and Hayes, BC, ‘Victimhood Status and Public Attitudes towards Postconflict Agreements: Northern Ireland as a Case Study’ (2012) 65 Political Studies 37–47.

304  Natalia Maystorovich Chulio Buchli, A and Lucas, G, Archaeologies of the Contemporary Past (London, ­Routledge, 2001). Burbidge, P, ‘Waking the Dead of the Spanish Civil War: Judge Baltasar Garzon and the Spanish Law of Historical Memory’ (2011) 9 Journal of International ­Criminal Justice 753–81. Crumbaugh, J, ‘Are We All (Still) Angel Blanco? Victimhood, the Media Afterlife, and the Challenge for Historical Memory’ (2007) 75(4) Hispanic Review 365–84. Davis, M, ‘Is Spain Recovering its Memory? Breaking the Pacto de Olvido’ (2005) 27(3) Human Rights Quarterly 858–81. Druliolle, V, ‘Democracy Captured by its Imaginary: The Transition as Memory and Discourses of Constitutionalism in Spain’ (2008) 17(10 Social and Legal Studies 75–92. Exteberría Gabilondo, F, ‘Exhumaciones contemporáneas en España: las fosas comunes de la Guerra Civil’ (2012) 18 Boletin Galego de Medecina Legal e Forense 13–28. Fassin, D and Rechtman, R, The Empire of Trauma: An Inquiry into the Condition of Victimhood, (Princeton, Princeton Univeristy Press, 2009). Feitlowitz, M “We Know Nothing. It isn’t Taught”: Secret Histories of Argentina’s Dirty War’, Agni, No 54, Amnesty International Fortieth Anniversary, 2001, 225–33. Fernández de Mata, I, ‘From Invisibility to Power: Spanish Victims and the Manipulation of their Symbolic Capital’ (2008) 9(2–3) Totalitarian Movements and ­Political Religions 253–64. ——. ‘The Rupture of the World and the Conflicts of Memory’ in C Amargo (ed), Unearthing Franco’s Legacy: Mass Graves and the Recovery of Historical M ­ emory in Spain (Notre Dame, Notre Dame University Press, 2010) 279–303. Ferrándiz, F, ‘The Return of Civil War Ghosts: The Ethnography of Exhumations in Contemporary Spain’ (2006) 22(3) Anthropology Today 7–12. Gassiot Ballbé, E and Steadman, DW, ‘The Political, Social and Scientific Contexts of Archaeological Investigations of Mass Graves in Spain’ (2008) 4(3) Archaeologies: The Journal of World Archaeological Congress 420–44. Graham, H, ‘The Spanish Civil War 1936–1939: The Return Republican Memory’ (2004) 68(3) Science and Society 313–28. Groome, G, ‘The Right to Truth in the Fight Against Impunity’ (2011) 29(1) B ­ erkeley Journal of International Law 175–99. Humphrey, M, ‘The Politics of Trauma’ (2010) 32 Arts: The Proceedings of the Sydney University Arts Association 37–54. Íñiguez, D and Santacana, J, Les Fosses d’Albinyana: Guerra civil 1936–1939 (Calafell, Llibres de Matrícula, 2003). Labayani, J, ‘Entravista con Emilio Silva’ (2008) 9(2) Journal of Spanish Cultural Studies 143–55. Lafuente, I, ‘Prologo de Isaias Lafuente’ in E Silva and S Macías (eds), Las Fosas de Franco: Los republicanos que el dictador dejo en las cuentas (Madrid, Las Temas de Hoy, 2009) 13–20. Langer, M, ‘The Diplomacy of Universal Jurisdiction: The Political Branches and Transnational Prosecution of International Crimes’ (2011) 105 American Journal of International Law 1–49.

Challenges to the Movement to Exhume the Missing Victims 305 Latour, B, From Realpolitik to Dingpolitik—Or How to Make Things Public ­(Cambridge, MA and Karlsruhe, Z Center for Art and Media, 2005). Mannheim, K, ‘The Problem of Generations’in Essays on the Sociology of Knowledge’ in P Kecskemeti (ed), Essays on the Sociology of Knowledge (Oxford, Oxford University Press, 1952) 276–320. McEvoy, K, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’ (2007) 34(4) Journal of Law and Society 411–40. McEvoy, K and McConnachio, K, ‘Victimology in Transistional Justice: Victimhood, Innocence and Hierarchy’ (2012) 9(5) European Journal of Criminology 527–38. Mendelsohn, B, ‘A New Branch of Bio-psychological Science: La Victimology’ (1956) 10 Revue Internationale de Criminologie et de Police Technique 782–89. Morsink, J, The Universal Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia, University of Pennsylvania Press, 1999). Muro, D, ‘The Politics of War Memory in Radical Basque Nationalism’ (2009) 32(4) Ethnic and Racial Studies 659–78. Renshaw, L, Exhuming Loss: Memory, Materiality and Mass Graves of the Spanish Civil War (Walnut Creek, CA, Left Coast Press Inc, 2011). Richards, M, A Time of Silence: Civil War and the Culture of Repression in ­Francoist Spain, 1936–1945 (Cambridge, Cambridge University Press, 1998). Shanks, M, Culture/Archaeology (Oxford, Polity Press, 2001). ——. Archaeology/Politics (Oxford, Blackwell, 2004). Smyth, M, ‘Putting the Past in its Place: Issues of Victimhood and Reconciliation in Northern Ireland’s Peace Process’ in N Biggar (ed), Burying the Past: M ­ aking Peace and Doing Justice after Civil Conflict (Washington DC, Georgetown ­University Press, 2001) 107–30. ——. ‘Victims and Victimhood in Northern Ireland’ in A Guelke and F Stephen (eds), A Farewell to Arms? Beyond the Good Friday Agreement, 2nd edn ­(Manchester, Manchester University Press, 2006) 6–21. Tamarit Sumalla, JM, Historical Memory and Criminal Justice in Spain: A Case of Late Transitional Justice (Cambridge, Intersentia, 2013). Tremlett, G, Ghosts of Spain: Travels through a Country’s Hidden Past (London, Faber & Faber, 2006). Urdillo, U, ‘Impunity for Enforced Disappearances in Contemporary Spain’ (2011–12) 6(1) Interdisciplinary Journal of Human Rights Law 41–60. Verderey, K, The Political Lives of Dead Bodies (New York, Columbia University Press, 1999). Von Hentig, H, The Criminal and His Victim: Studies in the Sociology of Crime (New Haven, Yale University Press, 1948).

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14 Portraits of the Dead and the Living Bosnia and Rwanda 20 Years on OLIVERA SIMIĆ

Sometimes justice does not give someone a satisfactory answer—cases are subject to corruption. But when it comes to forgiveness willingly granted, one is satisfied once and for all. When someone is full of anger, he can lose his mind. But when I granted forgiveness, I felt my mind at rest. (Karorero, survivor of Rwandan genocide) Justice did not come in the way we expected. We, mothers from Srebrenica, are living witnesses of Srebrenica genocide. We do not want to forget. Nobody has the right to demand from the victim to forgive or to reconcile with the offender. We will never forgive or sit down with those who killed our sons. We want neither forgiveness nor reconciliation. (Munira Subašić, President of Association of Mothers of Srebrenica and Zepa Enclaves) I am not the owner of the lives of my husband, son and brothers, I have no right to forgive for their suffering. (Kada Hotić, Mothers of Srebrenica)

I. INTRODUCTION1

I

N THIS CHAPTER I draw on two artistic projects in the post-genocide countries Bosnia and Herzegovina (BiH) and Rwanda. In both projects, art is seeking to promote collective memory and symbolic reparation.

1  I would like to thank Joan Nestle and Dr Fayen d’Evie for much-appreciated comments on the previous draft of this chapter and unwavering friendship and support. I would also like to thank the editors for their valuable reviews and comments that improved the contents of the chapter.

308  Olivera Simić Drawing on t­ ransitional justice scholarship, this chapter will argue that art may be used as a tool to promote peace and reconciliation or, conversely, it may reinforce and encourage the perpetuation of ethnic/racial divisions in post-genocide societies. The two installations on which I will reflect, including their goals and surrounding narratives, emerged to commemorate 20 years of genocide in BiH and Rwanda. First, I examine a permanent documentary and multimedia installation based in Sarajevo, BiH, called ‘Galerija 11/07/1995’ (hereinafter the Gallery), which features a photographic exhibition entitled You Are My Witness, a display of black-and-white portraits of victims of genocide. I visited this exhibition in July 2014 as part of my fieldwork in BiH and participated in a tour organised by the artists. The tour was run by acclaimed Bosnian photographer Tarik Samarah, whose large-format photographs ‘Srebrenica 1995’ are displayed throughout the Gallery. While, as the organisers of Gallery claim, it is important to build a ‘culture of memory’,2 I will argue that this installation raises complex questions about the role of art and artists in states that transition to peaceful and democratic societies. I will juxtapose You Are My Witness with a recent exhibition of photographs of Rwandan people or, more specifically, victims and perpetrators, standing or sitting next to one another, some holding hands, their bodies in close proximity. In each photo, the perpetrator was pardoned by the survivor. This second photographic project, entitled ‘Rwanda 20 Years: Portraits of Reconciliation’ (henceforth ‘Portraits of Reconciliation’), was commissioned by Creative Court, as a part of its ‘Rwanda 20 Years’ programme, which explores the theme of forgiveness. Creative Court, founded in 2013 and based in The Hague, is an organisation that develops art projects to reflect on peace and justice themes. In 2014, Creative Court initiated a photography project to mark the twentieth anniversary of genocide in Rwanda, with the purpose of catalysing reflection on forgiveness. It commissioned South African photographer Pieter Hugo and Croatian-Dutch photographer Lana Mesić to capture the nature of forgiveness. The project includes interviews, photographs and videos featuring survivors and perpetrators. While Creative Court contends that art has the ability to ‘incite reflection, empathy and eventually peace’,3 the Gallery does not claim the same aspirations. The purpose of the Gallery, and its photographic exhibition, is not to bring different ethnic groups together or to reconcile a community that is still deeply divided. On the contrary, the artists maintain that the genocide that took place in Srebrenica is unforgivable and that justice for this crime

2  The term ‘a culture of memory’ coined by Jan Assmann highlights the role of culture in the formation and transmission of collective memories. See J Assmann, Cultural Memory and Early Civilization: Writing, Remembrance, and Political Imagination (Cambridge, Cambridge University Press, 2011). 3  ‘Rwanda 20 Years Exhibition’ (Het Nutshuis) www.creativecourt.org.

