Unveiling the Historical Function of International Criminal Courts: Between Adjudicative and Sociopolitical Justice

Unveiling the Historical Function of International Criminal Courts: Between Adjudicative and... Abstract∞ Within the field of international criminal justice, opinion remains divided concerning the extent to which international criminal courts should be expected to write history. Taking this debate as its point of departure, this article argues that contestation over the historical function of international criminal courts hinges on the underlying conception of justice – adjudicative or sociopolitical – to which scholars and practitioners adhere in practice. The article demonstrates how these rival conceptions of justice function less as static positions and more as lines of argumentation that can be deployed to support or critique the range of practices that shape the historical narratives constructed within international criminal courts in practice. The article concludes by identifying a potential avenue to advance the conversation on the historical function – one that would assist in articulating what should legitimately be expected of international criminal courts and enable their practices to be evaluated in a more textured manner. INTRODUCTION With the emergence of the field of international criminal justice over the course of the past 70 years, history has become judicialized.1 As communities – both local and international – have struggled to come to terms with situations of mass atrocity, not only has it become more common for historians to rely on the idiom of international criminal law, but also expectations have increasingly been placed on international criminal courts to render authoritative historical accounts of the mass atrocity situations that fall within their purview. As Mark Osiel has observed, ‘prosecutors and judges are inevitably understood to be engaging in “writing history” and influencing collective memory, whether or not they so intend.’2 In other words, international criminal courts are de facto sites of historical contestation, epistemic engines that contribute through their practices to the construction of historical narratives about past episodes of mass violence.3 Yet, while it is now well established that international criminal courts are somewhat inevitably embroiled in rendering historical accounts about the individuals and events examined in their trials, a significant divide has emerged amongst scholars and practitioners concerning the extent to which international criminal courts should be expected to write history in practice.4 For some, the construction of a historical record is a central function of international criminal courts. For instance, former president of the International Criminal Tribunal for the former Yugoslavia (ICTY), Judge Gabrielle McDonald, once argued that an important aim of the tribunal was ‘to establish as judicial fact the full details of the madness that transpired in the former Yugoslavia.’5 In a similar vein, former ICTY Judge Patricia Wald has observed that insofar as history is itself composed of a compilation and distillation of many views of the same events, there can be little question that the exquisitely detailed accounts of wartime atrocities, elicited in month- and year-long trials, contribute mightily to the process.6 Others have written with more reticence, dismissing the notion that international criminal courts should become seriously engaged in the business of constructing historical narratives. For example, in the case of Karadžić, the accused tried to persuade the ICTY Trial Chamber to find that he had been promised immunity from prosecution, if not for the purpose of legal evaluation, then for the records of history. The Trial Chamber rejected the accused’s submission, noting that ‘the Chamber’s purpose is not to serve the academic study of history.’7 Similarly, the ICTY Trial Chamber in Krstić cautioned that it was for ‘historians and social psychologist[s] to plumb the depths of this episode of the Balkan conflict and to probe for deep-seated causes,’ whereas its own judicial function was more modestly to find, from the evidence presented during the trial, what happened during [a] period of about nine days and, ultimately, whether the defendant in this case, General [Radislav] Krstić, was criminally responsible, under the tenets of international law, for his participation in them.8 Taking this dissensus as its point of departure, this article seeks to make three contributions to the debate on the historical function of international criminal courts. First, the article seeks to unearth what lies at the root of the uncertainty that persists over the historical function. To this end, the first part of the article argues that contestation over the historical function primarily hinges on the underlying conception of justice – adjudicative or sociopolitical – to which scholars and practitioners adhere in practice. According to the adjudicative conception of justice, the scope of the historical inquiries facilitated by international criminal courts should be tied narrowly to what is deemed legally relevant for the purpose of determining the culpability of the accused on trial, while the content of the historical narratives constructed by international criminal courts should be strictly subordinated to a set of principled constraints designed to safeguard the fairness of the process for the accused. According to sociopolitical conceptions of justice, the scope of the historical frames of international criminal courts may be shaped to fulfil a broader range of sociopolitical objectives including deterring future atrocities, reconciling divided communities and providing victims with a sense of closure, while the principled constraints may to a certain extent be loosened so as to improve the capacity of international criminal courts to render representational justice to the mass atrocity situations examined in their trials and judgments. Second, the article seeks to demonstrate how in practice these rival perspectives of the historical function of international criminal courts function less as static positions and more as lines of argumentation that can be deployed to support or critique the range of practices that influence the scope and content of the historical narratives constructed within international criminal courts. By way of illustration, the second part of the article examines three categories of practices that have been subject to adjudicative and sociopolitical modes of thought: first, jurisdictional practices that determine the scope and definition of the jurisdictional mandates of international criminal courts; second, charging practices that determine the scope and definition of the charges in particular cases; and finally, procedural–evidentiary practices, encompassing the procedural rules and evidentiary standards that govern international criminal proceedings as well as contestation over how they are applied in particular cases. For each category of practices, the article focuses on a number of specific examples that illustrate the tension between adjudication and sociopolitical lines of argumentation in practice. Finally, the article concludes by identifying a potential avenue to advance the conversation on the historical function of international criminal courts in light of the tension that persists between adjudicative and sociopolitical conceptions of justice. THE HISTORICAL FUNCTION OF INTERNATIONAL CRIMINAL COURTS IN THEORY Within the field of international criminal justice, a division of thought has emerged between adjudicative and sociopolitical conceptions of the historical function of international criminal courts. This article contends that these rival perspectives reflect distinct conceptions of justice,9 the underlying assumptions of which have served to inform normative preferences concerning the appropriate scope and content of the historical narratives constructed within international criminal courts in practice. The Adjudicative Conception of the Historical Function of International Criminal Courts According to the adjudicative conception of justice, international criminal trials should be designed to focus strictly on their adjudicative function of determining the culpability of the accused for alleged transgressions of criminal prohibitions and not shaped to satisfy wider sociopolitical objectives. As Jenia Turner explains, the sole purpose of the adjudicative conception of justice is ‘separating the innocent from the guilty, following fair procedures, and apportioning just punishment to those who are convicted.’10 As such, justice pursuant to this perspective is understood as fairness for the accused.11 In terms of the scope of the historical inquiries facilitated by international criminal courts, adherents to the adjudicative conception of justice generally argue that rendering a wide-ranging historical account is an illegitimate judicial concern, the introduction of which may distort the underlying liberal legalist values put in place for the protection of the accused. Ian Buruma, for example, argues that ‘when the court of law is used for history lessons, the risk of show trials cannot be far off.’12 To become entangled with such issues can only lead to ‘poor justice or poor history, probably both.’13 To the extent that international criminal courts render historical narratives in the process of determining the culpability of the accused, these histories should be considered unavoidable byproducts or incidental consequences of carrying out their primary adjudicative function.14 As former president of the International Criminal Tribunal for Rwanda (ICTR), Judge Dennis Byron, once argued, since ‘the purpose of a criminal trial is to establish individual guilt, not to establish the historical truth about the conflicts,’ the ICTR should only establish ‘a factual record of the genocide and the atrocities to the extent that they are the framework of findings on individual criminal responsibility.’15 In terms of the content of the historical narratives constructed within international criminal courts, the adjudicative conception of justice advocates a strict subordination of the pursuit of historical truth to the demands of desert-based constraints designed to safeguard the accused from arbitrary prosecution or punishment.16 In the international criminal context, these constraints are given expression in the form of the liberal criminal law principles of legality, culpability and fairness,17 rooted in domestic criminal justice systems and international human rights law.18 According to the adjudicative perspective, to construct history within international criminal courts without sufficient regard for these principled constraints would risk international criminal trials becoming nothing more than instrumentalized tools to obtain certain or near-certain convictions of accused individuals.19 Sociopolitical Conceptions of the Historical Function of International Criminal Courts While the adjudicative conception of justice has found favour with many scholars and practitioners,20 others argue that focusing international criminal trials narrowly on their adjudicative function represents an overly restrictive view of justice.21 Relying instead on sociopolitical conceptions of justice, these scholars and practitioners believe that international criminal courts should be seen not simply as procedural devices for determining individual culpability, but as didactic and therapeutic mechanisms for achieving a range of broader sociopolitical objectives. Whereas the adjudicative perspective views the accused as the primary audience of international criminal courts, sociopolitical perspectives are also concerned, to a far greater degree, with audiences beyond the courtroom. Importantly, it should not be thought that sociopolitical conceptions of justice encompass only one position. In fact, there exists significant dissensus between adherents to sociopolitical perspectives concerning which nonadjudicative goals should legitimately fall within the mandate of international criminal courts, how such goals should be prioritized, and how international criminal proceedings should be designed to ensure their fulfilment.22 Nonetheless, adherents to sociopolitical perspectives share the view that at least some sociopolitical objectives may legitimately fall within the mandates of international criminal courts. In terms of the scope of the historical inquiries facilitated by international criminal courts, adherents to sociopolitical conceptions of justice tend to favour broadening the historical parameters of international criminal trials beyond what is strictly required to determine the culpability of the accused on trial based on the perceived instrumental value of historical narratives for achieving a range of sociopolitical objectives, including: deterring future atrocities by shrinking the space for denial and serving as a warning sign for future generations;23 healing the psychological wounds of victims by delivering authoritative narratives to victims whilst authorizing truth telling by victims;24 and reconciling divided communities by enabling civil dissensus to emerge over the rival historical accounts presented at trial.25 Osiel, for example, argues that to maximize the capacity of criminal courts to contribute to social solidarity within local communities, judges should allow prosecutors and defence counsel to paint with a broader brush …, to widen the spatial and temporal frame of courtroom storytelling in ways that allow litigants to flesh out their competing interpretations of recent history, and to argue these before an attentive public.26 For Osiel, only by enabling a broader degree of historical contestation can the debate within the courtroom resonate with those beyond it.27 In terms of the content of the historical narratives constructed within international criminal courts, it is important to emphasize that those favouring sociopolitical perspectives are not unconcerned with the demands of adjudicative justice. As Lawrence Douglas explains: The notion that a trial can succeed as pedagogy yet fail to do [adjudicative] justice is crucially flawed. To succeed as a didactic spectacle in a democracy, a trial must be justly conducted insofar as one of the principal pedagogic aims of such a proceeding must be to make visible and public the sober authority of the rule of law.28 In other words, one would struggle to find supporters of sociopolitical conceptions of justice who seriously dispute the importance of international criminal courts subordinating the pursuit of historical truth to the demands of safeguarding the rights of the accused through adherence to desert-based constraints. At the same time, it is in the context of articulating what is required by liberal criminal law principles that the distinction between adjudicative and sociopolitical perspectives proves important. In particular, advocates of sociopolitical perspectives have often relied on sociopolitical objectives – such as ensuring justice for victims – to justify the dilution of deontic constraints in practice.29 By relying on looser understandings of liberal criminal law principles, sociopolitical perspectives evince a greater concern for ensuring that international criminal courts are able to render representational justice to the mass atrocity situations examined in their trials and judgments. THE HISTORICAL FUNCTION OF INTERNATIONAL CRIMINAL COURTS IN PRACTICE The preceding analysis revealed how adjudicative and sociopolitical conceptions of justice tend to generate opposing normative preferences concerning the historical function of international criminal courts. In practice, however, these competing perspectives function less as static positions and more as opposing lines of argumentation that can be deployed to support or critique the practices of international criminal courts. To adopt an adjudicative mode of argumentation is to advocate a more forensic understanding of a court’s historical function – whether by promoting a narrower narrative frame or applying principled constraints in a more restrictive manner. To adopt a sociopolitical mode of argumentation is to advocate a less constrained understanding of a court’s historical function – whether by promoting a broader narrative frame or applying principled constraints in a more diluted manner. The tension between these modes of argumentation flows from the fact that they each reflect a core value underpinning the work of international criminal courts, which are at once expected to render formal justice to the accused whilst rendering representational justice to the mass atrocity situation in the interests of victims and society. In order to understand how these opposing lines of argumentation operate in practice, it is important to recognize that the historical narratives constructed within international criminal courts are a product of the practices of various social actors – including states, prosecutors, defence counsel, judges, civil society groups, victims and scholars – that interact within the field of international criminal justice. In particular, it is possible to distinguish between a number of different categories of practices, including: jurisdictional practices, encompassing the drafting and interpretation of the jurisdictional mandates of international criminal courts, as well as the attendant sources, principles of justice and rules of interpretation that guide these processes in practice; charging practices, encompassing the determination of the scope and definition of the charges in particular cases; and procedural and evidentiary practices, encompassing the definition and contestation of procedural rules and evidentiary standards applied in international criminal proceedings. While the dividing line between these categories is not strict, they offer a useful typology for thinking about how history is constructed in different institutional settings. Importantly, it is through these practices that mass atrocity situations are transformed into a juridical form,30 with the result that certain aspects of such events are acknowledged and foregrounded, whilst other aspects are