Archiving (In)justice: Building Archives and Imagining Community

Archives as Governance

Archives have always been linked to questions of governance. ⁵ The word ‘archive’ first appeared in relation to the archons (the magistrates) of ancient Greece: the archon’s house (the archive, or arkeion) was the place where records were kept, separated from the rest of society. The magistrate was given the responsibility and authority to protect and interpret the records and therefore create law. ⁶ Thus at the very birth of the archive a clear link is visible between archives, law and governance. The archive, as Derrida notes, functioned as a site of commencement; as an ontology and history were created as real; and commandment, as the law was created and then declared so. ⁷

This link between archives and governance continued into the 18th century, where archives helped render populations governable, and produced identities and norms of the individual, collective and nation. ⁸ One of the questions troubling the modern European state at this moment was how to control an ever-growing population in an increasingly connected yet secular society – where a sovereign’s divinity no longer meant automatic loyalty to the state. Nationalism was an important technique in this respect, and archives played a central role in constructing a shared identity through the collection and consignation of objects that produced a sense of the nation’s past – its collective identity. ⁹ The archival drive is very much predicated on this attempt at a totalising (and exclusionary), pure and truthful depiction of the past. ¹⁰ This is also why, for Derrida, there is a sickness (mal) embedded within the archive.

This pattern continued during colonialism, as archives helped produce the colonial state as a particular reality and rendered those that the colonisers ‘encountered’ as knowable and governable subjects. ¹¹ Benedict Anderson shows how colonisers invented sub-sections of colonial societies with specific ‘objectively’ identifiable identities through record keeping. Here the coloniser’s sentimentalities and lived-experiences shaped these categories, whilst the lived-experiences of the local populations were ignored. For example, whereas the Philippine’s census records were fixated around class-based labels (e.g. noblemen) which the Spanish conquistadors mobilised wherever they landed, in the Indonesian archipelago the Dutch coloniser’s greater trading networks throughout Asia led them to introduce more regionally specific, yet highly racialised, categories (e.g. Chinees). ¹² Through the attempts to qualify and quantify these categorisations, different subjects were funneled through different institutions and given different opportunities and standings. This created ‘traffic-habits which in time gave real social life to the state’s earlier fantasies’. ¹³ Accordingly, as Stoler argues, a concern with colonial archives is with:

the force of writing and the feel of documents, about lettered governance and written traces of colonial lives. It is about the commitment to paper, and the political and personal work that such inscriptions perform. Not least about the colonial archive as sites of the expectant and conjured – about dreams of comforting futures and foreboding future failures. ¹⁴

The archive is a space of imagination and creation. ¹⁵ As the quote suggests, moreover, the rules of the archive are not fixed, but represent the anxiety of the records’ producers as they try to bring order into existence, and archive (and produce) new objects. ¹⁶ As this also suggests, there is an interesting and unstable relationship between community and archive. Discussed more below, neither community nor archive should be seen as ontologically stable entities. Instead, the archivists’ emergent views of community became reflected in the records of the archive, which in turn helped constitute the community in particular ways – at times with an excess or unpredictability that defied the archivists’ attempts to capture the world ‘as is’. ¹⁷

The potential effect of this archival power continues well beyond the archive’s original creation. Consider some of the scholarship that has uncritically drawn on colonial archives in Australia. By replicating the archives’ exclusion of the indigenous perspective of the ‘frontier wars’ – and in the process silencing much of the violence and the colonial administration’s responsibility for that violence – these reproduced discourses that (re)denied the indigenous population’s legitimacy. ¹⁸ The most famous contemporary historian of this type is Keith Windshuttle, who has challenged the claimed number of victims in the frontier wars by pointing to the absence of ‘official’ records of that violence. He argues that the widely accepted (though likely conservative) figure of around 20,000 indigenous deaths has been inflated by scholars that rely on oral history and other ‘untrustworthy’ sources, whereas the colonial archives show that violence was considerably less frequent. As Michel-Rolph Trouillot argues, archives are filled with silences produced by the limits of the archivist’s epistemology, ¹⁹ and as the above shows, the (im)materiality of archival records play an important role in defining which histories are told. ²⁰