Portraits of the Dead and the Living 309 is impossible: ‘With photographs and videos of the “wall of death”, a family portrait … the scattered and gathered remains of the victims, and offensive graffiti, the gallery portrays the impossibility of justice.’4 Artistic installations have limitations, in the sense that they can bring about very modest transformation, while the larger transformation still needs to come from structural and legal reforms.5 Nevertheless, art in the transitional justice context can serve as a gesture of political action against impunity and collective amnesia—an action which resists denial and acknowledges harm. Art is an important tool of symbolic justice that needs to be cherished and accounted for as a creative innovation to respond to past atrocity. For the past few years, I have been investigating the role of art in transitional justice processes and whether art can serve as a powerful tool for symbolic reparation. The two artistic projects that I analyse in this chapter raise critical questions about the role of art in the complex processes of transitioning from a violent past towards a peaceful future. While both projects commemorate 20 years since genocide was committed in their respective communities, the modes they have chosen for commemoration are starkly different, not only in terms of symbolic representation, but also their narratives and aims. It could be argued that the images within both installations serve as ‘memory markers to commemorate events, and to generate an emotional response from the viewer’,6 but their ultimate ends differ, impacting artistic choices. The BiH project seeks to remind, or teach, viewers or witnesses who were the victims and who were the perpetrators of the genocide, marking death and the dead with the solemnity and formality of black-and-white portraits. The Rwandan project, by contrast, strives to blur distinctions between survivors and perpetrators in order to send a message of peace and possible coexistence, if not reconciliation. It celebrates life and the living, with images of the survivors and the perpetrators in strong, bright colours, their bodies in close proximity; the spatial framing symbolically communicating the possibilities of forgiveness and reconciliation. In that respect, the Rwandan project is forward-looking, intent on moving beyond divisions and dichotomies, while the Bosnian project looks backward, cementing ethnic divisions and dichotomies. This chapter will situate the role of art in transitional justice scholarship, before turning attention to analysis of the Bosnian project, including features and aims. It then analyses the exhibition that commemorates the genocide in Rwanda, which has recently been on show in Rwanda. ­Drawing on an

4 

Galerija 11/07/1995 (2014) galerija110795.ba. Rubio-Marin (ed), The Gender of Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations (Cambridge, Cambridge University Press, 2009) 17. 6  M Saona, Memory Matters in Transitional Peru (London, Palgrave Macmillan, 2014) 39. 5 R

310  Olivera Simić interview with Rabiaâ Benlahbib, Director of Creative Court in The Hague, the chapter details the motivations and process of making the Rwandan project, and contextualises these in light of my personal interactions with the activist and academic community who shared their views on the Rwandan project. Finally, the chapter discusses some reflections from viewers of both projects, collated from internet blogs and comments left on an online discussion platform. II.  ART IN TRANSITIONAL JUSTICE

The field of transitional justice has only recently seen an upsurge of literature concerning art and its role in post-conflict justice processes.7 This literature acknowledges that it is necessary to pay attention to ‘the cultural and individual dimensions of transitional processes’.8 However, while art can provide a forum and idiom through which both survivors of atrocity and their perpetrators may have their voices heard, it can also create a space that may close the potential for post-conflict reconciliation. Artists working in transitional justice contexts can either display images of the violent past and reinforce ‘looking back’, or they can open up creative possibilities for imagining ‘looking forward’ to peaceful future. The concept of transitional justice refers to how societies deal with the past, and how they may come to terms with a history of oppression, violence and dictatorship. While initially transitional justice focused exclusively on judicial proceedings, it has progressed and expanded its terms of inquiry to encompass restorative justice. For the United Nations (UN): ‘Transitional justice is the full range of processes and mechanisms associated with society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.’9 A key goal of transitional justice is to contribute to rebuilding a s­ ociety based on the rule of law and respect for human rights and to building sustainable peace.10 There is a general consensus among scholars of ­transitional

7  See, for example, L Bisschoff and S van de Peer, Art and Trauma in Africa: Representations of Reconciliation in Music, Visual Arts, Literature and Film (London, IB Tauris, 2013); PD Rush and O Simić (eds), The Arts of Transitional Justice: Culture, Activism, and Memory After Atrocity (New York, Springer, 2014); Ewald Mengel and Michela Borzaga (eds), Trauma, Memory, and Narrative in the Contemporary South African Novels (New York, Rodopi, 2012); C Ramírez-Barat (ed), Transitional Justice, Culture and Society: Beyond Outreach (New York, Social Science Research Council, 2014). 8  P de Greiff, ‘On Making the Invisible Visible: The Role of Cultural Interventions in Transitional Justice Processes’ in C Ramírez-Barat (ed), Transitional Justice, Culture and Society: Beyond Outreach (New York, Social Science Research Council, 2014) 14. 9  United Nations, ‘Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice’ (10 March 2010) 2. 10  RG Tietel, ‘Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights Journal 69.

Portraits of the Dead and the Living 311 justice that although judicial proceedings and accountability for human rights violations are necessary, they are not enough to bring about sustainable peace and democracy. In many ways, as Martha Minow argues, ‘trials are not ideal’11 and the law has limited capacity to capture and reflect survivors’ experiences and incorporate them fully within the legal form. In large part, they exclude ‘everyday experiences of those, particularly women, who live in conflicted societies’.12 The necessity to document and memorialise crimes against humanity, in forums other than trials, thus becomes of paramount importance13 to grassroots organisations and artists. Acting upon this urge to turn to new languages and forms to address issues that are inadequately addressed by the system, local and international artists have embarked on creative arts projects in post-conflict/post-dictatorship states. There are many ways to confront a violent past; fiction, graphic and visual arts, humour and cinema are just some of the ways that artists have chosen to respond to trauma and authoritarianism. Over the past two decades, BiH and Rwanda have received scholarly attention as countries that employ a range of transitional justice mechanisms and strategies as a result of the gross human rights violations that have been committed there. Both countries, however, have largely focused on criminal prosecution at the communal, national and international levels. In such circumstances, where there is an absence of mechanisms other than retributive justice, much of the creative energy for transition comes ‘from below’, from victims and survivors’ groups, community and civil society organisations.14 Like other countries in transition, in BiH and Rwanda, art can serve as a major contributor to reconcile communities still recovering from mass ­violence.15 Artistic exhibitions become communicative acts that strive to bring forward survivors’ experiences of war and violence. Art can engage the public on multiple levels to create the potential for confronting both injustices and historical narratives that need to be challenged. It can raise questions of justice and truth-seeking, explore alternative historical narratives, give voice to those ignored and ensure that their stories do not neatly disappear from the national memory. It can also reach much wider ­audiences

11  M Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston, Beacon Press, 1998) 47. 12 C Campbell and C Turner, ‘Utopia and the Doubters: Truth, Transition and the Law’ (2008) 28 Legal Studies 374. 13  C Cole, ‘Performance, Transitional Justice, and the Law: South Africa’s Truth and Reconciliation Commission’ (2007) 59 Theatre Journal 168, 169. 14  K McEvoy and L McGregor, ‘Transitional Justice from Below: An Agenda for Research, Policy and Praxis’ in K McEvoy and L McGregor (eds), Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Oxford, Hart Publishing, 2008) 3. 15  S Seidl-Fox and S Sridhar, ‘Conflict Transformation through Culture: Peacebuilding and the Arts’ (Salzburg Global Seminar, 6–10 April 2014) 13.

312  Olivera Simić than legal justice. Theatrical performances, exhibitions and artistic installations are transportable, and, as such, can be viewed in isolated and remote areas, where the local community may not necessarily engage with the media, the internet or formal judicial language. Art in the transitional justice context can serve as a gesture of political action against impunity and collective amnesia—an action which resists denial and acknowledges harm. Art is an important tool of symbolic justice that needs to be cherished and accounted for as a creative innovation to respond to past atrocity. Art has the potential to disrupt silence and to serve as a symbolic form of public acknowledgement and recognition that crimes happened. Such acknowledgement carries ‘the idea of a different kind of justice, one that is less vindictive and state-centred and is more caring and responsive to human suffering’.16 The symbolic form of public acknowledgement is a kind of ‘different justice’: justice that seeks metaphorically to recognise and address wrongdoings and the harm suffered by victims of human rights abuses.17 According to de Greiff and Rubio Marin, reparation should be identified as a critical tool for the affirmation of survivors’ agency in political and social transformation within post-conflict and post-authoritarian states.18 ­Symbolic forms of reparation, according to Urban Walker, do not involve monetary transfer or transfer of property, but can be diverse, including memorials, public apologies or educational projects.19 Despite this distinction between material and symbolic reparations, Urban Walker argues that all reparations have symbolic—that is, expressive or communicative—functions.20 According to Walker, the ‘expressive’ dimension of reparations is the ‘communicative act of expressing acknowledgment, responsibility, and intent to do justice’.21 Hamber and Palmary contend that, for many victims of political violence, it is the denial of their victim status and social and political silence about their victimisation that are most difficult to bear,22 so acknowledgement of the harm through a communicative act becomes important. Artistic installations may have ‘commemorative functions’ and r­ epresent some sort of ‘temporary monuments’. As such, they function as ­negotiations

16  F Haldemann, ‘Another Kind of Justice: Transitional Justice as Recognition’ (2008) 41 Cornell International Law Journal 675. 17 International Center for Transitional Justice, ‘Reparations’ (2015) ictj.org/our-work/ transitional-justice-issues/reparations. 18  R Rubio-Marin and P de Greiff, ‘Women and Reparations’ (2007) 1 International Journal of Transitional Justice 318. 19 MU Walker, ‘The Expressive Burden of Reparations: Putting Meaning into Money, Words, and Things’ in A MacLachlan and A Speight (eds), Justice, Responsibility and Reconciliation in the Wake of Conflict (London, Springer, 2013) 211. 20  MU Walker, ‘Truth Telling as Reparations’ (2010) 41(4) Metaphilosophy 529. 21 ibid. 22 B Hamber and I Palmary, ‘Gender, Memorialization, and Symbolic Reparations’ in R Rubio-Marin (ed), The Gender of Reparations (2009) 364.

Portraits of the Dead and the Living 313 among victims, the parties responsible for wrongdoings and their ­communities.23 The audience can actively engage in an act of moral reparation by participating in ‘shared understanding’, which has the capacity to produce empathy, space for insight and a public discussion forum. Photographs are often the main medium in such artistic installations. Roland Barthes notes that these are always, to a certain extent, momento mori, attesting to what is already gone ‘whether or not the subject is dead’.24 Photographs, as Barthes argues, freeze the subject in a moment of the past.25 Walter Benjamin, Susan Sontag and Barthes refer to the ways in which photographic images ‘haunt us’ and, as such, visualise the past. The Truth and Reconciliation Commission (TRC) in Peru produced Yuyanapaq: Para Recordar,26 a photo exhibition that resulted from its investigations. The exhibit, consisting of 37 selected black-and-white photographs, was first staged by the TRC in 2003 and has been housed at the Museo de la Nación since 2009. The images are spread out through 27 rooms and in the final room, various audio tracks from the TRC hearings play in the background.27 The photographs are invested with the capacity to affect viewers on cognitive and emotional levels. As Saona argues, ‘images become a preferred form of testimonial, truth-telling, because they seem to force the viewer to adopt the perspective of eye witness’28 and can allow a country to develop a common and shared memory, thereby creating a sense of unity and reconciliation. Artistic installations have the potential to create narratives that should strengthen the social fabric of the nation, even if this narrative needs to acknowledge the horrors of the past. They can create narratives of social trauma through aesthetic choices that privilege mutual negotiation of conflicting narratives and that appeal to the recognition of different individual experiences with violence. On the other hand, as numerous scholars argue, legal settings constrain such ‘socio-affective mode of responses’ and often disappoint victims.29 However, while aesthetic experience as symbolic ­justice can ‘subvert political power and re-create solidarity’,30 it can also

23 

Walker, ‘The Expressive Burden’ (2013) 212. Barthes, Camera Lucida: Reflections on Photography (New York, Farrar, Straus & Giroux, 1981) 96. 25  ibid 80. 26  ‘In Order to Remember’; for more, see Museum of Memory and Human Rights, www. museodelamemoria.cl/expos/yuyanapaq-para-recordar. 27 ‘Remembering Peru’s Internal Conflict: Yuyanapaq, at the Museo Nacional in Lima’ (2009) c-monster.net/2009/06/08/yuyapanaq. 28 Saona, Memory Matters (2014) 51. 29  S Karstedt, ‘The Emotion Dynamics of Transitional Justice: An Emotion Sharing Perspective’ (2015) 8(1) Emotion Review 50. 30  K Bilbija, JE Fair, CE Milton and LA Payne, The Art of Truth-Telling about Authoritarian Rule (Madison, University of Wisconsin Press, 2005). 24 R

