Memory at the International Criminal Tribunal for the former Yugoslavia (ICTY)

Mental Spaces

Space is essential to cognitive linguistics, and forms the basis of many of the models that analyse categorisation. ¹⁸ Mental space as related to meaning and perception comes from Kant, ¹⁹ and variations on this idea have formed the building blocks of cognitive linguist theory. Noted linguist and cognitive scientist Gilles Fauconnier explains,

Mental spaces are very partial assemblies constructed as we think and talk for purposes of local understanding and action. ²⁰

Mental spaces therefore exist within working memory, encompassing past memories alongside present ideas and future projections. Often referred to as mental frames, which according to Fauconnier are “entrenched mental spaces that we can activate all at once,” ²¹ frames are useful in looking at ICTY data in that they highlight thought processes through time, giving us more than just memories or stories. Because witnesses relate events to the court for the purposes of evidence and verification, analysing mental spaces can give us a wider picture by examining the meaning of these events as deconstructed from the speaker’s choice of expression.

Mapping the mental space may in some ways seem like an arrogant attempt at taking apart ideas and finding within them opinions to assign to the speaker. Initial criticism of these approaches in the 1970s was aimed at the abstract foundations of the approach, and the academic community had interesting arguments on the applications of something that had little to say in the way of physical evidence. ²² In the decades since, however, these types of mappings have become central to understanding the nature of cognition and expression.

Discourse Space Theory

Discourse space theory (DST) is a cognitive linguistic approach developed by Professor Paul Chilton that adds to previous theoretical approaches, such as conceptual metaphor theory, mental space theory, and discourse representation theory. ²³ As briefly mentioned above, it allows for a more integrated look at how certain linguistic indicators are functioning simultaneously by projecting them onto an abstract three-dimensional geometric space. One benefit of using DST for transcript research is that this method of analysis allows for an integration of several linguistic elements in such a way as to examine them relative to one another. This allows us to track shifts, which is important to this set of data in particular for the examination of situatedness (personal perception of the speaker’s place in the world) alongside the modality (degree of commitment) of the speaker. ²⁴

The projecting of linguistic theories onto linear algorithms and other mathematical models is not new, and there are specific benefits to using three-dimensional geometric space. First, this layout provides a way of explaining information that is congruent to working theories on how the mind is mapped generally. Cognitive science has used this format to explain the workings of the mind, and these linguistic applications are simply taking things a step further. ²⁵ Second, many of the older criticisms of other, more linear models of linguistics stem from a failure to add anything new to the way information is perceived. Many scholars have referred to these models as merely “item collections,” while others fall into the trap of glorified list-making. ²⁶ The three-dimensional geometric model allows for not only a variety of speech elements to be mapped in a way that mirrors the mind but also allows for shifts and internal “worlds” (solidified perspectives) to be analysed within the space as well.

A very reduced but still effective way of describing this approach is that it maps words and phrases along an axis of time (past, present, future), personal situation (me/you, us/them), and expressions of potential (conditional tense). Conditional expressions in particular can demonstrate what Chilton refers to as the individual’s “worlds,” ²⁷ showing us how the speaker makes sense of his or her own environment. Looking at pieces of testimony within the DST model, we can also see how the interrogator’s questions play a role in the victims’ own perceptions, and in the examples below we see how prevalent this is within testimonies.

Translation and the Production of Evidence at the ICTY

The question of translation is often raised when discussing transcript analysis at the ICTY, particularly when looking at the practicalities and problems courtroom translators face and what impact this may have on the production of evidence. There is an emerging body of research in translation studies that examines issues of translation at the ICTY, much of which looks at how the mechanics of translations (the specific vocabularies that have evolved, issues with translation as a continuous process in the courtroom, and the code of ethics that has been employed, to name some examples) have shaped the process of translation at the ICTY. ²⁸ Work done by Elias-Bursać ²⁹ brings in more theoretical aspects of translation that echo claims made by Foucault in The Archaeology of Knowledge ³⁰ on how translation impacts the materiality of discourse. Namely, she discusses the reciprocal relationship between translation and the institution of the ICTY in terms of the shaping of processes. From a Foucauldian perspective, the relevant question to ask here is, how does the act of translation in this particular courtroom leave the identity of the transcripts open to modification? Essentially, what changes are being made in the act of creating these records that might make the data itself something different? And if translation is in fact doing this, what merit would there be in studying the responses made in court as responses, rather than as translations?

