Narrative expressivism: A criminological approach to the expressive function of international criminal justice

Abstract

In response to recent demands to make use of international criminal justice institutions’ archives for social scientific research, this article develops a theoretical approach to international criminal justice called narrative expressivism. Narrative expressivism considers criminal justice as a potent source of information about past crimes – yet also, as a site that impacts on present and future societal understandings of mass violence, promoting a particular structuring of thought. As such, narrative expressivism addresses what kind of knowledge international criminal justice, its institutions and archives, provide the empirical basis for. Theorizing expressivism through a narrative lens, narrative expressivism shifts the emphasis of legal expressivist approaches from facts to stories, from punishment to process, from purpose to function, and from the normative to the descriptive.

Keywords

International criminal justice international criminal law juridification of knowledge legal expressivism mass violence narrative expressivism supranational criminology

Introduction

At the end of 2017, the International Criminal Tribunal for the former Yugoslavia (ICTY) reached the end of its mandate, almost 25 years after its inception. As several times before, its final weeks in operation were marked by particularly defiant defendants. On 22 November, the ICTY sentenced Bosnian Serb former general, Ratko Mladić – also known as ‘The Butcher of Bosnia’ – to life in prison, 22 years after the Tribunal first indicted him (ICTY, 2017d). During the video broadcasted sentencing, Mladić shouted profanities and called the judge a liar (ICTY, 2017b). In his hometown, Božinovići, and in Lazarevo, where he was arrested in 2011, people responded to the judgment by calling Mladić a national hero and the court a farce (Bowcott and Borger, 2017). At the same time, in Geneva, the UN High Commissioner for Human Rights called the judgment a momentous victory for justice, and described Mladić as ‘the epitome of evil’ (OHCHR, 2017).

One week later, on 29 November, the ICTY completed its last appeal case with the final conviction of Jadranko Prlić and his five co-accused from the Croatian Defence Council and Forces (ICTY, 2017c). Prior to the judgment session, and in contrast to the much-anticipated Mladić judgment the week before, the global media did not pay much attention to the case, its defendants or the crimes charged.¹ The judgment session turned, however, into an even more dramatic event than that of Mladić: it became a live broadcasted crime scene of its own. Upon confirmation of his 20-year prison sentence, one of the defendants, the 72-year-old Slobodan Praljak, a former Croatian general and also a former director of theatres and movies, drank poison – and yelled ‘Slobodan Praljak is not a war criminal. With disdain, I reject this verdict’ (ICTY, 2017a). He died hours later. With this last defiant act, Praljak assured global attention to his person, his trial, his claimed innocence, the convicted crimes and the ICTY.

Trials are often described as dramaturgical processes (Drumbl, 2011: 34); as scripted sites for great drama, grand emotions and discursive power battles – between truth and lies, martyrs and villains, good and evil, mass harms and denials, guilt and innocence. Rarely has the theatre metaphor often evoked to describe international criminal trial proceedings been as remarkably fitting as in these last two sentencing sessions at the ICTY. In both these cases, though, the defendants went off script – and thereby challenged the legal framework itself as the director of the narrative produced by the court through judgment. Both defendants insisted on their story, on their continued agency, on forming their legacy, through protest, reaching their desired audiences through the media platform that the ICTY provided. At this turning point in the history of international criminal justice, their defiant acts and stories, too, form part of the legacy of the ICTY.

From the outset of these recent events, this article develops a theoretical and analytical approach to international criminal justice that I call narrative expressivism.² It builds on a four-year case study on the ICTY as a site for explaining and managing collective violence (Houge, 2017). Taking into account both the reach of proceedings and decisions at international criminal courts, and the vast empirical material that these institutions produce and keep in their archives, international criminal justice processes contribute much more than their final adjudication of guilt and innocence pertaining to specific crimes (Buss, 2014). They ‘impact on how the events and the period of history that they deal with are collectively remembered’ (Karstedt, 2009: 2). Narrative expressivism theorizes international criminal justice as an empirical field for knowledge construction. This includes a significant recognition of the potential that international criminal justice institutions and their archives have as a source of data for criminological and social scientific research. Yet it also problematizes how legally constructed understandings of mass harms and justice transcend the strict legal sphere of its production. That is, narrative expressivism theorizes the juridification of societal and political understandings of complex collective and social problems.

As the name implies, narrative expressivism relates to classical legal expressivist approaches to criminal law. However, looking at expressivism through a narrative lens, narrative expressivism shifts emphasis in four important and interrelated ways: from facts to stories; from punishment to process; from the normative to the descriptive; and from purpose to function. Narrative expressivism is, thus, situated at the juncture of insights from narrative criminology and legal expressivism, and adds narrative analysis to the equation of what work international criminal justice does in the world.

Narrating Harm

Historically, criminology has not been a discipline particularly invested in the study of war harms and crimes. Seeing an increased disciplinary interest in international crimes and crime control towards the end of the 1990s (e.g. Ruggiero et al., 1998), along with the occasional article focused on armed conflict issues (see, for example, Jamieson, 1999; Laufer, 1999), a new subfield of criminology, supranational criminology, gained a footing after the turn of the millennium (see, for example, Hagan et al., 2005; Jamieson, 2014; Maier-Katkin et al., 2009; Rafter, 2016; Roberts and McMillan, 2003; Rothe and Mullins, 2010; Smeulers and Haveman, 2008). With its particular emphasis on narratives and understandings produced by criminal law institutions, narrative expressivism adds to this growing body of literature, by theorizing a central source of empirical data in the field.

