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‘The Record on Which History Will Judge Us Tomorrow’1: Auto-History in the Opening Statements of International Criminal Trials

  • SOFIA STOLK

Abstract

In international criminal tribunal discourse, appeals to history and legitimacy are omnipresent. This article addresses the widespread practice of combining these appeals into one narrative. It analyses how international prosecutors engage with justifying the legitimacy of trials through the invocation of a tribunal's own history. The scrutiny of such ‘auto-histories’ as a specific form of history-telling illuminates an overlooked dimension of trials as fora for writing history. The opening statement is a perfect opportunity for constructing and communicating auto-histories. A comparative study of opening statements at the International Military Tribunal, the Special Court for Sierra Leone and the International Criminal Court reveals a recurrent, self-justifying narrative where both rootedness in history and a break with the past are key to singing the tribunal into existence as a crucial mechanism in the transition from chaos to peace. The connections between auto-histories at different tribunals show how legal practitioners discursively contribute to constructing the international criminal law's identity by relying on both origins and future.

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1

R. H. Jackson, ‘Opening Statement before the International Military Tribunal on 21 November 1945’, in The Trial of German Major War Criminals: Proceedings of The International Military Tribunal Sitting at Nuremberg, Part I (1946), 49 at 51.

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2 Prosecutor v. Norman, Fofana, and Kondewa, Opening Statement of the Prosecution, Case No. SCSL-04-14-T, T.Ch. I, Transcript of 3 June 2004, at 7 [hereinafter Norman Opening Statement].

3 Koskenniemi, M., ‘The Preamble of the Universal Declaration of Human Rights’, in Alfredsson, G. and Eide, A. (eds.), The Universal Declaration of Human Rights: A Common Standard of Achievement (1999), 27 at 27 and 30. Koskenniemi observes that the narrative of justification in modern political institutions refers to origins, struggles, and ideals that led to the current status. Steinitz argues that by enacting a conversation about its ‘mythical beginning’ and by ‘preserving the story of origin’, courts generate their own legitimacy and preserve their authority. See Steinitz, M., ‘“The Milošević Trial—Live!” An Iconical Analysis of International Law's Claim of Legitimate Authority’, (2005) 3 Journal of International Criminal Justice 103, at 108.

4 On justifying rationales in ICL, see Tallgren, I., ‘The Sensibility and Sense of International Criminal Law’, (2002) 13 EJIL 561. Many different goals besides deterrence and retribution have been put forward in legitimizing international courts and tribunals. These goals are, unlike the goal of strengthening legitimacy, often to be found outside the tribunal itself; trials and punishment potentially can educate the public, strengthen social cohesion, and enforce norms and values. See, e.g., Amann, D. M., ‘Assessing International Criminal Adjudication of Human Rights Atrocities’, (2000) Third World Legal Studies 169, at 175; M. A. Drumbl, Atrocity, Punishment, and International Law (2007), 174. On the expressive value of punishment, see particularly Sloane, D., ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’, (2007) 43 Stanford Journal of International Law 39.

5 Drumbl, supra note 4, at 75.

6 R. A. Wilson, Writing History in International Criminal Trials (2011); L. Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (2005); M. Osiel, Mass Atrocity, Collective Memory, and the Law (1999); Cassese, A., ‘Reflections on International Criminal Justice’, (1998) 61 Modern Law Review 1; Amann, supra note 4, at 175; Drumbl, supra note 4, at 174. There is also a strand of thought, following Hannah Arendt, that explicitly rejects a trial's role in writing history for it should solely focus on the judgment of the defendant. See H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1964).

7 Wilson, supra note 6, at 2; Koskenniemi, M., ‘Between Impunity and Show Trials’, (2002) 6 Max Planck Yearbook of United Nations Law 1, at 33. While historical narratives are inherently selective, trials appear to produce an even more restricted version of the past. The IMT was for example criticized for its focus on perpetrator's common plan, thereby downplaying the suffering of the Jews. See Koskenniemi, at 21; Douglas, supra note 6; Amann, supra note 4, at 179; Sellars, K., ‘Imperfect Justice at Nuremberg and Tokyo’, (2010) 21 EJIL 1085. Jackson himself shows an ambivalent position towards writing history. Amann notes ‘an almost palpable desire to establish the record of World War II’. Amann, supra note 4, at 176. King notes that Jackson was ‘extremely conscious of the value for future generations of the Nuremberg record – the historical account of the worst regime in recorded human history’. See King, H. T. Jr., ‘Robert Jackson's Vision for Justice and Other Reflections of a Nuremberg Prosecutor’, (1999) 88 Georgetown Law Journal 2421, at 2433. Jackson himself is more cautious, see infra note 21.

