The trial’s the thing: Performance and legitimacy in international criminal trials

The trial as performed ritual

Every ceremony is par excellence a dramatic statement against indeterminacy in some field of human affairs. Through order, formality, and repetition it seeks to state that the cosmos and social world, or some particular small part of them are orderly and explicable and for the moment fixed. A ceremony can allude to such propositions and demonstrate them at the same time.

(Falk Moore and Myerhoff, 1977: 17)

In the field of legal anthropology and legal sociology, a trial is not primarily about individual legal accountability. Rather, scholars in this area emphasize the trial as a communal ritual: where a private dispute is taken over by the state and witnessed by a community. A ritual, in this context, may be loosely defined as a performed social process within a marked out discursive and reflexive space within a community (Pyle, 1984: 392). This is in keeping with anthropologist Victor Turner’s (1988) schema of ritual and its role in social life in The Anthropology of Performance. Turner argues that the pattern of a community over time is essentially ‘dramatic’, calling it ‘social drama’. Turner (1988: 182; 1990: 181) divides social drama into the four stages of disruption in the community’s ongoing existence: breach; crisis; redress; and either reintegration or irreversible schism if the redress fails. Turner argues that it is the redressive stage from which all ritual and performance arises. The ritual itself, Turner argues (following Van Gennep), consists of three parts: separation; liminality; and re-aggregation (Van Gennep, 1977: 11). A ritual succeeds only if the participant(s) is removed from normal life, usually through entry into a specific space which takes them out of temporality. In this space for a ritual to work, a state of ‘liminality’ must be attained. The liminal phase involves complex symbolism and is a space where the community ‘tells stories about themselves’.

While this is seemingly quite a traditional reading of Turner’s schema, I take into account Lowell Lewis’s (2013) more recent scholarly work, which refines our understanding of Turner in clearly distinguishing ritual and ritual-like events from play derived performance. Lewis’s distinction is of particular value here as in doing so, Lewis underlines the comparative importance of the former. The criminal trial is, if not actual ritual, certainly ritual-like. Following Lewis’s updated schema for what defines ritual derived performance, the criminal trial concerns events of the highest importance to wider society, it is done in service of a ‘higher authority’: that of the Law, and it involves a genuine transformation of status (Lewis, 2013: 58). This sounds like a kind of value judgement, and of course it is, but it is always important to recall that when discussing the criminal trial we are talking about the highest of high stakes: the labelling of an individual as a criminal, the potential deprivation of an individual’s liberty and the administering of state-sanctioned punishment.

Indeed it is only when considering the severity of the potential outcome of the ritual activity that legal sociologists and Turner’s schema part company. Whereas Turner talks about ‘re-aggregation’ as the final step in a successful ritual, for many legal sociologists the final step is the effective social out-casting of a convicted offender. Howard Garfinkel’s influential 1956 article ‘Conditions of successful degradation ceremonies’ argues that the purpose of the trial is to ritually ‘cast out’ an offender through the transformation of their status to that of an outsider. Garfinkel’s work has consequently been particularly influential for scholars who study the sociology of deviance (see, for example, Becker, 1963; Erikson, 1962). Garfinkel’s (1956: 422–423) model of the trial as ceremony shares marked similarities with Turner. Crucially, both models are all-reliant on the active ‘witnessing’ of the community in the status transformation:

The public denunciation effects such a transformation of essence by substituting another socially validated motivational scheme for that previously used to name and order the performances of the denounced. It is with reference to this substituted, socially validated motivational scheme as the essential grounds, i.e., the first principles, that his performances, past, present, and prospective, according to the witnesses, are to be properly and necessarily understood. Through the interpretive work that respects this rule, the denounced person becomes in the eyes of the witnesses a different person.