marginalized and excluded from view. As Larissa van den Herik puts it, international criminal courts filter realities through the use of precise definitions and categories of responsibility including concomitant rules of interpretation guiding their application, as well as through the use of the highest evidentiary standards and other strict rules of procedure.31 To recognize the significance of the practices of social actors to the historical function of international criminal courts is to acknowledge the politics of choice inherent in the construction of historical narratives in judicial contexts. Importantly, it is through the exercise of their agency that these social actors have been confronted by the tension between adjudicative and sociopolitical modes of thought. By reviewing a range of jurisdictional, charging and procedural–evidential practices in different institutional settings, this section seeks to demonstrate how different social actors have navigated this tension in practice, as well as the implications of such practices for the scope and content of the historical narratives constructed within international criminal courts. Jurisdictional Practices The jurisdictional terms on which international criminal courts are established can significantly influence the scope and content of the historical narratives examined in their trials and judgments. In particular, the delimitation and definition of a court’s jurisdictional mandate will generally influence the temporal, territorial, personal and subject-matter orientation of the historical narratives contested in the courtroom. Particularly significant is a court’s subject-matter jurisdiction, encompassing the range and definition of legal categories of crimes, modes of participation and defences through which history is constructed in practice. Importantly, the social actors responsible for drafting and interpreting a court’s substantive legal categories have generally been confronted by a rule of law dilemma, entailing a choice between adopting a more or less adjudicative or sociopolitical understanding of the rule of law.32 To adopt a more adjudicative conception of the rule of law is to rely on a stricter understanding of the principle of legality, one which prioritizes greater protection for the accused against the arbitrary power of states and excessive judicial discretion. To adopt a more sociopolitical conception of the rule of law is to rely on a more diluted understanding of the principle of legality, one which prioritizes enhancing the protection of victims and society against the acts that have been perpetrated against them. Which values are prioritized in any given context will often have implications for the scope and content of the historical narratives constructed within international criminal courts in practice. This may be illustrated by examining how methodological dissensus over the drafting and interpretation of particular categories of crimes, modes of participation and defences has generated narrative dissensus in different institutional contexts. In terms of categories of crime, consider, for example, the war crime of ‘conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities’ in Article 4(c) of the Statute of the Special Court for Sierra Leone (SCSL). During the drafting of the SCSL Statute, the UN secretary-general queried the customary international law status of the crime of enlisting children under the age of 15 years and suggested that Article 4(c) be limited to the ‘abduction and forced recruitment of children under the age of 15 years into armed forces or groups for the purpose of using them to participate actively in hostilities.’33 The Security Council disagreed and drafted Article 4(c) of the SCSL Statute in near-identical terms to Article 8(e)(vii) of the International Criminal Court (ICC) Statute, which includes the crime of enlistment.34 This division of opinion was replicated when the SCSL Appeals Chamber came to examine the status of Article 4(c) under customary international law. Whilst clothing their analysis in a positivist garb,35 the majority of the Appeals Chamber seemed to structurally conflate the illegality of the prohibition of enlistment under international humanitarian law with its criminality under international criminal law based on the perceived immorality of the conduct in question.36 In dissent, Judge Geoffrey Robertson offered a stirring critique of the majority’s reasoning, highlighting the dearth of evidence to support the claim that a majority of states had expressly criminalized or prosecuted child enlistment prior to November 1996 and emphasizing that ‘abhorrence alone does not make that conduct a crime in international law.’37 Importantly, this methodological dissensus generated narrative dissensus between the judges over whether the determination of criminal responsibility for acts of enlistment fell within the SCSL’s narrative frame. Methodological dissensus has also been identifiable with respect to modes of participation. Consider, for example, the division of judicial opinion that emerged at the ICC concerning indirect co-perpetration. In Katanga and Ngudjolo, the Pre-Trial Chamber supported the combination of co-perpetration and indirect perpetration by arguing that there are no legal grounds for limiting the joint commission of the crime solely to cases in which the perpetrators execute a portion of the crime by exercising direct control over it.38 In particular, the Chamber noted that the ‘or’ between ‘jointly with another, or through another person’ in Article 25(3)(a) of the ICC Statute was sufficiently open-texted that it could be interpreted to refer to an ‘inclusive disjunctive,’ understood to mean ‘either one or the other, and possibly both.’39 Moreover, adopting a purposive tone, the Pre-Trial Chamber explained that the combination of co-perpetration and indirect perpetration would enable the court ‘to assess the blameworthiness of “senior leaders” adequately.’40 In advancing this position, the Pre-Trial Chamber adopted an interpretation designed to ensure that defendants would not ‘fall into the cracks in between co-perpetration and indirect perpetration.’41 By contrast, Judge Christine Van den Wyngaert subsequently argued that the Pre-Trial Chamber’s interpretation was ‘unconvincing.’42 Van den Wyngaert was not opposed to a junta model of indirect co-perpetration that would hold A and B jointly responsible for C’s behaviour in a situation where A and B committed a crime through C by jointly subjugating the latter’s will.43 However, such a scenario was to be contrasted with that confronted in the case of Katanga and Ngudjolo where the two defendants each allegedly had control over separate sets of subordinates and agreed to join forces to carry out a criminal action. According to Van den Wyngaert, to convict the defendants pursuant to indirect co-perpetration under this latter scenario would constitute ‘a radical expansion’ of Article 25(3)(a) amounting to ‘a totally new mode of liability.’44 In particular, Van den Wyngaert emphasized that the ‘fight against impunity’ could not be used as the basis for a teleological interpretation ‘to fill perceived gaps in the available arsenal of forms of criminal responsibility.’45 Rather, Van den Wyngaert attached ‘the greatest importance’ to the principle of legality, including the principles of strict construction and in dubio pro reo, and expressed doubt as to whether anyone (inside or outside the DRC [Democratic Republic of the Congo]) could have known, prior to the Pre-Trial Chamber’s first interpretations of Article 25(3)(a), that this article contained such an elaborate and peculiar form of criminal responsibility as the theory of ‘indirect co-perpetration.’46 With this in mind, Van den Wyngaert urged her fellow judges at the ICC to move away from attempting to formulate a mode of criminal responsibility that, in narrative terms, ‘is tailored towards “masterminds” and “intellectual authors”.’47 Finally, methodological dissensus has also arisen with respect to defences. Consider, in this regard, the division of judicial opinion that arose in the ICTY case of Erdemović over whether the defence of duress applies to crimes involving the killing of innocent persons.48 The case involved a member of the Bosnian Serb Army who, faced with the choice to kill captive civilians or be killed for refusing to obey the order, opted to kill around 70 innocent persons at Branjevo collective farm close to the city of Srebrenica. In considering the defence of duress, the majority rejected its application by relying on a victim-focused teleological interpretation which emphasized the importance of halting and effectively redressing violations of international humanitarian law.49 By contrast, Judge Antonio Cassese in the minority accepted the potential application of duress to cases involving the killing of innocent persons by emphasizing, inter alia, the maxim in dubio pro reo, pursuant to which ambiguities in the law should be resolved in favour of the defendant.50 Again, the acceptance of the majority’s methodological perspective over the minority’s had important implications for the historical narrative ultimately constructed in the case. As Rosa Brooks explains, whereas the majority depicted Dražen Erdemović’s story as ‘a narrative about choice,’ the defendant’s crime amounting to ‘his repeated failure to take a real stand, to insist on loyalty to any one group or idea,’ Cassese was at least open to the possibility of viewing Erdemović’s story as ‘a narrative about inevitability and determinism’ involving ‘an ordinary man who one day simply found himself in an untenable situation.’51 As these examples illustrate, whether drafters and judges prioritize more or less adjudicative or sociopolitical conceptions of the rule of law can have important implications not only for the recognition and definition of legal categories, but also for the narratives constructed in relation to them.52 Charging Practices The charges in any given case – encompassing a factual description of the crimes and a legal characterization of the facts – also significantly influence the scope and content of the historical narratives examined in the trials and judgments of international criminal courts. Importantly, in international criminal proceedings, charges serve two primary purposes.53 First, the charges provide the accused with notice of the case against him so that he can develop an appropriate defence strategy. And second, the charges provide the basis for the prosecution’s case against the accused and therefore for the trial itself. As Van den Wyngaert explains, ‘charges are more than a list of atomic facts and a corresponding list of legal elements,’ but instead allege the existence of specific relations between different facts and construct a particular narrative on the basis of which, if true, would cover all the legal elements of the charges with which it corresponds.54 With this in mind, the historical narratives constructed within international criminal courts will often depend to a significant extent on the scope of the charges, where scope may be understood to encompass two dimensions:55 first, the factual scope of the charges, encompassing the number of persons and crimes charged, as well as the number and range of incidents that fall within the charges; and second, the narrative framing of the charges, encompassing the breadth of the narrative relied upon to attribute criminal responsibility for the crimes charged to the accused. In international criminal courts, it is the prosecutor who has generally been entrusted with the primary authority to determine the factual scope of the charges. Importantly, in exercising their discretion, international prosecutors have been confronted by a choice between adopting a more or less adjudicative or sociopolitical approach to determining the factual scope of the charges. To follow a more adjudicative mode of thought is to adopt a more streamlined approach to defining the charges – a narrower set of charges generally serving to enhance the fairness of the proceedings towards the accused. To follow a more sociopolitical mode of thought is to adopt a more expansive approach to defining the charges – a broader set of charges generally serving to respond to the interests of victims and society. Consider, for example, the factual scope of the charges in the initial indictments at the ICTY and ICTR, whose early charging practices were characterized by a prosecutorial preference for broad indictments that extended over long periods of time and broad geographical areas with numerous incidents and large numbers of victims and perpetrators.56 One of the most ambitious examples of this preference was the ICTR prosecutor’s failed attempt to present a comprehensive indictment against 29 individuals on the basis of new evidence that had arisen concerning the crime of conspiracy to commit genocide.57 Although that attempt was ultimately rejected by the ICTR Appeals Chamber,58 the ICTR prosecutor was subsequently able to bring several indictments grouped according to theme – such as the Military cases, the Government cases and the Media case – or region, such as the Butare case. At the ICTY, the indictment strategy deployed with respect to Slobodan Milošević is also illustrative. In that case, then-ICTY prosecutor Carla Del Ponte decided to apply for the joinder of the three indictments that had been issued against Milošević concerning international crimes that had allegedly been committed in Kosovo, Croatia, and Bosnia and Herzegovina.59 As several commentators have observed,60 Del Ponte appeared to have been motivated by a desire to construct a comprehensive historical narrative concerning the role played by Milošević in the entire conflict. Del Ponte argued that Milošević had been involved in a single ‘transaction’ or common scheme to create a ‘Greater Serbia’ that warranted the joinder of the three indictments.61 Although the ICTY Trial Chamber initially only permitted the joinder of the Croatia and Bosnia and Herzegovina indictments,62 the prosecutor’s argument was successful on appeal and all three indictments were eventually joined together to form a single trial.63 As a result, the final indictment against Milošević comprised 66 counts, each encompassing multiple alleged criminal acts and crime scenes, spanning three broad geographical areas over a 10-year period.64 To give an indication of the complexity of the charges in the case, Gillian Higgins observes that one count of deportation in Kosovo encompassed allegations that the accused was responsible for this particular crime ‘in at least sixty-four different locations within thirteen municipalities, pursuant to eight different forms of conduct.’65 These strategies reflect the prioritization of a more sociopolitical approach to defining the factual scope of the charges – ambitiously striving to develop a more comprehensive historical picture of the conflicts under examination but at the risk of generating unwieldy indictments that render trials unmanageable within a reasonable timeframe.66 Indeed, the dangers of this approach were ultimately brought home in the death of Milošević prior to a verdict being delivered in his case.67 At the opposite end of the spectrum are the charging practices of the ICC prosecutor, which have often been narrowly focused on a limited number of crimes and a small number of incidents. In Katanga and Ngudjolo, for example, the prosecutor brought 13 counts of war crimes and crimes against humanity, all of which focused on a single incident on 24 February 2003 in Bogoro, Ituri.68 The charges brought in Gbagbo and Blé Goudé with respect to the situation in Côte d’Ivoire provide a more recent illustration. In Gbagbo, the accused faces four charges of committing the crimes against humanity of murder, rape, other inhumane acts and persecution in relation to four sets of incidents,69 while in Blé Goudé, the accused faces the same charges in relation to five sets of incidents.70 These more streamlined charges reflect the prioritization of a more adjudicative approach to defining the factual scope of the charges – emphasis being placed on making trials more manageable but at the risk of inadequately representing the full extent of the criminality and main types of victimization that occurred in a given situation. The charges in Gbagbo and Blé Goudé, for example, are notable for their exclusive focus on incidents in Abidjan, notwithstanding the fact that the ICC prosecutor – in earlier applications before the court – had relied on allegations of international crimes committed by pro-Laurent Gbagbo forces in a number of localities in the western part of Côte d’Ivoire.71 Highlighting this omission, Human Rights Watch argues that the limited geographical scope of the charges in these cases has generated a narrative frame that fails to ‘adequately represent the scope of crimes committed by Gbagbo-allied forces.’72 The tension between adjudicative and sociopolitical conceptions of justice has been less pronounced in the context of defining the narrative framing of the charges. In his insightful study of the construction of history in international criminal trials, Richard Wilson identifies a shift in prosecutorial strategy at the ICTY away from attempting to construct ‘a grand, sweeping metanarrative of history’ in earlier cases towards ‘a more conventional crime-based methodology based on documents and fact-witness testimony, an approach with less exalted intellectual ambitions perhaps but also less risk of malfunctioning.’73 Interestingly, Wilson reveals how both strategies were guided by adjudicative concerns. The prosecution’s construction of a grand monumental history of the Balkans in the Milošević trial, for example, represented an attempt to build an inferential case to prove the specific intent of genocide.74 When it became clear in the case of Brđanin that broad monumental narratives would not generally assist in proving genocidal intent, prosecutors turned to ‘a new formula’ that entailed bringing together internal and external expert witnesses who ‘presented complementary micro-histories and … composed a narrative arc that gave order and unity to the disparate documents and