The above demonstrates the relationship between archives, governance and community, and highlights three themes that need to be considered in this respect. The first element that needs to be examined is responsibility. Windshuttle’s continued denial of colonial violence shows the importance of understanding how responsibility is (or isn’t) inscribed within the archive due to which types of violence are recorded within, or excluded from, it’s records. The second aspect is identity. As Anderson demonstrates, the archive is central to the constitution of different types of subjects, and the question is how these subjects are constituted within the archival records and with what effect. The final element is voice, and whose experiences and which epistemological perspectives underpin the archive. It is notable that in the examples discussed, it was the concerns and priorities of the colonial authorities, rather than local populations, that shaped the records in particular ways. When taken together, these elements build a picture of the type of community constructed within the archive and the consequences of this imagining.

Archives as Method

Yet how should we analyse the archive? Because of the colonial archives’ exclusionary logic, post-colonial anthropology turned to reading the archives against the grain throughout the 1980s and 1990s to recover the subaltern’s voice. ²¹ However, Spivak questioned the validity of this approach, arguing that the archival force was such that attempting to recover the agency of those lives recorded in the archive was futile. ²² This is not, however, to deny the ability to access the subaltern’s voice per se. Shiera el-Malik and Isaac Kamola’s recent volume on African Anti-Colonial archives shows the existence of archives that capture the intellectual and cultural project of the subaltern’s anti-colonial struggles, and demonstrates how this can be used to imagine a new ‘limit’ of the possible. ²³

These anti-colonial archives are important in the attempt to ‘undo’ the coloniality of power that continues to pervade the international domain. ²⁴ But it remains vital to understand how certain archives also help reproduce the current limit of the possible within international society underpinned by a continuation in the coloniality of power. ²⁵ Spivak and Stoler suggest that when analysing these what might be called, ‘hegemonic archives’, the archive must be read along the grain; analysed from an ethnographic perspective that details the processes and politics through which ‘credible’ knowledge is produced and the effects that this has within particular societies. ²⁶ This approach also resonates with Foucault’s description of the archive as part of his archaeological methodology, ²⁷ which Colin Gordon describes as:

(. . .) the study of forms of knowledge and rationality at the level of their material manifestation as bodies of discourse composed of finite sets of oral or written utterances, is to render these discourses accessible to description and analysis as constituting a specific order of historical reality [. . .] (emphasis added). ²⁸

The task of understanding the politics of the archive is to determine which rules (what Foucault calls the rules of formation) underpin the production of knowledge. ²⁹ For Foucault, this is achieved by analysing the regularity with which statements and records are made for (and excluded from) the archive, and how they relate to each other; structuring, ordering, restricting and enabling discourse. ³⁰

Stoler and Foucault’s conceptions of the archive also emphasise the entangled relationship between archival records, the archivist and community. In Stoler’s work, it is archivists’ epistemologies that are prioritised in building the archive, which work to turn their ‘fantasies’ into lived realities. ³¹ Similarly, Foucault focuses on the interrelationship between different subject positions (what he terms enunciative modalities) in determining an archive’s rules. Foucault describes the importance of how these subject positions relate to objects (such as archival records), concepts (such as responsibility) and strategies (such as governance), in producing the rules that determine the contours of legitimate knowledge within the archive. ³² Yet, as previously discussed, these relationships are unstable. As both Stoler and Foucault argue, the archivist’s attempts to bring order is only ever partially successful, and as such there is always already an excess of meaning within the archive that goes beyond the archivist’s vision and which, in turn, has a bearing on how community is imagined. ³³ The archive, archivist and community exist in an interdependent and co-constitutive, if not volatile, relationship.