(1956: 422)

While Garfinkel’s use of the term performance is different to the context in which I apply it here (Garfinkel uses the term from Parsons (2010) and it relates to individual behaviour: ‘what a person may be expected to have done and to do’, whereas I am talking about the trial itself as a form of performance), his article hinges on the notion of the ‘total identity’—it is the ‘social actor’ and his or her ‘total identity’, not the private individual, effected by ritual transformation. Most importantly, this ritual transformation only happens through the observation of others. Transformation of status is only effective if the ‘denounced’ is understood to be different in the eyes of the witnesses. This underlines directly the link between performance and legitimacy: rituals must be seen to be done. While the transformation of status happens to an offender, it happens in the eyes of the witnesses, and it is this witnessing that gives ritual its potency as a redressive and didactic form that moves beyond simple conflict resolution.

For both Garfinkel and Turner, no trial, then, is simply about the remedy of a particular harm; it is also part of a broader pattern of social regulation. ⁹ But while for Turner, ritual is of course conservative, for Garfinkel, ritual is darker. As Braithwaite and Mugford (1994) put it, Garfinkel’s ritual stages might best be understood as disapproval, degradation and exclusion. As such, Garfinkel and some legal scholars are more explicit than many performance scholars about the degree of violence potentially involved in these kinds of ritual. ¹⁰

This emphasis on the productive effects of violence of course brings us to Foucault’s (1975: 24) work in Discipline and Punish:

We must show that punitive measures are not simply ‘negative’ mechanisms that make it possible to repress, to prevent, to exclude, to eliminate; but that they are linked to a whole series of positive and useful effects which it is their task to support.

For Foucault the ultimate goal of juridical process is the exploitation of the ‘political technology’ of the body. It is the body that is crucial in constructing legitimacy and this process is always violent. The body is forced to ‘perform ceremonies, to emit signs’ because ‘it is always the body that is at issue—the body and its forces, their utility and their docility, their distribution and their submission’ (1975: 25). The criminal trial exemplifies this through the apparently voluntary submission of a defendant to the process (which is of course not voluntary at all). When a defendant walks into a courtroom, for example, this is a means by which ‘the Law’, via the state, asserts authority over an individual. But this ‘power is exercised, rather than possessed’ (1975: 26). It is the repeated walking into the courtroom of the defendant that constructs the process itself as legitimate, and it is reliant on repeated performance. In this way each individual trial does not reflect the authority of the law; rather it helps to manufacture it (Leader, 2007, 2008).

The two important strands I want to take from the anthropological and sociological writings above are, first, fundamental to the conception of effective redress is the acceptance by the concerned community that the process of adjudication is legitimate. Second, this legitimation is realized performatively. For the trial to be an effective ritual (or ritual-like activity) it requires the courtroom to be a communal sacred space both removed from daily life but still a recognizable part of that community. But a space cannot be sacred in and of itself, it can only be sacred if a community believes that it is: this belief is based on the fact that it has been done before and will be again. Performance Studies scholar Elin Diamond (1995: 2, emphases in original) remarked:

While a performance embodies traces of other performances, it also produces an experience whose interpretation only partially depends on previous experience. Hence the terminology of ‘re’ in discussions of performance, as in remember, reinscribe, reconfigure, reiterate, restore. ‘Re’ acknowledges the pre-existing discursive field, the repetition within the performative present, but ‘figure’, ‘script’, and ‘iterate’ assert the possibility of something that exceeds our knowledge, that alters the shape of sites and imagines new, unsuspected subject positions.

In other words, no trial is the same, but each performance can only be interpreted intertextually; through previous understandings. Marvin Carlson (2001: 4), a theatre theorist who writes about ‘ghosting’ in the theatre, commented when discussing cultural production:

This complex recycling of old elements, far from being a disadvantage, is an absolutely essential part of the reception process. We are able to ‘read’ new works—whether they be plays, paintings, musical compositions or, for that matter, new syntactic structures that make the claim of artistic expression at all—only because we recognise within them elements that have been recycled from other structures of experience that we have experienced earlier.