items of evidence in the case.’75 The evolution of the ICTY prosecutor’s narrative framing strategy is significant because it reveals how a broader degree of historical contextualization has sometimes been relied upon in response to the adjudicative concerns of proving the collective legal elements of international crimes and modes of participation.76 At the same time, the shift in strategy also reveals that prosecutors will often be confronted by a choice between limiting their inquiries into the larger context to the very minimum required or committing to a broader exposition of the larger picture – with the latter strategy entailing a heightened risk of historical contextualization dwarfing the subject of individual culpability.77 Procedural and Evidentiary Practices International criminal proceedings are governed by rules of procedure and evidence,78 which serve to transform international criminal courts into processes of ‘rule-governed storytelling.’79 These rules govern a broad range of matters pertinent to the construction of history within international criminal courts, including the admissibility of evidence, the structure and conduct of the proceedings, the participation of victims, as well as standards and burdens of proof. Although the tension between adjudicative and sociopolitical modes of thinking has pervaded several types of procedural and evidentiary practices, this section examines the tension in the context of judicial determinations of the extent to which charges may be amended and facts described in the charges legally recharacterized within international criminal proceedings. With respect to the amendment of charges, the jurisprudence of the UN ad hoc tribunals is illustrative, reflecting a tension between allowing prosecutors flexibility to make changes to indictments in the interest of closing accountability gaps on the one hand and ensuring the right of the accused to a fair trial on the other. Importantly, while prior to its confirmation an indictment before the ad hoc tribunals could be amended at any time, subsequent to confirmation judicial permission was required. In the latter scenario, the jurisprudence of the ad hoc tribunals clarified that an amendment had to satisfy two conditions, namely it must not result in unfair prejudice to the accused when viewed in light of the circumstances as a whole; and if the proposed amendment is material, it must be supported by documentation or other material meeting the prima facie standard [for the confirmation of charges].80 When considering whether a given amendment would have caused unfair prejudice to the accused, two factors proved to be of particular importance: first, the amendment was required not to deprive the accused of an adequate opportunity to prepare an effective defence; and second, the amendment was required not to adversely affect the accused’s right to be tried without undue delay. While there was no formal time limit within which the prosecutor was required to file a motion to amend the charges – and the prosecutor could even do so after a trial had begun – the stage of the proceedings was generally taken into account in determining whether the amendment would cause unfair prejudice to the accused.81 How this test was applied in the context of particular cases hinged on the precise balance struck between the sociopolitical concern for affording the prosecutor flexibility to amend the charges and the adjudicative concern for upholding the fair trial rights of the accused. This may be illustrated by comparing two cases concerning charges of rape and other forms of sexual violence at the ICTR and SCSL. In the case of Akayesu, a few months after the trial had begun, the ICTR prosecutor requested leave to amend the indictment to include three new counts relating to various acts of rape and other forms of sexual violence.82 The prosecutor’s request was triggered by the spontaneous testimonies of two victim-witnesses concerning their experiences of sexual violence, as well as the questioning of the victims by the judges and the advocacy of the Coalition for Women’s Human Rights in Conflict Situations.83 In its decision on the amendment of the charges, taking due note of the fair trial rights of the accused, the Trial Chamber granted the prosecutor’s motion.84 By contrast, in the case of Norman et al., although the SCSL prosecutor requested leave to amend the indictment four months prior to the start of trial so as to add four new counts of rape and other forms of sexual violence,85 a majority of the Trial Chamber rejected the prosecutor’s request.86 According to the majority, it was unacceptable that the relevant evidence had been available to the prosecutor since June 2003 whereas the request for leave to amend the indictment had only been submitted in February 2004.87 At trial, the prosecutor was subsequently denied, by the same majority of the Trial Chamber, the opportunity to introduce evidence of sexual and gender-based violence concerning the charges of inhumane acts as a crime against humanity and cruel treatment as a war crime, which had already been included in the indictment.88 As a result, acts of rape and other forms of sexual violence allegedly committed by the Civil Defence Forces against women and girls were excluded from consideration.89 Turning to the legal recharacterization of facts, the jurisprudence of the ICC is illustrative. Given the limited option to amend charges after the confirmation hearing at the ICC,90 contestation has focused on the application of Regulation 55 of the regulations of the court, which governs the legal recharacterization of facts described in the charges. Regulation 55 serves a dual purpose:91 on the one hand, to incentivize more specific charges that enable more focused trials; and on the other, to reduce impunity gaps that may arise from an erroneous legal characterization of facts. Importantly, however, changing the legal characterization of facts is only permissible so long as it does not render the trial unfair for the accused. With this in mind, while not the only tension identifiable within Regulation 55 decisions rendered to date,92 the tension between adjudicative and sociopolitical justice has loomed large.93 Consider, for example, the use of Regulation 55 by the ICC Trial Chamber in the case of Katanga. Initially on trial with Mathieu Ngudjolo Chui, Germain Katanga was charged as an indirect co-perpetrator pursuant to Article 25(3)(a) of the ICC Statute. Six months into the deliberations of the judges – and nine months after the closure of the presentation of evidence – a majority of the Trial Chamber issued a decision to sever the charges against the two defendants and notified the parties of its intention to consider the criminal responsibility of Katanga not only as an indirect co-perpetrator but also on the basis of common purpose liability under Article 25(3)(d)(ii). Over a year later, Katanga was convicted by a majority of the Trial Chamber on the basis of the new mode of participation. The majority’s decision to change the legal characterization of facts in Katanga represented a clear prioritization of the sociopolitical concern for ensuring the closure of accountability gaps.94 As Elinor Fry observes, ‘One is left with the creeping suspicion that the case against Katanga was artificially moulded to reach a conviction.’95 The problematic nature of the decision was comprehensively discussed by Van den Wyngaert in her dissent, whose approach was much more firmly rooted in adjudicative concerns for the fair trial rights of the accused. According to Van den Wyngaert, the majority’s Regulation 55 decision went ‘well beyond any reasonable application of the provision and fundamentally encroaches upon the accused’s right to a fair trial.’96 Problematic aspects of the decision from an adjudicative perspective included the fact that: the majority had profoundly undermined the defence’s entire trial strategy by fundamentally changing the narrative of the charges – transforming Katanga from a leader with almost absolute control over a hierarchical group into an accomplice supporting the criminal common purpose of an unidentified section of his former subordinates;97 Regulation 55 was triggered at the end of the deliberation stage of the proceedings, which risked creating a perception of judicial partiality – in particular by allowing ‘the unpalatable suspicion’ to arise that the Chamber was intervening to ensure the conviction of the defendant;98 the recharacterization decision was ‘entirely unforeseeable to the defence’ and ‘rendered at a point in the proceedings when the defence is unable to effectively respond to it’;99 the majority relied upon Katanga’s own testimony to justify its recharacterization and ultimately to help convict him, thereby transforming his ‘perfectly legitimate defence against the confirmed charges into a major point of self-incrimination under a different form of criminal responsibility’;100 and the recharacterization would lead to an unfair delay in the proceedings, the ultimate length of which came close to two-thirds of the defendant’s final sentence.101 Importantly, the division of judicial opinion in Katanga over the application of Regulation 55 had significant narrative implications, with the majority’s decision enabling the construction of a historical narrative in which Katanga was convicted on the basis of common purpose liability. CONCLUSION By examining a tension that lies at the heart of the field of international criminal justice, this article has sought to gain a deeper understanding of the politics of choice inherent in the construction of historical narratives within international criminal courts. Importantly, the tension between adjudicative and sociopolitical conceptions of justice constitutes just one of many ‘anxieties’ or ‘fault lines’ that underpin the work of international criminal courts.102 To take another well-known example, international prosecutors have been confronted by a tension between challenging and accommodating state power in determining the selection and prioritization of cases before international criminal courts. How international prosecutors navigate this tension through the exercise of their discretion in practice can have significant implications for the historical narratives to emerge from the courtroom – the production of one-sided historical narratives as a result of the ICC prosecutor’s group-based selectivity within several situations at the ICC being a prominent example.103 By examining the tensions of international criminal justice, it is possible to gain an insight into the contingency of the historical narratives constructed within international criminal courts – and in particular, how history may have been constructed otherwise. In turn, such examinations can also reveal the structural biases of international criminal courts – for example, the tendency of judges and prosecutors to develop de facto preferences for more or less adjudicative or sociopolitical modes of thought with respect to their jurisdictional, charging and procedural–evidentiary practices.104 To some extent, the tension between adjudicative and sociopolitical justice is inescapable, constituting a prime example of what Darryl Robinson recently referred to as an ‘inescapable dyad’ in the discourse of international criminal justice.105 From a dyadic perspective, the adjudicative and sociopolitical conceptions of justice constitute opposing poles of critique that can be deployed against the particular positions of social actors that participate in the field of international criminal justice. An adjudicative critique is that one is adopting an overly forensic understanding of a court’s historical function – whether by adopting an overly narrow narrative frame or applying principled constraints in an overly restrictive manner. A sociopolitical critique is that one is over-engineering a trial to manufacture representational outcomes aligned with the interests of victims and society – whether by adopting an overly broad narrative frame or interpreting principled constraints in an overly diluted manner. The inescapability of these critiques flows from the contradictory assignments of international criminal courts,106 which are at once expected to act as criminal courts rendering justice to the accused and transitional justice mechanisms responding to the needs of victims and society.107 At the same time, to recognize the inescapable contestability of the historical function of international criminal courts should not commit one to ‘pure agnosticism or ceasing the search for “better” ways,’ but rather to an acknowledgement that ‘the interesting conversation is not just to show that some particular choice is flawed, because they all are; it is to discuss how to choose among the flawed options.’108 Although it is not possible within the confines of this article to offer a detailed account of how to advance the conversation concerning the historical function of international criminal courts, a few remarks may be offered in closing. An important starting point is to recognize that international criminal courts are criminal courts with the power to punish individuals. As such, they possess a retributive core which requires adherence to the demands of adjudicative justice. As Robinson argues, to neglect the principled constraints of adjudicative justice would be to risk ‘using the accused as an object in a didactic exercise rather than respecting autonomy and fairness.’109 At the same time, to have no regard for sociopolitical concerns would also generate undesirable outcomes. Imagine, for example, if Milošević had been prosecuted for only a fraction of the crimes whose commission he was alleged to have participated in – for example, only crimes committed in Kosovo to the neglect of crimes committed elsewhere. As Frédéric Mégret argues, such an example makes clear that ‘an exclusive focus on purely forensic justice risks sacrificing the point of the noun for the sake of the adjective.’110 Against this background, one avenue to advance the conversation would be to identify what Robinson has referred to as a ‘zone of permission,’ within which practices must fall to comply with the principled constraints of adjudicative justice.111 To recognize the existence of a ‘zone’ is to accept that there is a range of more or less liberal options for implementing the fair trial rights of the accused – a notion that is manifested in the well-known ‘margin of appreciation’ doctrine at the European Court of Human Rights.112 So long as practices remain within the outer limits of this zone of permission, social actors could determine the extent to which the principled constraints of adjudicative justice should be adapted or diluted to meet sociopolitical concerns in any given context. In making this assessment, social actors could take into account a range of contextual factors, including: the nature and scale of the atrocities under examination; the nature, powers and objectives of the international criminal court in question; the interests of the victims of the atrocities within the situation; and the availability and relative benefits of other transitional justice mechanisms in meeting particular sociopolitical concerns. Following this approach, it might be argued, for example, that prosecutors should be afforded greater flexibility to amend charges during trial to include acts of sexual violence given the difficulties encountered investigating such crimes and the tendency for evidence to only arise during hearings in connection with other crimes – provided, of course, sufficient safeguards are in place to ensure that such an approach meets the outer limits of permissibility of adjudicative justice.113 As Mirjan Damaška argues in the context of evaluating the procedural–evidentiary arrangements of international criminal courts more generally: In short, some departures by international criminal tribunals from domestic standards of fairness can be justified, given their sui generis goals, the complexity and the atrocity of crimes they process, and the innate weaknesses of these tribunals. And while it is true that only the defendant has the right to fair trial, the determination of what this right entails does not exclude consideration of the needs generated by the distinctive environment of international criminal justice, including consideration of the interest of other procedural participants affected by this environment … [so long as any dilution in standards of fairness does not] go beyond minimum requirements of internationally recognized fair trial demands.114 Importantly, while such an approach would not enable actors to fully escape the dyadic tension between adjudicative and sociopolitical conceptions of justice, it would assist in advancing the conversation concerning what should legitimately be expected of international criminal courts in particular contexts in terms of the scope and content of their historical narratives, whilst enabling their practices to be evaluated and critiqued in a more textured manner.115 Footnotes ∞This article is based on research conducted as part of the author’s PhD at the Graduate Institute of International and Development Studies. The author would like to thank Professor Andrea Bianchi for his support. All errors remain the author’s own. 1 Richard J. Evans, ‘History, Memory, and the Law: The Historian as Expert Witness,’ History and Theory 41(3) (2002): 326–345. 2 Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick, NJ: Transaction Publishers, 1997), 241 (emphasis added). 3 Barrie Sander and Jakob v.H. Holtermann, ‘Symposium: Doing Justice to Truth in International Criminal Courts and Tribunals,’ Humanity Journal, 3 July 2017, http://humanityjournal.org/blog/symposium-doing-justice-to-truth-in-international-criminal-courts-and-tribunals/ (accessed 24 April 2018). 4 See, Louise Arbour, War Crimes and the Culture of Peace (Toronto: University of Toronto Press, 2002). 5 ‘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,’ UN Docs. A/53/219 and S/1998/737 (1998), 296 (emphasis added). 6 Patricia M. Wald, ‘Foreword: War Tales and War Trials,’ Michigan Law Review 106(6) (2008): 911. 