Foucault argues that the question of original statements and their simultaneous translations can be taken as a single statement if there is agreement between the content of the information and the uses it is put to. Foucault explains this best,

The rule of materiality that statements necessarily obey is therefore of the order of the institution rather than of the spatio-temporal localisation; it defines possibilities of reinscription and transcription (but also thresholds and limits), rather than limited perishable individualities. ³¹

The translation employed within the courtroom, while it may be contested or highlighted by those taking part in proceedings, is ultimately consistent with the institution’s uses of it, particularly because in this case it makes the institution in question (the ICTY) possible.

Additionally, a thorough linguistic investigation was done by Mišković-Luković and Dedaić into the uses of odnosno during ICTY testimonies, and the problems that arose in its translation. ³² This work looks at issues of the choices translators at the ICTY have in the meanings they ascribe to words, and their findings point to purposeful neutrality used in translation that denotes measurable attempts away from direct translation. Not only are there issues of discrepancies that arise during the process of translation at the ICTY, there are marked choices made on which translations are used when multiples may be available.

This is not, however, a major setback to using ICTY transcripts as a data set. Indeed, the transcripts remain the primary record of processes going on in the court, as the simultaneous translations informed court discourse because of their immediacy—that is, a B/C/S response was translated to English, which then often informed the interrogator’s construction of his or her next response. This was done repeatedly and constantly. The courtroom environment, therefore, was informed through translation over and over again, and the perspective of this article is that the simultaneous translations found therein were not impediments to creating transcripts, simply another part of them.

There are additional aspects to the production of evidence at the ICTY that set this process apart from domestic trials and have shaped the way subsequent international tribunals have unfolded. The nature of testimonies before the ICTY were unprecedented in the information put forward about the conflict itself, especially in terms of expert witness testimony. ³³ Larger legal issues such as jurisdiction alongside questions of how one might prove genocide (with the terminology of genocide becoming increasingly more complicated) have led to the inclusion of disputing political narratives and confused histories within the transcripts. From this has emerged an interesting body of literature examining the complex intersections between history and transitional justice. The difficulties for the scholar lie with the way this evidence has been created—while it is undeniably useful in ways that it would be foolish to ignore, one must always keep in mind the purposes for which it was created and the specific manner in which this was done. ³⁴

Forgetting as a Symbolic Request: The Examples of Witness B and Emir Beganović

The quote used at the start of this article is from the end of a lengthy testimony given by a protected witness (known as Witness B) in the case known as Kvočka et al. For clarity of analysis, I include the quote again, as Example 1.

Example 1

OPEN IN VIEWER

“Thank you very much, madam. I have no further questions. I would like you to forget this as soon as possible and that we can all go back to normal. Thank you.” (K. Simić speaking to Witness B, Kvočka et al, T-98-30-I, 23 August 2011, pp. 2407–8, English transcript, emphasis mine.)

While the direct request to forget is very significant (as is the way in which identities arise embedded in the language used—“I would like you to forget this (…) and that we can all go back to normal”), which will be discussed in a moment, this comes after Witness B’s role was defined to her by defence counsel. K. Simić states:

Example 2

OPEN IN VIEWER

Q. Yes, the arrivals. You explained that. You said where you were standing, what that looked like, so let’s not return to that. But were you ever present, as a witness—don’t be so surprised. You’re a witness, so I have to ask you whether you saw. Witnesses see, if you see what I mean. (K. Simić speaking to Witness B, Kvočka et al, T-98-30-I, 23 August 2011, English transcript, p. 2403, emphasis mine.)

Defining the witness by her role places her among the court processes as a piece of the larger legal environment, giving the clear message that the individual is seen by the court as synonymous with her function. Even though the act of being a witness at a tribunal implies this, the instruction given here by the defence not only defines for her what it is to be a witness, but what the act of witnessing is. The comment is evidence to her presence as a witness being defined not as she sees herself, but through how she is seen by the court. For the witness, these are issues of seeing and being seen, but the defence counsel’s role is more about hearing and being heard. The witness is an essential element in the defence counsel’s point being heard, rather than the witness being heard directly.