314  Olivera Simić narrate the past in a way that can become an obstacle towards a reconciliatory future. As such, the arts have the potential to open or close space for critical reconsideration or memory work, which should ‘reinforce the unification of citizens, not their division’.31 III.  FROZEN IN THE PAST: YOU ARE MY WITNESS

Tarik Samarah, a Bosnian photographer and founder of the ‘Gallery’, spent several years compiling the project ‘Srebrenica—Genocide at the Heart of Europe’, working closely with victims in their search for the missing and following investigators and forensic personnel during the exhumations. The Gallery, through a wide range of multimedia content, including images, maps, and audio and video materials, offers its visitors the documentary and artistic interpretation of the events that took place during July 1995. Before establishing the Gallery in Sarajevo, Samarah had exhibited widely, most notably at the Holocaust Museum in Washington DC and the UN building in New York. In his work on Srebrenica, he draws parallels between the genocide there and the Holocaust. He argues that there is no difference between Nazi Germany’s intention to destroy all Jews in Europe and the Bosnian Serb intention to destroy all Bosniaks in BiH. Although the exhibition is aimed at the new generation of Bosnians, it is largely an international audience that tours the Gallery—tourists, backpackers, academics and researchers. To respond to the influx of international guests, all Gallery materials have been translated into English and also Turkish, since the Turkish embassy has been one of the major Gallery sponsors. The exhibition You Are My Witness is displayed in a building situated in the heart of Sarajevo city centre. An elevator ride from the ground floor to the third floor takes a visitor to the memorial documentary and multimedia exhibition. The first sight after leaving the elevator is a 16 m wall ingrained with the names of those massacred in the genocide. Visitors must pass this wall to reach the small reception room. In the first room (Figure 14.1), more than 600 medium-sized black-and-white portraits of victims of genocide cover the walls.

31 M Spasovska, ‘Нова влада, нова историја—нови поделби?’ (trans ‘New Government, New History—New Divisions?’) Radio Slobodna Evropa (23 June 2012) www.makdenes.org/ content/article/24623301.html.

Portraits of the Dead and the Living 315

Figure 14.1: The view from the Gallery ‘Portrait of Dead’ room. Photographer Midhat Mujkić. From ‘Galerija 11/07/95’. Reproduced with permission of photographer.

The display of black-and-white portraits of Srebrenica victims echoes a trope of Holocaust exhibitions, in which faded black-and-white images are favoured for their aesthetics and for iconographic reasons. There is a widespread belief that the Holocaust is best portrayed in black and white: ‘when we think or dream of the Holocaust, it’s always in black and white … Color is wrong for the subject’.32 While the choice of black-and-white images for Holocaust exhibitions may also reflect pragmatic constraints, given what was readily available when the images were made, in You Are My Witness, black and white rather than colour is more than a pragmatic choice: it is an intentional evoking of, and reflects a desire to equalise the Srebrenica genocide with, the Holocaust. In the same room, two computers with interactive maps present a complete timeline, hour-by-hour, day-by-day, of all the events that happened in

32 I Wollaston, ‘The Absent, the Partial and the Iconic in Archival Photographs of the ­ olocaust’ in H Ewence and H Spurling (eds), Visualizing Jews through the Ages: Literary H and Material Representations of Jewishness and Judaism (Abingdon, Routledge, 2015) 270.

316  Olivera Simić July 1995. Visitors can sit in front of the computers and trace the coordination of genocide via the maps, and also click on all of the primary and secondary mass graves in which the bodies of the men who had been killed were scattered to cover up the crime. Visitors are invited to go back in time and vividly experience every moment of the preparation, execution and burial of the victims; indeed, they can become, as the Gallery’s owners hoped, ‘living witnesses of horror’ unfolding before their eyes. Visitors are invited to retake every step in the trail of murderous actions committed by the Bosnian Serb army in July 1995. Some scholars would describe such engagement as potential dark tourism, where death and atrocity are offered as commodities and tourism ‘products’.33 From this room, a visitor can move to the central piece of the exhibition (Figure 14.2), where large-scale images of the exhumation of dead bodies cover the walls on both sides. There are three benches for visitors to sit, inviting them to pause to observe and contemplate the images. In between these benches, another three large images hang. Thus, the visitor finds himself surrounded by terror, which lurks in every direction.

Figure 14.2: The central room. Photographer Midhat Mujkić. From ‘Galerija 11/07/95’. Reproduced with permission of photographer.

33  JJ Lennon and M Foley, Dark Tourism: The Attraction of Death and Disaster (London, Continuum, 2000) 3.

Portraits of the Dead and the Living 317

Figure 14.3: The view on the third room. Photographer Midhat Mujkić. From ‘Galerija 11/07/95’. Reproduced with permission of photographer.

The third room (Figure 14.3) features a projector screen with two 30-minute movies about the genocide. From there, visitors can head to the hall where two monitors play audio-visual testimonies from survivors of the genocide. Visitors must place headphones over their ears and stand in front of the monitors to listen to testimonies from the trials. The exhibition ends with a gruesome tale of the horrific crimes committed. The exhibition is centred around events that occurred before and during the genocide, and those that reflect its aftermath focus on images of the public commemorations held each year on the anniversary of genocide. The dead men are central to the installation, while the living, the survivors, are almost entirely absent. According to Samarah, the installation fosters ‘collective memory’. However, ‘there are as many collective memories as there are groups and institutions in a society’.34 In the Gallery, the collective memories fostered by the exhibition are limited to unspeakable crimes committed by Serb soldiers towards Bosniaks. Constructing a collective and shared memory, however,

34 

M Halbwachs, On Collective Memory (Chicago, University of Chicago Press, 1992) 22.

318  Olivera Simić implies that ‘a shared meaning is given to events of the past’ and ‘that there are shared practices of their commemoration’.35 Miljenko Jergović, a Croatian journalist and writer, comments: ‘With his images, Samarah narrates the crime, insists that we all know who committed the crime and who the victim of it was’ (emphasis added).36 With his images, Samarah appeals to new generation of Bosniaks to recall and connect to the genocide as articulated by the International Criminal Tribunal for the former Yugoslavia (ICTY). From his perspective, Bosniaks need not only become aware of this terrible past, but also stay permanently aware, imprinting the events in their memory, a history that needs to be constantly remembered and retold. As Susan Sontag argues, ‘even if they are only tokens … they still perform a vital function. The images say … Don’t forget’.37 The Gallery visually and literally conveys this to the viewer: ‘Visitors of the Gallery 11/07/95 are not just passive observers of the exhibit— they are living witnesses to the horror and injustice.’38 The dialogue conducted in the ‘commemorative arena’ of Srebrenica is not ‘reconciliatory but an antagonistic, politically motivated struggle over collective memory’;39 it is an ‘exercise in competitive victimhood’.40 The installation is thus part of the political process of forging a Bosniak identity. As Ristić argues, the memory of war in BiH is the ‘memory of the “Victim” and victimhood is “the most expressive hallmark of Bosniak identity”’.41 Any discussion of the victimhood of ‘the other’, of survivor agency and life that eventually moved on, has been silenced under the pressure to maintain the narrative of victimhood.42 For the Bosniak political elite, the past is used to justify the political projects of unitary BiH, the state built on the memory of great injustice, genocide and victimisation.43 The Srebrenica genocide occupies public space at the expense of all other crimes, in particular crimes committed by the Bosnian army. As Duijzigns argues, Srebrenica became the

35  S Karstedt, ‘The Legacy of Maurice Halbwachs’ in S Karstedt (ed), Legal Institutions and Collective Memories (Oxford, Hart Publishing, 2009) 4. 36  M Jergović, ‘Tarik Samarah, Srebrenica Kao Autoportret’ (10 April 2015), www.jergovic. com/ajfelov-most/tarik-samarah-srebrenica-kao-autoportret. 37  S Sontag, Regarding the Pain of Others (New York, Picador, 2003) 115. 38  Galerija 11/07/1995 (n 4). Still it is not clear to which injustice they refer. Legal justice has been achieved: Srebrenica has been declared a genocide by the ICTY. 39  E Morrow, ‘How (Not) to Remember: War Crimes, Memorialisation and Reconciliation in Bosnia-Herzegovina’ (MA thesis, University of York, 2012) 71. 40 S Čehajić and R Brown, ‘Silencing the Past: Effects of Intergroup Contact on Acknowledgment of In-group Responsibility’ (2010) 1 Social Psychological and Personality Science 190, 192. 41  K Ristić, Imaginary Trials: War Crime Trials and Memory in Former Yugoslavia (Leipzig, Leipzig University, 2014) 140. 42  H Halilovich, Places of Pain (New York, Berghahn Books, 2013) 94. 43  EJ Plant, ‘The Politicization of Victimhood’ (SIT Symposium ‘Conflict, Memory and, Reconciliation: Bridging Past, Present and Future’, Kigali, Rwanda, 2012) in J Subotic, ‘Remembrance, Public Narratives, and Obstacles to Justice in the Western Balkans’ (2013) 7(2) Studies in Social Justice 265.

Portraits of the Dead and the Living 319 symbol of Bosniak victimhood after the massacre, but not before debates and allegations about the contested role of the Bosnian army and government in the region of Srebrenica had been silenced.44 According to Marianne Hirsch, ‘just as the Holocaust imposed a posthumous collective identity on its six millions of victims’,45 so too did Srebrenica become a symbol of collective identity of Bosniaks and the newborn BiH. This new identity has been carefully constructed over the past two decades and enforced on Bosniaks and the international community, for whom Srebrenica became synonymous with genocide and the Bosniaks became the ultimate victims of the BiH war. Perpetrators are invisible from the photos and through narratives provided on the guided tours, they appear only as genocidal killers and as collective ‘Serbs’. Republika Srpska, the entity in which they reside, is narrated by Samarah as a ‘genocidal establishment’ similar to Nazi Germany and he sees the Republika Srpska as a ‘gift’ given by the international community to Serbs after they committed genocide. In his narration of events, Srebrenica Bosniaks are portrayed as ‘Jews killed and annihilated’. The perpetrators are not individually identified as Serb soldiers, but the entire ethnic group is narrated as the ‘evil Other’. During my visit to the Gallery, I was part of a tour conducted in a local language for a group of local visitors. Samarah, who was our tour guide, asked our small group if we were all locals. When a man in the group confirmed this, he told us that the narrative for English speakers is ‘a bit different’. He was glad that we are all naši (‘ours’, in this context meaning Bosniaks), so that he did not have to be careful about the ‘language and narration’ he would use during his talk. At that moment, I realised that he could not possibly think that ‘the Serb’ might be in the group of locals that he was about to guide. I was presumed to be one of the Bosniaks in that small group of local visitors that day, so the guide felt comfortable demonising all Serbs as a collective. With sweat on my palms and some fear, I suddenly felt that I was an intruder, someone who was not meant to be present there and to share in the story. IV.  LIFE BEYOND THE DEAD: THE PORTRAITS OF RECONCILIATION

The photographers Pieter Hugo and Lana Mesić travelled to southern Rwanda and captured a series of images that would be unlikely, almost 44 G Duijzings, ‘Commemorating Srebrenica: Histories of Violence and the Politics of Memory in Eastern Bosnia’ in X Bougarel, E Helms and G Duijzings (eds), The New Bosnian Mosaic: Identities, Memories and Moral Claims in a Post-war Society (Farnham, Ashgate, 2007) 155. 45  M Hirsch, ‘Family Pictures: Maus, Mourning, and Post-memory’ (1992–93) 15 Discourse 3, 11.