Pierre Bourdieu (1993: 44) terms these forms of signification homologies: a continual pattern of tying the present to the past whereby past markers of authority are retained to increase the antiquity and authority of the trial, emphasizing its universality and timelessness. It is Bourdieu’s work that is pertinent when considering how repeated performance can naturalize processes or, as he termed it, perform ‘social magic’. As Bourdieu (2000: 169) commented:

Symbolic force, that of a performative utterance, and especially of an order, is a form of power which is exercised on bodies, directly, and as if by magic, without any physical constraint; but the magic works only on the basis of previously constituted dispositions, which it ‘triggers’ like springs.

Each criminal trial ‘triggers’ submission from its participants. But more than one single trial, the repeated performance of the criminal trial:

is the canonical form of (all this) social magic. It can function effectively only to the extent that the symbolic power of legitimation, or more accurately of naturalization (since what is natural need not even ask the question of its own legitimacy), reproduces and heightens the immanent historical power which the authority and the authorization of naming reinforces or liberates.

(1987: 840)

For our purposes, repeated enactment of the domestic criminal trial has naturalized it to the process to the point where it occupies a place in social belief: it has a history, a tradition. This does not mean that the trial is always an effective means of redress (and of course it is not); rather we believe that it is (more or less). ¹¹ It is this belief we hold, of the criminal trial’s relative consistency, of the nominal witnessing of the community, which renders its findings legitimate. In juridical terms, this history may be referred to as precedent. Precedent generally indicates the body of common law upon which judges can draw to ensure consistency. However, this article contends that it is important to distinguish written precedent, and the particular role it plays in common law, from the crucial role played by the instantiation of the trial itself: the repetition of trial performances plays a central role in creating legitimacy; such repeated demonstrations provide a sense of continuity from past, to present to future; the antithesis of the arbitrary.

Advocates of international criminal justice, on the other hand, often find themselves defending international criminal law against charges of being arbitrary. For a start, the International Criminal Court (ICC) is only 16 years old. Created under the Rome Statute of 1998, the court itself did not come into existence until 2002. I have argued that legitimacy of practice is formed and reformed through repeated performance, but international criminal law is (relatively) new, and has been applied primarily through ad hoc processes. ¹² How can legal agents defend international criminal justice against the charges of being arbitrary or inconsistent, particularly when the court is so young? The claim itself is, of course, not necessarily accurate. There is a working body of international criminal law that has been built up for well over half a century and that has also built on national pre-existing law. There have been numerous tribunals and international trials that have applied precedents from international criminal law with varying degrees of success. However, the ad hoc nature of the tribunals is a more difficult charge to respond to. The establishing of the ICC is of course in itself an attempted response to this potential charge. In the foundation of the ICC, here is the (literally) concrete manifestation of the permanence and stability of international criminal law in the world. The ICC is therefore the means by which international criminal law attempts to meet this challenge. However, this involves having to employ strategies to link itself to an older pedigree in order to overcome the awkwardness of its extreme youth. As I will show, examination of the ICC reveals a concerted attempt to create new ‘structures of experience’ from old, familiar practices.

Eric Hobsbawm coined the expression ‘the invention of tradition’ in 1992. For him it meant something slightly different to the context in which I am applying it here. For Hobsbawm, this referred to the sustaining of inequality through the crafting of mythology; however, taking a Foucauldian understanding of power—where power is generated and reinforced through repeated performance—the term invention of tradition is useful because it is powerfully evocative of ‘doing’ as a means of creating and naturalizing ‘structures of experience’; the end goal being that through repeated doing these structures become recognized and that these goals are in their turn, therefore, legitimated and accepted. ¹³ If, and as soon as, the ICC achieves a kind of ongoing recognition—if its procedures become accepted, this will not only anchor it by according it a kind of permanence, but through it there will be a larger recognition of the stable presence of international criminal law. The ICC is therefore a means by which international criminal law attempts to move from the contingent to the assumed. But how does it create these structures of experience and invent its tradition?