Regarding the embedding of identities within the statement referred to earlier, “I would like you to forget this [. . .] and that we can all go back to normal,” there are several things at stake here. First, there is the power of the interrogator to direct the witness on how he would like her to treat her memories. This is significant whether or not he is referring to her memories of testifying, or the memories of her experience during the conflict that she was recounting to the court. The second part of the statement referring to “us all” implies that he might mean the latter, which does bear strong implications on how this interrogator sees his own power to speak for a group that depends on her ability to forget.

The issue of normalcy is also of great significance. The idea of “normal,” and the witness’s memories as a barrier holding back the group from reaching some previously occurring state of “normal” implies that her memories are not only a barrier to some form of reconciliation, but also that the interrogator (and through him, an element of the court) are the authorities on what this previous state of normal was and should be, and how “we all” might best get back there. The intention of this statement was very likely not to demonstrate this, and may very well have arisen out of an attempt at a polite closing on the part of the defence. Regardless, the social psychological interpretations of the impact this type of statement can have on the wider court environment indicate that these ideas—creating barriers between victims and a “reconciled” or “normal” group or groups (barriers formed of the victim’s own memories)—may underlie not only court discourse, but social and community discourse as well.

These parting sentiments are not uncommon at the ICTY, and while they may seem benign, the idea of forgetting is often invoked. Attempting to address someone who has just spent hours testifying to terrible abuses must be understandably difficult, and the issues that must be navigated by the interrogator or judges involved when trying to properly thank someone for spending time in such an emotionally exhausting state must not be discounted by the scholar. However, this does not mean that linguistic trends present among these statements should be ignored, particularly when they so often reinforce the strata of power relationships inherent in court hierarchies.

At the end of testimony from witness Emir Beganović (a Bosnian Muslim detained at the Omarška internment camp) during the Tadić case, Judge Rodrigues states:

Example 3

OPEN IN VIEWER

JUDGE RODRIGUES: Witness, thank you very much for coming here. We wish you to be able to resume the friendships that you had, to be able to forget hatred, and to be a good witness of peace and good relations with other people, those who have other political options, other religious, even, beliefs and ethnic beliefs. So thank you very much. You may go now. (Case No IT-94-1-T, Prosecutor vs Duško Tadić, 19 July 1996, English transcript, p. 1562, emphasis mine.)

The text in bold highlights the section of Judge Rodrigues’s statement that is similar to the earlier example from K. Simić. Though the concept of normalcy is not touched upon, similarities are found in the expression of a collective (“we”) directing the individual (“you”) toward the act of forgetting. The next phrase is interesting as well, as it mentions the role of the witness directly, but in an open and symbolic way. The literal court witness is transformed into a “witness of peace,” contrasting with the previous concept of hatred mentioned. The addition of a value judgement (“good”) further adds to the weight of the witness’s responsibility in the wider symbolic sense, with implications of future community interactions underlying the statement.

A closer breakdown of the statement demonstrates the way in which the court instructs the witness in dealings with the wider community:

We (wish)  You (to be a good witness to)  Those (other)

Continuing with the testimony of Emir Beganović from the Tadić case (he also testified later during Kvočka et al), there is an interesting treatment of memory by the witness at an earlier point in his testimony, when he is asked about what he noticed during an incident at Omarška:

Example 4

OPEN IN VIEWER

Q. Did any of the others have a similar colour belt?

A. I cannot remember at this time, nor did I try very hard to observe that. I was—I did not believe that I would come out of the camp and especially that a day would come that I could testify to being there. If I had been aware of that, I would have remembered and observed more.

Q. I understand that, and do not take any of these questions as being a criticism of you. I am asking them as part of my job, you understand? (Case No IT-94-1-T, Prosecutor vs Duško Tadić, 19 July 1996, English transcript, pp. 3814–15, emphasis mine.)

This exchange is significant because individual perceptions of one’s own responsibility to remember is linked closely with survivor’s guilt. ³⁶ Seeing evidence of this in memory retrieval is interesting not only because it demonstrates the witness’s own understanding of his responsibility (and perceived failure) to remember, but the reaction of the interrogator in reinforcing his role in this responsibility. The response in bold above, while part of an attempt by the interrogator to make the witness feel less of a burden regarding his own forgetting, then includes the express explanation of the interrogator’s job in order to depersonalise his role in this exchange. This depersonalisation denotes a desire on the part of the speaker to use his role (or “part of my job” as he states) as the true generator of the unpleasantness of the exchange, shifting responsibility to a more powerful platform (from himself as an individual to himself as a lawyer).