7 Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, ICTY, Trial Chamber, Decision on the Accused’s Holbrooke Agreement Motion (8 July 2009), 46. 8 Prosecutor v. Krstić, Case No. IT-98-33-T, ICTY, Trial Chamber, Judgment (2 August 2001), 2. 9 On the contestability of justice, see generally, Michael J. Coyle, Talking Criminal Justice: Language and the Just Society (New York: Routledge, 2013). 10 Jenia I. Turner, ‘Defense Perspectives on Law and Politics in International Criminal Trials,’ Virginia Journal of International Law 48(3) (2008): 531. 11 See, Darryl Robinson, ‘International Criminal Law as Justice,’ Journal of International Criminal Justice 11(3) (2013): 699–711. 12 Ian Buruma, Wages of Guilt: Memories of War in Germany and Japan (London: Atlantic Books, 2009), 142. 13 Osiel, supra n 2 at 80, describing this as the ‘prevailing opinion’ concerning attempts to combine justice and history. 14 See, e.g., Nigel Eltringham, ‘“We Are Not a Truth Commission”: Fragmented Narratives and the Historical Record at the International Criminal Tribunal for Rwanda,’ Journal of Genocide Research 11(1) (2009): 57, observing, on the basis of a series of interviews conducted at the ICTR, that while judges tend to concede that international criminal trials lead to the production of historical records, they also insist that such records are ‘unintentional.’ 15 In Björn Elberling, The Defendant in International Criminal Proceedings: Between Law and Historiography (Oxford: Hart Publishing, 2012), 201. 16 See, Barrie Sander, ‘The Expressive Limits of International Criminal Justice: Victim Trauma and Local Culture in the Iron Cage of the Law,’ European Society of International Law Conference Paper Series 5 (2015), 18, discussing the ‘retributive core’ of international criminal courts. 17 See generally, Kai Ambos, Treatise on International Criminal Law: Volume I: Foundations and General Part (Oxford: Oxford University Press, 2013). 18 Jens D. Ohlin, ‘LJIL Symposium: Where to Find the Liberal Principles of Criminal Law,’ Opinio Juris, 10 April 2013. 19 Darryl Robinson, ‘The Identity Crisis of International Criminal Law,’ Leiden Journal of International Law 21(4) (2008): 925–963. 20 Richard A. Wilson, Writing History in International Criminal Trials (Cambridge: Cambridge University Press, 2011). 21 See, e.g., Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven, CT: Yale University Press, 2001). 22 See, Carsten Stahn, ‘Between “Faith” and “Facts”: By What Standards Should We Assess International Criminal Justice?’ Leiden Journal of International Law 25(2) (2012): 251–282. 23 Diane F. Orentlicher, Shrinking the Space for Denial: The Impact of the ICTY in Serbia (New York: Open Society Justice Initiative, 2008). 24 Sofia Stolk, ‘The Victim, the International Criminal Court and the Search for Truth: On the Interdependence and Incompatibility of Truths about Mass Atrocity,’ Journal of International Criminal Justice 13(5) (2015): 973–994. 25 Osiel, supra n 2. For the application of Osiel’s theory to international criminal courts, see, Mirjan Damaška, ‘The International Criminal Court between Aspiration and Achievement,’ UCLA Journal of International Law and Foreign Affairs 14(1) (2009): 19–35; José E. Álvarez, ‘Rush to Closure: Lessons of the Tadić Judgment,’ Michigan Law Review 96 (1997–1998): 2031–2112. 26 Osiel, supra n 2 at 296. 27 Ibid. 28 Douglas, supra n 21 at 3. 29 See, e.g., Stuart Ford, ‘Fairness and Politics at the ICTY: Evidence from the Indictments,’ North Carolina Journal of International Law and Commercial Regulation 39(1) (2013): 57: ‘as trials become more and more political, they inevitably become less fair, because the focus shifts from a determination of guilt through fair procedures to concerns about the consequences of the trial’; Turner, supra n 10 at 537: ‘The further a trial strays from its focus on the adjudicative function, the more likely it is to disregard the defendant’s rights in pursuit of non-legal purposes.’ 30 See, Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field,’ trans. Richard Terdiman, Hastings Law Journal 38(5) (1987): 805–853; James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago, IL: University of Chicago Press, 1990). 31 Larissa van den Herik, ‘International Criminal Law as a Spotlight and Black Holes as Constituents of Legacy,’ AJIL Unbound 110 (2016): 210. 32 For an examination of the rule of law dilemma in the context of domestic atrocity trials, see, Barrie Sander, ‘Justice as Identity: Unveiling the Mechanics of Legitimation in Domestic Atrocity Trials,’ Journal of International Criminal Justice (forthcoming, 2018), https://doi.org/10.1093/jicj/mqy015. 33 ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone,’ UN Doc. S/2000/915 (4 October 2000), 17–18. 34 See, ‘Letter Dated 22 December 2000 from the President of the Security Council to the Secretary-General,’ UN Doc. S/2000/1234 (22 December 2000), 2, disagreeing with the secretary-general and proposing that Article 4(c) of the draft Statute be altered ‘so as to conform it to the statement of the law existing in 1996 and as currently accepted by the international community’; ‘Letter Dated 12 January 2001 from the Secretary-General Addressed to the President of the Security Council,’ UN Doc. S/2001/40 (12 January 2001), accepting the Security Council’s proposal without comment. 35 This turn of phrase is drawn from Robert Cryer, ‘The Philosophy of International Criminal Law,’ in Research Handbook on the Theory and History of International Law, ed. Alexander Orakhelashvili (Cheltenham: Edward Elgar, 2011). 36 See, Prosecutor v. Norman et al., Case No. SCSL-2004-14-AR72(E), SCSL, Appeals Chamber, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) (31 May 2004), 28–29, in which the majority relies on the fact that the prohibition of child recruitment – including enlistment – reflects ‘important values.’ 37 Ibid., Dissenting Opinion of Justice Robertson (31 May 2004), 5–6, 9, 22 and 31–33. 38 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07-717, ICC, Pre-Trial Chamber, Decision on Confirmation of Charges (30 September 2008), 492. 39 Ibid., 491. 40 Ibid., 492. 41 Jens D. Ohlin, ‘Organizational Criminality,’ in Pluralism in International Criminal Law, ed. Elies van Sliedregt and Sergey Vasiliev (London: Oxford University Press, 2014), 114. 42 Prosecutor v. Mathieu Ngudjolo Chui, Case No. ICC-01/-4-02/12, ICC, Trial Chamber, Judgment pursuant to Article 74 of the Statute, Concurring Opinion of Judge Van den Wyngaert (18 December 2012), 60. 43 Ibid. 44 Ibid., 61. 45 Ibid., 16. 46 Ibid., 18–20. 47 Ibid., 70. 48 For a detailed discussion of the methodological dissensus within the Erdemović case, see, Barrie Sander, ‘The Method Is the Message: Law, Narrative Authority, and Historical Contestation in International Criminal Courts,’ Melbourne Journal of International Law (forthcoming, 2018). 49 Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, ICTY, Appeals Chamber, Judgment, Joint Separate Opinion of Judge McDonald and Judge Vohrah (7 October 1997). 50 Ibid., Separate and Dissenting Opinion of Judge Cassese. 51 Rosa E. Brooks, ‘Law in the Heart of Darkness: Atrocity and Duress,’ Virginia Journal of International Law 43(3) (2003): 881. 52 See, Robinson, supra n 19, illuminating the contradictory assumptions and methods of reasoning adopted by judges within international criminal courts. 53 ICTY and UNICRI (UN Interregional Crime and Justice Institute), ICTY Manual on Developed Practices (UNICRI Publisher, 2009). 54 Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07-3436-AnxI, ICC, Trial Chamber II, Judgment Pursuant to Article 74 of the Statute, Minority Opinion of Judge Christine Van den Wyngaert (7 March 2014), 32. 55 I am grateful to one of the anonymous reviewers for pointing me to this distinction. 56 See, Jeffrey Locke, ‘Indictments,’ in International Prosecutors, ed. Luc Reydams, Jan Wouters and Cedric Ryngaert (Oxford: Oxford University Press, 2012); ICTY and UNICRI, supra n 53. 57 See, Prosecutor v. Bagosora and 28 Others, Case No. ICTR-98-37-I, ICTR Trial Judge Khan, Dismissal of Indictment (31 March 1998); Prosecutor v. Bagosora and 28 Others, Case No. ICTR-98-37-A, ICTR, Appeals Chamber, Decision on the Admissibility of the Prosecutor’s Appeals from the Decision of a Confirming Judge Dismissing an Indictment against Théoneste Bagosora and 28 Others (8 June 1998). 58 For a discussion of the legal grounds on which the request was denied, see, Larissa van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law (Leiden: Martinus Nijhoff, 2005). 59 See, Prosecutor v. Slobodan Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73 and IT-01-51-AR73, ICTY, Appeals Chamber, Decision on Prosecution’s Interlocutory Appeal from Refusal to Order Joinder (1 February 2002). 60 See, e.g., William Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (Oxford: Oxford University Press, 2012); Timothy W. Waters, ‘A Kind of Judgment: Searching for Judicial Narratives after Death,’ George Washington International Law Review 42(2) (2010): 279–348. 61 Prosecutor v. Slobodan Milošević, Case Nos. IT-99-37-PT, IT-01-50-PT and IT-01-51-PT, ICTY, Trial Chamber, Decision on Prosecution’s Motion for Joinder (13 December 2001), 16, 42. 62 Ibid. 63 Prosecutor v. Slobodan Milošević, supra n 59. 64 See generally, Gillian Higgins, ‘The Impact of the Size, Scope, and Scale of the Milošević Trial and the Development of Rule 73bis before the ICTY,’ Northwestern Journal of International Human Rights 7 (2009): 239–260. 65 Ibid., 247. 66 ICTY and UNICRI, supra n 53. See, H. Friman, H. Brady, M. Costi, F. Guariglia and C.-F. Stuckenberg, ‘Charges,’ in International Criminal Procedure: Principles and Rules, ed. Goran Sluiter, Håkan Friman, Suzannah Linton, Salvatore Zappala and Sergey Vasiliev (Oxford: Oxford University Press, 2013). 67 See, e.g., Schabas, supra n 60 at 163: ‘Arguably, had the charges against him been more focussed, … at least one set of proceedings might have been completed.’ 68 See, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, supra n 38, confirming 10 of the 13 counts. 69 See, Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/11, ICC, Pre-Trial Chamber, Decision on the Confirmation of Charges against Laurent Gbagbo (12 June 2014), confirming the charges against the accused. 70 See, Prosecutor v. Charles Blé Goudé, Case No. ICC-02/11-02/11-186, ICC, Pre-Trial Chamber, Decision on the Confirmation of Charges against Charles Blé Goudé (11 December 2014), confirming the charges against the accused. 71 Human Rights Watch, Making Justice Count: Lessons from the ICC’s Work in Côte d’Ivoire (August 2015). 72 Ibid., 40. 73 Wilson, supra n 20 at 98, 109. 74 Ibid. See also, Florian Bieber, ‘Do Historians Need a Verdict?’ in The Milošević Trial: An Autopsy, ed. Timothy Waters (Oxford: Oxford University Press, 2014), 350: ‘the rich context presented in the Milošević trial … are in fact indications of weaknesses in the Prosecution’s case. Had the Prosecution possessed clear evidence … these elements of context and background would not have been necessary.’ 75 Wilson, supra n 20 at 134, 219. 76 See, Mirjan Damaška, ‘What Is the Point of International Criminal Justice?’ Chicago-Kent Law Review 83(1) (2008): 336, noting that the nature of international criminality has tended to call for ‘a broader optic in which individual conduct must be assessed in light of activity carried out by organisations or groups in specific settings, sometimes over extended periods of time.’ 77 See, ibid. 78 Rules of procedure and evidence may be spread across a number of different documents of an international criminal court. For example, at the ICC, rules of procedure and evidence can be found in the ICC Statute, the ICC Rules of Procedure and Evidence and the ICC Regulations of the Court, while guidance is also contained in the ICC Chambers Practice Manual. See generally, Yvonne McDermott, ‘The International Criminal Court’s Chambers Practice Manual: Towards a Return to Judicial Law Making in International Criminal Procedure?’ Journal of International Criminal Justice 15(5) (2017): 873–905. 79 Peter Brooks, ‘The Law as Narrative and Rhetoric,’ in Law’s Stories: Narrative and Rhetoric in the Law, ed. Peter Brooks and Paul Gewirtz (New Haven, CT: Yale University Press, 1996), 20. 80 Prosecutor v. Popović et al., Case Nos. IT-05-88-PT and IT-05-88/1-PT, ICTY, Trial Chamber, Decision on Further Amendments and Challenge to the Indictment (13 July 2006), 8. 81 Ibid. 82 Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, ICTR, Trial Chamber, Leave to Amend the Indictment (17 June 1997). 83 See, ibid., Judgment (2 September 1998), para. 417: ‘The Chamber understands that the amendment of the indictment resulted from the spontaneous testimony of sexual violence by Witness J and Witness H during the course of this trial and the subsequent investigation of the Prosecution.’ 84 Prosecutor v. Jean-Paul Akayesu, supra n 82. 85 Prosecutor v. Norman et al., Case No. SCSL-04-14-PT, SCSL, Office of the Prosecution, Prosecution Request to Amend the Indictment (9 February 2004). 86 Prosecutor v. Norman et al., Case No. SCSL-04-14-PT, SCSL, Trial Chamber, Decision on Prosecution Request for Leave to Amend the Indictment (20 May 2004). 87 Ibid. 88 Prosecutor v. Norman et al., Case No. SCSL-04-14-PT, SCSL, Trial Chamber, Reasoned Majority Decision on Prosecution Motion for a Ruling on Admissibility of Evidence (24 May 2005). Although the Appeals Chamber ultimately found this latter decision to have been incorrect since the defects in the indictment concerning acts of sexual violence had subsequently been cured by the prosecutor’s provision of timely and consistent notice to the accused, the judges decided not to reopen the trial judgment. Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-A, SCSL Appeals Chamber, Judgment (28 May 2008). 89 Valerie Oosterveld, ‘Evaluating the Special Court for Sierra Leone’s Gender Jurisprudence,’ in The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law, ed. Charles C. Jalloh (New York: Cambridge University Press, 2014). 90 See Article 61(9) and (11) of the ICC Statute. 91 Carsten Stahn, ‘Justice Delivered or Justice Denied? The Legacy of the Katanga Judgment,’ Journal of International Criminal Justice 12(4) (2014): 809–834. 92 For discussion of a separate tension centred on prosecutorial independence, see, e.g., Kevin J. Heller, ‘“A Stick to Hit the Accused with”: The Legal Recharacterization of Facts under Regulation 55,’ in The Law and Practice of the International Criminal Court, ed. Carsten Stahn (Oxford: Oxford University Press, 2015). 93 For an additional example of the tension, which arose when the legal representatives of the victims sought to rely on Regulation 55 in the Lubanga case, see, Sienna Merope, ‘Recharacterizing the Lubanga Case: Regulation 55 and the Consequences for Gender Justice at the ICC,’ Criminal Law Forum 22(3) (2011): 311–346; Luke Moffett, ‘Meaningful and Effective? Considering Victims’ Interests through Participation at the International Criminal Court,’ Criminal Law Forum 26(2) (2015): 255–289. 94 Prosecutor v. Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, ICC, Trial Chamber, Decision on the Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges against the Accused Persons (21 November 2012). 95 Elinor Fry, ‘Legal Recharacterization and the Materiality of Facts at the International Criminal Court: Which Changes Are Permissible?’ Leiden Journal of International Law 29(2) (2016): 589. 96 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, supra n 94, Dissenting Opinion of Judge Christine Van den Wyngaert (21 November 2012), 1. 97 Ibid. 98 Ibid., 28, 32, 39. 99 Ibid., 36. 100 Ibid., 45–47; Prosecutor v. Germain Katanga, supra n 54 at 58. 101 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, supra n 96. 102 Frédéric Mégret, ‘The Anxieties of International Criminal Justice,’ Leiden Journal of International Law 29(1) (2016): 197–221; Darryl Robinson, ‘Inescapable Dyads: Why the International Criminal Court Cannot Win,’ Leiden Journal of International Law 28(2) (2015): 323–347. 103 See, Asad Kiyani, ‘Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity,’ Journal of International Criminal Justice 14(4) (2016): 939–957. 104 On structural biases, see, Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005). 105 See, Robinson, supra n 102, focusing on the ‘apologia versus utopia’ dyad. 106 Ibid., 330: ‘Each side of the dyad is based in values that can be credibly regarded as values underlying international criminal justice. The ICC has a contradictory assignment. … It is always possible to berate it for breaching one of its contradictory expectations’ (emphasis in original). 107 See, Frédéric Mégret, ‘Joinder, Fairness, and the Goals of International Criminal Justice,’ in The Milošević Trial: An Autopsy, ed. Timothy Waters (Oxford: Oxford University Press, 2014), 128: ‘the constant tension between a strict forensic understanding of their mandate and one more geared toward transitional justice has yielded one of the most productive dynamics in the international tribunals’ history.’ 108 Robinson, supra n 102 at 346–347. 109 Robinson, supra n 19 at 931. 110 Mégret, supra n 107 at 129. 111 Robinson, supra n 11 at 701. 112 Mirjan Damaška, ‘The Competing Visions of Fairness: The Basic Choice for International Criminal Tribunals,’ North Carolina Journal of International Law and Commercial Regulation 36(2) (2011): 365–387. 113 For an argument to this effect, but with respect to the legal recharacterization of facts pursuant to Regulation 55 at the ICC, see, Merope, supra n 93. 114 Damaška, supra n 112 at 379–381. See similarly, Robinson, supra n 11 at 701: ‘Where we breach a deontic commitment to the individual, we are treating him or her unjustly. Conversely, where we overstate a fundamental principle – where we are too conservative in our criminal doctrines out of deference to an incorrectly broadly construed principle – we are sacrificing utility for no reason. It is “bad policy”. We are failing to fulfil the aim of the system.’ 115 Robinson, supra n 102. © The Author(s) (2018). Published by Oxford University Press. All rights reserved. For permissions, please email journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Journal of Transitional Justice Oxford University Press