The International Criminal Court and the invention of tradition

First, this is done through the choice of place. By choosing The Hague as a site, the ICC is already linking itself to a pedigree of international law and cooperation. Since 1899 The Hague has been known as an ‘international city of peace and justice’. Here the League of Nations established the Permanent Court of International Justice, and the Permanent Court of Arbitration. Here, too, have been the sites for the International Criminal Tribunal for the former Yugoslavia (ICTY) and the appeals chamber of the International Criminal Tribunal for Rwanda (ICTR): here is the UN. The very existence of this history is based on the idea of the neutrality of The Hague, a disinterested international space that has gained previous acceptance internationally. This focus on echoing international cooperation is continued in the ICC’s design fixtures: the UN logo and the justice scales in the ICC coat of arms. This serves to further emphasize the ICC’s links to the UN and also allows itself to tie itself to this institution which has a much greater longevity than the ICC. Alongside the reinterpretation of old symbolism, there is an emphasis at the ICC on echoing the diversity of its member states. This is deliberately shown in the use of plants from all of the signatory nations in the visible gardens. This is also repeated in the constitution of the court where legal agents are representative from across the signatory nations. The robes the judges wear, again, are a fusion of previously accepted judicial forms. This is the hallmark of the ICC: the constant recycling of recognizable ‘courtroom’ features that are reinterpreted to deliberately try to create homologies: not just to a history of international cooperation, but also to the already legitimated ritual spaces of domestic criminal law. The design and placement of the ICC therefore attempts to ‘re-inscribe’: new structures of experience based on the familiarity of the old.

This attempted re-inscription is echoed in the setting of the ICC itself. Recently moved to its permanent home, having previously been in a temporary home in a disused commercial building on the outskirts of The Hague, the ICC now forms the eastern tip of a triangle bounded by the ICTY, 3 kilometres away, and the International Court of Justice (ICJ), also 3 kilometres away. Once accessible only by car or an irregular bus (or a 45-minute walk from the town centre) past the fringes of town, the ICC is now in the centre of the court area of The Hague, described in one speech at the opening in April 2016 as ‘the crossroads of international justice’. This move, from being bounded by a railway line on one side, a number of other commercial premises in the same street and a series of industrial warehouses, is significant in publicly declaring the permanency of the ICC from its previous ad hoc setting (indeed the website emphasizes the ICC’s ‘new permanent premises’). Whereas once, a considerable amount of space at the ICC, including the public information rooms and the entrance lobby, was located in a converted car park, the new buildings are soaring, glass structures that are the antithesis of the strange, bunker-like quality of the earlier location. The opening speech in April 2016 by Judge Silvia Fernandez (2016: n.p.) ¹⁴ made an explicit link between the new building and the legitimacy of the ICC itself:

With its innovative solutions, the building supports the judicial mission of the ICC. It helps us hold fair and transparent trials. It helps us protect witnesses and facilitate the participation of victims in our proceedings. In sum, it helps us safeguard the independence of the Court, its credibility, and, ultimately, its legitimacy.

Another pertinent attempted re-inscription is the heavy presence of media equipment. A striking peculiarity of attending a trial at the ICC, compared with a domestic court, is the amount of technology dedicated to remote transmission. The ICC streams courtrooms’ proceedings whenever a trial is in session. These run on a 30-minute delay but run continuously, viewable on their website which also provides videos of previous weeks’ proceedings on request as well as rolling weekly summaries and transcripts of decisions. This means that in the courtroom, everywhere the eye turns, there are computers, wires and microphones. Coupled with this, the viewing panels for the public gallery are relatively small and members of the public remain separated from the participants by a pane of glass, leaving the impression of not feeling fully incorporated into the process. The overwhelming experience of attending as ICC trial in person, therefore, is that this kind of trial is not designed to be attended in person: the impression is not of a courtroom so much as that of a set of a courtroom. ¹⁵ The ICC’s location in The Hague, its architectural layout and its use of technology therefore constructs a space that attempts to be both specific enough to meet the demands of a formal trial and yet is to some extent ‘dematerialized’ in the sense that it is only through viewing by a remote audience that the courtroom fully comes into being. ¹⁶ I argue that this is directly linked to the ICC’s project of speaking to what they posit as the ‘international community’.