This is an interesting divergence from the more common phrases used to make witnesses feel that there is some sympathy in the room, which usually begin with apology (very common in ICTY transcripts is the prefacing of questions—especially concerning rape and sexual violence—with, “I’m sorry to have to ask this, but…”). ³⁷ The witness expression of his perceived failure to remember followed immediately by the interrogator’s shifting responsibility toward professional role is subtle but significant evidence to the ways in which court professionals further embed existing hierarchies upon memory retrieval itself.

Control over Memories: The Examples of Edin Mrkalj and Witness 87

Edin Mrkalj testified in Kvočka et al and also detailed his time interned at Omarška. During his testimony, conflicts between his answers and the intentions of the defence led to Mrkalj’s emotional exhaustion, and in the example below he struggles with expressing his experience on the court’s terms. This leads him to abandon control over his own narrative, saying things throughout his testimony such as “What do you want me to answer now?” (Case No IT-98-30/1, Prosecutor v Miroslav Kvočka et al, 23 August 2011, English transcript, p. 2914) and “This is a catastrophe.” (Case No IT-98-30/1, Prosecutor v Miroslav Kvočka et al, 23 August 2011, English transcript p. 2913).

During this time, there is a struggle between the witness and the interrogator, and then the interrogator and the judge. This leads the judge to instruct the witness directly on the role of forgetting in court:

Example 5

OPEN IN VIEWER

JUDGE RODRIGUES: [Interpretation] Witness, you have to answer questions put to you. If you can remember, you say so. You tell us what you remember. If you can’t remember, you simply say, “I can’t remember.” That is an answer to the question. (Case No IT-98-30/1, Prosecutor v Miroslav Kvočka et al, 23 August 2011, English transcript, p. 2933).

This instruction leads the witness to more obviously abandon control over his narrative, using the act of forgetting as a way out of his struggle with the court. He replies:

Example 6

OPEN IN VIEWER

A. I can’t remember. You’re quite right. To avoid this further torture, I can’t remember those things, and I don’t want to go into them. It was the worst situation for me. (Case No IT-98-30/1, Prosecutor v Miroslav Kvočka et al, 23 August 2011, English transcript, p. 2933).

This instruction is an interesting contrast with the previous example, although it is again referring to forgetting, this time it is not a soft request (as we see with the other example), but a reminder to him that forgetting is a possibility. Interestingly, in all the instructions to remember, the witness is then treated as if he is unaware that forgetting is a valid option.

Additionally, his frustration seems to stem from the fact that he can remember, but being compelled to recount these experiences is outside what he sees his role as a witness, including especially given his previous descriptions of the same experiences to the court. He takes the option of forgetting as a reaction to the court—“To avoid this further torture.” The fact that he also includes the phrase “you’re quite right” is an interesting indicator as to his views on the Judge’s statement. Here, we see him accept not only that forgetting is an option, as the Judge is reminding him, but that forgetting is a tool that he can use in the face of his ordeal in court.

Edin Mrkalj’s struggle with his narrative indicates that his memories could stand symbolically as properties of the court—something once given, one should not have to give again as the court is already in possession. Earlier he states:

Example 7

OPEN IN VIEWER

A. It’s rather hard for me to go back to those events, because for years I have been trying to forget them and to simply wipe them away from my memory. And I have answered these same questions so many times. I see no need for me to make the effort to look back. (Case No IT-98-30/1, Prosecutor v Miroslav Kvočka et al, 23 August 2011, English transcript, p. 2932).

As with Witness B, there remains this issue of the witness as a mouthpiece for the lawyer’s point to be heard, which brings us back to the wider issues of memories at the ICTY—Is this type of treatment of memory a necessary part of court processes, and if so, how does this impact perceptions of justice, and in turn, reconciliation? The desire to remember or forget is something unique to individuals, and cannot be seen as something that is fixed once decided upon. Though both witnesses in these examples are standing before the court in a voluntary capacity, the pressure of legal process taking precedence over the witness’s own personal narrative power can produce additional pressure to forget, as we see with Edin Mrkalj. Conflictingly, in instances where forgetting has not been an issue, as with the Witness B example, forgetting is still brought up as a suggestion to the witness, implying that once the act of bearing witness has taken place, forgetting is something that should take place.