Both Stoler and Foucault further encourage analysis to move beyond a focus on the discursive. As the quote from Gordon suggests, the archive is a site where the materiality of a discourse manifests; the archive renders material artefacts and records in a particular way due to the discursive rules that determine the contours of legitimate knowledge. As Stoler argues, archives should be seen ‘as monuments of states as well as sites of state ethnography’. ³⁴ As such, within the archive there is a sense of the co-constitutive nature of the material and the discursive. Two other points can be made here. First, as the example of the Australian colonial archives demonstrates, it is also important to consider what is excluded from the archive and rendered immaterial. The absence of particular records can have significant and ongoing consequences for the governance and legitimacy of different communities. Second, if the aforementioned ‘excess’ of the archive is taken into consideration, there is the potential that some material fragments within the archive exist in a state of relative tension with the archive’s rules of formation, as their form and content do not fully succumb to those rules. A disruptive potential exists within these fragments.

This analytical approach can be situated within IR’s concern with the interrelationship between the production of knowledge and modes of governance. ³⁵ To this end the article draws inspiration from Claudia Aradau and Jef Huysmans’ call for scholars to explore the politics of methods, and how certain methods produce the object of analysis in particular ways, and ‘enact worlds’ with particular effects. ³⁶ Whilst Aradau and Huysman explore this in relation to the production of ideas of security within IR, this approach is equally valid when discussing how particular methods, and determinations about how legitimate knowledge is to be produced, underpins the construction of the archive. ³⁷ Mirroring Stoler’s concern with the failures or ‘false starts’ of the archive, ³⁸ the approach adopted in this article is also concerned with showing the instability of these discourses and ways of knowing. The analysis further draws inspiration from Joanna Tidy’s notion of making security. Tidy focuses on the material practices of making security objects to reveal the tacit knowledges (and politics) that underpin the process. ³⁹ Here, then, the question is what assumptions underpin the making of the records for the archive. Finally, by explicitly treating these archives as sites of international politics, this builds on the burgeoning debates in IR that have turned to memorial and heritage sites to examine how power-relations within global politics are fixed and contested through the curation of particular narratives within these spaces. ⁴⁰ It does so here to understand how these archives help constitute and regulate imaginings of the international community.

As discussed, scholars have so far explored the connection between archives and community in relation to colonial archives. ⁴¹ Zahir Kolia has similarly offered an analysis of how the South African Truth and Reconciliation Commission’s archive helped constitute the post-apartheid state. ⁴² This article builds on these ideas as it explores how archives within the international domain help constitute the ‘international community’. Following Vivienne Jabri, the international community is understood as ‘a distinct juridical-political space’ where the constitution of, and relations between, different subjects are defined and regulated by an ever-changing, and unevenly applied, set of rules and norms. As discussed further below, the international community is not, then, ontologically stable, but is constantly reformulated as it encounters new problems and subjects. ⁴³ The rules of the community are directed at more than inter-state relations. Under the auspices of defending the norms of the international community, the internal workings of states, and the relationship between a state and its citizens, have regularly become the concern of ‘external’ actors – whether large international organisations, such as the UN, other national states, (I)NGOs or private corporations. ⁴⁴

In contrast to those important IR studies that look for how anti-colonial archives produce counter-hegemonic forms of knowledge with relation to the international order, this article examines a type of archive that arguably sits at the heart of the international community and plays an important role in generating the norms and conditions of possibility that govern it: international legal archives. These archives, such as those of the ICTR, are particularly important sites in this respect because they remain widely seen as sites of ‘truth’ and representative of the norms and conscience of the international community. ⁴⁵ Building on the framework set out above, the remainder of the article offers a reading of the ICTR’s archive and asks: what rules underpin the ICTR’s archive, who is responsible for what records are produced, and how does this lead to particular imaginings of the international community?

Liberalism, Responsibility and the Archive

The ICTR’s archive, like international criminal justice more generally, is rooted in an enlightenment world view. ⁶³ The court’s records were built on a faith in a scientific rationalism, which stressed the possibility of determining the truth through a process of controlled contestation of the evidence between two parties (the defence and prosecution), and decided on by a neutral third party (the judges). It was because of its ability to establish a verified account of past violence that advocates believed the ICTR could help ‘draw a line’ under the genocide. ⁶⁴ Underpinning this system of thought was, moreover, a liberal understanding of community based on principles of universality, equality, progress and individualism. ⁶⁵ Universality and equality were explicitly embedded in the ICTR’s mandate through the application of universal jurisdiction and in the tribunal’s deliberate targeting of senior figures in the Rwandan government and military, showing that no one was above the law. The idea of progress was also of central importance to the ICTR’s legitimacy, as the UN believed the development and application of international law would help reduce violence within the international community. ⁶⁶