International criminal law is predicated on crimes of such seriousness that impunity under the guise of national sovereignty should no longer be permissible; this is the very basis for the existence of international criminal law. Indeed, that is made explicit in the Rome Statue (1998) when it notes that the most ‘serious crimes of concern’ are of concern to the international community. This, as Dominic McGoldrick (2004: 46) comments, positions the ICC as ‘an organ of [this] international community’. ¹⁷ However this also draws attention to the delicacy of the ICC’s position. Unlike other institutions, the ICC is dependent on the good will of the signatory countries and the cooperation of other organizations such as the UN as they have no police force to apprehend those for whom they issue arrest warrants. The ICC is therefore a product of compromise: it does not have routine jurisdiction over anyone perpetrating the most serious crimes of concern. Instead, it can only take on cases on referral and where the state in question cannot conduct its own trial, unless the prosecutor uses her proprio motu powers under Article 15. ¹⁸ At the same time, though, Article 21 of the Rome Statute (1998) clearly delineates the primacy of international statute before the consideration of national laws. The trial therefore becomes a balancing act: where it needs to perform the ICC’s authority over a defendant without exposing how vulnerable this authority actually is.

The multilateral focus continually in evidence at the ICC is therefore not an empty gesture; rather it is a deliberate means to create an idealized space of international cooperation. Ultimately, the ICC is a kind of ‘secular cathedral’ but this secular cathedral is not reflecting the concept of an international community, it is seeking to call it into being. As Dominic McGoldrick (2004: 10) points out: ‘[a] system of “international criminal justice” might be thought to require some consensus on the existence and values of the “international community”. The existence of such a community in this sense and its values also remain contested.’ The ICC trial is therefore a normative practice. The performing of the trial in the name of the international community is a kind of ‘social magic’: it helps bring it into being as a legitimate political concept (Bourdieu, 1987: 840). As Devika Hovell (2018: 20) suggests, the development of the language of international community arguably comes at a time where any implied connection between the protection of the populace and state sovereignty is coming unstuck: as such, international community becomes a means ‘to explain the development of international legal principles to regulate the relationship between a state and individuals within its jurisdiction.’ The ICC and the international community are therefore not only mutually dependent but also to some degree mutually constitutive. This was expressed by the outgoing secretary general Kofi Annan (2001: n.p.) in 2001 when he said: ‘I believe it is now generally understood that certain crimes, as long as they are left unpunished, cast doubt on the very idea of an international community.’

The creation of an ‘international community’, however, is problematic. Implied within this idea of an international community is a universal subject that en masse constitutes this community. But this assumption of equality of circumstance and access to justice does not reflect the reality of the diversity of the 123 signatory nations. Critiques of the concept of an international community often hinge on the blurring of difference that is an inevitable consequence of such a label, as surely a community’s identity is forged through its differentiation from ‘other’. As Benedict Anderson (1993: 7) points out:

No nation imagines itself coterminous with mankind. The most messianic nationalists do not dream of a day when all the members of the human race will join their nation in the way that it was possible, in certain epochs, for, say, Christians to dream of a wholly Christian planet.

Luban (2004: 109), too, is critical of any shared ‘humanity’ implicit in this international community, which is an idea that is too ‘contestable to anchor our intuitions about what makes humans special—all the more if these intuitions are supposed to be shared across confessions and cultures’.

Indeed, analysis of the ICC court design yields the insight that what is seemingly ‘neutral’ is not neutral at all, but rather a dominant discursive inscription that has been repeated over time to the point where we fail to recognize its particular historical and political context. The symbolism referenced at the ICC carries particular histories: specifically, a western liberal tradition that presupposes the emergence of the individual secular subject. To some degree, too, the ICC project is inevitably linked with the emergence of international human rights law, which again is based on the concept of an individual subject (Decaux, 2011: 597). Yet many cultures including those who are signatories to the ICC do not necessarily share this philosophy: most markedly, the division between the sacred and the secular, or the individual and the collective.