Another example demonstrates an interesting depersonalisation that occurs when discussing the difference between “no” and “I don’t remember.” Witness 87, a rape victim from Foča testifying in Kunarac et al (IT-96-23-T and IT-96-23/1), is asked during cross-examination about why there are differences in her responses to the same questions when comparing her testimony to past interviews.

Example 8

OPEN IN VIEWER

A. I can’t really say. Perhaps at that time it slipped my memory. Perhaps simply it just came. I don’t know.

Q. Today when the Prosecutor asked you about Kovac’s mother, you said that she never came nor did she ever bring food. Is that correct?

A. It is, yes.

Q. Also on the 5th of April this year, in the cross-examination on page 1805, when I asked you, “Did Kovac’s mother ever come and bring food to you?” your answer was that you could not remember.

A. Yes. Yes. I don’t remember his mother—I don’t remember Klanfa’s [sic] mother ever coming to us.

Q. So what is correct, what you’re telling me or what you told the Prosecutor, “I don’t remember,” or, “She did not come”? Which is correct?

A. She did not come.

Q. Then on the 5th of April, why did you tell me that you did not remember if she came?

A. Well, perhaps it was my fault, perhaps the way I pronounced those words, but both times it meant that that woman really did not—I mean, Klanfa’s mother did not come to the flat.

Q. Let me refresh your memory. It was not your fault. During the cross-examination with me on the 5th of April, you answered, “I don’t remember,” 49 times to my questions, and today you answered all those questions specifically. You did give answers to all those questions. So—

A. And what do you mean by that?

Q. I’m merely telling you how you’re answering the questions, and what I think about that I shall say in my closing argument. It has nothing to do with you.

A. If I say, “I don’t remember,” it means I do not remember. And if I say “No,” then that means no.

Q. Yes, but on the 5th of April, you told me, “I don’t remember,” and to the Prosecutor today, you answered, “No.”

A. Quite.

Q. So will you please explain why? Why did you say, “I don’t remember,” then and now you said “No”?

A. This difference—I don’t know. I don’t really know what to say.

(Ms. Kuo cross-examining Witness 87, Case No IT-96-23-T and IT-96-23/1, Prosecutor v Drajoljub Kunarac et al, 23 October 2000, English transcript, pp. 6120–23, emphasis mine.)

Though seemingly benign, the phrase “Let me refresh your memory” is used by the interrogator as a precursor to restating the witness’s past responses. While this is a colloquial and common turn of phrase in several languages, its use in the court setting does have significance on the memories in question. First, it implies that testimony (and in effect, memories), once given, becomes the property of the court as the witness’s own knowledge of it can be declared suspect. This echoes the issues discussed earlier surrounding narrative control, and the example above gives clear evidence to this shift in ownership by immediately following this exchange with linguistic separations—“it was not your fault” and “it has nothing to do with you” alongside the reference to the interrogator’s personal use of the witness’s answers (“what I think about that I shall say in my closing argument”). All the witness is left to do is define her answers through repetition (“if I say no, then that means no”) and articulate her confusion (“I don’t know what to say”).

Strategically, the interrogator appears to be questioning the credibility of the witness through the demonstration of the unreliability of her own memories. This is not uncommon in cross-examination tactics, but deeper analysis of it can give us insight as to why the interrogator might push for the depersonalisation discussed above. As Paul Ricoeur states,

The specificity of testimony consists in the fact that the assertion of reality is inseparable from its being paired with the self-designation of the testifying subject. The typical formulation of testimony proceeds from this pairing: I was there. ³⁸

For Ricoeur, the witness label begins with this admission (I was there), and is only a label one can attach to oneself. If the “assertion of reality” is tied to this concept, then the reality of the witness is also self-designated. The personal power over one’s own testimony, narrative, and memories stems from this ownership of the witness designation. The shift to the court’s designation and use of the witness and her testimony, the statements that it is being used “for” something (closing argument) that belongs in the realm of the court only (“it has nothing to do with you”) demonstrates that this exchange contains more than strategic attempts to discredit memories. Clear lines emerge where the court’s functions do not simply outweigh witness testimonies, but simultaneously claim to be the true originators of the witness role as well as the vehicle through which this role is ignored.