Of particular importance for thinking about the link between the archive, community and governance was the archive’s focus on the individual. ⁶⁷ One of the supposed strengths of the tribunal was its ability to determine individual responsibility and sort the guilty from the innocent. ⁶⁸ Again, influenced by enlightenment logic, this focused the archive around the actions of the conscious and rational perpetrator. During Akayesu the prosecution stressed that:

Akayesu consciously chose to participate in the systematic killings that followed in Taba. He publicly incited people to kill in Taba. He also ordered the killing of a number of persons some of whom were killed in his presence and he participated in the killings. He also cautioned and supported through his presence and acts, the rape of many women at the bureau communal (Emphasis added). ⁶⁹

This produced accounts of violence within the archive that were ordered, neat and linear, where an individual’s discrete contribution to the crime was determined. ⁷⁰

Examining the ICTR’s records, however, shows that this understanding of responsibility was in a state of flux. During the early years of the ICTR there were changes in the archive’s rules that were directed at better accounting for the collective nature of crimes such as genocide, and seemed to at least partially deflect focus away from the individual. Important in this respect was the development of joint criminal enterprise (JCE) – a group that was alleged to possess a shared common criminal plan or purpose – and command responsibility – where superiors were held accountable for the crimes of their subordinates – as modes of liability, which allowed the archive to capture the more amorphous forms of responsibility that occur during genocide. ⁷¹

With time, however, the archive refocused on the individual. ⁷² Whilst the legal reasoning behind this is complex and multifaceted, in essence what changed was that the tribunal began to impose far higher standards of proof for these more amorphous and collective forms of liability, making it substantially harder to find defendants guilty. ⁷³ The effects of this shift were seen in the appeals judgement for Military 1, against Colonel Bagosora, Major Ntabakuze and Colonel Nsengiyumva, often seen as amongst the genocide’s chief-architects. In applying a more conservative reading of the law, the appeals judgement overturned the trial chamber’s ruling regarding the defendants’ responsibility for crimes committed by their subordinates, resulting in a significant reduction in the accused’s sentences. ⁷⁴

One explanation for this shift was that it was the result of pressure exerted on the tribunal by powerful-state actors. ⁷⁵ Judge Harhoff, a former appeals judge at the tribunal, was dismissed after a private letter he wrote was leaked revealing his concern that the appeals chamber was imposing more stringent interpretations of JCE and command responsibility. ⁷⁶ According to Harhoff, judges were being influenced by leading military powers (pointing specifically to the US and Israel) who were concerned that the jurisprudence as it then stood had the potential to make it too easy to hold military commanders and heads of state to account for their subordinates’ crimes. This, they feared, would overly restrict military operations as greater (and potentially unnecessary) caution would be used by commanders to ensure that they did not fall foul of the law if their subordinates used excessive levels of violence. ⁷⁷

The tribunal has strongly denied Harhoff’s account. What is interesting, however, is that while denying external meddling, senior figures at the tribunal have publicly supported the underpinning logic that international criminal law (ICL) should not overly restrict military operations. A former President of the tribunal, Theodor Meron (and presiding judge in Military 1) has, for example, stressed that the purpose of ICL is to ‘diminish the evils of war, as far as military requirements permit’ (emphasis added). ⁷⁸

Ultimately, the cause of this shift is less significant than what it means for the politics of the archive. First, this repositioned the knowing individual at the heart of the trial process and with this a liberal notion of community was re-centred in the archive where each person takes responsibility for their own actions. But this also says something about how the relationship between violence, responsibility and community were imagined within the archive. Indeed, this account resonates with Elizabeth Dauphinee’s argument that rather than seeking to eradicate violence from the international community, ICL works to delegitimise certain acts of violence and in the process legitimise others. Dauphinee argues that war and ICL are dependent on each other: war needs ICL to separate off a domain of violence that is illegal – therefore legitimising other forms of violence; ICL needs some violence to be legitimate for it would have no function without drawing a line between illegitimate and legitimate acts. ⁷⁹