320  Olivera Simić unthinkable, in many post-conflict contexts, including BiH. Most of Hugo and Mesić’s images present survivors and perpetrators standing or sitting close together, their bodies signifying what forgiveness and reconciliation means to them today. For the twentieth commemoration of the 1994 genocide in Rwanda, a small exhibition of the project was displayed in The Hague City Hall. Other exhibitions have taken place in The Hague next to the Peace Palace, the International Criminal Court, the Central Station and in the Het Nutshuis gallery. Most recently, at the end of March 2015, the project was presented in Rwanda itself. It has also been featured in Zagreb, New York, Tokyo and Kigali, and is accessible online. The people who agreed to be photographed for this project are part of a continuing national effort towards reconciliation and had worked closely with the Association Modeste et Innocent (AMI), a not-for-profit organisation established in 2000 and known for its work in conflict resolution and the reconciliation process in Rwanda. The AMI is recognised for bringing together former genocide perpetrators and genocide survivors for reconciliation by using a community-based approach.46 In the AMI’s programme, a small group of perpetrators and survivors are counselled over a couple of months, culminating in the perpetrator’s formal request for forgiveness. Atonement is a necessary precondition to forgiveness; acknowledgement of wrongdoing and regret is crucial for a restorative approach to justice which takes into account its communicative effects.47 If forgiveness is granted by the survivor, the perpetrator and his family and friends typically bring a basket of offerings, usually food and sorghum or banana bread. The accord is sealed with song and dance.48 The AMI assisted Creative Court in finding participants and was present during Creative Court visits to Rwanda, but the photographic project is not part of the AMI’s programme or mission. The participants were offered small fees for their time and participation, after they had agreed to take part. Reflecting on his experience at the photo shoots, Pieter Hugo reported that the relationship between victims and the perpetrators varied widely. Some pairs showed up and sat easily together, while others arrived willing to be photographed, but unable to go further. ‘There are clearly different degrees of forgiveness … in the photographs, the distance or closeness you see is pretty accurate.’49 While Hugo intervened in the positions of participants, Mesić asked the participants to think back to their moment of

46  Peace Direct, ‘Insight on Conflict: Association Modeste et Innocent (AMI)’, www.insightonconflict.org/conflicts/rwanda/peacebuilding-organisations/ami. 47  CW Ling, ‘Justice as Practiced by Victims of Conflict: Post-World War II Movements as Sites of Engagement and Knowledge’ in MA Fineman and E Zinsstag (eds), Feminist Perspectives on Transitional Justice (Cambridge, Intersentia, 2013) 167. 48 S Dominus (Photographs Pieter Hugo), ‘Portraits of Reconciliation’ New York Times (4 June 2014) www.nytimes.com/interactive/2014/04/06/magazine/06-pieter-hugo-rwandaportraits.html?_r=0. 49 ibid.

Portraits of the Dead and the Living 321 forgiveness and, if they felt comfortable in doing so, to re-create that moment for her. It was in her photographs that many of participants are touching each other, and some are even hugging.50 Here (Figure 14.4), we can see two elderly men, François and Christophe, embracing each other. In this case François was not a perpetrator himself but a bystander, witnessing the killing of Christophe’s brother, but not trying to save him.

Figure 14.4:  François and Christophe © Lana Mesić/Creative Court.

50  R Benlahbib, P Hugo and L Mesić, ‘Rwanda 20 Years: Portraits of Reconciliation’ (trans ‘Ruanda 20 Años: Retratos de Reconciliación’) (2014) Dar Lugar 2.

322  Olivera Simić According to Rabiaâ Benlahbib, the Director of Creative Court in The Hague, by capturing that original moment of forgiveness and level of (dis) comfort between survivor and perpetrator, Mesić’s photographs become ‘transitory recordings of forgiveness’.51 They are representative of what Mesić calls ‘The Anatomy of Forgiveness’.52 According to Benlahbib, the participants in this project spoke of a pardoning process as an important step towards improving their life: The participants see the project as an opportunity to share their stories with an international audience, and they were all very interested to take part. When we first met them, we sat with them to explain the project and ask for their consent to use eg their stories, their faces, the sound of their voices and their names. There was not a single participant who expressed hesitancy to our propositions, they wanted to share everything. The participants’ desire to share their stories made us even more aware of the urgency to reflect on the topic, even 20 years after.53

Figure 14.5: Jean Pierre Karenzi (left) and Viviane Nyiramana (right) © Pieter Hugo/Creative Court.

This photo (Figure 14.5) shows Jean Pierre who asked Viviane to forgive him for killing her father and three brothers. She agreed by shaking his 51 

ibid 3.

53 

Statement by Rabiaâ Benlahbib (personal email correspondence, 16 July 2015).

52 ibid.

Portraits of the Dead and the Living 323 hand. Together with a group of other offenders, Jean Pierre helped to build a house for Viviane. Many of the victims and perpetrators are neighbours, living in close proximity with each other, often sharing and helping each other.

Figure 14.6:  François (left) and Epiphanie (right) © Pieter Hugo/Creative Court.

Here (Figure 14.6), Epiphanie granted forgiveness to François for killing her son. François reported that he could not let his mind rest until he asked Epiphanie for forgiveness. Today, he helps Epiphanie with everyday chores, such as collecting water. These images are confronting, stark and unsettling, but at the same time very personal and intimate. The subjects are boldly looking out at the viewer, their pain and strength almost tangible. As Siobhan Keam describes: ‘His [Hugo’s] subjects are not passive recipients of the viewer’s gaze, but challenge the viewer with their agency.’54 Building on the photographic portraits taken in 2014, Creative Court artists are currently working with local Rwandan artists to produce a series of video portraits on the present lives of the participants. These videos, according to Benlahbib, aim to ‘go beyond the roles of survivor or offender, and simply show the human lives of each

54  S Keam, ‘Pieter Hugo: Africa Uncut’ The Culture Trip (2 February 2016) www.theculturetrip.com/africa/south-africa/articles/pieter-hugo-africa-uncut-/.

324  Olivera Simić participant’.55 A series of short video portraits follow up on the lives of each participant in order to further contextualise the photographic portraits taken in 2014. Benlahbib reported that the video portraits ‘will eventually come together as a singular documentary project to be shown at, for example, film festivals’.56 V.  VIEWERS’ REACTIONS TO THE EXHIBITIONS

The BiH installation You Are My Witness has been highly praised by the local and international community. Florence Hartman, the former spokesperson for the former Chief Prosecutor of the ICTY, for example, in a recent blog about exhibition describes it as: ‘Sharing the universal yearning for a more peaceful world’ as ‘a must see place when in Sarajevo.’57 Another visitor in the same blog shared a similar view: If you believe that ‘never again’ is not just a phrase, this is the place where you will not just learn about the past but where you will also get inspired and understand the pressing need of sharing the universal yearning for a more peaceful world.

In BiH, a country where public discussion outside of acceptable categories of ‘Bosniak survivors’ and ‘Serb perpetrators’ is almost non-existent, the commemorative space—the installation—becomes an arena for affirming ethnic and nationalist politics. This is in contrast to Rwanda, where the government encourages the use of artistic expression and has shifted to a narrative of national unity and Rwandan identity as the central identity.58 This may be due to the fact that Rwanda is one country; in contrast, while BiH is considered one country, it is actually a divided nation with two entities that have their own administrative, judicial and political structures. However, despite this progress, the Rwandan government still portrays the genocide against Tutsis as a continuous pogrom of the past, and ignores potential war crimes committed by Tutsis against Hutus. Similarly, in BiH, the Srebrenica genocide occupies public space at the expense of all other crimes, in particular crimes committed by the Bosnian army.

55 

Statement by Rabiaâ Benlahbib (personal email correspondence, 25 July 2015). Statement by Rabiaâ Benlahbib (personal email correspondence, 19 November 2015). 57 F Hartman, ‘Sharing the Universal Yearning for a More Peaceful World—Review of Galerija 11/07/95’ (TripAdvisor, 23 May 2013) www.tripadvisor.com/ShowUserReviews-g294450-d3661931-r161579005-Gallery_11_07_95-Sarajevo_Sarajevo_Canton. html#REVIEWS. 58 S Wolfe, ‘The Politics of Reparations and Apologies: Historical and Symbolic Justice within the Rwandan Context’ in SE Bird and FM Ottanelli (eds), The Performance of Memory as Transitional Justice (Cambridge, Intersentia, 2015) 57. 56 

Portraits of the Dead and the Living 325 ‘Portraits of Reconciliation’ has received a range of different reactions. Some viewers have reacted positively: Stunning … by the impetus of practical survival in some cases, and in others, humanity so deep and vital with hearts as big as the whole country, they find a way back to co-existence.59 Forgiveness is so vital to being able to move forward, both individually and collectively, but the immensity of the task for all involved cannot be understated. These stories and photographs amaze my soul.60

Others find it difficult to comprehend the level of forgiveness. Several comments left on online blogs from those who have visited exhibition were critical: some found the exhibition ‘disturbing’,61 while others described the photographs as ‘superficial’ and a ‘dishonest portrayal of Rwandan life and culture’.62 I showed these images at an international conference in Europe that gathered experts in arts and transitional justice, and at a research seminar in Australia. Several colleagues in informal exchanges afterwards expressed their concerns about the exhibition to me. What seems to be the most disturbing to these viewers is the close proximity of participants’ bodies. Most of my colleagues found the images ‘fake’, ‘forced’, ‘intrusive’ and ‘unthinkable’, and rejected the idea that participants would have willingly posed in the photographs. Some perceived them as ‘colonial’ and ‘an invasion’ into private spaces. Similarly, one of the bloggers posted a comment: I see something completely different here … I see body language that is selfprotective and closed. I see people posing for a camera held by a white man and they are thinking that he couldn’t possibly understand what they have been through and that the idea of reconciliation is an idealistic pipe dream.63

Another blogger said: ‘The photographs are nice, but I can never shake off that feeling that they are superficial.’64 Similarly, a few human rights activists in BiH that I spoke to about the exhibition commented that it is ‘not normal’ to see a victim and perpetrator photographed together. These activists have been working for years on ‘reconciliation projects’ in BiH. I found it astounding that experts in the field, academics and activists alike, most of whom had been working for over a decade on issues of truth, j­ ustice

59 

Richard Scott, California, posted 5 April 2014 (see n 57). Gnoeyk, New York, posted 5 April 2014 (see n 57). 61 A Bady, ‘Unthinkable Tableaus’ The New Inquiry (8 April 2014) thenewinquiry.com/ blogs/zunguzungu/unthinkable-tableaus. 62  Bag News, ‘On Pieter Hugo’s Portraits of Reconciliation from Rwanda’ (7 April 2014) www.bagnewsnotes.com/2014/04/on-pieter-hugos-portraits-of-reconciliation-from-rwanda. 63 Reading the Pictures, ‘On Pieter Hugo’s Portraits of Reconciliation from Rwanda’ (7 April 2014) www.readingthepictures.org/2014/04/on-pieter-hugos-portraits-of-reconciliationfrom-rwanda. 64 ibid. 60 

326  Olivera Simić and reconciliation, have found it ‘unacceptable’ to see a victim and perpetrator coming together, willing to forgive and move on. It left me with a troubling question: if we do not want to see victims and perpetrators trying to rebuild their lives and trust after mass atrocity—yet we know that people in Rwanda (and BiH for that matter too) will have to ‘learn to live together again’65—then how can we imagine the ‘truth and reconciliation’? ­Benlahbib responded to these reactions: We fully understand that there may be people who find the stories hard to believe, simply because they are indeed quite unbelievable. In fact, when I heard about post-genocide forgiveness in Rwanda, my own questions led me to initiate this project. I kept wondering what the word forgiveness could mean in this context, if it was something divine, ‘the ultimate benevolence’, or if it was rather something practical, a conscious decision or a ‘mental switch’, constructed in order to be able to bear each other’s sight without going mad. In the end it turned out to be both, and much more.66

The artwork embodies critical encounters between victims and perpetrators and, as such, challenges and aims to reconfigure our deeply entrenched and dominant stereotypical images of how ‘victims’ and ‘perpetrators’ should look or behave. The prevailing binary identity makes it difficult to integrate these images into our consciousness. The artists in this project have confronted and provoked viewers’ imaginations by bringing together people conventionally assumed to be separated by an unbridgeable distance. Benlahbib reflected on the fact that for many people, it is difficult or impossible to imagine forgiveness and reconciliation as Hugo and Mesić have portrayed it: ‘The matter is complex and therefore quite ungraspable … a number of photos seem to display a certain awkwardness, or discomfort. Especially in Lana Mesić’s photos … one may wonder whether or not this forgiveness is “real”.’ The Hugo and Mesić images contribute to reconciliation by ‘documenting sustained cooperation’ between survivors and perpetrators, so as to ‘escape from the shadow’ of the 1994 genocide.67 To visually capture that this is not an easy process, Mesić drew a scale from 1 to 10 on objects found around the villages, such as a wooden stick, a jerry can and a banana leaf. When asking victims ‘how much’ they had forgiven the perpetrators, and perpetrators how much they had forgiven themselves, the victims’ answers varied from 3 to 9, while the perpetrators all pointed to 9 or 10.