Unveiling the Historical Function of International Criminal Courts: Between Adjudicative and Sociopolitical Justice

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Abstract

Abstract∞ Within the field of international criminal justice, opinion remains divided concerning the extent to which international criminal courts should be expected to write history. Taking this debate as its point of departure, this article argues that contestation over the historical function of international criminal courts hinges on the underlying conception of justice – adjudicative or sociopolitical – to which scholars and practitioners adhere in practice. The article demonstrates how these rival conceptions of justice function less as static positions and more as lines of argumentation that can be deployed to support or critique the range of practices that shape the historical narratives constructed within international criminal courts in practice. The article concludes by identifying a potential avenue to advance the conversation on the historical function – one that would assist in articulating what should legitimately be expected of international criminal courts and enable their practices to be evaluated in a more textured manner. INTRODUCTION With the emergence of the field of international criminal justice over the course of the past 70 years, history has become judicialized.1 As communities – both local and international – have struggled to come to terms with situations of mass atrocity, not only has it become more common for historians to rely on the idiom of international criminal law, but also expectations have increasingly been placed on international criminal courts to render authoritative historical accounts of the mass atrocity situations that fall within their purview. As Mark Osiel has observed, ‘prosecutors and judges are inevitably understood to be engaging in “writing history” and influencing collective memory, whether or not they so intend.’2 In other words, international criminal courts are de facto sites of historical contestation, epistemic engines that contribute through their practices to the construction of historical narratives about past episodes of mass violence.3 Yet, while it is now well established that international criminal courts are somewhat inevitably embroiled in rendering historical accounts about the individuals and events examined in their trials, a significant divide has emerged amongst scholars and practitioners concerning the extent to which international criminal courts should be expected to write history in practice.4 For some, the construction of a historical record is a central function of international criminal courts. For instance, former president of the International Criminal Tribunal for the former Yugoslavia (ICTY), Judge Gabrielle McDonald, once argued that an important aim of the tribunal was ‘to establish as judicial fact the full details of the madness that transpired in the former Yugoslavia.’5 In a similar vein, former ICTY Judge Patricia Wald has observed that insofar as history is itself composed of a compilation and distillation of many views of the same events, there can be little question that the exquisitely detailed accounts of wartime atrocities, elicited in month- and year-long trials, contribute mightily to the process.6 Others have written with more reticence, dismissing the notion that international criminal courts should become seriously engaged in the business of constructing historical narratives. For example, in the case of Karadžić, the accused tried to persuade the ICTY Trial Chamber to find that he had been promised immunity from prosecution, if not for the purpose of legal evaluation, then for the records of history. The Trial Chamber rejected the accused’s submission, noting that ‘the Chamber’s purpose is not to serve the academic study of history.’7 Similarly, the ICTY Trial Chamber in Krstić cautioned that it was for ‘historians and social psychologist[s] to plumb the depths of this episode of the Balkan conflict and to probe for deep-seated causes,’ whereas its own judicial function was more modestly to find, from the evidence presented during the trial, what happened during [a] period of about nine days and, ultimately, whether the defendant in this case, General [Radislav] Krstić, was criminally responsible, under the tenets of international law, for his participation in them.8 Taking this dissensus as its point of departure, this article seeks to make three contributions to the debate on the historical function of international criminal courts. First, the article seeks to unearth what lies at the root of the uncertainty that persists over the historical function. To this end, the first part of the article argues that contestation over the historical function primarily hinges on the underlying conception of justice – adjudicative or sociopolitical – to which scholars and practitioners adhere in practice. According to the adjudicative conception of justice, the scope of the historical inquiries facilitated by international criminal courts should be tied narrowly to what is deemed legally relevant for the purpose of determining the culpability of the accused on trial, while the content of the historical narratives constructed by international criminal courts should be strictly subordinated to a set of principled constraints designed to safeguard the fairness of the process for the accused. According to sociopolitical conceptions of justice, the scope of the historical frames of international criminal courts may be shaped to fulfil a broader range of sociopolitical objectives including deterring future atrocities, reconciling divided communities and providing victims with a sense of closure, while the principled constraints may to a certain extent be loosened so as to improve the capacity of international criminal courts to render representational justice to the mass atrocity situations examined in their trials and judgments. Second, the article seeks to demonstrate how in practice these rival perspectives of the historical function of international criminal courts function less as static positions and more as lines of argumentation that can be deployed to support or critique the range of practices that influence the scope and content of the historical narratives constructed within international criminal courts. By way of illustration, the second part of the article examines three categories of practices that have been subject to adjudicative and sociopolitical modes of thought: first, jurisdictional practices that determine the scope and definition of the jurisdictional mandates of international criminal courts; second, charging practices that determine the scope and definition of the charges in particular cases; and finally, procedural–evidentiary practices, encompassing the procedural rules and evidentiary standards that govern international criminal proceedings as well as contestation over how they are applied in particular cases. For each category of practices, the article focuses on a number of specific examples that illustrate the tension between adjudication and sociopolitical lines of argumentation in practice. Finally, the article concludes by identifying a potential avenue to advance the conversation on the historical function of international criminal courts in light of the tension that persists between adjudicative and sociopolitical conceptions of justice. THE HISTORICAL FUNCTION OF INTERNATIONAL CRIMINAL COURTS IN THEORY Within the field of international criminal justice, a division of thought has emerged between adjudicative and sociopolitical conceptions of the historical function of international criminal courts. This article contends that these rival perspectives reflect distinct conceptions of justice,9 the underlying assumptions of which have served to inform normative preferences concerning the appropriate scope and content of the historical narratives constructed within international criminal courts in practice. The Adjudicative Conception of the Historical Function of International Criminal Courts According to the adjudicative conception of justice, international criminal trials should be designed to focus strictly on their adjudicative function of determining the culpability of the accused for alleged transgressions of criminal prohibitions and not shaped to satisfy wider sociopolitical objectives. As Jenia Turner explains, the sole purpose of the adjudicative conception of justice is ‘separating the innocent from the guilty, following fair procedures, and apportioning just punishment to those who are convicted.’10 As such, justice pursuant to this perspective is understood as fairness for the accused.11 In terms of the scope of the historical inquiries facilitated by international criminal courts, adherents to the adjudicative conception of justice generally argue that rendering a wide-ranging historical account is an illegitimate judicial concern, the introduction of which may distort the underlying liberal legalist values put in place for the protection of the accused. Ian Buruma, for example, argues that ‘when the court of law is used for history lessons, the risk of show trials cannot be far off.’12 To become entangled with such issues can only lead to ‘poor justice or poor history, probably both.’13 To the extent that international criminal courts render historical narratives in the process of determining the culpability of the accused, these histories should be considered unavoidable byproducts or incidental consequences of carrying out their primary adjudicative function.14 As former president of the International Criminal Tribunal for Rwanda (ICTR), Judge Dennis Byron, once argued, since ‘the purpose of a criminal trial is to establish individual guilt, not to establish the historical truth about the conflicts,’ the ICTR should only establish ‘a factual record of the genocide and the atrocities to the extent that they are the framework of findings on individual criminal responsibility.’15 In terms of the content of the historical narratives constructed within international criminal courts, the adjudicative conception of justice advocates a strict subordination of the pursuit of historical truth to the demands of desert-based constraints designed to safeguard the accused from arbitrary prosecution or punishment.16 In the international criminal context, these constraints are given expression in the form of the liberal criminal law principles of legality, culpability and fairness,17 rooted in domestic criminal justice systems and international human rights law.18 According to the adjudicative perspective, to construct history within international criminal courts without sufficient regard for these principled constraints would risk international criminal trials becoming nothing more than instrumentalized tools to obtain certain or near-certain convictions of accused individuals.19 Sociopolitical Conceptions of the Historical Function of International Criminal Courts While the adjudicative conception of justice has found favour with many scholars and practitioners,20 others argue that focusing international criminal trials narrowly on their adjudicative function represents an overly restrictive view of justice.21 Relying instead on sociopolitical conceptions of justice, these scholars and practitioners believe that international criminal courts should be seen not simply as procedural devices for determining individual culpability, but as didactic and therapeutic mechanisms for achieving a range of broader sociopolitical objectives. Whereas the adjudicative perspective views the accused as the primary audience of international criminal courts, sociopolitical perspectives are also concerned, to a far greater degree, with audiences beyond the courtroom. Importantly, it should not be thought that sociopolitical conceptions of justice encompass only one position. In fact, there exists significant dissensus between adherents to sociopolitical perspectives concerning which nonadjudicative goals should legitimately fall within the mandate of international criminal courts, how such goals should be prioritized, and how international criminal proceedings should be designed to ensure their fulfilment.22 Nonetheless, adherents to sociopolitical perspectives share the view that at least some sociopolitical objectives may legitimately fall within the mandates of international criminal courts. In terms of the scope of the historical inquiries facilitated by international criminal courts, adherents to sociopolitical conceptions of justice tend to favour broadening the historical parameters of international criminal trials beyond what is strictly required to determine the culpability of the accused on trial based on the perceived instrumental value of historical narratives for achieving a range of sociopolitical objectives, including: deterring future atrocities by shrinking the space for denial and serving as a warning sign for future generations;23 healing the psychological wounds of victims by delivering authoritative narratives to victims whilst authorizing truth telling by victims;24 and reconciling divided communities by enabling civil dissensus to emerge over the rival historical accounts presented at trial.25 Osiel, for example, argues that to maximize the capacity of criminal courts to contribute to social solidarity within local communities, judges should allow prosecutors and defence counsel to paint with a broader brush …, to widen the spatial and temporal frame of courtroom storytelling in ways that allow litigants to flesh out their competing interpretations of recent history, and to argue these before an attentive public.26 For Osiel, only by enabling a broader degree of historical contestation can the debate within the courtroom resonate with those beyond it.27 In terms of the content of the historical narratives constructed within international criminal courts, it is important to emphasize that those favouring sociopolitical perspectives are not unconcerned with the demands of adjudicative justice. As Lawrence Douglas explains: The notion that a trial can succeed as pedagogy yet fail to do [adjudicative] justice is crucially flawed. To succeed as a didactic spectacle in a democracy, a trial must be justly conducted insofar as one of the principal pedagogic aims of such a proceeding must be to make visible and public the sober authority of the rule of law.28 In other words, one would struggle to find supporters of sociopolitical conceptions of justice who seriously dispute the importance of international criminal courts subordinating the pursuit of historical truth to the demands of safeguarding the rights of the accused through adherence to desert-based constraints. At the same time, it is in the context of articulating what is required by liberal criminal law principles that the distinction between adjudicative and sociopolitical perspectives proves important. In particular, advocates of sociopolitical perspectives have often relied on sociopolitical objectives – such as ensuring justice for victims – to justify the dilution of deontic constraints in practice.29 By relying on looser understandings of liberal criminal law principles, sociopolitical perspectives evince a greater concern for ensuring that international criminal courts are able to render representational justice to the mass atrocity situations examined in their trials and judgments. THE HISTORICAL FUNCTION OF INTERNATIONAL CRIMINAL COURTS IN PRACTICE The preceding analysis revealed how adjudicative and sociopolitical conceptions of justice tend to generate opposing normative preferences concerning the historical function of international criminal courts. In practice, however, these competing perspectives function less as static positions and more as opposing lines of argumentation that can be deployed to support or critique the practices of international criminal courts. To adopt an adjudicative mode of argumentation is to advocate a more forensic understanding of a court’s historical function – whether by promoting a narrower narrative frame or applying principled constraints in a more restrictive manner. To adopt a sociopolitical mode of argumentation is to advocate a less constrained understanding of a court’s historical function – whether by promoting a broader narrative frame or applying principled constraints in a more diluted manner. The tension between these modes of argumentation flows from the fact that they each reflect a core value underpinning the work of international criminal courts, which are at once expected to render formal justice to the accused whilst rendering representational justice to the mass atrocity situation in the interests of victims and society. In order to understand how these opposing lines of argumentation operate in practice, it is important to recognize that the historical narratives constructed within international criminal courts are a product of the practices of various social actors – including states, prosecutors, defence counsel, judges, civil society groups, victims and scholars – that interact within the field of international criminal justice. In particular, it is possible to distinguish between a number of different categories of practices, including: jurisdictional practices, encompassing the drafting and interpretation of the jurisdictional mandates of international criminal courts, as well as the attendant sources, principles of justice and rules of interpretation that guide these processes in practice; charging practices, encompassing the determination of the scope and definition of the charges in particular cases; and procedural and evidentiary practices, encompassing the definition and contestation of procedural rules and evidentiary standards applied in international criminal proceedings. While the dividing line between these categories is not strict, they offer a useful typology for thinking about how history is constructed in different institutional settings. Importantly, it is through these practices that mass atrocity situations are transformed into a juridical form,30 with the result that certain aspects of such events are acknowledged and foregrounded, whilst other aspects are marginalized and