This is, then, about how ideas of violence and responsibility are structured and restricted within the archive. In this respect, another omission from the archive is important: the responsibility of international actors for the genocide, whether in the form of the international arms trade (which by flooding Rwanda with cheap weapons significantly contributed to the violence) or the role of states in supporting conflict, such as France’s role in training, arming, and providing financial support to the genocidaires. ⁸⁰ Again, this omission is partially due to the tribunal’s focus on individual responsibility. But importantly, the addition of records related to the international nature of the violence was also explicitly prohibited. During both Cyangugu and Gatete the judges took judicial notice of the non-international nature of the conflict, which, by declaring that this was a ‘fact of common knowledge’, meant unequivocally that there was no room for any records relating to international actors’ responsibility in the archive. This was, they argued, because the UNSC had only provided the court with jurisdiction over ‘non-international’ conflicts, which as such prohibited any discussion of the conflict’s international nature. ⁸¹ The result was that international structures and actors sank from view within the archive.

This also meant that the archive’s account of violence and responsibility for that violence was concentrated within Rwanda. This treated the genocide as a discrete and localised event, leading to the portrayal of Rwanda as an isolated site of barbarity. In contrast - and despite the prevalence of international actors assisting the genocide – the lack of records related to these aspects of the violence worked to separate the international – a site of (liberal) peace, order and civilisation – from the violence committed in the local – a site of barbarity – and absolved other actors within the international community of their responsibility for the violence. ⁸² Not only this, the archive portrays the international, by enacting law and ‘bringing justice’ to Rwanda, as saviour. ⁸³

This nomenclature of violence, and the division between the local and the international, also affects how violence is responded to within the international community. The archive, then, produces particular understandings of both responsibility for violence and responsibility to the victims of violence. ⁸⁴ During the first months of the Rwandan genocide, UNSC debates about Rwanda were dominated by this idea of localised barbarity, which led, particularly amongst the Permanent 5, to the conclusion that nothing could be done to stop the irrational outpouring of violence. ⁸⁵ This positioned Rwanda as a problem that fell outside of the international community’s domain of responsibility. Paradoxically, however, this division between the local and international can also produce a perceived obligation to act. This portrayal of the barbaric and irrational local was central to colonialism’s ‘civilising mission’ and continues to underpin ideas about humanitarian intervention. ⁸⁶ This logic also legitimised the UNSC’s decision to create the ICTR, ultimately against Rwanda’s will, as the UNSC argued that only an international court could impartially administer justice and so reform Rwanda into a legitimate member of the international community. ⁸⁷ Cutting across these examples is the constitution of the local as an irrational and barbaric space, and that it is consistently those that claim to speak for the international community – often actors from the Global North with long colonial histories – rather than those who experience the violence – often actors from the Global South – that decide the terms upon which, and indeed when, intervention takes place. ⁸⁸

As such, the liberal undercurrents of the archive, especially its focus on individuals, when combined with other discursive imaginings about the international order, carried with it a number of consequences for how the international community was imagined and governed. ⁸⁹ This included creating a space within which ‘military necessity’ could trump protecting potential victims, and where an understanding of the causes of violence, as centred around the individual, helped obscure the wider structures and processes that underpin violence within the international domain. This also introduced a colonial rationality within the records of the archive, as the archive separated the international community into the international (as a site of peace) and the local (a site of barbarity). The archive’s dynamism was also emphasised with its changing understanding of responsibility. This began with a more collective understanding of responsibility – a response to the collective nature of crimes such as genocide and perhaps also reflective of the strength of international cosmopolitanism in the 1990s – but was replaced with a more individualistic understanding of responsibility and community – in part because of a concern with the impact this might have of the efficiency of militaries. This is demonstrative both of the contested nature of the archive, its uneven development and the complex relationship between archive and community, as each constitutes the other in an iterative and fragmented process.