65  P Clark, The Gacaca Courts, Post-genocide Justice and Reconciliation in Rwanda: Justice Without Lawyers (Cambridge, Cambridge University Press, 2010) 263. 66  Statement by Rabiaâ Benlahbib (personal email correspondence, 25 July 2015). 67  F Möller and R Ubaldo, ‘Imaging Life after Death: Photography and the 1994 Genocide in Rwanda’ in L Bisschoff and S van de Peer (eds), Art and Trauma in Africa: Representations of Reconciliation in Music, Visual Arts, Literature and Film (London, IB Tauris, 2013).

Portraits of the Dead and the Living 327

Figure 14.7:  Scale © Mesić/Creative Court.

Both of the exhibitions examined here are aimed primarily at an international audience, to create an affective community to bolster remembrance and hopefully renew interest in the future of these largely forgotten communities. Depending on how they are viewed and displayed, the same photographs may be read differently as calls for peace, as cries for revenge or as memorialisation of loss.68 The choice is whether to represent life or death, and seemingly the artists’ choice to represent death is expected, normalised and accepted. Acknowledging that it is time to move beyond retributive justice responses, the ‘Portraits of Reconciliation’ have been cited as a positive example during discussions at a recent conference on BiH in Sarajevo regarding the possibilities of reconciliation. During the conference, it was proposed that a project that showcases images of victims and perpetrators in BiH is perhaps the mechanism that is needed in BiH. Perpetrators would need to have a space to speak publicly about themselves, about the crimes

68 B Zelizer, Remembering to Forget: Holocaust Memory through the Camera’s Eye ­(Chicago, University of Chicago Press, 1998) 101.

328  Olivera Simić that took place, and to publicly apologise. It was argued that ‘victims need more than a judgement to move on with their lives’.69 VI. CONCLUSION

Art can contribute to different ways of remembering past deeds and dealing with them. One way is to look backwards and display the horror of the past, as the Srebrenica exhibition does. A second option is to reflect on the past, but foster reconciliation and social cohesion by emphasising looking forwards, as the Rwandan exhibition does. In an effort to move on, to support joint nation-building efforts, artists are creating an art of reconciliation. The exercise of finding a balance between portraying victim and perpetrator engagements in the genocide, and the representation of alternative perspectives, is a challenging task for any artist.70 An exclusive narration of victimhood, which prevails in BiH, reduces the potential to open space for conflicting narratives, which is required for longlasting reconciliation. Facing the past should not overshadow the equally important obligation to initiate future-oriented projects and build new or rebuild old relationships. With a narrative of utter victimisation, an exhibition cannot engage or facilitate any critical distance for a viewer, nor can it provide any glimpse into a positive future. And, while the Gallery shrinks the space for Serb denial of genocide, it immerses the viewer in ‘dark tourism’ and invokes rage towards ‘the other’, simultaneously discouraging any reflection or dialogue about the possibilities of imagining a joint peaceful future. The contrast between the different representations, the black-and-white past and the saturated colour of the present, cuts between the archival past and imaginative future in these two countries. The Srebrenica exhibition simply provides an insight into what Cohen calls a ‘factual or forensic truth’71 by providing information about a particular event, the genocide, and what happened to the men, its victims. The Rwandan project opens pathways to ‘healing and restorative truth’ by including narratives of both victims and perpetrators who face the past in order to move forwards.72 For the moment, I still cannot imagine artists using Srebrenica to talk about the living rather than the dead, or even alongside with the dead. Art does reflect 69  ‘Conference Report’ (Role of Domestic Jurisdictions in the Implementation of International Humanitarian Law (IHL)—Law and Practice, Sarajevo, 19–20 May 2014) 19, www. osce.org/odihr/142256?download=true. The regional conference was organised by the International Committee of the Red Cross (ICRC), the OSCE Office for Democratic Institutions and Human Rights (ODIHR), the OSCE Mission to Bosnia and Herzegovina, the Court of Bosnia and Herzegovina, and the Swiss Embassy in Sarajevo. 70  J Thompson, J Hughes and M Balfour, Performance in Place of War (Calcutta, Seagull Books, 2009) 223. 71  S Cohen, ‘Unspeakable Memories and Commensurable Laws’ in S Karstedt (ed), Legal Institutions and Collective Memories (Oxford, Hart Publishing, 2009) 34. 72  ibid 35.

Portraits of the Dead and the Living 329 the political processes in the country and Samarah’s installation is a plea for acknowledgement of genocide to the Serb political elites, who have been denying it for the past two decades. It would be naïve to suggest that, on their own, artistic projects can bring about long-lasting peace, but they can provide a form of hope for future generations. If the ultimate aim of transitional justice processes is reconciliation or, at least, bringing former conflicting parties or divided societies together into ‘functioning relationships’,73 then the Bosnian project has failed. As pointed out by scholars and practitioners of transitional justice, it is vital that discussions on the design and implementation of mechanisms of transitional justice reach out to the broadest possible population in order to avoid further societal fractures.74 A lack of mutual negotiation of competing and conflicting narratives, whether in BiH or Rwanda, may fuel further divisions, as victims cling to their remembered truth while resisting remembrance and recognition of other experiences.75 A strong and an exclusive sense of victimhood, while one of the building blocks of collective memory, is also one of major factors that sustain violence.76 Such a narrative does not reflect the day-to-day reality on the ground. While there is a need for ‘reciting stories of trauma and suffering’ which further reinforce what Sivac-Bryant calls ‘a kind of performative victimhood’, Bosnians do coexist and have had contact with each other over the past two decades, and will continue to do so.77 Like Rwandans, they simply have to live, if not with, then certainly next to each other. If art can help us to search for common ground in order to build a kind of peaceful future, then it may have a potentially valuable part in the reconciliation processes. However, the role of art is still relatively under-researched in the transitional justice field, and this chapter has aimed to address some of its potentials and pitfalls. The process of uncovering the past should allow a country to develop a common and shared memory, thereby creating at least some sense of unity and reconciliation.78 This process has been in the making at many levels in Rwanda, but has a long way to go to reach BiH.

73 A Mihr, Regime Consolidation through Transitional Justice—Case Studies in Europe: Germany, Spain and Turkey (Cambridge, Cambridge University Press, 2017). 74  Governance, Social Development, Humanitarian, Conflict (GSDRC), ‘Topic Guide: Transitional Justice’ (2015) www.gsdrc.org/go/topic-guides/justice/transitional-justice. 75 A Lindsay, ‘Competing Narratives in Rwandan Reconciliation’ in SE Bird and FM Ottanelli (eds), The Performance of Memory as Transitional Justice (Cambridge, Intersentia, 2015) 95. 76  D Bar-Tal, L Chernyak-Hai, N Schori and A Gundar, ‘A Sense of Self-Perceived Collective Victimhood in Intractable Conflicts’ (2009) 91 International Review of the Red Cross 229, 258. 77  S Sivac-Bryant, ‘The Omarska Memorial Project as an Example of How Transitional Justice Interventions Can Produce Hidden Harms’ (2015) 9 International Journal of Transitional Justice 170, 180. 78  B Hamber and RA Wilson, ‘Symbolic Closure through Memory, Reparation and Revenge in Post-conflict Societies’ (2002) 1 Journal of Human Rights 1.

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Portraits of the Dead and the Living 333 Möller, F and Ubaldo, R, ‘Imaging Life after Death: Photography and the 1994 Genocide in Rwanda’ in L Bisschoff and S van de Peer (eds), Art and Trauma in Africa: Representations of Reconciliation in Music, Visual Arts, Literature and Film (London, IB Tauris, 2013) 131–54. Morrow, E, ‘How (Not) to Remember: War Crimes, Memorialisation and Reconciliation in Bosnia-Herzegovina’ (MA thesis, University of York, 2012). Museum of Memory and Human Rights, www.museodelamemoria.cl/expos/ yuyanapaq-para-recordar. Nagy, R, ‘Transitional Justice as Global Project: Critical Reflections’ (2008) 29 Third World Quarterly 275–89. Neumann, K and Thompson, J (eds), Historical Justice and Memory (Madison, ­University of Wisconsin Press, 2015). Parent, G, ‘Reconciliation and Justice after Genocide: A Theoretical Exploration’ (2010) 5(3) Genocide Studies and Prevention: An International Journal 277–92. Peace Direct, ‘Insight on Conflict: Association Modeste et Innocent (AMI)’, www. insightonconflict.org/conflicts/rwanda/peacebuilding-organisations/ami. Plant, EJ, ‘The Politicization of Victimhood’ (SIT Symposium ‘Conflict, Memory and, Reconciliation: Bridging Past, Present and Future’, Kigali, Rwanda, 2012) in J Subotic, ‘Remembrance, Public Narratives, and Obstacles to Justice in the Western Balkans’ (2013) 7(2) Studies in Social Justice 265–83. Ramírez-Barat, C (ed), Transitional Justice, Culture and Society: Beyond Outreach (New York, Social Science Research Council, 2014). Reading the Pictures, ‘On Pieter Hugo’s Portraits of Reconciliation from Rwanda’ (7 April 2014) www.readingthepictures.org/2014/04/on-pieter-hugosportraits-of-reconciliation-from-rwanda. Ristić, K, Imaginary Trials: War Crime Trials and Memory in Former Yugoslavia (Leipzig, Leipzig University, 2014). Ritchin, F, After Photography (New York, Norton, 2009). Rubio-Marin, R (ed), The Gender of Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations (Cambridge, Cambridge University Press, 2009). Rubio-Marin, R and de Greiff, P, ‘Women and Reparations’ (2007) 1 International Journal of Transitional Justice 318–37. Rush, PD and Simić, O (eds), The Arts of Transitional Justice: Culture, Activism, and Memory after Atrocity (New York, Springer, 2014). ‘Rwanda 20 Years Exhibition’ (Het Nutshuis), www.creativecourt.org. Saona, M, Memory Matters in Transitional Peru (London, Palgrave Macmillan, 2014). Spasovska, M, ‘Нова влада, нова историја—нови поделби?’ (trans ‘New G ­ overnment, New History—New Divisions?’) Radio Slobodna Evropa (23 June 2012) www. makdenes.org/content/article/24623301.html. ‘Remembering Peru’s Internal Conflict: Yuyanapaq, at the Museo Nacional in Lima’ (2009) c-monster.net/2009/06/08/yuyapanaq/ accessed 18 August 2015. Seidl-Fox, S and Sridhar, A, ‘Conflict Transformation through Culture: Peacebuilding and the Arts’ (Salzburg Global Seminar, 6–10 April 2014).