8 Koskenniemi, supra note 7, at 33.

9 J. B. White, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (1989), 169; C. Geertz, The Interpretation of Cultures: Selected Essays by Clifford Geertz (1973), 448.

10 White, supra note 9, at 175

11 Glasius, M. and Meijers, T., ‘Constructions of Legitimacy: The Charles Taylor Trial’, (2012) 6 International Journal of Transitional Justice 229, at 231; See also Meijers, T. and Glasius, M., ‘Expression of Justice or Political Trial?: Discursive Battles in the Karadžić Case’, (2013) 35 Human Rights Quarterly 720.

12 Luban, for example, claims that the centre of gravity lies in the trial itself, not in its aftermath. Luban, D., ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’, in Besson, S. and Tasioulas, J. (eds.), The Philosophy of International Law (2010), 569 at 575; See also B. de Graaf, ‘Terrorists on Trial: A Performative Perspective’, (2011) ICCT Expert Meeting Paper; Koskenniemi, supra note 7, at 3.

13 Most research to opening statements has been done in Anglo-American domestic courts. See Snedaker, K. H., ‘Storytelling in Opening Statements: Framing the Argumentation of the Trial’, (1986) 10 American Journal of Trial Advocacy 15; Powell, G. R., ‘Opening Statements: The Art of Storytelling’, (2001) 31 Stetson Law Review 89; Lucas, J. R., ‘Opening Statement’, (1991) 13 University of Hawaii Law Review 349. While opening statements in the international arena share characteristics with domestic opening statements, they differ with regard to content and form in, for example, the lack of a jury and the need to justify the trial's existence. On legal language see J. Gibbons and V. Prakasam, Language in the Law (2004).

14 On the use of opening statements in ICTs, see Vasiliev, S., ‘The Trial’, in Reydams, L., Wouters, J., and Ryngaert, C. (eds.), International Prosecutors (2012), 700 at 748. See also Katanga and Ngudjolo, Opening Statement by Judge Cotte, ICC-01/04-01/07-T-80, T.Ch. II, 24 November 2009, at 72.

15 Many different terms (e.g. international community, humanity, mankind) and understandings of this abstract community have been put forward. For an interesting discussion on this topic, see B. van Beers, L. Corrias, and W. G. Werner, Humanity across International Law and Biolaw (2014); Tallgren, I., ‘Who are “We” in International Criminal Law? On Critics and Membership’, in Schwöbel, C. (ed.), Critical Approaches to International Criminal Law: An Introduction (2014), 71.

16 The opening day at the IMT was at that time the best-covered event by journalists ever. See Feltman, B. K., ‘Legitimizing Justice: The American Press and the International Military Tribunal, 1945–1946’, (2004) 66 Historian 300, at 307. Vasiliev, supra note 14, at 748, also notes the ‘media hype’ on ICTs opening days.

17 Jackson, supra note 1.

18 See, e.g., Prosecutor v. Milosevic, Opening Statement of the Prosecution, Case No. IT-02-54-T, Transcript of 12 February 2002, at 2–9; Prosecutor v. Ieng Sary, Khieu Samphan, Nuon Chea, Case No. 002/19-09-2007-ECCC/TC, Transcript of 21 November 2011, at 111–14 and 117; Prosecutor v. Taylor, Opening Statement of the Prosecution, Case No. SCSL-2003-01-T, T.Ch. II, Transcript of 4 June 2007 at 267 and 330–1.

19 D. A. Sprecher, Inside the Nuremberg Trial: A Prosecutor's Comprehensive Account (1999); S. Radlmaier, Der Nürnberger Lernprozess: Von Kriegsverbrechern und Starreportern (2001); Hoffman, P. L., ‘Justice Jackson, Nuremberg and Human Rights Litigation’, (2004) 68 Albany Law Review 1145.

20 For example Sprecher, supra note 19; Ferencz, B. B., ‘Tribute to Nuremberg Prosecutor Jackson’, (2004) 16 Pace International Law Review 365; Barrett, J., ‘The Nuremberg Roles of Justice Robert H. Jackson’, (2007) 6 Washington University Global Studies Law Review 511.

21 Jackson, supra note 1, at 51. Interestingly, on the same page Jackson explicitly regards rendering a full development of the history of the case as a task for historians, not for the trial.

22 See also the ‘crusading potential’ of projects as ICL noted by Kratochwil, F., ‘Politics, Law, and the Sacred: A Conceptual Analysis’, (2013) 16 Journal of International Relations 1. And Koskenniemi's ‘liberal myth of redemption’, supra note 3, at 33.