Here, narrative is both that with which narrative expressivism is concerned, and an analytical lens. Narrative can be defined in numerous ways – for the purposes of narrative expressivism, narrative is defined in a broad sense, simply as a story that orders experience, renders experience meaningful or tentatively explains acts and events, always for a particular audience. As summarized by Banks and Albertson (2018), ‘[n]arratives represent a mode of discourse which connects one event to another in temporal and causal patterns’. It follows that not all narratives addressed herein are what Labov (1997) would accept as fully formed narratives, which comprise a clearly defined abstract, orientation, plot, resolution, evaluation and coda. Here, narratives may be more fragmented, compiled by several voices, sequenced, shifting back and forth in chronology, produced over time, or in a single statement. In terms of court proceedings, counsels’ arguments may constitute narratives, judgments are read as narratives, as are defendants’ statements and witnesses’ testimonies (see Houge, 2016, 2017). Thus, counsel’s cross-examinations of reluctant witnesses that respond in monosyllables, may constitute a fragmented narrative as here understood – telling a (stuttered) story about the events addressed and about the court actors, their relation to one another and the context of storytelling within which they speak. Single testimonies and examinations also contribute to (or challenge) the broader argument (narrative) of the parties, constituting parts of larger narratives constructed over time during proceedings.³

Narratives are both individual vehicles for identity and cultural products. Stories can be personal speech acts and they can be institutional, collective, cultural, national stories that separate ‘us’ from ‘others’, narratives that build and bind communities together through common referentials, build nationhood and identities, in multiple ways and with different effects in different contexts and among different audiences. Narratives are closely related to re-presentations – particular tellings or framings of acts, individuals and situations, in order to make sense of their connection in the story. As Wibben (2011: 2) states, ‘through narratives, we not only investigate but also invent an order of the world’. Stories create – or forge – ‘a sense of coherence that experience lacks’ (Presser, 2009: 180), and tell us who we are, who others are, and who we can become. Stories are fundamental to human life and coexistence (Frank, 2010). Importantly, stories affect ‘the way we perceive the social and material worlds’ (Autesserre, 2012: 206, emphasis added). And the way we perceive the world ‘orient[s] how we act upon our environment’ (Autesserre, 2012: 206). That is, stories animate choice and action by forming actors’ perceived manoeuvrability in different circumstances. This insight is central to constitutive understandings and approaches to narrative analyses, such as narrative criminology. Accordingly, narrative criminology puts the story about experience, not the experience as such, at the centre of analysis, from the outset that ‘[s]tories animate human life’ (Frank, 2010: 3). From this perspective, stories about harms in the past, whether individual, institutional, political and/or cultural, are interesting primarily because they can motivate, maintain or restrain harmful action in the future (Sandberg, 2016). It follows that the influence or animating powers of a story are not conditioned on it being true or not. In fact, Presser and Sandberg (2015: 6, emphasis added) state, ‘from the perspective of narrative criminology narratives are never erroneous’.

This claim is particularly provocative in the context of mass violence, where political whataboutery and outright denials often abound in response to, for example, discoveries of mass graves, testimonies of massacres (see, for example, Rohde, 2015) and reports of sexual violence and slavery (see, for example, Hsiung, 2016; Hunter, 2013). Narrative analyses as such may therefore appear as a theoretical, and too abstract, affront to the harms in question. To be sure, the materialities of the suffering that produces responses such as international criminal trials, matter. Narrative criminology’s non-emphasis on stories’ authenticity does not infer that all is relative. The point is simply this: a story need not be true in relation to the past for it to do work in the present and for the future.⁴

But how do the particular lessons from narrative criminology fit into the particular legal framework of storytelling with which narrative expressivism is concerned? After all, finding the truth about the past is not only a concern for the court, but key: it is the task it is faced with. In aiming to reveal the truth, the court does not relativize reality, it establishes it. In doing so, it focuses on the past, while narrative criminology focuses on the future. Yet, law is not only facts, rules and policies; it is also stories and performances. Narrative is, thus, connected to law in many ways. Indeed, ‘narrative and rhetoric pervade all of law and, in a sense, constitute law’ (Gewirtz, 1996: 3). Narrative expressivism seeks to theorize the meanings and impact of these narratives beyond law itself – adding narrative analysis into the equation of what work international criminal justice does in the world.

From Legal to Narrative Expressivism

International criminal law and justice serve numerous purposes and goals, many of which are self-imposed, others that are claimed by advocacy actors and politicians in order to justify the costly creation of its institutions, or to promote criminal prosecutions in relation to specific conflicts and situations (Damaska, 2008; Koskenniemi, 2002; Nettelfield, 2013). Although they overlap, these rationales can be roughly categorized according to their temporal orientation. Some justifications are directed against the past – that is, they see international criminal justice primarily as retributive justice, emphasizing punishment as perpetrators’ just deserts. Others are oriented towards the present – when international criminal justice is argued to help end conflict and ongoing harms, with emphasis on punishment as incapacitation. Yet others focus on crime control for the future – when emphasis is on general deterrence, and the rehabilitative potential of punishment and the establishment of a common factual history.

It is not difficult, nor unusual, to criticize international criminal justice institutions for their lack of success in terms of these purposes (Clark, 2009; Fletcher and Weinsten, 2002; Ramji-Nogales, 2010; Tallgren, 2002). In utter brevity, such critique often points to how international criminal courts accuse, prosecute, convict and punish too few; that proportionality in punishment is illusory; and that selectivity at all levels – from the selection of prosecutors, judges and conflict cases, to crimes selected for charges, individuals selected for prosecution and victims selected for testimony – hampers and prevents these desired outcomes.

In light of these shortcomings, scholars contemplating the role and purpose of international criminal justice have turned to legal expressivism as a key rationale and justification for international criminal law and punishment (Sander, 2016). Legal expressivism refers to a body of justifications for criminal justice that focus on criminal law’s and criminal punishment’s ability, or potential, to confirm, consolidate and/or project shared or declared beliefs and norms, criminal justice as such being one of them (Amann, 2001; Corrias and Gordon, 2015; Sunstein, 1996). From this perspective, the forte of international criminal justice is to communicate – to share and declare – an ideal and aspiration (Mohamed, 2015). Accordingly, international criminal justice is seen primarily as a normative, didactic endeavour (Drumbl, 2007: 17).