334  Olivera Simić Sivac-Bryant, S, ‘The Omarska Memorial Project as an Example of How Transitional Justice Interventions Can Produce Hidden Harms’ (2015) 9 International Journal of Transitional Justice 170–80. Sontag, S, Regarding the Pain of Others (New York, Picador, 2003). Subotic, J, ‘Remembrance, Public Narratives, and Obstacles to Justice in the Western Balkans’ (2013) 7(2) Studies in Social Justice 265–83. Thompson, J, Hughes, J and Balfour, M, Performance in Place of War (Calcutta, Seagull Books, 2009). Tietel, RG, ‘Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights ­Journal 69–94. United Nations, ‘Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice’ (10 March 2010). Walker, MU, ‘The Expressive Burden of Reparations: Putting Meaning into Money, Words, and Things’ in A MacLachlan and A Speight (eds), Justice, Responsibility and Reconciliation in the Wake of Conflict (New York, Springer, 2013) 205–26. Walker, MU, ‘Truth Telling as Reparations’ (2010) 41(4) Metaphilosophy 525–45. Wolfe, S, ‘The Politics of Reparations and Apologies: Historical and Symbolic ­Justice within the Rwandan Context’ in SE Bird and FM Ottanelli (eds), The Performance of Memory as Transitional Justice (Cambridge, Intersentia, 2015) 43–58. Wollaston, I, ‘The Absent, the Partial and the Iconic in Archival Photographs of the Holocaust’ in H Ewence and H Spurling (eds), Visualizing Jews through the Ages: Literary and Material Representations of Jewishness and Judaism (Abingdon, Routledge, 2015) 265–93. Wui Ling, C, ‘Justice as Practiced by Victims of Conflict: Post-World War II Movements as Sites of Engagement and Knowledge’ in MA Fineman and ­ E Zinsstag (eds), Feminist Perspectives on Transitional Justice (Cambridge, Intersentia, 2013) 145–70. Zelizer, B, Remembering to Forget: Holocaust Memory through the Camera’s Eye (Chicago, University of Chicago Press, 1998).

Index abstraction, 21–2 accountability, 106–8 application of, 115–16 criminal law, in, 96–7 definition, 106–7 Global Administrative Law Project, in, 97–9 global criminal law, in, 99–101, 108–10 Khmer Rouge regime, lack of in, 171 participation and distinguished, 110 power and, 106 public see public accountability Rome Statute and, 110 standard in global community law, 109 supervisory bodies, requirements for, 108 transnational justice and, 109 transparency and, 6–7, 106 Accountability and Reconciliation (Uganda): agreements implemented under, 159 Ugandan civil war, in, 158 accountability mechanisms: ICC and, 110 Rome Statute and, 110 Acholi people (Uganda), 154–5 acting and omitting, differences between, 34 adversarial trial proceedings, 174 affidavit documents: location of graves and, 293 obtaining, 293–4 ‘age of anxiety’ thesis, 297 agonistic liberalism, 22–3 politics and, 23 amnesty: application of, 287 ICL, application of (Uganda) and, 163 laws, legitimacy of, 286 credible commitment, and, 75 Amnesty Act (Uganda, 2000), 156–7 revision of (2004–5), 157 Amnesty International, 93–4 Amnesty International fact-finding mission (1976) to Argentina, 224–5 testimonies of, 224 Amnesty Law 46/1977 (Spain), 285, 286 anti-Semitism and Holocaust denial, 272 apologies: credibility of, 83 definition, 82 emotional transparency and, 85 expressions of guilt, implication of, 84

forgiveness and, 83–4 intergroup, 83, 84 interpersonal encounters, 84 official, 82, 83 official and credibility, 84 political, 82, 83 purpose of, 83 ritualistic, 83 transitional justice, in, 82–5 Appeals Chamber (ICTY) and journalistic privilege, 255, 256–7 archive searches, council staff’s assistance with, 292–3 Argentina: human rights violations (1976–9), 221–40 state repression, testimonial narratives, 221–46 victim statements, 54 Argentinian military government (1980) response, IACHR report, to, 226–7 Armenian genocide (1915), 270, 279 art: acknowledgement of crimes, as, 312 Rwandan government’s encouragement of, 324 symbolic justice, as tool of, 312 symbolic reparation, as tool for, 309 transitional justice, in, 310–14 art installations: collective memory, as, 317–18 narratives from, 313 negotiations as, 312–13 artistic projects, 309 Association for the Recovery of Historical Memory (ARMH), 12, 285, 288, 289–90, 291, 293–6 consent for excavation and exhumation of graves, 294–6 Association Modeste et Innocent, Rwanda programme, 320 atrocities: journalists’ reporting of, 250 mass see mass atrocities memory of and memory laws, 263–4 NGOs and, 5 repressing memory of past atrocities, 268 silence and, 7 victims’ organisations and, 5 atrocity films: aims of, 80

336  Index credibility of, 81 post-war Germany, 79–81 reaction to, 80–1 Berlin, Isiah, 22–3 Bizot, Prof François, testimony of, 187 blame, victims, apportioned to, 30 bloggers (US), recognition of, 255 Bosnia and Herzegovina: (BiH) art in, 311 Bosnian judges’ and prosecutors’ views on ICTY, 200 ‘Bridging the Gap’ conferences, 134 Bosniaks: collective identity, 319 genocide, awareness of, 318 victimhood and, 318 Brdjanin, Radoslav, genocide prosecution, 254–5 ‘Bridging the Gap’ conferences (ICTY), 133–4, 211, 213, 259 ‘bringing to justice’, 46–8 definition, 47 social and legal order, restoration of, 47 Buenos Aires Federal Court of Criminal Appeals, prosecution of military juntas, 232 Cambodia: ECCC, expectations of, 201 public relations, 134 Careaga, Ana María: testimonio narrative, 228–9 testimony, significance of, 221–4 Case 001/01 see Duch case Case 002/01, 183–4, 185 reparations projects, 183–4 catharsis, 107–8, 115, 117 ICTY and, 107 public, 10, 107 South African TRC and, 107 cemeteries, exhumation in, 295, 299 child abductees (Uganda), Acholi views on, 161 child soldiers, 153 indoctrination techniques, 155–6 citizen journalists: journalism, in, 244–5, 247 journalistic privilege, 257 civil law systems procedure, 176 courts, used in, 176 ICTY support, 176 civil party: detention appeals, participation in, 179 Duch trial, participation in, 179–80, 184–6 participation (ECCC), 181–2 reparations scheme (ECCC), 182–4

rights in Duch case, 178–9 scheme, implementation, 178–82 system in mass atrocities, 180–2 civil party action (ECCC), 177–8 application of, 177 Khmer Rouge trial, in, 178 purpose of, 183 victim-participation rights and, 177–8 civil party statements, 184–6 testament of Khmer Rouge victim, 184–5 civil war and ICL at domestic level, 164–5 closure, 29 protection of third party, 30 Club Atlético (Athletic Club), 222 trial verdict (2010), 237 Coalition for the International Criminal Court (CICC), 67, 138 Code of Criminal Procedure (Dutch), reform of, 96 coherence principle, 95–6 ‘collective action frames’, 150 Ugandan Civil War, in, 155 collective action theory, 150 collective identity of Bosniaks, 319 collective memory, 266 art installation and, 317–18 commitments: credible, 75 one-sided apologies are, 83 complementarity, 114 ICD and, 159 Thomas Kwoyelo case study, 147–65 compromise, 25 democratic order and, 286 Margalit on, 25 matsyanyaya and, 25 CONADEP, 229–31 conclusion and recommendations, 231 establishment of, 229 narrative excerpts, significance of, 230–1 president of, 229 relatives’ depositions, searching, 230 voluntary depositions called for, 229–30 concentration camps, photography and films on, 79–81 consensual adult sex work, decriminalisation of, 93–4 constitutionalism, global aspects see global constitutionalism council staff, archive searches, assistance with, 292–3 ‘counterreformation’, 95, 98 court proceedings and media, 158 courts: function and role, 212 public relations and, 136–40 realistic expectations, 212 reconciliation, contribution to, 206

Index 337 Creative Court, Rwanda art project, 308 credibility, 68–9, 70–1 apologies, of, 83 atrocity films, of, 81 categories of, 69–70 definition, 71 domestic audience, importance for, 76–7 evidence, of, 70–1 ICTY, of, 76, 77–9 information, of, 71–2 institutional victim-witnesses and, 78–9 justice, of, 86 legitimacy and, 73 media reports, of, 5–6 Nuremberg trials, of, 81 official apologies and, 84 transitional justice institutions, of, 68, 72, 73–4 credible evidence and victim-witnesses’ statements, 78 crime scene, exhumation at, 295 crimes: core, 92 grave crimes and defamation of victim groups, 266 international criminal justice defined, 44 public interest in, 27–8 criminal justice: backward- and forward-looking, 46 bias in administration, 26 criminological perspective, 26–7 expressive, 49 faults, 26 global administration of, 98–9 journalism and, 241–2 public’s reaction to, 28 retribution and, 26 victimological perspective, 27–31 victims’ rights and, 28–9 criminal law: accountability in, 96–7 participation in, 96–7 transparency in, 96–7 criminal law scholarship, ‘counterreformation’, 95 criminal procedure: goals and victim participation, 53 transitional justice, 3 criminal punishment, criteria for, 95–6 criminal trials: appropriate expectations, 207 ‘expressive function’, 49, 55 purpose of, 49–50 transparency and, 103 victims’ role in, 51, 55 cross-examination, 70, 72, 76, 254 ‘culture of memory’ in BiH exhibition, 308

death certificates, disappeared persons’, searches for, 292 deceased person’s memory, denial of genocide defames, 270–1 decision-making: justice and, 20 participation and, 111–12 transnational, 98 defamation as memory laws, 270–4 defendants: rights under transparency, 103 selection of, 199 Democratic Kampuchea see Khmer Rouge regime denial, 264–5 ‘bare denial’, 275 ECtHR’s view, 271–2 genocide, 265 Holocaust see Holocaust denial literal, interpretive and implicatory, 279–80 repressive regime and rehabilitation, 271 state-organised (Turkey), 272 types of, 264–5 detention appeals, civil parties’ participation in, 179 deterrence: failure of, 47 individual and general, 47 disappearance: enforced and human rights, 286–7 method, 224–5 disappeared persons, death certificate search for, 292 discourse, 150–2 discursive proceedings and transitional trials, 169–91 discursive trials (ECCC), inclusivity and accessibility, 190 ‘doing justice to’, 47 expectation and expiation and, 47 Duch case (Case 001/01), 178–82 civil parties’ participation in, 179–80 civil party rights in, 178–9 civil party statements, 184–6 Professor François Bizot and, 187 psychological report on, 188–9 Due Obedience Law (Argentina 1987), 235 due process requirements, 24–5 Durham, Nancy (journalist), 249 emotional transparency, 9, 12, 13, 59, 84 apologies and, 85 emotions: collective and private, 6 European Court of Human Rights (ECtHR): accountability requirements, 108 denial, on, 271–2