Identity, Violence and the Archive

There are numerous paths into thinking about how the archive constituted different identities and subjectivities. One route, for instance, could be to examine the highly ethno-centric understanding of violence produced within the archive’s records. ⁹⁰ Another would be to consider how the categories of perpetrator and victim were formed, and also how these were framed by questions of race, ethnicity and gender. ⁹¹ However, the following section explores the question of identity through the prism of gender, specifically examining the production of records relating to gender-based violence. This demonstrates how the archive resulted in a patriarchal understanding of the international community. ⁹²

Despite the tribunal’s claims to have been at the forefront of developing gender-sensitive jurisprudence, an analysis of the archival records tells a story of neglect. Such positive developments included finding that rape could be considered an act of genocide. Kelly Askin, ‘Gender Crimes Jurisprudence in the ICTR: Positive Developments’, Journal of International Criminal Justice 3, Issue 4 (2005): 1007–18. Lisa Pruitt, who was sent to Rwanda to investigate the possibility of developing sexual violence charges during Akayesu, noted that the ICTR’s investigators gave the sense of, ‘Well, we can’t be concerned about some women who got raped. We can’t divert resources to investigate those crimes. We had a genocide down here [. . .].’ ⁹³ A hierarchy of victimhood was imbedded within the archive from the off, which entrenched the notion that crimes committed against women on the basis of their gender were less (or perhaps in-)significant. Whilst this did partially improve with the creation of a sexual violence investigation unit in 1998, ⁹⁴ throughout the trials gender-based violence remained insufficiently investigated and poorly incorporated into the archive.

This was seen during Cyangugu. The prosecution’s failure to incorporate charges relating to sexual violence in the indictment, despite having ample evidence that incidents had taken place, ⁹⁵ meant that the judges actively prevented witnesses from testifying about this crime. ⁹⁶ In one instance a portion of testimony was ex-post-facto erased from the archive after a witness had nonetheless presented evidence relating to sexual violence, signified in Figure 1 .

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Figure 1.

Witness BAT testimony, Prosecutor vs Ntagerura et al, 9 February 2001. ⁹⁸

The significance of the erasure cannot be overstated. I am not aware of any other instance where a phrase was ex-post-facto erased from the archive. Sometimes when sensitive information was accidently included (that might, for instance, have led to the identification of a protected witness) parts of the records might be put under seal and concealed from the public. But in every other instance where evidence that exceeded an indictment was uttered and successfully objected to, the judges held that they were able to simply ignore this evidence during deliberations. ⁹⁷ Here, however, it seemed necessary to erase all material traces of this utterance so as not to taint the judges’ future deliberations, and, ultimately, the archive.

The erasure is indicative of a more general silence concerning gender-based violence within the archive. This was the result of what can be described as an overall degree of hostility towards evidence of these crimes and the application of higher standards of proof. ⁹⁹ From the numerous examples that could evidence this, ¹⁰⁰ I turn to the treatment of Witness BAT during Gatete.

During Gatete, Witness BAT testified to her first sighting of Gatete during the genocide at a local commercial centre:

Prosecution: Madam Witness, you said a few moments ago that you heard a vehicle and that you saw Jean-Baptiste Gatete. You said you realised they had not come to protect you. What made you say that?

Witness: I said that Gatete had not come to protect us, because after coming out of his vehicle, we heard whistles and Gatete asked the people who were there to kill Tutsis and rape young Tutsi girls and women before killing them. It is for this reason that I thought he had not come to protect us, but, rather, to ask the killers to kill us. ¹⁰¹

The defence objected to this evidence on the grounds that the witness had not mentioned Gatete’s order in their indictment or pre-trial statement and the objection was sustained by the judges. ¹⁰² As such, whilst the witness was ‘allowed’ to continue and testify to the successive rapes that she suffered (because of this order) no legal link was provided between these acts and Gatete.