It is beyond the scope of this article to critique the ICC in terms of its representativeness or efficacy further, as many, many other scholars such as Krever (2014) and Schwobel-Patel (2016) have already addressed this in much greater detail. This article instead is assessing the ICC trial as a ritual-like performative practice. Within this framework, however, it is relevant to consider the efficacy of the concept of an ‘international community’ in terms of audience. Can this international community effectively be an audience? As outlined earlier, audience is crucial in this ritual like model to the concept of redress; the trial must be witnessed for transformation of status to occur. It is here things become a little murky. If the ICC is an organ of the international community, does this imply that the international community is the community in need of redress? And if so, is this even possible (see also Levi, 1988: ix)?

Raimond Gaita (2002: 138) paraphrases Arendt noting that:

genocide should be seen as a crime against ‘the order of mankind’, just as the murder of an individual is an offence, a ‘hurt’ against a community even when it does not have the potential to encourage more crimes of the same kind.

In this respect, the concept of an ‘international community’ in need of redress could be read as a fulfilment of this promise. But, as Arendt (1963: 269) goes on to say, crimes against humanity are ‘an attack upon human diversity as such, that is upon a characteristic of the “human status” without which the words “mankind” or “humanity” would be devoid of meaning’. We are not equal victims (and indeed, as Primo Levi (1988: 84) observed, even ‘we, the survivors, are not the true witnesses’). These crimes took place within and against particular communities; indeed, the very definition of a crime such as genocide depends on victims having a shared identity (or shared perceived identity) that is directly responsible for their targeting. Surely one of the most significant factors of the Eichmann trial was that, despite using international law, it took place in Israel.

In a speech at The Hague in 2002, Martti Koskenniemi (2002: 35) stated:

One cannot fail to wonder to what extent a process conducted in front of foreign judges in the Hague is able to attain the didactic purposes hoped for; to what degree Balkan memory may be constructed or directed by an international process […] All this follows as a matter of course in a criminal trial that looks for punishment. Anything more—‘truth’, ‘lesson’, ‘catharsis’, ‘reconciliation’—depends on how the tribunal will be able to deal with a constitutive paradox at the heart of its job.

Any trial conducted at the ICC remains removed from the community in which the wrongs take place. Not only does this symbolically undermine meaningful participation, it also quite literally impedes access, making it more difficult, and expensive for victims and local communities to participate. Thus, the possibility of ritual transformation is, in this reading, not possible. Victim participation does not constitute a true ‘audiencing’ for the affected community so long as the trial takes place so far from this community.

The ICC therefore has a place problem, something of which the ICC is clearly aware. The mediatization of the process—the dematerialization of the courtroom itself– is a significant part of the ICC’s attempted performative re-inscription, potentially allowing the transmission of proceedings to the communities directly affected. ¹⁹ In Kevin Gray’s (2004) assessment, the re-inscription techniques of the ICC trial constitute a paradigmatic shift: evidence of the ICC’s attempts to escape the choice between individual criminal accountability and the trial as a ‘living record’, and thus account at least partially for both a local and international audience.

This paradigmatic shift is also manifested through the extensive and multi-layered inclusion of victims in the Rome Statute (1998), starting in the Preamble, which lays out the ICC’s stall as a victim-focused institution. In addition, the ICC’s inclusion in the Rome Statute of Victim Participation (Article 68) and the Victim Reparation Scheme (Article 75) constitutes a significant innovation. In the ICC founding statute, there is a deliberate enlargement of the scope of enquiry to create what becomes a hybrid institution. ²⁰ This hybridity is part of the ICC’s attempt to create a new ‘structure of experience’ in the trial. ²¹

But, of course, while it is clear that the ICC is attempting to speak to both local and international audiences, this does not necessarily dissolve the tension between these two approaches: it arguably compounds it. For example, the greater the inclusion of victim testimonies, the greater the potential to argue that a defendant’s right to a fair trial is potentially violated: as we saw in critiques of Eichmann from Arendt onwards. And at the same time, although the ICC clearly attempts to assert its victim credentials and break with past tribunals that were less successful in this regard, scholars such as Susana SáCouto (2012) argue that because victim participation at the ICC is fragmented and incomplete, the trial does not facilitate meaningful participation for them. So where does that leave us?

