Beyond the Purview of International Criminal Judgments

This chapter examines three aspects of mass atrocity situations that have generally received little or no attention within the judgments of international criminal courts: first, the structural and slow violence that tends to exist prior to, during, and after the outbreak of situations of mass atrocity; second, the interventions of international actors, including the policies and practices of colonial powers, international financial institutions, and international peacekeeping forces; and finally, the roles performed by bystander communities and resisters during episodes of mass violence. By highlighting these blind spots, the chapter directs attention to the narrative limits of international criminal courts and highlights the risk that their judgments may undermine more nuanced understandings of human agency in mass atrocity contexts, whilst legitimating some of the structural and slow forms of violence and international interventions that they marginalise or exclude.

Historical Narrative Pluralism Within and Beyond International Criminal Courts

This chapter critically reflects on the expectations of historical finality and closure that have typically accompanied the rendering of international criminal judgments. The chapter argues that the historical narratives constructed within the judgments of international criminal courts are subject to a process of ongoing contestation and evolution both within and beyond the courtroom. The chapter reveals two types of narrative pluralism that may arise within the international criminal courtroom: first, inter-court narrative pluralism, which arises where judgments of different courts examine the same mass atrocity situation from different perspectives; and second, intra-court narrative pluralism, which arises where narratives constructed within an international criminal judgment are revisited in later cases adjudicated by the same court. The chapter also identifies a range of social psychological and practical factors that generate gaps between the intended meaning of judicially constructed narratives and their public or social meaning amongst different audiences beyond the courtroom.

The Struggle for Historical Justice

This chapter situates the book within existing scholarship concerning the historical function of international criminal courts and introduces the book’s analytical perspective, namely the characterisation of international criminal courts as confrontational terrains that are host to struggles for historical justice—intense contests in which a range of different actors vie for judicial acknowledgement of their preferred interpretations of the past. In order to facilitate a critical examination of these struggles, the chapter elaborates a framework for exploring how the situated choices of different actors have influenced the scope and content of judicially constructed historical narratives in different institutional contexts. The framework identifies the actors involved in struggles for historical justice, the questions around which such struggles tend to be structured, and the practices through which such struggles are conducted.

Conclusion

This chapter reflects on three strands of legitimation that pervade the judgments of the international criminal courts examined in this study. Specifically, the chapter suggests that the histories produced by international criminal courts have generally been apologetic to State interests, focused on spectacular forms of violence, and narrowly contextualised in ways that focus on localised systems of criminality rather than broader international networks, emphasise military and political figures at the expense of economic actors, and direct attention towards the ways in which the collective and systemic qualities of system crimes may expand individual agency to the neglect of the dilemmas and ambiguities of agency experienced within the spectrum of human relationships that exist in mass atrocity situations. The chapter concludes the study by offering two perspectives that may open up avenues for orienting the practices of international criminal courts towards a more emancipatory politics: first, a strategic expressivist perspective concerned with whether and how different actors may mobilise the expressive power of the vocabulary and practices of international criminal justice processes to advance their strategic agendas; and second, a critical perspective concerned with contextualising the historical narratives constructed within international criminal judgments, viewing them more modestly as moments of discursive beginning rather than instances of historical closure.

Introduction

This chapter introduces the book’s consideration of how international criminal courts have confronted the past in different institutional contexts. The chapter provides a chapter-by-chapter overview of the book’s central themes and arguments. The book is concerned with the historical function of international criminal courts—their role in the construction of historical narratives concerning both the culpability of the accused on trial and the broader mass atrocity context in which they are alleged to have participated. This historical function raises a number of questions concerning the scope and content of the historical narratives constructed within international criminal judgments, the actors that exert influence over such processes, and the extent to which such histories are consistent and authoritative both within and beyond the courtroom. This book aims to address these questions by examining how the past has been confronted within three sets of international criminal courts: first, the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East at Tokyo; second, the United Nations ad hoc tribunals, namely the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone; and finally, the International Criminal Court. By critically examining the scope and content of the histories constructed within the judgments of these courts and by surfacing the influence of different actors and contexts over the precise orientation of judicial narratives, this book seeks to develop a deeper understanding of the emancipatory potential and limits of international criminal courts across different institutional settings.

The Culpability Question

This chapter examines categories of culpability recognised by international criminal courts for attributing criminal responsibility for system crimes to individuals in different institutional contexts: first, modes of participation doctrines, by which international criminal courts connect individuals to the commission of crimes; and second, grounds for excluding responsibility and desert-based mitigating factors, by which international criminal courts exclude the responsibility or mitigate the punishment of individuals in light of the situational pressures of their social contexts. Critically examining these categories, the chapter reveals a tendency on the part of international criminal courts to selectively contextualise the behaviour of the defendants on trial for the purpose of determining their culpability—demonstrating greater concern for identifying links between individuals and system crimes than attempting to understand how individuals may be acculturated into violence by situational pressures stemming from the collective and systemic dimensions of the mass atrocity contexts in which they operated.

The Crime Question

This chapter examines the practices that have influenced the range and definition of crimes adjudicated within international criminal courts and the implications for the scope and content of the historical narratives constructed in their judgments. The chapter reveals how the range and definition of crimes have been shaped by different actors at particular junctures within international criminal justice processes, including the drafting of statutory frameworks, the selection of charges to include in indictments, and the interpretation of crime categories in judicial decisions and judgments. Crucially, the relative importance of these junctures and the relative influence of different actors have tended to vary depending on the institutional context in which struggles for control over the selection and meaning of categories of crime have been conducted. The chapter concludes by identifying forms of criminality that have consistently been marginalised within international criminal courts despite falling within their subject-matter jurisdiction.

The Prosecutorial Targets Question

This chapter examines the practices that have influenced the selection of prosecutorial targets in different institutional settings and the implications for the scope and content of the historical narratives constructed by international criminal courts in their judgments. For this purpose, the chapter distinguishes between two forms of selectivity: first, situational selectivity, which concerns the mass atrocity situations that have been targeted for investigation within international criminal courts; and second, case selectivity, which concerns the individuals that have been targeted for prosecution within each situation. After revealing the prevailing influence of the political context on the prosecutorial focus of international criminal courts, the chapter turns to examine different strategies that have been deployed by defendants and their counsel—often in vain—in an effort to counter this hegemonic orientation.