In posing this rationale for criminal justice, legal expressivists focus primarily on the particular effects of punishment.⁵ Through their official condemnation of certain actions in judgments, international criminal justice institutions communicate an ‘indignation [on behalf of] of humanity’ (ICTY, 2004: 7; see also Ralph, 2009). Criminal punishment is interpreted as a ‘speech act in which society talks to itself about its moral identity’ (Savelsberg, 2016, referencing Smith, 2008). By first establishing certain acts as factual, legal and moral wrongs, punishment is argued to prevent that norms, ideals and beliefs (expressed through criminal law) vaporize if violated (Meijers and Glasius, 2016). Paralleling narrative criminology, sentencing and punishment is argued to carry an animating potential – a potential that confirms a moral order and projects the rule of law for the general audiences, and not primarily or exclusively for the accused individuals.

For narrative expressivism, it is the overarching communicative function of law important to legal expressivists that is of primary interest. Situated at the juncture of narrative criminology and legal expressivism, narrative expressivism shifts, however, the above stated emphases of legal expressivism in significant and interrelated ways: first, from a focus on moral and legal facts expressed through judgment and punishment, to stories and explanations expressed throughout the legal process. Second, from a focus on international criminal justice’s purpose and justification to its function and thus, from the normative to the descriptive.

From punishment to process, from facts to stories

As a theoretical argument for international criminal justice, legal expressivism tends to focus on the particular normative potential of criminal punishment. Paradoxically, however, the sentence and execution of punishment ‘remains little more than an afterthought’ in the international criminal justice project (Drumbl, 2007: 11; see also Lohne, forthcoming). The punishment is arguably ‘far less significant than the trial itself’ (Luban, 2011: 74, emphasis added). International criminal justice is more concerned with defining and declaring wrongs and responsibilities, with communicative acts that gain leverage through the imposition of sanctions, than with the particular act of punishing – reflecting the problems of proportionality that the declared wrongs produce. Narrative expressivism reflects this. Returning to the theatre metaphor, narrative expressivism is not only concerned with the last act before the final curtain, but with all the acts and perspectives of the different actors that get voiced throughout proceedings on the international stage that the court provides.

Narrative expressivism sees judgments, but also counsels’ arguments, and witnesses and defendants’ testimonies and statements, first and foremost as narratives. Lawyers, for one, ‘understand the importance of a good story in the courtroom: They try to tell the story that a jury is most likely to believe’ (McMillen, 1996). Moreover, in the ad hoc international criminal tribunals, oral evidence makes up the primary evidence base. As such, testimonies and statements constitute the primary source for the historical record, or the truths, that trials produce (Schabas, 2011).

These narratives about charged criminal offences, their causes and consequences, are read as constitutive parts of discursive power battles about how mass violence is best understood, explained and responded to. In line with narrative criminology, they need not be true in order to qualify as a story or narrative of interest. With public proceedings and transcripts, the trial becomes a public theatre of different and contesting ideas – a place to test and rename, pronounce and project, and also, establish history about mass harms (see Houge, 2016).

In order to construct a legally authorized history of particular mass harms, the statutes of international criminal courts require the courts to situate the international crimes within political, collective and social contexts (ICC, 2011; ICTR, 1994; ICTY, 2009). This demand for context, legal historians hold, is ‘altering the relationship between law and history’ (Wilson, 2005: 941). The courts not only seek to decide what crimes happened and who is responsible. They also seek to explain why. Importantly, however, and regardless of the concern with context, international criminal law still stories the past in particular ways – the truth it produces is juridified, steered by the purpose of finding individual defendants guilty or not guilty. In the particular context of mass violence and collective crimes, individualizing guilt means to select an individual out of a collective of perpetrators – whose very collectivity makes up a probable and necessary precondition for the crime. It means to emphasize individual agency in a context where criminological (e.g. Christie, 1972; Smeulers, 2008), but also sociological (e.g. Collins, 2008; Grossman, 2009), social psychological (e.g. Zimbardo, 2008), political science (e.g. Straus, 2006) and historical (e.g. Browning, 1998) research since the 1970s, have challenged its existence, or at a minimum, its strength and relevance in terms of causation.

The whole process of adjudicating guilt and innocence, of evaluating evidence, hearing, challenging and sorting stories, establishing facts – the process of ordering chaos through a legal model that streamlines causality, draws individuals out of collectives and categorizes both them, the acts, victims and contexts – makes a less complex and more comprehensible narrative of what was, through means and under influence of what constitutes legally relevant arguments and according to the courts’ binary logics. Such legal understandings are appealing. As Tallgren (2002: 594, emphasis added) states, ‘[b]y focusing on individual responsibility, criminal law reduces the perspective of the phenomenon to make it easier for the eye. […] It reduces the complexity and scale of multiple responsibilities to a mere background.’ Arguably, what law, and particularly judgments, construct is not an objective or at least not full record or history of the past, but – to some extent – the events anew, formed by these constraints and possibilities of the legal framework (Dershowitz, 1996; Felman, 2002: 123).

Narrative expressivism caters to this reduction, to the processes of inclusion and exclusion of different voices and to the leveraging and silencing of some stories over others during proceedings – and in the further distilled blue print, authoritative version of what happened that is the judgment. Importantly, narrative expressivism also acknowledges that stories told during proceedings that do not get confirmation in the judgment may still address audiences well wired to hear. Stories of denial, or political, nationalist speeches, too, get a public platform in international criminal trials – as did the defiant defendants that introduced this article when the ICTY established their guilt.

Moreover, the focus on process over punishment also entails an acknowledgement of the processes that lead to the establishment of international criminal courts, the selection of particular conflict cases and the prosecution of particular crimes. International criminal justice institutions are neither established nor do they operate in a societal, structural or political vacuum. As social problems and complex aetiologies are increasingly constructed as problems of law, narrative expressivism may also cater to the ideas and subjects that are called into service for criminal law’s operation in order to push criminal prosecutions (see, for example, Houge and Lohne, 2017).