excluded from view. As Larissa van den Herik puts it, international criminal courts filter realities through the use of precise definitions and categories of responsibility including concomitant rules of interpretation guiding their application, as well as through the use of the highest evidentiary standards and other strict rules of procedure.31 To recognize the significance of the practices of social actors to the historical function of international criminal courts is to acknowledge the politics of choice inherent in the construction of historical narratives in judicial contexts. Importantly, it is through the exercise of their agency that these social actors have been confronted by the tension between adjudicative and sociopolitical modes of thought. By reviewing a range of jurisdictional, charging and procedural–evidential practices in different institutional settings, this section seeks to demonstrate how different social actors have navigated this tension in practice, as well as the implications of such practices for the scope and content of the historical narratives constructed within international criminal courts. Jurisdictional Practices The jurisdictional terms on which international criminal courts are established can significantly influence the scope and content of the historical narratives examined in their trials and judgments. In particular, the delimitation and definition of a court’s jurisdictional mandate will generally influence the temporal, territorial, personal and subject-matter orientation of the historical narratives contested in the courtroom. Particularly significant is a court’s subject-matter jurisdiction, encompassing the range and definition of legal categories of crimes, modes of participation and defences through which history is constructed in practice. Importantly, the social actors responsible for drafting and interpreting a court’s substantive legal categories have generally been confronted by a rule of law dilemma, entailing a choice between adopting a more or less adjudicative or sociopolitical understanding of the rule of law.32 To adopt a more adjudicative conception of the rule of law is to rely on a stricter understanding of the principle of legality, one which prioritizes greater protection for the accused against the arbitrary power of states and excessive judicial discretion. To adopt a more sociopolitical conception of the rule of law is to rely on a more diluted understanding of the principle of legality, one which prioritizes enhancing the protection of victims and society against the acts that have been perpetrated against them. Which values are prioritized in any given context will often have implications for the scope and content of the historical narratives constructed within international criminal courts in practice. This may be illustrated by examining how methodological dissensus over the drafting and interpretation of particular categories of crimes, modes of participation and defences has generated narrative dissensus in different institutional contexts. In terms of categories of crime, consider, for example, the war crime of ‘conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities’ in Article 4(c) of the Statute of the Special Court for Sierra Leone (SCSL). During the drafting of the SCSL Statute, the UN secretary-general queried the customary international law status of the crime of enlisting children under the age of 15 years and suggested that Article 4(c) be limited to the ‘abduction and forced recruitment of children under the age of 15 years into armed forces or groups for the purpose of using them to participate actively in hostilities.’33 The Security Council disagreed and drafted Article 4(c) of the SCSL Statute in near-identical terms to Article 8(e)(vii) of the International Criminal Court (ICC) Statute, which includes the crime of enlistment.34 This division of opinion was replicated when the SCSL Appeals Chamber came to examine the status of Article 4(c) under customary international law. Whilst clothing their analysis in a positivist garb,35 the majority of the Appeals Chamber seemed to structurally conflate the illegality of the prohibition of enlistment under international humanitarian law with its criminality under international criminal law based on the perceived immorality of the conduct in question.36 In dissent, Judge Geoffrey Robertson offered a stirring critique of the majority’s reasoning, highlighting the dearth of evidence to support the claim that a majority of states had expressly criminalized or prosecuted child enlistment prior to November 1996 and emphasizing that ‘abhorrence alone does not make that conduct a crime in international law.’37 Importantly, this methodological dissensus generated narrative dissensus between the judges over whether the determination of criminal responsibility for acts of enlistment fell within the SCSL’s narrative frame. Methodological dissensus has also been identifiable with respect to modes of participation. Consider, for example, the division of judicial opinion that emerged at the ICC concerning indirect co-perpetration. In Katanga and Ngudjolo, the Pre-Trial Chamber supported the combination of co-perpetration and indirect perpetration by arguing that there are no legal grounds for limiting the joint commission of the crime solely to cases in which the perpetrators execute a portion of the crime by exercising direct control over it.38 In particular, the Chamber noted that the ‘or’ between ‘jointly with another, or through another person’ in Article 25(3)(a) of the ICC Statute was sufficiently open-texted that it could be interpreted to refer to an ‘inclusive disjunctive,’ understood to mean ‘either one or the other, and possibly both.’39 Moreover, adopting a purposive tone, the Pre-Trial Chamber explained that the combination of co-perpetration and indirect perpetration would enable the court ‘to assess the blameworthiness of “senior leaders” adequately.’40 In advancing this position, the Pre-Trial Chamber adopted an interpretation designed to ensure that defendants would not ‘fall into the cracks in between co-perpetration and indirect perpetration.’41 By contrast, Judge Christine Van den Wyngaert subsequently argued that the Pre-Trial Chamber’s interpretation was ‘unconvincing.’42 Van den Wyngaert was not opposed to a junta model of indirect co-perpetration that would hold A and B jointly responsible for C’s behaviour in a situation where A and B committed a crime through C by jointly subjugating the latter’s will.43 However, such a scenario was to be contrasted with that confronted in the case of Katanga and Ngudjolo where the two defendants each allegedly had control over separate sets of subordinates and agreed to join forces to carry out a criminal action. According to Van den Wyngaert, to convict the defendants pursuant to indirect co-perpetration under this latter scenario would constitute ‘a radical expansion’ of Article 25(3)(a) amounting to ‘a totally new mode of liability.’44 In particular, Van den Wyngaert emphasized that the ‘fight against impunity’ could not be used as the basis for a teleological interpretation ‘to fill perceived gaps in the available arsenal of forms of criminal responsibility.’45 Rather, Van den Wyngaert attached ‘the greatest importance’ to the principle of legality, including the principles of strict construction and in dubio pro reo, and expressed doubt as to whether anyone (inside or outside the DRC [Democratic Republic of the Congo]) could have known, prior to the Pre-Trial Chamber’s first interpretations of Article 25(3)(a), that this article contained such an elaborate and peculiar form of criminal responsibility as the theory of ‘indirect co-perpetration.’46 With this in mind, Van den Wyngaert urged her fellow judges at the ICC to move away from attempting to formulate a mode of criminal responsibility that, in narrative terms, ‘is tailored towards “masterminds” and “intellectual authors”.’47 Finally, methodological dissensus has also arisen with respect to defences. Consider, in this regard, the division of judicial opinion that arose in the ICTY case of Erdemović over whether the defence of duress applies to crimes involving the killing of innocent persons.48 The case involved a member of the Bosnian Serb Army who, faced with the choice to kill captive civilians or be killed for refusing to obey the order, opted to kill around 70 innocent persons at Branjevo collective farm close to the city of Srebrenica. In considering the defence of duress, the majority rejected its application by relying on a victim-focused teleological interpretation which emphasized the importance of halting and effectively redressing violations of international humanitarian law.49 By contrast, Judge Antonio Cassese in the minority accepted the potential application of duress to cases involving the killing of innocent persons by emphasizing, inter alia, the maxim in dubio pro reo, pursuant to which ambiguities in the law should be resolved in favour of the defendant.50 Again, the acceptance of the majority’s methodological perspective over the minority’s had important implications for the historical narrative ultimately constructed in the case. As Rosa Brooks explains, whereas the majority depicted Dražen Erdemović’s story as ‘a narrative about choice,’ the defendant’s crime amounting to ‘his repeated failure to take a real stand, to insist on loyalty to any one group or idea,’ Cassese was at least open to the possibility of viewing Erdemović’s story as ‘a narrative about inevitability and determinism’ involving ‘an ordinary man who one day simply found himself in an untenable situation.’51 As these examples illustrate, whether drafters and judges prioritize more or less adjudicative or sociopolitical conceptions of the rule of law can have important implications not only for the recognition and definition of legal categories, but also for the narratives constructed in relation to them.52 Charging Practices The charges in any given case – encompassing a factual description of the crimes and a legal characterization of the facts – also significantly influence the scope and content of the historical narratives examined in the trials and judgments of international criminal courts. Importantly, in international criminal proceedings, charges serve two primary purposes.53 First, the charges provide the accused with notice of the case against him so that he can develop an appropriate defence strategy. And second, the charges provide the basis for the prosecution’s case against the accused and therefore for the trial itself. As Van den Wyngaert explains, ‘charges are more than a list of atomic facts and a corresponding list of legal elements,’ but instead allege the existence of specific relations between different facts and construct a particular narrative on the basis of which, if true, would cover all the legal elements of the charges with which it corresponds.54 With this in mind, the historical narratives constructed within international criminal courts will often depend to a significant extent on the scope of the charges, where scope may be understood to encompass two dimensions:55 first, the factual scope of the charges, encompassing the number of persons and crimes charged, as well as the number and range of incidents that fall within the charges; and second, the narrative framing of the charges, encompassing the breadth of the narrative relied upon to attribute criminal responsibility for the crimes charged to the accused. In international criminal courts, it is the prosecutor who has generally been entrusted with the primary authority to determine the factual scope of the charges. Importantly, in exercising their discretion, international prosecutors have been confronted by a choice between adopting a more or less adjudicative or sociopolitical approach to determining the factual scope of the charges. To follow a more adjudicative mode of thought is to adopt a more streamlined approach to defining the charges – a narrower set of charges generally serving to enhance the fairness of the proceedings towards the accused. To follow a more sociopolitical mode of thought is to adopt a more expansive approach to defining the charges – a broader set of charges generally serving to respond to the interests of victims and society. Consider, for example, the factual scope of the charges in the initial indictments at the ICTY and ICTR, whose early charging practices were characterized by a prosecutorial preference for broad indictments that extended over long periods of time and broad geographical areas with numerous incidents and large numbers of victims and perpetrators.56 One of the most ambitious examples of this preference was the ICTR prosecutor’s failed attempt to present a comprehensive indictment against 29 individuals on the basis of new evidence that had arisen concerning the crime of conspiracy to commit genocide.57 Although that attempt was ultimately rejected by the ICTR Appeals Chamber,58 the ICTR prosecutor was subsequently able to bring several indictments grouped according to theme – such as the Military cases, the Government cases and the Media case – or region, such as the Butare case. At the ICTY, the indictment strategy deployed with respect to Slobodan Milošević is also illustrative. In that case, then-ICTY prosecutor Carla Del Ponte decided to apply for the joinder of the three indictments that had been issued against Milošević concerning international crimes that had allegedly been committed in Kosovo, Croatia, and Bosnia and Herzegovina.59 As several commentators have observed,60 Del Ponte appeared to have been motivated by a desire to construct a comprehensive historical narrative concerning the role played by Milošević in the entire conflict. Del Ponte argued that Milošević had been involved in a single ‘transaction’ or common scheme to create a ‘Greater Serbia’ that warranted the joinder of the three indictments.61 Although the ICTY Trial Chamber initially only permitted the joinder of the Croatia and Bosnia and Herzegovina indictments,62 the prosecutor’s argument was successful on appeal and all three indictments were eventually joined together to form a single trial.63 As a result, the final indictment against Milošević comprised 66 counts, each encompassing multiple alleged criminal acts and crime scenes, spanning three broad geographical areas over a 10-year period.64 To give an indication of the complexity of the charges in the case, Gillian Higgins observes that one count of deportation in Kosovo encompassed allegations that the accused was responsible for this particular crime ‘in at least sixty-four different locations within thirteen municipalities, pursuant to eight different forms of conduct.’65 These strategies reflect the prioritization of a more sociopolitical approach to defining the factual scope of the charges – ambitiously striving to develop a more comprehensive historical picture of the conflicts under examination but at the risk of generating unwieldy indictments that render trials unmanageable within a reasonable timeframe.66 Indeed, the dangers of this approach were ultimately brought home in the death of Milošević prior to a verdict being delivered in his case.67 At the opposite end of the spectrum are the charging practices of the ICC prosecutor, which have often been narrowly focused on a limited number of crimes and a small number of incidents. In Katanga and Ngudjolo, for example, the prosecutor brought 13 counts of war crimes and crimes against humanity, all of which focused on a single incident on 24 February 2003 in Bogoro, Ituri.68 The charges brought in Gbagbo and Blé Goudé with respect to the situation in Côte d’Ivoire provide a more recent illustration. In Gbagbo, the accused faces four charges of committing the crimes against humanity of murder, rape, other inhumane acts and persecution in relation to four sets of incidents,69 while in Blé Goudé, the accused faces the same charges in relation to five sets of incidents.70 These more streamlined charges reflect the prioritization of a more adjudicative approach to defining the factual scope of the charges – emphasis being placed on making trials more manageable but at the risk of inadequately representing the full extent of the criminality and main types of victimization that occurred in a given situation. The charges in Gbagbo and Blé Goudé, for example, are notable for their exclusive focus on incidents in Abidjan, notwithstanding the fact that the ICC prosecutor – in earlier applications before the court – had relied on allegations of international crimes committed by pro-Laurent Gbagbo forces in a number of localities in the western part of Côte d’Ivoire.71 Highlighting this omission, Human Rights Watch argues that the limited geographical scope of the charges in these cases has generated a narrative frame that fails to ‘adequately represent the scope of crimes committed by Gbagbo-allied forces.’72 The tension between adjudicative and sociopolitical conceptions of justice has been less pronounced in the context of defining the narrative framing of the charges. In his insightful study of the construction of history in international criminal trials, Richard Wilson identifies a shift in prosecutorial strategy at the ICTY away from attempting to construct ‘a grand, sweeping metanarrative of history’ in earlier cases towards ‘a more conventional crime-based methodology based on documents and fact-witness testimony, an approach with less exalted intellectual ambitions perhaps but also less risk of malfunctioning.’73 Interestingly, Wilson reveals how both strategies were guided by adjudicative concerns. The prosecution’s construction of a grand monumental history of the Balkans in the Milošević trial, for example, represented an attempt to build an inferential case to prove the specific intent of genocide.74 When it became clear in the case of Brđanin that broad monumental narratives would not generally assist in proving genocidal intent, prosecutors turned to ‘a new formula’ that entailed bringing together internal and external expert witnesses who ‘presented complementary micro-histories and … composed a narrative arc that gave order and unity to the disparate documents and items of