23 Jackson, supra note 1, at 49.

24 Ibid., at 52–53, 78–79, 81, and 85.

25 Ibid., at 79.

26 Ibid., at 79.

27 Ibid., at 86.

28 Ibid., at 78.

29 Ibid., at 79.

30 Ibid., at 80.

32 Ibid., at 49.

33 Ibid., at 50.

34 Ibid., at 63.

35 Ibid., at 70.

36 Ibid., at 81.

37 ‘[A] complete break with the past’ in the words of King, supra note 7, at 2434.

38 Jackson, supra note 1, at 56

39 Ibid., at 68.

40 Ibid., at 86.

41 Ibid., at 78.

42 Ibid., at 51.

43 Ibid., at 84.

44 Ibid., at 85.

48 Ibid., at 50.

49 Ibid., at 86.

50 Ibid., at 50.

51 Sprecher, supra note 19, at xx.

52 King, supra note 7, at 2472.

53 Drumbl, supra note 4, at 176.

54 Crane currently is a board member of the Robert H. Jackson Center. See https://www.roberthjackson.org/staff/#staff (accessed 11 August 2015).

55 Norman Opening Statement, supra note 2, at 7.

56 Ibid., at 9.

57 On precedent and public authority, see Bogdandy, A. von and Venzke, I., ‘In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification’, (2012) 23 EJIL 7, at 18–19.

58 Norman Opening Statement, supra note 2, at 30.

59 Ibid., at 6.

60 Ibid., at 7.

61 Ibid., at 15.

62 On transcending chaos and transitional justice mechanisms, see, e.g., Stone Peters, J., ‘Literature, The Rights of Man, and Narratives of Atrocity: Historical Backgrounds to the Culture of Testimony’, (2005) 17 Yale Journal of Law & the Humanities 253, at 275.

63 Norman Opening Statement, supra note 2, at 6.

64 Ibid., at 30 (emphasis added).

65 See Koskenniemi, supra note 3, on enlightenment after tragedy in the ‘liberal myth of redemption’.

66 Norman Opening Statement, supra note 2, at 30.

67 See, e.g., D. Bosco, Rough Justice: The International Criminal Court's Battle to Fix the World, One Prosecution at a Time (2014).

68 Prosecutor v. Lubanga, Opening Statement of the OTP, ICC-01/04-01/06-T-107, T.Ch. I, Transcript of 26 January 2009, at 4 and 13 [hereinafter Lubanga Opening Statement].

69 Prosecutor v. Bemba, Opening Statement of the OTP, ICC-01/05-01/08-T-32, T.Ch. III, Transcript of 22 November 2010, at 11 [hereinafter Bemba Opening Statement].

71 Lubanga Opening Statement, supra note 68, at 14.

72 Prosecutor v. Katanga and Ngudjolo, Opening Statement of the Victim Representative, ICC-01/04-01/07-T-80, T.Ch. II, Transcript of 24 November 2009, at 44–45 [hereinafter Katanga Opening Statement (Victim Representative)].

73 Lubanga Opening Statement, supra note 68, at 20; Prosecutor v. Katanga and Ngudjolo, Opening Statement of the OTP, ICC-01/04-01/07-T-80, T.Ch. II, Transcript of 24 November 2009, at 22 [hereinafter Katanga Opening Statement (OTP)].

74 Katanga Opening Statement (OTP), supra note 72, at 23.

75 Ibid., at 20; Lubanga Opening Statement, supra note 68, at 17, 36; Prosecutor v. Ruto and Sang, Opening Statement of the OTP, ICC-01/09-01/11-T-27, T.Ch. V(A), Transcript of 10 September 2013, at 20.

76 Up until now, this victim-centred approach has been portrayed as a novelty. This might change over time when the ICC gains a less ‘novel’ status. On the ICC's victim-centred approach, see e.g., L. Moffet, Justice for Victims Before the International Criminal Court (2014).

77 Rules of Procedure and Evidence of the ICC, ICC-ASP/1/3 (Part.II-A), rule 89(1).

78 Bemba Opening Statement, supra note 69, at 39; Lubanga Opening Statement, supra note 68, at 68; Katanga Opening Statement (Victim Representative), supra note 72, at 39.

79 Katanga Opening Statement (Victim Representative), supra note 72, at 43–44.

1 R. H. Jackson, ‘Opening Statement before the International Military Tribunal on 21 November 1945’, in The Trial of German Major War Criminals: Proceedings of The International Military Tribunal Sitting at Nuremberg, Part I (1946), 49 at 51.

* Research Fellow at the Centre for the Politics of Transnational Law (CePTL); PhD Candidate at VU University Amsterdam, Transnational Legal Studies department []. I am grateful to Tanja Aalberts and Wouter Werner for their invaluable comments. I would also like to thank my colleagues at CePTL for their helpful suggestions and support.

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‘The Record on Which History Will Judge Us Tomorrow’1: Auto-History in the Opening Statements of International Criminal Trials

  • SOFIA STOLK

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