From justification to function, from normative to descriptive

In contrast to legal expressivism, narrative expressivism is not an argument for, or purpose of, international criminal justice. Nor is it primarily concerned with the level of truth or accuracy that legal narratives produce, or with the moral condemnation of acts that punishment signifies. Notably, stating through judgment and punishment that an act happened and was wrong, is not the equivalent of explaining the crime. Narrative expressivism is concerned with all the expressive, or communicative, work courts do or facilitate. This includes all the narratives that the international criminal justice project produces about acts charged as international crimes – either from the inside of its institutions or from the outside by its proponents – whether the narratives morally condemn or deny mass violence, and whether they strengthen or challenge the legitimacy and authority of international criminal justice institutions. This entails a fundamental recognition of the fact that it is not only the norms established or insisted on through judgments that get communicated through public international criminal trials. This way, the expressive understanding of law changes significance from being primarily a normative theory or argument of purpose (legal expressivism) to a descriptive theory of its function as storyteller and narrative conveyor, weighting the explanations of problematic social phenomena and mass harm and the role of law that it produces (narrative expressivism).

In this regard, it is important to point out that narrative expressivism is not a critique of or an alternative to the various purposes claimed for international criminal justice measures or of legal expressivism in particular. Narrative expressivism theorizes the narrative production of and for international criminal justice as a function of its existence and place in the global political order. While courts through judgments produce normative evaluations of international crimes, leveraged through the authority of criminal law, international criminal courts also provide international, public platforms for protest – as evidenced by the defiant defendants’ ‘performances’ at the final proceedings of the ICTY. Mladić often used the proceedings as a platform from which he could speak to audiences beyond the courtroom. He received a lot of attention because of his prominent role in the war and atrocities that took place. Praljak, on the other hand, was not as prominently known, but he forced the world’s attention to him by his act of ultimate defiance, casting himself as a martyr – rejecting the tribunal’s truth and legitimacy – and refusing to serve his time in prison for what he declared justice undone. This, too, forms part of international criminal justice’s expressive function. Narrative expressivist approaches to these cases could describe the work these narrative ‘performances’ do in different audiences – their function relative to the trial truth produced in judgment. Similarly, narrative expressivism could cater to the particular fixation on individualized guilt and responsibility that international criminal justice constructs its explanations of mass harm in relation to, relative to social scientific understandings of collective harms that tend to submerge the relevance of individual agency (Houge, 2016; Mohamed, 2015). Whether these various narratives work well in terms of the purposes of international criminal justice or not, is a different endeavour – also open to further empirical analysis.

In sum, narrative expressivism is an approach to international criminal justice that emphasizes its stories, not its truths, its understandings, not its punishments, its descriptions and explanations, not its normative evaluation and judgment. That is, it looks at how laws generate and enable, constrain and silence, knowledge about complex collective violence.

Narrative Expressivism: Theorizing a Juridification of Knowledge

Narrative expressivism addresses international criminal justice and its institutions as sites in which knowledge is produced, and for which knowledge is constructed. As such, it theorizes ‘international criminal law as a system of knowledge’ (Buss, 2014: 75). Yet international criminal law is not its own invention, it does not operate in a vacuum. It is situated in, and in a dialectical relationship with the epistemic community that surrounds it – the broader international criminal justice project. Trial narratives reflect, confirm and impact social and cultural narratives (Harris, 2001: 72), as legal and extra-legal understandings of collective harms are dyadic, dynamically constitutive of each other (Karstedt, 2009: 3; see also Garland, 1990: 54; Savelsberg and King, 2007). Narrative expressivism concerns the ways and extent to which international criminal justice institutions feed, if not define, a wider social and political discourse about the phenomena the courts respond to. As such, it acknowledges that ‘not only is knowledge power, but power is knowledge too’ (Ayoob, 2002: 29). Focusing on power in its discursive forms, involves attention to how specific sets of logics organize and produce knowledge (Turan, 2016).

Through its legal authority, the court leverages a juridification of collective and political understandings of particular conflicts, the aetiology of mass violence and international crimes. Juridification, as used here, refers to a process of knowledge construction that adapts to legal logics, and the societal penetration of judicial ways of thinking (see also Sieder, 2010).⁶ Narrative expressivism asks what stories and understandings the court framework allows for, and furthermore, what it means when knowledge from and for court proceedings is used to describe and understand a social phenomenon outside of it. It concerns how law acts as a central contributor to ‘[t]he politics of representation’. This contribution necessitates attention to questions such as ‘whose representations are these, who gains what from them, what social relations do they draw people into, what are their ideological effects and what alternative representations are there?’ (Fairclough, 2013: 549–550). It follows that narrative expressivism addresses and theorizes international criminal justice and its institutions as epistemic engines (Holtermann, 2017), that is, as knowledge producers beyond the development of legal doctrine. Henry (2011: 130) holds that international criminal trials ‘authoritatively pronounce what and how history shall be remembered’, making law not only ‘a potent source and site of memory, but a powerful arbiter thereof’ (Henry, 2011: 2, emphasis added). Courts administer not only justice, but also history and collective memories as they systematically generate beliefs and produce truths for the public. Paraphrasing Benjamin (1974 [1937]), by articulating the past in legally specific or constrained ways, international criminal courts control how it is remembered. Drawing on Mardorossian (2002: 766), legal narratives are ‘not seen as reflections of reality but as reflections of particular discursive formations that determine what counts as the truth’. Narrative expressivism is, thus, concerned with the international criminal justice project’s production of and contribution to metanarratives that contain ‘gatekeeping powers over interpretations of reality’ (Somers, 1995: 234; see also Keeton, 2015), beyond courtrooms, and beyond what counts as legal and criminal, right and wrong.