evidence in the case.’75 The evolution of the ICTY prosecutor’s narrative framing strategy is significant because it reveals how a broader degree of historical contextualization has sometimes been relied upon in response to the adjudicative concerns of proving the collective legal elements of international crimes and modes of participation.76 At the same time, the shift in strategy also reveals that prosecutors will often be confronted by a choice between limiting their inquiries into the larger context to the very minimum required or committing to a broader exposition of the larger picture – with the latter strategy entailing a heightened risk of historical contextualization dwarfing the subject of individual culpability.77 Procedural and Evidentiary Practices International criminal proceedings are governed by rules of procedure and evidence,78 which serve to transform international criminal courts into processes of ‘rule-governed storytelling.’79 These rules govern a broad range of matters pertinent to the construction of history within international criminal courts, including the admissibility of evidence, the structure and conduct of the proceedings, the participation of victims, as well as standards and burdens of proof. Although the tension between adjudicative and sociopolitical modes of thinking has pervaded several types of procedural and evidentiary practices, this section examines the tension in the context of judicial determinations of the extent to which charges may be amended and facts described in the charges legally recharacterized within international criminal proceedings. With respect to the amendment of charges, the jurisprudence of the UN ad hoc tribunals is illustrative, reflecting a tension between allowing prosecutors flexibility to make changes to indictments in the interest of closing accountability gaps on the one hand and ensuring the right of the accused to a fair trial on the other. Importantly, while prior to its confirmation an indictment before the ad hoc tribunals could be amended at any time, subsequent to confirmation judicial permission was required. In the latter scenario, the jurisprudence of the ad hoc tribunals clarified that an amendment had to satisfy two conditions, namely it must not result in unfair prejudice to the accused when viewed in light of the circumstances as a whole; and if the proposed amendment is material, it must be supported by documentation or other material meeting the prima facie standard [for the confirmation of charges].80 When considering whether a given amendment would have caused unfair prejudice to the accused, two factors proved to be of particular importance: first, the amendment was required not to deprive the accused of an adequate opportunity to prepare an effective defence; and second, the amendment was required not to adversely affect the accused’s right to be tried without undue delay. While there was no formal time limit within which the prosecutor was required to file a motion to amend the charges – and the prosecutor could even do so after a trial had begun – the stage of the proceedings was generally taken into account in determining whether the amendment would cause unfair prejudice to the accused.81 How this test was applied in the context of particular cases hinged on the precise balance struck between the sociopolitical concern for affording the prosecutor flexibility to amend the charges and the adjudicative concern for upholding the fair trial rights of the accused. This may be illustrated by comparing two cases concerning charges of rape and other forms of sexual violence at the ICTR and SCSL. In the case of Akayesu, a few months after the trial had begun, the ICTR prosecutor requested leave to amend the indictment to include three new counts relating to various acts of rape and other forms of sexual violence.82 The prosecutor’s request was triggered by the spontaneous testimonies of two victim-witnesses concerning their experiences of sexual violence, as well as the questioning of the victims by the judges and the advocacy of the Coalition for Women’s Human Rights in Conflict Situations.83 In its decision on the amendment of the charges, taking due note of the fair trial rights of the accused, the Trial Chamber granted the prosecutor’s motion.84 By contrast, in the case of Norman et al., although the SCSL prosecutor requested leave to amend the indictment four months prior to the start of trial so as to add four new counts of rape and other forms of sexual violence,85 a majority of the Trial Chamber rejected the prosecutor’s request.86 According to the majority, it was unacceptable that the relevant evidence had been available to the prosecutor since June 2003 whereas the request for leave to amend the indictment had only been submitted in February 2004.87 At trial, the prosecutor was subsequently denied, by the same majority of the Trial Chamber, the opportunity to introduce evidence of sexual and gender-based violence concerning the charges of inhumane acts as a crime against humanity and cruel treatment as a war crime, which had already been included in the indictment.88 As a result, acts of rape and other forms of sexual violence allegedly committed by the Civil Defence Forces against women and girls were excluded from consideration.89 Turning to the legal recharacterization of facts, the jurisprudence of the ICC is illustrative. Given the limited option to amend charges after the confirmation hearing at the ICC,90 contestation has focused on the application of Regulation 55 of the regulations of the court, which governs the legal recharacterization of facts described in the charges. Regulation 55 serves a dual purpose:91 on the one hand, to incentivize more specific charges that enable more focused trials; and on the other, to reduce impunity gaps that may arise from an erroneous legal characterization of facts. Importantly, however, changing the legal characterization of facts is only permissible so long as it does not render the trial unfair for the accused. With this in mind, while not the only tension identifiable within Regulation 55 decisions rendered to date,92 the tension between adjudicative and sociopolitical justice has loomed large.93 Consider, for example, the use of Regulation 55 by the ICC Trial Chamber in the case of Katanga. Initially on trial with Mathieu Ngudjolo Chui, Germain Katanga was charged as an indirect co-perpetrator pursuant to Article 25(3)(a) of the ICC Statute. Six months into the deliberations of the judges – and nine months after the closure of the presentation of evidence – a majority of the Trial Chamber issued a decision to sever the charges against the two defendants and notified the parties of its intention to consider the criminal responsibility of Katanga not only as an indirect co-perpetrator but also on the basis of common purpose liability under Article 25(3)(d)(ii). Over a year later, Katanga was convicted by a majority of the Trial Chamber on the basis of the new mode of participation. The majority’s decision to change the legal characterization of facts in Katanga represented a clear prioritization of the sociopolitical concern for ensuring the closure of accountability gaps.94 As Elinor Fry observes, ‘One is left with the creeping suspicion that the case against Katanga was artificially moulded to reach a conviction.’95 The problematic nature of the decision was comprehensively discussed by Van den Wyngaert in her dissent, whose approach was much more firmly rooted in adjudicative concerns for the fair trial rights of the accused. According to Van den Wyngaert, the majority’s Regulation 55 decision went ‘well beyond any reasonable application of the provision and fundamentally encroaches upon the accused’s right to a fair trial.’96 Problematic aspects of the decision from an adjudicative perspective included the fact that: the majority had profoundly undermined the defence’s entire trial strategy by fundamentally changing the narrative of the charges – transforming Katanga from a leader with almost absolute control over a hierarchical group into an accomplice supporting the criminal common purpose of an unidentified section of his former subordinates;97 Regulation 55 was triggered at the end of the deliberation stage of the proceedings, which risked creating a perception of judicial partiality – in particular by allowing ‘the unpalatable suspicion’ to arise that the Chamber was intervening to ensure the conviction of the defendant;98 the recharacterization decision was ‘entirely unforeseeable to the defence’ and ‘rendered at a point in the proceedings when the defence is unable to effectively respond to it’;99 the majority relied upon Katanga’s own testimony to justify its recharacterization and ultimately to help convict him, thereby transforming his ‘perfectly legitimate defence against the confirmed charges into a major point of self-incrimination under a different form of criminal responsibility’;100 and the recharacterization would lead to an unfair delay in the proceedings, the ultimate length of which came close to two-thirds of the defendant’s final sentence.101 Importantly, the division of judicial opinion in Katanga over the application of Regulation 55 had significant narrative implications, with the majority’s decision enabling the construction of a historical narrative in which Katanga was convicted on the basis of common purpose liability. CONCLUSION By examining a tension that lies at the heart of the field of international criminal justice, this article has sought to gain a deeper understanding of the politics of choice inherent in the construction of historical narratives within international criminal courts. Importantly, the tension between adjudicative and sociopolitical conceptions of justice constitutes just one of many ‘anxieties’ or ‘fault lines’ that underpin the work of international criminal courts.102 To take another well-known example, international prosecutors have been confronted by a tension between challenging and accommodating state power in determining the selection and prioritization of cases before international criminal courts. How international prosecutors navigate this tension through the exercise of their discretion in practice can have significant implications for the historical narratives to emerge from the courtroom – the production of one-sided historical narratives as a result of the ICC prosecutor’s group-based selectivity within several situations at the ICC being a prominent example.103 By examining the tensions of international criminal justice, it is possible to gain an insight into the contingency of the historical narratives constructed within international criminal courts – and in particular, how history may have been constructed otherwise. In turn, such examinations can also reveal the structural biases of international criminal courts – for example, the tendency of judges and prosecutors to develop de facto preferences for more or less adjudicative or sociopolitical modes of thought with respect to their jurisdictional, charging and procedural–evidentiary practices.104 To some extent, the tension between adjudicative and sociopolitical justice is inescapable, constituting a prime example of what Darryl Robinson recently referred to as an ‘inescapable dyad’ in the discourse of international criminal justice.105 From a dyadic perspective, the adjudicative and sociopolitical conceptions of justice constitute opposing poles of critique that can be deployed against the particular positions of social actors that participate in the field of international criminal justice. An adjudicative critique is that one is adopting an overly forensic understanding of a court’s historical function – whether by adopting an overly narrow narrative frame or applying principled constraints in an overly restrictive manner. A sociopolitical critique is that one is over-engineering a trial to manufacture representational outcomes aligned with the interests of victims and society – whether by adopting an overly broad narrative frame or interpreting principled constraints in an overly diluted manner. The inescapability of these critiques flows from the contradictory assignments of international criminal courts,106 which are at once expected to act as criminal courts rendering justice to the accused and transitional justice mechanisms responding to the needs of victims and society.107 At the same time, to recognize the inescapable contestability of the historical function of international criminal courts should not commit one to ‘pure agnosticism or ceasing the search for “better” ways,’ but rather to an acknowledgement that ‘the interesting conversation is not just to show that some particular choice is flawed, because they all are; it is to discuss how to choose among the flawed options.’108 Although it is not possible within the confines of this article to offer a detailed account of how to advance the conversation concerning the historical function of international criminal courts, a few remarks may be offered in closing. An important starting point is to recognize that international criminal courts are criminal courts with the power to punish individuals. As such, they possess a retributive core which requires adherence to the demands of adjudicative justice. As Robinson argues, to neglect the principled constraints of adjudicative justice would be to risk ‘using the accused as an object in a didactic exercise rather than respecting autonomy and fairness.’109 At the same time, to have no regard for sociopolitical concerns would also generate undesirable outcomes. Imagine, for example, if Milošević had been prosecuted for only a fraction of the crimes whose commission he was alleged to have participated in – for example, only crimes committed in Kosovo to the neglect of crimes committed elsewhere. As Frédéric Mégret argues, such an example makes clear that ‘an exclusive focus on purely forensic justice risks sacrificing the point of the noun for the sake of the adjective.’110 Against this background, one avenue to advance the conversation would be to identify what Robinson has referred to as a ‘zone of permission,’ within which practices must fall to comply with the principled constraints of adjudicative justice.111 To recognize the existence of a ‘zone’ is to accept that there is a range of more or less liberal options for implementing the fair trial rights of the accused – a notion that is manifested in the well-known ‘margin of appreciation’ doctrine at the European Court of Human Rights.112 So long as practices remain within the outer limits of this zone of permission, social actors could determine the extent to which the principled constraints of adjudicative justice should be adapted or diluted to meet sociopolitical concerns in any given context. In making this assessment, social actors could take into account a range of contextual factors, including: the nature and scale of the atrocities under examination; the nature, powers and objectives of the international criminal court in question; the interests of the victims of the atrocities within the situation; and the availability and relative benefits of other transitional justice mechanisms in meeting particular sociopolitical concerns. Following this approach, it might be argued, for example, that prosecutors should be afforded greater flexibility to amend charges during trial to include acts of sexual violence given the difficulties encountered investigating such crimes and the tendency for evidence to only arise during hearings in connection with other crimes – provided, of course, sufficient safeguards are in place to ensure that such an approach meets the outer limits of permissibility of adjudicative justice.113 As Mirjan Damaška argues in the context of evaluating the procedural–evidentiary arrangements of international criminal courts more generally: In short, some departures by international criminal tribunals from domestic standards of fairness can be justified, given their sui generis goals, the complexity and the atrocity of crimes they process, and the innate weaknesses of these tribunals. And while it is true that only the defendant has the right to fair trial, the determination of what this right entails does not exclude consideration of the needs generated by the distinctive environment of international criminal justice, including consideration of the interest of other procedural participants affected by this environment … [so long as any dilution in standards of fairness does not] go beyond minimum requirements of internationally recognized fair trial demands.114 Importantly, while such an approach would not enable actors to fully escape the dyadic tension between adjudicative and sociopolitical conceptions of justice, it would assist in advancing the conversation concerning what should legitimately be expected of international criminal courts in particular contexts in terms of the scope and content of their historical narratives, whilst enabling their practices to be evaluated and critiqued in a more textured manner.115 Footnotes ∞This article is based on research conducted as part of the author’s PhD at the Graduate Institute of International and Development Studies. The author would like to thank Professor Andrea Bianchi for his support. All errors remain the author’s own. 1 Richard J. Evans, ‘History, Memory, and the Law: The Historian as Expert Witness,’ History and Theory 41(3) (2002): 326–345. 2 Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick, NJ: Transaction Publishers, 1997), 241 (emphasis added). 3 Barrie Sander and Jakob v.H. Holtermann, ‘Symposium: Doing Justice to Truth in International Criminal Courts and Tribunals,’ Humanity Journal, 3 July 2017, http://humanityjournal.org/blog/symposium-doing-justice-to-truth-in-international-criminal-courts-and-tribunals/ (accessed 24 April 2018). 4 See, Louise Arbour, War Crimes and the Culture of Peace (Toronto: University of Toronto Press, 2002). 5 ‘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,’ UN Docs. A/53/219 and S/1998/737 (1998), 296 (emphasis added). 6 Patricia M. Wald, ‘Foreword: War Tales and War Trials,’ Michigan Law Review 106(6) (2008): 911. 