Institutional Expression

The chapter demonstrates that the very act of reacting to atrocities, and institutionalization itself, has expressive meaning. Institutions rely on symbolism, rituals, and mimetic practices in order to ensure their own survival. This also applies to international criminal courts and tribunals. Sometimes the ‘medium is the message’. Throughout history, the establishment of institutions has sent different signals, such as memory and remembrance, shame and apology, renewal of community relations, hope and belief or protest. International criminal justice relies on action. Speech act theory is helpful to understand the various meanings of institutional action. Acts, such as jurisdictional determinations (e.g. complementarity), preliminary examinations or investigations, arrests, or cooperation create new narrative subjects, entail commands or incentives for action, or convey attitudes. Outreach and legacy strategies involve strong didactic rationales. They are often more geared towards one-sided expression rather than two-way communication or mutual learning

International Criminal Law as Expressivist Justice

This chapter connects expressivism to justice discourse and different dimensions of justice. It claims that expressivism has a more complex role in international criminal justice than publicly admitted. It is a means to reaffirm the purposes and ambitions of the field and to encourage commitment to it, and to enact and perform law. It also provides a more realistic understanding of justice. It views justice not as something ‘objective’ or ‘definitive’ that can be delivered through criminal proceedings, but rather as an intersubjective process that is triggered through messages and communicative relationships: justice is a message.

Procedural Expression

The chapter examines to what extent international criminal proceedings enable discursive justice. It draws on performative theories (e.g. Julie Stone Peters) and semiotics to show that proceedings have symbolic, narrative, didactic, and transformative functions. They involve a stage, a plot, audiences, and scripting. In legal literature, these features are often associated with negative attributes, such as ‘show trials’ in the political sense. However, performance is not necessarily something negative. As Niklas Luhmann has demonstrated, role play, that is, the exercise of certain ascribed or expected roles in proceedings, may have certain positive effects. The chapter demonstrates how different agents in the criminal process (e.g. Prosecution, witnesses, Defence, victims, judges) have used narratives to convey messages to different audiences. It argues that international criminal proceedings encompass more performative, rather than truly discursive elements, due to their adversarial structures.

Norm Expression

Expressivist theory suggests that international criminal justice can serve as a means to instil norms and values in international society through communicative justice and persuasion. The chapter demonstrates that contemporary practice shifts between norm expression and norm entrepreneurship. It relates norm expression to the imperfect structure of international law and the performative nature of crimes. It argues that norm expression is partially a counter-performance to crimes. It shows that international criminal justice has captured new space and forms of social behaviour through thematic investigations and prosecutions (e.g. sexual and gender-based violence, child soldiers, cultural property) and legal practice relating to core crimes. It illustrates how legal agents have used rhetoric techniques (e.g. narration, storytelling, and imagery) to reformulate some of the premises of underlying bodies of law (e.g. human rights law, international humanitarian law, and the law of the use of force).

Remedial Expression

The chapter argues that international criminal justice is more a project of accountability rather than a narrow punitive undertaking. The value of international criminal justice lies not necessarily in the severity of punishment or the infliction of ‘just deserts’ but rather in the publicity of the process, the condemnation of crimes, and the establishment of accountability towards a broader community. Expressive punishment is grounded in retributive-expressive justifications, preventive considerations, and restorative rationales, such as messages about equality of victims and offenders. This approach is able to accommodate a more holistic conception of punishment, including alternative sentences or modes of enforcement. Reparations have an important complementary function to punishment. Like punishment itself, they are an imperfect means to acknowledge responsibility, recognize victimhood, or remedy harm caused through crimes. Rather, they help to restore trust about civility and inspire commitment to a social contract among citizens, aimed at preventing future crimes.

International Criminal Justice and Expressivist Theory

The origins of expressivism lie in sociology (e.g. Emile Durkheim) and communicative theories of criminal law (e.g. Joel Feinberg, Antony Duff). These ideas have been developed in contemporary criminal law doctrine (e.g. Günther Jakobs, Andrew von Hirsch, Tatjana Hörnle, Claus Roxin), transitional justice (e.g. Mark Osiel, Pablo de Greiff), and international criminal law. The chapter develops a contemporary theory of expressivism. It argues that expressivism is rooted in a communicative cycle between norms as messages, crimes as messages, and judicial responses. This triad provides an explanation for the functioning of expressivism. It can be divided into norm expression and diverse types of agent-related expression. Their application involves different tensions: empirics versus faith, power-related critiques, instrumentalism, and mediation of messages.

Introduction

International criminal justice relies on messages, speech acts, and performatives practices, in order to convey social meaning. This introductory chapter sets this phenomenon into perspective. It argues that expression and communication are not only an inherent part of the punitive functions of international criminal justice, but represented in a whole spectrum of practices: norm expression and diffusion, institutional actions, performative aspects of criminal procedures, and repair of harm. This account provides a novel lens to explain many of the complexities, weaknesses, and hidden contradictions of international justice. It highlights at the same time risks and tensions, such as the self-referential nature of meaning production, the use of binaries or stereotypes in legal discourse, the displacement of alternative truths or frames of reference or the creation of new social hierarchies. The social responsibilities and communicative structures that come with the expressive turn need to be re-visited.