As with norms propagated through law, the relationship between court stories, trial truths and legal explanations on the one hand, and societal stories among advocacy actors, humanitarian actors, politicians and media on the other, is not fixed (Savelsberg and King, 2007; Scoular, 2010). The extent of juridification is dependent on many different factors – most evidently, the degree to which the courts provide a public platform and who the defendants are, but also how media-friendly the prosecutor is, and what conflict courts address. Not all proceedings, cases or conflicts dealt with in international criminal courts will have the same impact or interest among different audiences, nor will different audiences respect or accept the historical truth of trial judgments to the same degree. Moreover, it is worthwhile to consider if the degree or penetrative force of expressivism as here conceptualized is also thematically dependent. The materials from court proceedings pertaining to sex crimes illustrate in emphasized ways how international criminal justice institutions not only constrain what stories are told, but also enable stories that have not been told or heard elsewhere (Bano and Pierce, 2013: 231). When the crimes concerned involve shame, stigma and limited research access to both victims and perpetrators, when trials involve spectacular and unspeakable crimes and the near-ideal construction of victims and perpetrators and when the prosecutions come as a result of international, loud and particularly insistent campaigning to get the crimes on the international agenda, international criminal justice institutions can become especially central knowledge producers, important influencers of extra-legal understandings of destructive social phenomena (Drumbl, 2005: 593; Holtermann, 2017).

Juridified narratives are interesting because of their potential public reach, which follows from their appeal. Their appeal, in turn, follows from the legal framework that carves out and constrains the historical record courts can produce – overall presenting a simple causality line and, not least, individualizing guilt. In the author’s research, it is the particular abstraction through binary reductions that law contributes to that is at the centre of attention (Houge, 2016). An extract from the judgment of Miroslav Bralo at the ICTY may illustrate. Bralo pleaded guilty to numerous offences – including participation in a massacre and numerous sexual assaults of a detained woman. The judgment situates these crimes as part of the conflict – as part of a widespread attack against parts of the population. Yet, in constructing an explanation for the individual perpetrator’s participation, the context no longer matters:

The Trial Chamber is aware of the deteriorating political and military situation […] While it is notorious that such pressures existed, the Trial Chamber nonetheless finds that they cannot be considered in any way relevant to the sentence to be imposed upon Bralo for the crimes of which he has been convicted. Large sections of the population […] were subjected to the same or similar pressures, and yet did not respond in the same manner. (ICTY, 2005: 18)

Even though the court insists that ‘perpetration of these crimes in these settings may be quite typical, for these defendants, it is a mark of deviance’ (Mohamed, 2015: 1636, emphasis in original). Judgments and prosecutors refer to defendants as sadistic, as personally cruel, as barracudas, as barbaric. The epistemic community surrounding the courts refers to them as monsters, indeed – as butchers, as the epitome of evil – as in the Mladić case. Whereas scholarly research cast perpetrators of mass violence as ordinary men, international criminal justice casts them as anything but ordinary. This way, the court process serves to separate the offenders from ‘us’; they are not represented or defined as members of society, but as outcasts, as aberrations. You may have to be exceptionally good to obey international criminal law under the pressures of war, as Tallgren (2002) holds, but according to the courts’ portrayal of defendants, you must also be exceptionally bad to be prosecuted and convicted. This gives pause for thought, at least, if international criminal justice through individualization of guilt exonerates the many and thereby provides a platform for reconciliation (Drumbl, 2007) – or if it makes symbolic for all the extraordinary particularities of the prosecuted few.

Archives of the Past, Thoughts for the Future

When the ICTY was founded in 1993, few believed it to be ‘the birth of a new legal field’ (Christensen, 2015: 610). Yet, the ICTY has produced more jurisprudence in international criminal law than was produced throughout the history preceding it. The ICTY has, thus, been of utmost importance in developing an international criminal legal framework for addressing mass harms. In so doing, the tribunal has also produced an unprecedented, rich and voluminous archive. Every trial proceeding at the international criminal tribunals produces verbatim court transcripts that include all hearings, testimonies, arguments and decisions. With the exception of segments withdrawn from public for safety concerns, all of this material is publicly available through online databases. The principle of public access makes the evidence and arguments at international criminal courts part of a much wider public, beyond the live public broadcasts of sentencing procedures. As Buss (2011: 414) has remarked, the archive is a treasure-trove of information for anyone interested in the development of international criminal law, and in the mass violence and war crimes international criminal justice responds to (see also Campbell, 2013; Gaynor, 2012; Skjelsbæk, 2012). Derrida (1995: 36) once posited that:

the question of the archive is not […] a question of the past […] It is a question of the future, the question of the future itself, the question of a response, of a promise and of a responsibility for tomorrow.

With the recent closure of the ICTY, narrative expressivism addresses what kind of knowledge about mass violence international criminal justice and these archives provide the empirical basis for.

Importantly, it is not only the legally sanctioned narratives that form part of this expressive function of law, nor the ‘pure’ facts established through judgment. Defiant defendants, too, make use of the public platform provided by international criminal courts – as did the last defendants at the ICTY in November 2017. Does it help the prospects of reconciliation or does it challenge the court’s claimed contributions to such tasks? Drawing on insights from narrative criminology, narrative expressivism acknowledges how narratives about problematic social phenomena produced in or for international criminal justice need not be true or present the whole truth for them to have an impact at international, national, local and individual levels, and that the influence need not be the same across levels and actors. It invites empirical research to examine the particularities and differences of such impact.

By making narratives at the intersection of mass violence, law and politics central, narrative expressivism looks at how law connects the past to the present and the present to the future through the juridification of understandings of mass violence that courts produce and contribute to. As such, it offers a new take on what expressivism entails and is constitutive of. Narrative expressivism sees criminal justice as a potent source of information about past crimes – formed by the specific needs and purposes of criminal proceedings, and thus with particular limitations – yet also, and importantly so, as a site that impacts on present and future societal understandings of mass violence. Through its focus on juridified understandings of mass violence, and ensuing attention to the juridification of extra-legal knowledge, narrative expressivism offers a way to theorize and analyse a more subtle permeability of law and of liberal legalism⁷ in society, that goes beyond the impositions of rules and regulations. It focuses on how the international criminal justice project – its courts and the epistemic community that surrounds it – tell particular stories, of crime – not war, and of agency – not structure. In doing so, it leverages some explanations, and silences others.