7 Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, ICTY, Trial Chamber, Decision on the Accused’s Holbrooke Agreement Motion (8 July 2009), 46. 8 Prosecutor v. Krstić, Case No. IT-98-33-T, ICTY, Trial Chamber, Judgment (2 August 2001), 2. 9 On the contestability of justice, see generally, Michael J. Coyle, Talking Criminal Justice: Language and the Just Society (New York: Routledge, 2013). 10 Jenia I. Turner, ‘Defense Perspectives on Law and Politics in International Criminal Trials,’ Virginia Journal of International Law 48(3) (2008): 531. 11 See, Darryl Robinson, ‘International Criminal Law as Justice,’ Journal of International Criminal Justice 11(3) (2013): 699–711. 12 Ian Buruma, Wages of Guilt: Memories of War in Germany and Japan (London: Atlantic Books, 2009), 142. 13 Osiel, supra n 2 at 80, describing this as the ‘prevailing opinion’ concerning attempts to combine justice and history. 14 See, e.g., Nigel Eltringham, ‘“We Are Not a Truth Commission”: Fragmented Narratives and the Historical Record at the International Criminal Tribunal for Rwanda,’ Journal of Genocide Research 11(1) (2009): 57, observing, on the basis of a series of interviews conducted at the ICTR, that while judges tend to concede that international criminal trials lead to the production of historical records, they also insist that such records are ‘unintentional.’ 15 In Björn Elberling, The Defendant in International Criminal Proceedings: Between Law and Historiography (Oxford: Hart Publishing, 2012), 201. 16 See, Barrie Sander, ‘The Expressive Limits of International Criminal Justice: Victim Trauma and Local Culture in the Iron Cage of the Law,’ European Society of International Law Conference Paper Series 5 (2015), 18, discussing the ‘retributive core’ of international criminal courts. 17 See generally, Kai Ambos, Treatise on International Criminal Law: Volume I: Foundations and General Part (Oxford: Oxford University Press, 2013). 18 Jens D. Ohlin, ‘LJIL Symposium: Where to Find the Liberal Principles of Criminal Law,’ Opinio Juris, 10 April 2013. 19 Darryl Robinson, ‘The Identity Crisis of International Criminal Law,’ Leiden Journal of International Law 21(4) (2008): 925–963. 20 Richard A. Wilson, Writing History in International Criminal Trials (Cambridge: Cambridge University Press, 2011). 21 See, e.g., Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven, CT: Yale University Press, 2001). 22 See, Carsten Stahn, ‘Between “Faith” and “Facts”: By What Standards Should We Assess International Criminal Justice?’ Leiden Journal of International Law 25(2) (2012): 251–282. 23 Diane F. Orentlicher, Shrinking the Space for Denial: The Impact of the ICTY in Serbia (New York: Open Society Justice Initiative, 2008). 24 Sofia Stolk, ‘The Victim, the International Criminal Court and the Search for Truth: On the Interdependence and Incompatibility of Truths about Mass Atrocity,’ Journal of International Criminal Justice 13(5) (2015): 973–994. 25 Osiel, supra n 2. For the application of Osiel’s theory to international criminal courts, see, Mirjan Damaška, ‘The International Criminal Court between Aspiration and Achievement,’ UCLA Journal of International Law and Foreign Affairs 14(1) (2009): 19–35; José E. Álvarez, ‘Rush to Closure: Lessons of the Tadić Judgment,’ Michigan Law Review 96 (1997–1998): 2031–2112. 26 Osiel, supra n 2 at 296. 27 Ibid. 28 Douglas, supra n 21 at 3. 29 See, e.g., Stuart Ford, ‘Fairness and Politics at the ICTY: Evidence from the Indictments,’ North Carolina Journal of International Law and Commercial Regulation 39(1) (2013): 57: ‘as trials become more and more political, they inevitably become less fair, because the focus shifts from a determination of guilt through fair procedures to concerns about the consequences of the trial’; Turner, supra n 10 at 537: ‘The further a trial strays from its focus on the adjudicative function, the more likely it is to disregard the defendant’s rights in pursuit of non-legal purposes.’ 30 See, Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field,’ trans. Richard Terdiman, Hastings Law Journal 38(5) (1987): 805–853; James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago, IL: University of Chicago Press, 1990). 31 Larissa van den Herik, ‘International Criminal Law as a Spotlight and Black Holes as Constituents of Legacy,’ AJIL Unbound 110 (2016): 210. 32 For an examination of the rule of law dilemma in the context of domestic atrocity trials, see, Barrie Sander, ‘Justice as Identity: Unveiling the Mechanics of Legitimation in Domestic Atrocity Trials,’ Journal of International Criminal Justice (forthcoming, 2018), https://doi.org/10.1093/jicj/mqy015. 33 ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone,’ UN Doc. S/2000/915 (4 October 2000), 17–18. 34 See, ‘Letter Dated 22 December 2000 from the President of the Security Council to the Secretary-General,’ UN Doc. S/2000/1234 (22 December 2000), 2, disagreeing with the secretary-general and proposing that Article 4(c) of the draft Statute be altered ‘so as to conform it to the statement of the law existing in 1996 and as currently accepted by the international community’; ‘Letter Dated 12 January 2001 from the Secretary-General Addressed to the President of the Security Council,’ UN Doc. S/2001/40 (12 January 2001), accepting the Security Council’s proposal without comment. 35 This turn of phrase is drawn from Robert Cryer, ‘The Philosophy of International Criminal Law,’ in Research Handbook on the Theory and History of International Law, ed. Alexander Orakhelashvili (Cheltenham: Edward Elgar, 2011). 36 See, Prosecutor v. Norman et al., Case No. SCSL-2004-14-AR72(E), SCSL, Appeals Chamber, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) (31 May 2004), 28–29, in which the majority relies on the fact that the prohibition of child recruitment – including enlistment – reflects ‘important values.’ 37 Ibid., Dissenting Opinion of Justice Robertson (31 May 2004), 5–6, 9, 22 and 31–33. 38 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07-717, ICC, Pre-Trial Chamber, Decision on Confirmation of Charges (30 September 2008), 492. 39 Ibid., 491. 40 Ibid., 492. 41 Jens D. Ohlin, ‘Organizational Criminality,’ in Pluralism in International Criminal Law, ed. Elies van Sliedregt and Sergey Vasiliev (London: Oxford University Press, 2014), 114. 42 Prosecutor v. Mathieu Ngudjolo Chui, Case No. ICC-01/-4-02/12, ICC, Trial Chamber, Judgment pursuant to Article 74 of the Statute, Concurring Opinion of Judge Van den Wyngaert (18 December 2012), 60. 43 Ibid. 44 Ibid., 61. 45 Ibid., 16. 46 Ibid., 18–20. 47 Ibid., 70. 48 For a detailed discussion of the methodological dissensus within the Erdemović case, see, Barrie Sander, ‘The Method Is the Message: Law, Narrative Authority, and Historical Contestation in International Criminal Courts,’ Melbourne Journal of International Law (forthcoming, 2018). 49 Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, ICTY, Appeals Chamber, Judgment, Joint Separate Opinion of Judge McDonald and Judge Vohrah (7 October 1997). 50 Ibid., Separate and Dissenting Opinion of Judge Cassese. 51 Rosa E. Brooks, ‘Law in the Heart of Darkness: Atrocity and Duress,’ Virginia Journal of International Law 43(3) (2003): 881. 52 See, Robinson, supra n 19, illuminating the contradictory assumptions and methods of reasoning adopted by judges within international criminal courts. 53 ICTY and UNICRI (UN Interregional Crime and Justice Institute), ICTY Manual on Developed Practices (UNICRI Publisher, 2009). 54 Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07-3436-AnxI, ICC, Trial Chamber II, Judgment Pursuant to Article 74 of the Statute, Minority Opinion of Judge Christine Van den Wyngaert (7 March 2014), 32. 55 I am grateful to one of the anonymous reviewers for pointing me to this distinction. 56 See, Jeffrey Locke, ‘Indictments,’ in International Prosecutors, ed. Luc Reydams, Jan Wouters and Cedric Ryngaert (Oxford: Oxford University Press, 2012); ICTY and UNICRI, supra n 53. 57 See, Prosecutor v. Bagosora and 28 Others, Case No. ICTR-98-37-I, ICTR Trial Judge Khan, Dismissal of Indictment (31 March 1998); Prosecutor v. Bagosora and 28 Others, Case No. ICTR-98-37-A, ICTR, Appeals Chamber, Decision on the Admissibility of the Prosecutor’s Appeals from the Decision of a Confirming Judge Dismissing an Indictment against Théoneste Bagosora and 28 Others (8 June 1998). 58 For a discussion of the legal grounds on which the request was denied, see, Larissa van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law (Leiden: Martinus Nijhoff, 2005). 59 See, Prosecutor v. Slobodan Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73 and IT-01-51-AR73, ICTY, Appeals Chamber, Decision on Prosecution’s Interlocutory Appeal from Refusal to Order Joinder (1 February 2002). 60 See, e.g., William Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (Oxford: Oxford University Press, 2012); Timothy W. Waters, ‘A Kind of Judgment: Searching for Judicial Narratives after Death,’ George Washington International Law Review 42(2) (2010): 279–348. 61 Prosecutor v. Slobodan Milošević, Case Nos. IT-99-37-PT, IT-01-50-PT and IT-01-51-PT, ICTY, Trial Chamber, Decision on Prosecution’s Motion for Joinder (13 December 2001), 16, 42. 62 Ibid. 63 Prosecutor v. Slobodan Milošević, supra n 59. 64 See generally, Gillian Higgins, ‘The Impact of the Size, Scope, and Scale of the Milošević Trial and the Development of Rule 73bis before the ICTY,’ Northwestern Journal of International Human Rights 7 (2009): 239–260. 65 Ibid., 247. 66 ICTY and UNICRI, supra n 53. See, H. Friman, H. Brady, M. Costi, F. Guariglia and C.-F. Stuckenberg, ‘Charges,’ in International Criminal Procedure: Principles and Rules, ed. Goran Sluiter, Håkan Friman, Suzannah Linton, Salvatore Zappala and Sergey Vasiliev (Oxford: Oxford University Press, 2013). 67 See, e.g., Schabas, supra n 60 at 163: ‘Arguably, had the charges against him been more focussed, … at least one set of proceedings might have been completed.’ 68 See, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, supra n 38, confirming 10 of the 13 counts. 69 See, Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/11, ICC, Pre-Trial Chamber, Decision on the Confirmation of Charges against Laurent Gbagbo (12 June 2014), confirming the charges against the accused. 70 See, Prosecutor v. Charles Blé Goudé, Case No. ICC-02/11-02/11-186, ICC, Pre-Trial Chamber, Decision on the Confirmation of Charges against Charles Blé Goudé (11 December 2014), confirming the charges against the accused. 71 Human Rights Watch, Making Justice Count: Lessons from the ICC’s Work in Côte d’Ivoire (August 2015). 72 Ibid., 40. 73 Wilson, supra n 20 at 98, 109. 74 Ibid. See also, Florian Bieber, ‘Do Historians Need a Verdict?’ in The Milošević Trial: An Autopsy, ed. Timothy Waters (Oxford: Oxford University Press, 2014), 350: ‘the rich context presented in the Milošević trial … are in fact indications of weaknesses in the Prosecution’s case. Had the Prosecution possessed clear evidence … these elements of context and background would not have been necessary.’ 75 Wilson, supra n 20 at 134, 219. 76 See, Mirjan Damaška, ‘What Is the Point of International Criminal Justice?’ Chicago-Kent Law Review 83(1) (2008): 336, noting that the nature of international criminality has tended to call for ‘a broader optic in which individual conduct must be assessed in light of activity carried out by organisations or groups in specific settings, sometimes over extended periods of time.’ 77 See, ibid. 78 Rules of procedure and evidence may be spread across a number of different documents of an international criminal court. For example, at the ICC, rules of procedure and evidence can be found in the ICC Statute, the ICC Rules of Procedure and Evidence and the ICC Regulations of the Court, while guidance is also contained in the ICC Chambers Practice Manual. See generally, Yvonne McDermott, ‘The International Criminal Court’s Chambers Practice Manual: Towards a Return to Judicial Law Making in International Criminal Procedure?’ Journal of International Criminal Justice 15(5) (2017): 873–905. 79 Peter Brooks, ‘The Law as Narrative and Rhetoric,’ in Law’s Stories: Narrative and Rhetoric in the Law, ed. Peter Brooks and Paul Gewirtz (New Haven, CT: Yale University Press, 1996), 20. 80 Prosecutor v. Popović et al., Case Nos. IT-05-88-PT and IT-05-88/1-PT, ICTY, Trial Chamber, Decision on Further Amendments and Challenge to the Indictment (13 July 2006), 8. 81 Ibid. 82 Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, ICTR, Trial Chamber, Leave to Amend the Indictment (17 June 1997). 83 See, ibid., Judgment (2 September 1998), para. 417: ‘The Chamber understands that the amendment of the indictment resulted from the spontaneous testimony of sexual violence by Witness J and Witness H during the course of this trial and the subsequent investigation of the Prosecution.’ 84 Prosecutor v. Jean-Paul Akayesu, supra n 82. 85 Prosecutor v. Norman et al., Case No. SCSL-04-14-PT, SCSL, Office of the Prosecution, Prosecution Request to Amend the Indictment (9 February 2004). 86 Prosecutor v. Norman et al., Case No. SCSL-04-14-PT, SCSL, Trial Chamber, Decision on Prosecution Request for Leave to Amend the Indictment (20 May 2004). 87 Ibid. 88 Prosecutor v. Norman et al., Case No. SCSL-04-14-PT, SCSL, Trial Chamber, Reasoned Majority Decision on Prosecution Motion for a Ruling on Admissibility of Evidence (24 May 2005). Although the Appeals Chamber ultimately found this latter decision to have been incorrect since the defects in the indictment concerning acts of sexual violence had subsequently been cured by the prosecutor’s provision of timely and consistent notice to the accused, the judges decided not to reopen the trial judgment. Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-A, SCSL Appeals Chamber, Judgment (28 May 2008). 89 Valerie Oosterveld, ‘Evaluating the Special Court for Sierra Leone’s Gender Jurisprudence,’ in The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law, ed. Charles C. Jalloh (New York: Cambridge University Press, 2014). 90 See Article 61(9) and (11) of the ICC Statute. 91 Carsten Stahn, ‘Justice Delivered or Justice Denied? The Legacy of the Katanga Judgment,’ Journal of International Criminal Justice 12(4) (2014): 809–834. 92 For discussion of a separate tension centred on prosecutorial independence, see, e.g., Kevin J. Heller, ‘“A Stick to Hit the Accused with”: The Legal Recharacterization of Facts under Regulation 55,’ in The Law and Practice of the International Criminal Court, ed. Carsten Stahn (Oxford: Oxford University Press, 2015). 93 For an additional example of the tension, which arose when the legal representatives of the victims sought to rely on Regulation 55 in the Lubanga case, see, Sienna Merope, ‘Recharacterizing the Lubanga Case: Regulation 55 and the Consequences for Gender Justice at the ICC,’ Criminal Law Forum 22(3) (2011): 311–346; Luke Moffett, ‘Meaningful and Effective? Considering Victims’ Interests through Participation at the International Criminal Court,’ Criminal Law Forum 26(2) (2015): 255–289. 94 Prosecutor v. Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, ICC, Trial Chamber, Decision on the Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges against the Accused Persons (21 November 2012). 95 Elinor Fry, ‘Legal Recharacterization and the Materiality of Facts at the International Criminal Court: Which Changes Are Permissible?’ Leiden Journal of International Law 29(2) (2016): 589. 96 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, supra n 94, Dissenting Opinion of Judge Christine Van den Wyngaert (21 November 2012), 1. 97 Ibid. 98 Ibid., 28, 32, 39. 99 Ibid., 36. 100 Ibid., 45–47; Prosecutor v. Germain Katanga, supra n 54 at 58. 101 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, supra n 96. 102 Frédéric Mégret, ‘The Anxieties of International Criminal Justice,’ Leiden Journal of International Law 29(1) (2016): 197–221; Darryl Robinson, ‘Inescapable Dyads: Why the International Criminal Court Cannot Win,’ Leiden Journal of International Law 28(2) (2015): 323–347. 103 See, Asad Kiyani, ‘Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity,’ Journal of International Criminal Justice 14(4) (2016): 939–957. 104 On structural biases, see, Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005). 105 See, Robinson, supra n 102, focusing on the ‘apologia versus utopia’ dyad. 106 Ibid., 330: ‘Each side of the dyad is based in values that can be credibly regarded as values underlying international criminal justice. The ICC has a contradictory assignment. … It is always possible to berate it for breaching one of its contradictory expectations’ (emphasis in original). 107 See, Frédéric Mégret, ‘Joinder, Fairness, and the Goals of International Criminal Justice,’ in The Milošević Trial: An Autopsy, ed. Timothy Waters (Oxford: Oxford University Press, 2014), 128: ‘the constant tension between a strict forensic understanding of their mandate and one more geared toward transitional justice has yielded one of the most productive dynamics in the international tribunals’ history.’ 108 Robinson, supra n 102 at 346–347. 109 Robinson, supra n 19 at 931. 110 Mégret, supra n 107 at 129. 111 Robinson, supra n 11 at 701. 112 Mirjan Damaška, ‘The Competing Visions of Fairness: The Basic Choice for International Criminal Tribunals,’ North Carolina Journal of International Law and Commercial Regulation 36(2) (2011): 365–387. 113 For an argument to this effect, but with respect to the legal recharacterization of facts pursuant to Regulation 55 at the ICC, see, Merope, supra n 93. 114 Damaška, supra n 112 at 379–381. See similarly, Robinson, supra n 11 at 701: ‘Where we breach a deontic commitment to the individual, we are treating him or her unjustly. Conversely, where we overstate a fundamental principle – where we are too conservative in our criminal doctrines out of deference to an incorrectly broadly construed principle – we are sacrificing utility for no reason. It is “bad policy”. We are failing to fulfil the aim of the system.’ 115 Robinson, supra n 102. © The Author(s) (2018). Published by Oxford University Press. All rights reserved. For permissions, please email journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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