338  Index Holocaust denial cases and Perinçek case, 277–8 evidence: access to denied in trials, 104 credibility of, 70–1 credible, 72, 78 safeguards, 70 STL and, 139–40 Thomas Kwoyelo case and, 149 exhumation: cemeteries, in, 295, 299 crime scene, at, 295 justice for victims and, 291 mass graves, 288 missing nationalists, 298–9 political aspects (Spain), 291 politics of, 289–90 private land, on, 296 social justice and, 297–8 Spanish Civil War dead, of, 289 transitional justice, as, 290 transparency and, 297–8 expectation management: ad hoc and remedial responses, 211 categories of, 211–14 improvement of, 211–14 limitation of trials, explanation of, 211 perceived expectations, 211 unattainable expectations, 214 expectations, 202–6 appropriate and inappropriate, 206–7 categories of, 202–3 ‘doing justice to’ and, 47 justice, of, 203–4 management of, 207–11 media and public figures, fuelled by, 210 unrealistic, 209 expert witnesses, 188–90 testimony, 188–9 expiation and ‘doing justice to’, 47 ‘expressive function’, 49 Extraordinary Chambers in the Courts of Cambodia (ECCC), 52, 93 accountability or impunity of senior leaders, 212 Cambodian expectations of, 201 criminal procedure, 76–84 educative role, 205–6 establishment of, 170 goals and expectations, 199–200, 201–2 holistic transitional justice and, 213 justice, expectations of, 203 operational problems, 171 public perceptions of, 171–2 reparations and, 209 reparations programme, 210–11 testimony, 184–90

trial dialogue, 184–90 victims’ service unit at, 178 fair trials and transparency, 48 Final Point Law (Argentina), 235 forgiveness: AMI programme, in, 320–1 apologies and, 83–4 recordings of, 322–3 Francoist dictatorship victims, 285–303 Gallery, The (BiH), 308 general consensus: argument, 276–7 mass atrocities, of, 276–8 Perinçek case, in, 276 society, in, 278 genocide: Armenian atrocities characterised as, 279 Bosniaks’ awareness of, 318 deceased persons’ memory, denial of defames, 270–1 denials, 265 ICTY, conviction for, 209–10 global administrative law and global criminal law, 100 Global Administrative Law project (2005), 92, 97–9, 116–17 accountability and transparency, in, 97–9 global constitutionalism, 98 ‘counterreformation’ and, 98 objections, 98 global criminal justice, 9–10, 91–117 accountability, in, 99–101, 108–10 accountability standard for, 109 global administrative law and, 100 participation and, 112–15 transparency on, 99–101, 103–5 see also international criminal justice global law considered, 94 globalisation, actors of, 93 good: determination of, 19 right and, separated, 23 governance principles: first, 101–2 second, 106–8 third, 110–12 graves, location of and affidavit documents, 293 grief hierarchy, 301–2 guilt, apologies, implied in, 84 hate speech as memory laws, 270–4 High Court of Uganda, War Crimes Division, 158 holism in transitional justice, 213 Holocaust, 267

Index 339 Holocaust denial, 267 anti-Semitism and, 272 criminalising, 269 Perinçek case (ECtHR) and, 277–8 human dignity: protection of, 272–3 survivors’, protection of, 273 victims’, protection of, 273 human rights: enforced disappearance and, 286–9 fundamental, 24–5 individuals and, 21 international law and, 20–1 micro-level justice, 21 Pinochet case, in, 286 violations, 108–9 human rights (Bosnia) and ICTY, 200 hybrid courts, 100–1 tribunals and, 114–15 IACHR report (April 1980), 225–7 Argentinian military government’s response, 226–7 testimonies from, 225–7 Idea of Justice, The (Amartya Sen), 18 identity and memory laws, time factors, 273–4 impunity laws (Argentina), 223 information: access to, 292–4 credibility of, 71–2 inquisitorial systems, 52 Netherlands, in, 52 Inter-American Commission on Human Rights (IACHR): report see IACHR Report visit to Argentina (1979), 225 Internal Rules (ECCC), 183 international community: international crimes, involvement in, 34 motive for justice, 35 International Convention of the Protection of all Persons from Enforced Disappearance (ICPPED) 2006, 287–8 International Court of Justice: backward- and forward-looking functions, 33 cost of cases, 33 niti and, 19–21, 33 non-ideal and, 21–5 procedural delays, 32 international courts: emotional reactions to trials, 129–30 public perception of, 66–7 international crimes: characteristics of, 46

international community’s involvement in, 34 justice after see justice and international crimes nyaya and, 17–40 victim participation and, 46 victims and, 31–2, 45, 46 International Crimes Division (Uganda) (ICD), 148, 159 complementarity and, 159 ICC, supported by, 159 International Criminal Court (ICC), 2, 51, 153 accountability mechanism and, 110 conflict situations, approach to, 153–4 criticism of, 153 establishment of (2002), 152 ICD, supports, 159 jurisdiction of, 56 LRA’s referral to, 158 outreach section’s role, 132 participation and, 113 public image and rating, 141–2 public relations and, 138 reparation rights, 175 2005 strategy, 139 victim participants, 67–8 victim-participation rights, 175 victims and, 56–7, 175 international crimes defined, 44 international criminal justice, 2–3 domestic criminal justice and, 43–6 transparency and, 258–9 international criminal justice regime, violent conflict in, 152–4 International Criminal Law (Cassese), 134–5 international criminal law (ICL), 2 application of and amnesty, 163 domestic level, at, and civil war, 164–5 domestic level institutionalisation, 158–61 domestication of, 148 independence of, 32 international law of states and, 50 legal categories of prosecution, 148–9 participation and, 113 peace and, 147 perpetrators’ interests and, 50–1 procedural delays, 32 remote justice, as, 32 transnational criminal law, distinguished from, 92 international criminal law and procedure (Lebanese university course), 135–6 international criminal proceedings: inexperienced reporting of, 130 truth and, 252–5 international criminal trials: expectations of, 197

340  Index journalists and, 130, 257–8 victims and, 41–60 International Criminal Tribunal for Rwanda (ICTR), 32, 55 criticism of, 174 establishment of, 173–4 public relations as manipulation, 141 victim-witnesses and, 175 International Criminal Tribunal for the former Yugoslavia (ICTY), 55, 125, 127–30 accountability or impunity of senior leaders, 212 Bosnian judges’ and inquisitors’ views on, 200 ‘Bridging the Gap’ conferences (2004 and 2005), 133–4 catharsis and, 107 civil law procedure, support for, 176 credibility of, 77–9 criticism of, 174 educative role, 205–6 establishment of (1993), 173–4 expectation of, 209–10 genocide convictions, 209–10 goals and expectations, 199–201 holistic justice and, 213 human rights in Bosnia, 200 institutional credibility, 76 international criminal court as, 141–2 justice, expectations of, 203–4 management of, 207–9 media and, 127–8, 131 opinions of, 128–9 outreach activities, 139, 208–9 politicization of work, 129 public relations as manipulations, 140 reparations and, 209 victim-witnesses and, 175 international judicial institutions, 125–43 affected communities, communication with, 132 media and, 127–31 public engagement and, 137–8 public hearings and, 126 target audiences, 132 training and awareness sessions, 132–3 international law: domestic context of, 286 human rights and, 20–1 states of and international criminal law, 50 international trials: procedure, 173–6 victim’s role, 52 international tribunals, public perception of, 66–7 interpersonal encounters and apologies, 84

journalism: criminal justice and, 241–2 dangers of, 250–1, 252 deception in, 249 embedded, 246–7 empathy in, 249 independent, 247 ‘iterative’, 244 journalistic reality, 258, 259 justice, independent from, 253 market-driven reporting, 245 military blogs, 248 models, 246–7 Öffentlichkeit and, 241–2 privilege, 244, 253, 254 professionalism, 248–50 social media and, 248 sources, 247, 248 Vietnam ‘model’, 246 journalistic paradigm, 243, 244, 257 international criminal justice, 258 viability, 259 journalistic privilege: Appeals Chamber (ICTY) and, 255, 256–7 citizen-journalists’, 257 journalists: accreditation of, 246 atrocities, reporting of, 250 citizen-journalists, 244–5, 247–8 contempt of court actions against, 130 death of, 250–1 international criminal proceedings, reporting, 130 international criminal trials and, 257–8 prosecutions of, 252 protection of, 250 public expectations of, 243 testifying, 252 judgments: public briefings (England and Wales), 136 public pronouncements of, 126 judiciary, disappearances in Argentina, role in, 230 justice: cost of, 33 credibility of, 86 decision-making and, 20 development of, 19 expectations of, 203–4 impossibility of, 308–9 international context, in, 57 liberalism and, 20 micro-level and human rights, 21 narrative as, 22 punishment as, 26–7 purpose of, 24 reality and, 19–20 remote, international criminal law is, 32

Index 341 restorative, 27, 29–30 retributive, 47–8 victims, for, 4–5, 29 justice and international crimes, 31–4 victims and, 31–2 Kaing Guek Eav case see Duch case Khieu Samphan trial see Case 002/01 Khmer Rouge regime, 170–1 civil party action in, 178 lack of accountability, 171 testimony of Khmer Rouge victim, 184–5 Kony, Joseph, 35, 152, 155, 157, 158 Kosovo Relocated Specialist Judicial Institution (2016), 125, 126 Kwoyelo, Thomas (case study), 147–65 amnesty denied, 164 capture of (2008), 158 case details, 148 challenges to prosecution, 163 legal status, 163 opinions on, 161–3 prosecution of, 159–61 sources of evidence, 149 Laborde, Adriana Calvo de, testimony of, 232–5 law: patrimony, of, 293–4 victim’s expectation of, 59 Law of Historical Memory (Ley 52/2007), 285, 287, 292 Lebanon, public relations, 134–6 legalism, 18 legitimacy: credibility and, 73 post-conflict societies and, 5 public accountability and, 107–8 transitional justice processes and, 7 Lehideux and Isorni v France (1988), 274 ‘levels of witnessing’, 55 liberalism: agonistic see agonistic liberalism justice and, 20 Lord’s Resistance Army (LRA), 148, 149 arrest warrants issued for commanders (2005), 157 brutality, reputation for, 156 ICC, referral to, 158 peace negotiations (2006), 158 prosecution of combatants, opinions on, 162 prosecution of officers, 160 Lubanga case, 99, 114 Lubanga Dyilo (Congo), victims of, 58 lying: Perinçek case in, 275–6 victims accused of, 274–6

Manifesto on European Criminal Policy (2009), 95–6 Margalit, A, on compromise, 25 mass atrocities: civil party system in, 180–2 general consensus, 276–8 trials of, 198–9 materiality of the body, 290–1 matsyanaya, 24, 25, 35 compromise and, 25 media: court proceedings, presentation of, 128 government control of, (1990s), 129 ICTY’s reliance on, 131 impartiality of, 6 international judicial institutions and, 127–31 mass media, 242, 253 political independence in post-conflict societies, 128–9 public figures and, 210 reports, credibility of, 5–6 social media and journalism, 248 STL’s reliance on, 130–1 mediation, 3, 151, 248 memory: preserving, 266–7 victims’ and, 296–8 memory laws, 12, 263–82 criticism of, 267 defamation and hate speech as, 270–4 definition, 264 identity and, time factors, 273–4 transitional justice mechanisms as, 265–8 military blogs, 248 military juntas, prosecution of, 231–2 missing nationalists, right of relatives to state aid (1940), 298–9 Museveni, Yoweri (Ugandan President), 154–8 National Commission on Disappeared People (CONADEP) see CONADEP Navy Mechanics School (ESMA), 225 Netherlands: inquisitorial systems, 52 judicial conduct, 137 victims and retribution, 54 New York Bar Association fact-finding mission (1979), 225 New Zealand courts’ judicial conduct, 136 niti, 18 characteristics, 19 International Court of Justice and, 19–21, 33 non-governmental organisations (NGO): atrocities and, 5 round tables, 114