This decision is unfathomable in light of the indictment which, with an unusual amount of specificity by the ICTR’s standards, made it very clear that Gatete was being accused of ordering Interahamwe to commit acts of sexual violence and that BAT was a victim of this order. Paragraph 18 of the indictment read:

[. . .] Jean-Baptise GATETE, with Murambi bourgmestre Jean de Dieu Mwanga, transported a convoy of armed Interahamwe to Akarambo cellule where GATETE ordered the Interahamwe to burn, loot and pillage Tutsi homes and to rape and kill civilian Tutsi.) [. . .]. Then on or about 8 April 1994, BAT was raped by two Interahamwe, the son of NYAMUHARA and KAREMERA. The Interahamwe raped and killed Tutsis as a result of the actions of Jean-Baptiste GATETE. (Emphasis added.) ¹⁰³

The decision to bar this testimony and erase it from the archive was not, then, based on the prosecution’s failure to adequately charge this crime (as was suggested in the judge’s decision), but this implies that a higher threshold of proof was in operation for gender-based crimes.

This absence is instructive when considering what type of community the archive was part of constructing. ¹⁰⁴ For if the archive’s function was to determine what violence was (il)legitimate, and which subjects were worthy of protection, then the absence of records relating to gender-based violence suggests that once more women became the accepted ‘spoils of war’. This, as such, (re)produced a patriarchal understanding of community. Moreover, the absence of records relating to gender-based violence is demonstrative of the importance the materiality of the archive. The record of BAT’s testimony is not only different from what was discursively uttered in the courtroom, but the wider immateriality of the archive in this respect undermines the tribunal’s claims to have been at the forefront of developing gender-sensitive jurisprudence.

Voice, Colonialism and the Archive

When analysing the archive, it became clear that the tribunal saw that its reliance on Rwandan witnesses had led to a number of difficulties. Particularly problematic from the court’s perspective – as it raised questions regarding the witnesses’ credibility – was what was interpreted as the witnesses’ evasiveness during questioning and their difficulties in distinguishing between what they had seen and heard (i.e. hearsay evidence, which was seen as less substantial evidence). ¹⁰⁵ In response, during Akayesu the prosecution introduced a Rwandese cultural and linguistic expert, Professor Mathias Ruzindana, to explain these ‘idiosyncrasies’. ¹⁰⁶ His testimony suggested that Rwandan’s often changed how they answered questions depending on who they were speaking to, and that the witnesses’ inexperience with the tribunal’s procedure, and a tendency to suspect unfamiliar persons in positions of authority, was likely to lead to what could be interpreted as a lack of cooperation. ¹⁰⁷ He also explained that as an oral culture, Rwandans did not always distinguish between what they saw and heard. ¹⁰⁸

There is reason to believe that this type of evidence affected tribunal practice, influencing, as such, what was permitted to enter the archive and in what form. In the Akayesu judgement, drawing on Ruzindana’s evidence, the judges argued that,

it is a particular feature of the Rwandan culture that people are not always direct in answering questions, especially if the question is delicate. In such cases, the answers given will very often have to be ‘decoded’ [. . .] to be understood correctly [. . .]. ¹⁰⁹

The judges went on to note that due to the witnesses’ inexperience with the courtroom procedures ‘the Chamber [would not] draw any adverse conclusions regarding the credibility of witnesses based only on [witnesses] reticence and their sometimes circuitous responses to questions’. ¹¹⁰

Another issue was how to account for the frequent changes between witnesses’ pre-trial and trial statements, which the defence regularly argued undermined the witnesses’ credibility. ¹¹¹ Here the Akayesu judgement stated that the witnesses’ often traumatic experience during the genocide was likely to ‘affect [the witnesses] ability [to] fully or adequately [. . .] recount the sequence of events in a judicial context. The Chamber has considered the testimony of those witnesses in this light’. ¹¹² As such, there is evidence that suggests that the archive’s rules adapted to the lived experiences of the Rwandan witnesses.

An example of this was the judges’ interpretation of Witness D’s testimony in Akayesu. Whilst Witness D’s pre-trial statement claimed that he had buried his brothers after Akayesu had killed them, during the trial Witness D claimed that he hadn’t buried them. ¹¹³ The judges, however, ruled that this relatively major shift could be explained by Witness D’s traumatic experience, and his testimony that Akayesu had killed his brothers was accepted as true. This, then, offers evidence of what Jabri refers to as the ‘hybridity’ of the international, as the post-colonial subject disrupts the rules and norms that govern the limits of the international. ¹¹⁴