At the expense of being repetitious, I want to state again that this article does not attempt to evaluate how successful the ICC’s attempted methods of re-inscription are; indeed, many scholars may easily argue that the choices of re-inscription (such as being based in The Hague) may potentially undermine, rather than enhance the ICC’s legitimacy. Rather my object has been to read the ICC trial as a form of normative performance, including the way the ICC attempts to position itself for its multiple audiences. But it is worth noting that some of the criticisms of the failure of redress at the ICC may perhaps be being idealistic about the possibility of ritual transformation in any form of criminal trial. There is a very wide distance between accepted legal rituals that engender norms and the notion of ‘meaningful redress’: the former, processes that become habituated and the latter, perhaps always idealized and elusive. As such, criticisms of the ICC in many ways reflect the hope that may be engendered by the possibility of a process that can both end impunity and involve victims, and the disappointment that such a hybridity involves navigating impossible choices.

In saying this, I am by no means attempting to sidestep legitimate criticism of the ICC, nor to trivially relativize domestic and international criminal trials, which are distinct phenomena in some important ways. However, I think it is worth noting that there is always a wide gap between ritual-like activity we have habituated over time and the elusive concept of ‘meaningful redress’, and we should not mistake one for the other. As I said earlier in this article, domestic criminal trials are accepted by the community not because they are always fair or always representative, but because we believe they are, and this belief is sustained primarily by repeated practice, not because they are always successful transformative rituals.

Conclusion

This article has argued that trials at the ICC can be read as a form of performance. This performance attempts to demonstrate and construct the ICC’s own legitimacy, and through it the idea of international criminal law and the international community. For Kevin Gray (2004), the ICC trial constitutes what he might call ‘good theatre’—one that attempts to make up for the failings of traditional adversarial trial and allow a prominent role for history making. ²² For Koskenniemi (2002: 35), though, the incorporation of multiple historical narratives risks fatally undermining a defendant’s presumption of innocence: ‘to didactically educate, you have to tell the truth and silence the accused—but that turns it into a show trial, and renders it illegitimate’. Here we arrive at not just ‘bad theatre’, but one that, as Gerry Simpson (2007: 113) puts it, demonstrates ‘casual disregard’ for the law.

However, this article has tried to argue that such evaluations of ‘good’ and ‘bad’ theatre—on what constitutes ‘show’ in relation to international criminal trials—remains predicated on the subject position of scholars who seek to police the challenging and porous boundaries somewhere on the spectrum between a narrow drawing of individual criminal responsibility and that of greater victim participation. The ICC trial struggles for legitimacy, therefore, not because it is ‘good theatre’ or ‘bad theatre’, but because it is new, and it has an unclear audience. If the ICC trial seeks to appeal to an international community but also to provide some form of local redress for victims, it will struggle to do both. If it seeks to be both a history and memory maker as well as a legitimate authority of individual punishment it will struggle to do both. However, as Simpson (2007: 1) points out,

The field of war crimes is constituted by a set of relationships—between politics and law; between local justice and cosmopolitan reckoning; between collective guilt and individual responsibility; between making history and performing justice; between legitimating dominant political forces and permitting the expression of dissident views; between the idea of impartial and honourable justice, and the spectre of the war crimes trial as a show trial.

In other words, these tensions are not simply problems with the trial. All trials are show trials. The ICC’s troubled performance shows us the unresolved dilemmas inherent in international criminal justice itself.