International criminal law orders chaos, provides a logical model that streamlines causality, focuses on individual perpetrators and categorizes them, their acts, victims and the larger criminal contexts. This way, law facilitates understanding through narratives that are ‘easy on the eye’, but also constrains knowledge because complexities are peeled away. With the power of law, the stories of international criminal justice provide a structuring of thought for the future. Narrative expressivism draws attention to how this juridification may form the kind of questions we ask – as scholars, politicians, journalists and citizens – and thereby also the world and solutions we are able to see. By setting out this theoretical and analytical framework, the article encourages future research that engages with expressivism understood in terms of knowledge production – and juridification. Narrative expressivism is, indeed, a theorization of the functioning of international criminal justice that asks for further empirical examination.

Footnotes

Acknowledgements

Thanks to Susanne Karstedt, Alette Smeulers and Peter Scharff Smith in my PhD adjudication committee, who encouraged me to develop a theory of narrative expressivism by assigning me the topic for my trial lecture; to Liv Finstad and Inger Skjelsbæk who were my PhD supervisors; to the anonymous reviewers at CCJ; to Kjersti Lohne, Carola Lingaas-Louwerse, Thomas Ugelvik, May-Len Skilbrei, Anja Emilie Kruse and Per Jørgen Ystehede, who were critical, supportive colleagues as I prepared the manuscript; and, as always, to Andreas Hessen Schei, who helped me see it through.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

ORCID iD

Anette Bringedal Houge

Author biography

Anette Bringedal Houge, PhD, is the Head of Humanitarian Research and Analysis at the Norwegian Red Cross, and affiliated with the Department of Criminology and Sociology of Law at the University of Oslo. Houge’s research concerns international/supranational criminology and criminal justice, narrative criminology and politically motivated and collective violence.

References

Amann

(2001) Message as medium in Sierra Leone. ILSA Journal of International & Comparative Law 7: 237–245.

Autesserre

(2012) Dangerous tales: Dominant narratives on the Congo and their unintended consequences. African Affairs 111: 202–222.

Ayoob

(2002) Inequality and theorizing in international relations: The case for subaltern realism. International Studies Review 4: 27–48.

BalkanInsider (2017) Covic expects acquittal for Bosnian Croats at Hague. BalkanInsider. Available at: https://www.balkaninsider.com/covic-expects-acquittal-for-bosnian-croats-at-hague/ (accessed 15 January 2018).

Banks

Albertson

(2018) Veterans and violence: An exploration of pre-enlistment, military and post-service life. European Journal of Criminology 15(6): 730–747.

Bano

Pierce

(2013) Personal narratives, social justice, and the law. Feminist Legal Studies 21: 225–239.

Benjamin

(1974 [1937]) On the concept of history. In: Gesammelte Schriften I:2. Frankfurt: Suhrkamp Verlag.

Bowcott

Borger

(2017) Ratko Mladić convicted of war crimes and genocide at UN tribunal. Guardian. Available at: https://www.theguardian.com/world/2017/nov/22/ratko-mladic-convicted-of-genocide-and-war-crimes-at-un-tribunal (accessed 15 January 2018).

Browning

(1998) Ordinary Men: Reserve Police Batalion 101 and the Final Solution in Poland. New York: Harper Perennial.

10.

Buss

(2011) Performing legal order: Some feminist thoughts on international criminal law. International Criminal Law Review 11: 409–423.

11.

Buss

(2014) Knowing women: Translating patriarchy in international criminal law. Social & Legal Studies 23: 73–92.

12.

Campbell

(2013) The laws of memory: The ICTY, the archive, and transitional justice. Social & Legal Studies 22: 247–269.

13.

Christensen

(2015) From symbolic surge to closing courts: The transformation of international criminal justice and its professional practices. International Journal of Law, Crime and Justice 43: 609–625.

14.

Christie

(1972) Fangevoktere i konsentrasjonsleire: en sosiologisk undersøkelse av norske fangevokters i ‘sebeleirene’ i Nord-Norge i 1942–43 [Prison guards in concentration camps: A sociological examination of Norwegian prison guards in Northern Norway, 1941–43]. Oslo: Universitetet i Oslo.

15.

Clark

(2009) The limits of retributive justice: Findings of an empirical study in Bosnia and Hercegovina. Journal of International Criminal Justice 7: 463–487.

16.

Collins

(2008) Violence: A Micro-Sociological Theory. Princeton, NJ: Princeton University Press.

17.

Corrias

LDA

Gordon

(2015) Judging in the name of humanity: International criminal tribunals and the representation of a global public. Journal of International Criminal Justice 13: 97–112.

18.

Damaska

(2008) What is the point of international criminal justice? Chicago-Kent Law Review 83: 329–365.

19.

Derrida

(1995) Archive Fever: A Freudian Impression. Chicago, IL: The University of Chicago Press.

20.

Dershowitz

(1996) Life is not a dramatic narrative. In: Brooks

Gewirtz

(eds) Law’s Stories: Narrative and the Rhetoric of the Law. New Haven, CT: Yale University Press.

21.

Drumbl

(2005) Collective violence and individual punishment: The criminality of mass atrocity. Northwestern Law Review 99: 539–610.

22.

Drumbl

(2007) Atrocity, Punishment, and International Law. Cambridge: Cambridge University Press.

23.

Drumbl

(2011) Collective responsibility and postconflict justice. In: Isaacs

Vernon

(eds) Accountability for Collective Wrongdoing. Cambridge: Cambridge University Press, 23–60.