342  Index non-ideal and ICJ, 21–5 ‘norm entrepreneurialism’, 112 norms: objectivity norm, 243 violation of, 82 Nuon Chea trial see Case 002/01 Nuremberg trials, 65–6, 73 Allies’ responsibility, 6, 79 credibility of, 81 cross-examination of defendants, 76 ‘victors’ justice’ accusation, 6, 73 nyaya, 18, 24 international crimes and, 17–40 objectification and victims, 56–7 offenders: rights balanced with victims’ rights, 52–3 transparency and, 48 Öffentlichkeit and journalism, 241–2 omitting and acting, differences between, 34 Ongwen, Dominic (child soldier), 153 openness and transparency, 101–2 outreach: definition, 208 unit at ICTY, 208–9 Victims’ Rights Working Group and, 138–9 ‘Pact of Silence’, 285, 286 participation, 110–12 accountability, and, distinguished, 110 application of, 115–16 criminal law, in, 96–7 decision-making and, 111–12 global criminal law and, 112–15 ICC and, 113 ICL and, 113 nation states and, 111 parties involved, 113 public, by, 110–11 Special Advisers’ roles, 114 victims, of see victim participation Perinçek v Switzerland (2013), 264, 267–70 accusation of lying, 275–6 case details, 268–9 ECtHR Holocaust denial cases and, 277–8 general consensus, in, 276 ‘perpetrator state’ and victims, 44–5 perpetrators, 44 international criminal law and, 50–1 Pinochet case (1998): disappeared in Spain, recovery of, 287 human rights in, 286 Plavšić, Biljana (former President of Republika Srpska), 82 politics and agonistic liberalism, 23 ‘politics of portrayal’, 151

‘Portraits of Reconciliation’ project (photographic exhibition), 308, 319–24 audience, 327 description, 320–3 reactions to, 325 You are my Witness, contrasted with, 328 power and accountability, 106 private land, exhumation on, 296 public accountability, 107 legitimacy and, 107–8 Public Affairs Section (PAS) (Cambodia), 134 public hearings and international judicial institutions, 126 public interest: crime, in, 27–8 criminal justice reaction, 28 media and justice, 254 public proceedings, 126–7 public relations, 131–3 Cambodia, in, 134 courts and, 136–40 definition, 131, 132 ICC and, 138 ICTR and, 141 ICTY and, 140 Lebanon, in, 134–6 manipulation of, 140–2 SCSL, by, 134 public sphere: criminal justice in, 241 journalism in, 241 punishment: justice, as, 26–7 victims’ expectation of, 58 Randal, Jonathan, journalistic privilege, 254–5 Rawls, John, 19 justice and decision-making, 20 reality and justice, 19–20 reconciliation: accountability and see accountability and reconciliation courts’ contribution to, 206 redress and, 51 Red Cross: impartiality of, 256 International Committee of the Red Cross (ICRC), 256 redress, 289 courts, by, 238 Holocaust survivor, for, 84 reconciliation and, 51 victims, of, 2, 44, 49, 51, 182, 198 ‘Regulation 64’ Panels (Kosovo), 93 reparations, 182–4 ECCC and, 209, 210–11

Index 343 ICTY and, 209 projects, 183–4 reparation rights and ICC, 175 reparations scheme and civil party, 182–4 symbolic, 312 repressive regime, rehabilitation of and (Holocaust) denial, 271 retribution, 50 criminal justice and, 26 victims (England) and, 54 right: determination of, 19 good and, 23 right of reply, 188 ‘right to know’, 103, 109, 235, 286, 287 ‘right to truth’, 287 collective, 103 Rome Statute: accountability mechanism and, 110 adoption of, (1998), 152 Rwanda: art in, 311 credibility of transitional justice, 74 gacaca courts, 3 government encouragement of art, 324 Sábato, Ernesto (CONADEP president), 229 ‘sacral’ status, 276 selectivity, 53 victims and, 56–7 Serbs, 129, 134, 174, 319 Sierra Leone, Truth Commission, supports, 74 silence and atrocity, 7 Silence, The (retreat of Archbishop, Argentina), 225 social and legal order, restoration of and bringing to justice, 47 social justice and exhumation, 297–8 solidarity, 53 South African TRC, 71, 73, 74–5 catharsis and, 107 domestic credibility, 76–7 victim witness stories and, 79 South Australia, judicial conduct, 136–7 Spanish Civil War: dead, exhumation of, 289 victims of, 285–303 Special Advisers, appointment of, 114 Special Court for Sierra Leone (SCSL), 67, 73, 74, 93, 125 outreach programme, 139 public relations, 134 Special Tribunal for Lebanon (STL), 93, 125–6, 134–6 media, reliance on, 130–1

Rules of Procedure and Evidence, outreach in, 139–40 UN report, 137–8 ‘statements of suffering’, 185–6 states: nation states and participation, 111 prosecution of violent crime and, 154 subsidiarity principle, 96 substitutability, 151 Supreme Council of the Armed Forces (Argentina), failure to prosecute military juntas, 231–2 survivors, human dignity protected, 273 symbolic or cultural capital of the body, 290–1 Talaat Pasha, 275–6 Talaat Pasha Committee, 276 testimonio narratives, 227–9 Ana María Careaga’s, 228–9 first Argentine testimonio, 227 testimony: Adriana Calvo de Laborde’s, 232–5 Ana María Careaga’s, 221–4 ECCC, of, 184–90 expert witnesses, of, 188–9 eyewitness (Argentinian), 223 IACHR testimonies, 225–7 Professor François Bizot’s, 187 types of, 238 victim-witnesses’, 186–7 witness testimonies, interpretation of, 236–7 ICTY, and credibility of, 77–79 third party: closure protects, 30 victims, reaction to, 30 tragic question (Martha Nussbaum), 24 transnational criminal law, 92–3 definition, 93 international criminal law, distinguished from, 92 transitional justice, 197, 310 accountability and, 109 apologies in, 82–5 art in, 310–14 credibility of, 66–7, 69–77 exhumation as, 290 expectations, 197 forward-looking function, 268 holism in, 213 outcomes of, 196–9 processes and legitimacy, 7 trustworthy sources, 71 Yugoslavia and, 74 Transitional justice institutions, 3, 4, 8, 195–215 appropriate expectations, 207

344  Index contemporary, 74 credibility of, 68, 72, 73–4, 75–6 legitimacy of, 3 transitional justice mechanisms: memory laws as, 265–8 popular credibility of, 67 transnational justice process, outcomes of, 197–8 transparency, 3–4, 48–9, 50 accountability and, 6–7, 106 application of, 115–16 counter-transparency, 4 criminal law, in, 96–7 criminal trials and, 103 defendant’s rights under, 103 duty of, 102 emotional see emotional transparency exhumation and, 297–8 fair trials and, 48 Global Administrative Law Project, in, 97–9 global criminal justice, in, 99–101, 103–5 international criminal justice and, 258–9 liberal, 105 offenders and, 48 openness and, 101–2 political environments, in, 102 proceedings of, 125 radical, 105 trials and, 1 victims and, 48 transparency and openness (Alberto Alemanno), 101–2 trials: access to evidence denied, 104 adversarial trial proceedings, 174 answers and expectations from, 204–5 expectations of, 199 improved future and, 205–6 international see international trials limitations of, 212–13 timeframes of, 199 transnational and discursive proceedings, 169–91 transparency of, 1–2 truth and, 204–5, 206–7 Truth and Reconciliation Committee (Peru) exhibition, 313 truth and truth-telling, 266, 281 ‘acceptable truth’, 48 appropriate expectation, as, 207 falsehood and, 175, 267, 277, 281 international criminal process and, 252–5 ‘right to truth’, 103, 287 social dialogue truth, 189 trials and, 204–5, 206–7 war reporters and correspondents, of, 245–6

truth commissions (TRC), 3, 73 Sierra Leone, support for, 74 South African see South African TRC truth-finding: journalistic and judicial, 253, 255–6 mechanisms, 104 truth trials (Argentina, 1996), 235–6 persecution of perpetrators, 235–6 status of witnesses, 236 Uganda: Accountability and Reconciliation, 158, 159 amnesty and application of ICL, 163 International Crimes Division, 148, 159 international criminal legal frame, 156–8 politics of portrayal, 151, 154–6 Uganda People’s Defence Force (UPDF), 157 Ugandan civil war: accountability and reconciliation in, 158 ‘collective action frames’, 155 ethnic factors, 154 international criminal legal frame introduced, 157 peace negotiations (2006), 158 roots of, 154 2008 military offensive, 158 victims of, 161–4 ultima ratio principle, 95–6 UN Security Council, 105 Resolution 1315, 67 UN Working Group on Enforced or Involuntary Disappearance of Persons (UNWGEIDP), 288–9 Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (2005), 266 Vajnai v Hungary (2008), 274 vanquished victims, 291, 299–300 victim groups, defamation of and denial of grave crimes, 266 victim participation, 42, 113–14 criminal procedure goals and, 53 international crimes and, 46 study (2003) (Cambodia), 171–2 victim participation rights (ECCC): civil party action and, 177–8 ICC, in, 175 victim/perpetrator equation, 189 victim statements: Argentina, in, 54 emotion of, 53–4 victim-witnesses, 5, 77–8, 186–8 institutional credibility and, 78–9 ICTR, in, 175 ICTY, in, 175 safeguarding, 78

Index 345 statements of and credible evidence, 78 stories of and South African TRC, 79 testimony of witnesses, 186–7 victimhood: Bosniak identity, and, 318 hierarchy (Spain), 298–301 public support for, 300–1 political advantages (Spain), of, 298 victims: accusation of lying, 274–6 blame apportioned to, 30 criminal trials, role in, 55 definition, 296 exhumation and justice for victims, 291 Francoist dictatorship, of, 285–303 honour of protected, 270–4 human dignity protected, 273 ICC and, 56–7, 67–8 impact hearings, 185–6 innocent (Spain), 298 international crimes, of, 45 international criminal trials and, 41–60 justice and international crimes and, 31–2 justice for, 29 law, expectations of, 59 legal relevance of, 56 Lubanga Dyilo (Congo), of, 58 memory, and, 296–8 objectification and, 56–7 organisations and atrocities, 15 ‘perpetrator state’ and, 44–5 perpetrators, and, binary identity, 326 punishment, expectation of, 58 quest for justice, 4–5 recovery from Khmer Rouge regime, 189 relatives’ honour protected (Perinçek case), 269 republican (Spain), 302 retribution (England), desire for and, 54 Right and Left, 300 role in criminal trials, 51 selectivity and, 56–7 Spanish Civil War, 285–303 third parties’ reaction to, 30

transparency and, 48 vanquished, see vanquished victims, 291, 299–300 ‘victim paradigm’, 41, 52, 55, 59 ‘victim voice’, 52 victims’ rights: criminal justice and, 28–9 ICC and, 175 offenders’ rights, balanced with, 52–3 Victims’ Rights Working Group, outreach, on, 138–9 victims’ service unit at ECCC, 178 Videla, Rafael, conviction of, 225, 235 video portraits, Rwanda exhibition participants, 323–4 violent conflict: discourse, 150–2 fundamental questions, 149 international criminal justice regime, in, 152–4 perceptions of, 151–2 war reporters and correspondents: functions, 245–6 historical overview, 246 independence of, 255 truth, seeking, 245 truth-telling, 245–6 witnesses: testimonies, interpretation of, 236–7 truth trials, in, 236 victim-witnesses see victim-witnesses witness-activists, 5 You Are My Witness (BiH exhibition), 308, 314–19 audience, 327 description, 314–17 failure of project, 329 ‘Portraits of Reconciliation’, contrasted with, 328 praise for, 324 Yugoslavia, credibility of transitional justice, 74

346