However, there was a limit to which witnesses reclaimed authority to determine the archive’s rules. Dr Ruzindana, for instance, indicated that despite attempts to ‘accommodate’ the specifics of Rwandan culture, a gap between the tribunal’s approach to knowledge production and the witnesses remained; ¹¹⁵ a sentiment echoed by other Rwandese staff at the tribunal. ¹¹⁶ A Rwandese prosecutor noted, with some anger, what he saw as the inappropriate questioning of witnesses’ knowledge without due sensitivity to what they had experienced. ¹¹⁷ During Witness N’s testimony in Akayesu, for instance, the witness was frustrated by questions about the veracity of her knowledge regarding the death of her family. However, rather than responding to this by changing the approach of questioning, the judges requested that the witness alter her practice to ‘speak without hatred, without any emotion’. ¹¹⁸ Moreover, despite the tribunal acknowledging the value of hearsay evidence to Rwandans, rather than give hearsay more probative weight, courtroom practices were adapted to ask more specific questions to determine the source of witnesses’ testimony. This allowed the court to distinguish between the ‘more substantive’ sight witnessing, and the ‘less credible’ hearsay. ¹¹⁹ Whilst not denying the hybrid state of archive, it is clear that the power to determine the ‘hierarchy of credibility’ remained with the legal actors rather than the witnesses. ¹²⁰

A manual circulated to witnesses prior to participating in the trials provides further evidence of this imbalance of power. ¹²¹ Within the manual, there was no sense of the tribunal making allowances for the witnesses’ experiences. Instead, it focused on: the importance of telling the truth (including stressing the penalty that would be imposed on people who lied to the tribunal); how witnesses should deliver their testimony (to speak slowly, and to only speak of what they really knew – including distinguishing between what they saw and heard); and their need to respect the status and duties of tribunal staff when questioned. ¹²² This made clear the power-relations at play between the different actors in the tribunal and in the production of the archive, and the witnesses’ subservience to those rules. ¹²³

This power-dynamic was solidified further as the UN decided where the archive should be located after the tribunal had closed down. Two claims were made about who owned the archive, where it should be located and what it was for. The Rwandan government argued that the archives had been produced by Rwandan witnesses, and supposedly for Rwanda. As such, it contained their history, their memories and so belonged in Rwanda. ¹²⁴ Whilst the UN acknowledged that the archive had a secondary value as a source of history and memory, they argued its primary value was that it contained the institutional memory of the tribunal, and so was valuable from a legal and bureaucratic perspective. ¹²⁵ Consequently, the UN argued that the archive needed to stay in Arusha where it could assist the Mechanism for the International Criminal Tribunals (MICT), which was to take over any of the tribunal’s residual functions once it had closed down. ¹²⁶ The UN won this battle, and this outcome also cemented the decision to build a new archive facility for the MICT in Arusha to house the records in perpetuity.

This decision brought to the fore a number of contradictions about the tribunal’s purpose, and again is revealing of the importance of the materiality of the archive. At the ICTR’s outset, rhetorically at least, the tribunal’s creators presented it as something that could be all things to all people. Not only a site of law and justice, it would also produce a verified account of the genocide, and assist with reconciliation in Rwanda. The attempt to find a home for the physical archive, however, fractured the tribunal’s claim about what it could achieve as it prioritised its legal and bureaucratic function and the UN’s needs over and above Rwanda’s. ¹²⁷

There appeared, then, to be a strain between the way in which the archive required testimony to be produced, and the witnesses’ way of testifying. Criminal law’s approach to knowledge production, underpinned as it is by western enlightenment thought, overruled other subaltern approaches to knowledge production. ¹²⁸ This is not to draw a neat line between ‘Western’ and subaltern epistemologies, which has been rightly critiqued for ignoring the intertwined nature of these modes of knowledge production. However, this demonstrates that despite giving lip-service to other ways of knowing, ultimately these were subsumed within a western-centric approach to knowledge production, reproducing a colonial rationality. ¹²⁹ The hierarchical nature of this relationship was cemented as the tribunal rejected Rwanda’s claim to the archive. Along with the local/international binary discussed above, this resulted in a colonial imagining of community within the archive.