24.

Fairclough

(2013) Critical Discourse Analysis. London: Routledge.

25.

Felman

(2002) The Juridical Unconscious: Trials and Traumas in the Twentieth Century. Cambridge, MA: Harvard University Press.

26.

Fletcher

(2004) From indifference to engagement: Bystanders and international criminal justice. Michigan Journal of International Law 26: 1013–1095.

27.

Fletcher

Weinsten

(2002) Violence and social repair: Rethinking the contribution of justice to reconciliation. Human Rights Quarterly 24: 573–639.

28.

Frank

(2010) Letting Stories Breathe. Chicago, IL: University of Chicago Press.

29.

Garland

(1990) Punishment and Modern Society. Oxford: Oxford University Press.

30.

Gaynor

(2012) Uneasy partners: Evidence, truth and history in international trials. Journal of International Criminal Justice 10: 1257–1275.

31.

Gewirtz

(1996) Narrative and rhetoric in the law. In: Brooks

Gewirtz

(eds) Law’s Stories: Narrative and the Rhetoric in the Law. New Haven, CT: Yale University Press, 2–13.

32.

Grossman

(2009) On Killing: The Psychological Cost of Learning to Kill in War and Society. New York: Back Bay Books/Little, Brown and Co.

33.

Hagan

Rymond-Richmond

Parker

(2005) The criminology of genocide: The death and rape of Darfur. Criminology 43: 525–561.

34.

Harris

(2001) Fragmented narratives and multiple tellers: Witness and defendant accounts in trials. Discourse Studies 3: 53–74.

35.

Henry

(2011) War and Rape: Law, Memory and Justice. London: Routledge.

36.

Holtermann

JvH

(2017) ‘One of the challenges that can plausibly be raised against them?’: On the role of truth in debates about the legitimacy of international criminal tribunals. In: Hayashi

Bailliet

(eds) The Legitimacy of International Criminal Tribunals. Cambridge: Cambridge University Press.

37.

Houge

(2016) Re-presentations of defendant perpetrators in sexual war violence cases before international and military criminal courts. British Journal of Criminology 56: 419–437.

38.

Houge

(2017) ‘Thugs’ on trial: Narrating conflict-related sexual violence in and for international criminal justice. PhD Thesis, University of Oslo, Norway.

39.

Houge

Lohne

(2017) End impunity! Reducing conflict-related sexual violence to a problem of law. Law & Society Review 51: 755–789.

40.

Hsiung

(2016) The Apology [Documentary].

41.

Hunter

(2013) ‘Silenced shame’: Hungarian women remember wartime rapes. Washington Post, 24 November. Available at: https://www.washingtonpost.com/blogs/she-the-people/wp/2013/11/24/silenced-shame-hungarian-women-remember-wartime-rapes/?utm_term=.106756cb606d (accessed 15 January 2018).

42.

ICC (2011) Rome Statute of the International Criminal Court.

43.

ICTR (1994) Statute of the International Criminal Tribunal for Rwanda.

44.

ICTY (2004) Prosecutor v. Češić, IT-95–10/1-S, ICTY Trial Chamber sentencing judgment, 11 March. Available at: http://www.icty.org/x/cases/cesic/tjug/en/ces-tj040311e.pdf (accessed 15 January 2018).

45.

ICTY (2005) Prosecutor v. Miroslav Bralo, IT-95-17, ICTY Trial Chamber sentencing judgment, 7 December. Available at: http://www.icty.org/x/cases/bralo/tjug/en/bra-sj051207-e.pdf (accessed 30 April 2018).

46.

ICTY (2009) Updated Statute of the International Criminal Tribunal for the former Yugoslavia.

47.

ICTY (2017a) Appeals judgment: Prlić et al. Part I. Available at: https://www.youtube.com/watch?v=gP1cCTcBRe8&feature=youtu.be (accessed 15 January 2018).

48.

ICTY (2017b) Mladić trial judgment Part II. Available at: https://www.youtube.com/watch?v=MVnRstPFPX0 (accessed 15 January 2018).

49.

ICTY (2017c) Prosecutor v. Prlić et al., IT-04-74-A, ICTY Appeals Chamber judgment, 29 November. Available at: http://www.icty.org/case/prlic/4 (accessed 30 April 2018).

50.

ICTY (2017d) Prosecutor v. Ratko Mladić, IT-09-92, ICTY Trial Chamber judgment, 22 November. Available at: http://www.icty.org/case/mladic/4 (accessed 30 April 2018).

51.

Jamieson

(1999) Genocide and the social production of immorality. Theoretical Criminology 3: 131–146.

52.

Jamieson

(2014) The Criminology of War. Farnham: Ashgate.

53.

Karstedt

(2009) Introduction: The legacy of Maurice Halbwachs. In: Karstedt

(ed.) Legal Institutions and Collective Memories. Portland, OR: Hart Publishing, 1–24.

54.

Keeton

(2015) ‘The race of pale men should increase and multiply’: Religious narratives and Indian removal. In: Presser

Sandberg

(eds) Narrative Criminology: Understanding Stories of Crime. New York: New York University Press, 125–149.

55.

Koskenniemi

(2002) Between impunity and show trials. Max Planck Yearbook of United Nations Law 6: 1–35.

56.

Labov

(1997) Some further steps in narrative analysis. Journal of Narrative & Life History 7: 395–415.

57.

Laufer

(1999) The forgotten criminology of genocide. In: Laufer

Adler

(eds) The Criminology of Criminal Law. New Jersey: Transaction Publishers, 71–82.

58.

Lohne

(forthcoming) Advocates of Humanity: Human Rights NGOs in International Criminal Justice. Oxford: Oxford University Press.

59.

Luban

(2011) State criminality and the ambition of international criminal law. In: Isaacs

Vernon

(eds) Accountability for Collective Wrongdoing. Cambridge: Cambridge University Press, 61–91.

60.

McMillen

(1996) The importance of storytelling: A new emphasis by law scholars. The Chronicle of Higher Education, 26 July, A10.

61.

Magnussen

A-M

Banasiak

(2013) Juridification: Disrupting the relationship between law and politics? European Law Journal 19: 325–339.

62.

Maier-Katkin

Mears

Bernard

(2009) Towards a criminology of crimes against humanity. Theoretical Criminology 13: 227–255.

63.

Mardorossian

(2002) Toward a new feminist theory of rape. Signs 27: 743–775.

64.

Meijers

Glasius

(2016) Trials as messages of justice: What should be expected of international criminal courts? Ethics & International Affairs 30: 429–447.

65.

Milekic

Dizdarevic

(2017) Croatia PM: Bosnian Croats’ convictions were ‘moral injustice’. BIRN, 29 November. Available at: http://www.balkaninsight.com/en/article/croatia-rejects-party-of-bosnian-croats-verdict-11–29–2017 (accessed 15 January 2018).

66.

Mohamed

(2015) Deviance, aspiration, and the stories we tell: Reconciling mass atrocity and the criminal law. The Yale Law Journal 124: 1628–1689.

67.

Nettelfield

(2013) Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State. Cambridge: Cambridge University Press.

68.

OHCHR (2017) Zeid hails momentous conviction of Ratko Mladic, the ‘epitome of evil’. Office of the High Commissioner for Human Rights (UN OHCHR), 22 November. Available at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22428 (accessed 15 January 2018).

69.

Presser

(2009) The narratives of offenders. Theoretical Criminology 13: 177–200.

70.

Presser

Sandberg

(2015) Introduction: What is the story? In: Presser

Sandberg

(eds) Narrative Criminology: Understanding Stories of Crime. New York: New York University Press, 1–20.

71.

Rafter

(2016) The Crime of All Crimes: Toward a Criminology of Genocide. New York: New York University Press.

72.

Ralph

(2009) Anarchy is what criminal lawyers and other actors make of it: International criminal justice as an institution of international and world society. In: Roach

(ed.) Governance, Order, and the International Criminal Court: Between Realpolitik and a Cosmopolitan Court. Oxford: Oxford University Press, 133–153.

73.

Ramji-Nogales

(2010) Designing bespoke transitional justice: A pluralist process approach. Michigan Journal of International Law 32: 1–72.

74.

Roberts

McMillan

(2003) For criminology in international criminal justice. Journal of International Criminal Justice 1: 315–338.

75.

Rohde

(2015) It never happened: How to deny genocide in the face of science. Reuters, 15 July. Available at: https://uk.reuters.com/article/idUK173190801220150717 (accessed 15 January 2018).

76.

Rothe

Mullins

(2010) Beyond the juristic orientation of international criminal justice: The relevance of criminological insight to international criminal law and its control. A commentary. International Criminal Law Review 10: 97–110.

77.

Ruggiero

South

Taylor

(1998) The New European Criminology: Crime and Social Order in Europe. London: Routledge.

78.

Sandberg

(2016) The importance of stories untold: Life-story, event-story and trope. Crime, Media, Culture 12: 153–171.

79.

Sander

(2016) The expressive limits of international criminal justice: Victim trauma and local culture in the iron cage of the law. iCourts Working Paper Series. Copenhagen: iCourts.

80.

Savelsberg

(2016) Representing Mass Violence: Conflicting Responses to Human Rights Violations in Darfur. Oakland, CA: University of California Press.

81.

Savelsberg

King

(2007) Law and collective memory. Annual Review of Law and Social Science 3: 189–211.

82.

Schabas

(2011) Criminology, accountability, and international justice. In: Bosworth

Hoyle

(eds) What Is Criminology? Oxford Scholarship Online.

83.

Scoular

(2010) What’s law got to do with it? How and why law matters in the regulation of sex work. Journal of Law and Society 37: 12–39.

84.

Sieder

(2010) Legal cultures in the (un)rule of law: Indigenous rights and juridification in Guatemala. In: Couso

Huneeus

Sieder

(eds) Cultures of Legality: Judicialization and Political Activism in Latin America. Cambridge: Cambridge University Press, 161–181.

85.

Skjelsbæk

(2012) Conceptualizing sexual violence perpetrators in war. In: Bergsmo

Skre

Wood

(eds) Understanding and Proving International Sex Crimes. TOAEP Torkel Opsahl Academic EPublisher, 495–509.

86.

Smeulers

(2008) Perpetrators of international crimes: Towards a typology. In: Smeulers

Haveman

(eds) Supranational Criminology: Towards a Criminology of International Crimes. Antwerp: Intersentia, 233–266.

87.

Smeulers

Haveman

(2008) Supranational Criminology: Towards a Criminology of International Crimes. Antwerp: Intersentia.

88.

Smith

(2008) Punishment and Culture. Chicago, IL: Chicago University Press.

89.

Somers

(1995) Narrating and naturalizing civil society and citizenship theory: The place of political culture and the public sphere. Sociological Theory 13: 229–274.

90.

Straus

(2006) The Order of Genocide: Race, Power, and War in Rwanda. London: Cornell University Press.

91.

Sunstein

(1996) On the expressive function of law. University of Pennsylvania Law Review 144: 2021–2053.

92.

Tallgren

(2002) The sensibility and sense of international criminal law. European Journal of International Law 13: 561–595.

93.

Turan

(2016) ‘Responsibility to prosecute’ in an age of global governmentality: The international criminal court. Cooperation and Conflict 51: 20–37.

94.

Wibben

ATR

(2011) Feminist Security Studies: A Narrative Approach. London: Routledge.

95.

Wilson

(2005) Judging history: The historical record of the international criminal tribunal for the former Yugoslavia. Human Rights Quarterly 27: 908–942.

96.

Zimbardo

(2008) The Lucifer Effect: How Good People Turn Evil. London: Rider.