Academic journal article Law & Society Review

Mass Atrocity, Mass Testimony, and the Quantitative Turn in International Law

Academic journal article Law & Society Review

Mass Atrocity, Mass Testimony, and the Quantitative Turn in International Law

Article excerpt

When one man is murdered, you investigate when, how, who, why. ... What do you do when a whole people is murdered? You ask those same questions and call many witnesses (Gouri 2004: 269-270)

Ever since the Eichmann trial ushered in the Era of the Witness (Wieviorka 2006), personal narratives have become a primary means for conveying information regarding atrocity crimes and grave human rights violations.1 International criminal trials investigating large-scale, violent crimes and human rights violations rely almost exclusively on personal narration for establishing facts about the past (Combs 2010).2 The resort to testimonial narratives as a means for revealing truth and achieving justice in the aftermath of atrocity is not limited to the criminal justice system. Truth commissions (Hayner 2011), human rights campaigns (Schaffer and Smith 2004), cultural narratives such as documentary films, museums (Sarkar and Walker 2010), and atrocity archives (Caswell 2014), all share a fascination with personal narration of past abuses.

Scholars across the disciplines have extensively examined the relative merits and faults of the witness-driven model, highlighting concerns such as reliability and re-traumatization, to name a few (Ciorciari and Heindel 2016; Combs 2010; Dembour and Haslam 2004; King et al. 2016; Stover 2005). Such studies often focus on the experience of the individual witness as their object of research. This concern with the single witness, while fundamental to the understanding of the act of testimony, is also limiting. It overlooks a distinctive, yet crucial, aspect of the witness-driven model; namely its quantitative nature.

When invoking quantity, this article refers primarily to the large number of witnesses and victims participating in legal proceedings dealing with mass atrocity. Since the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda in the mid-1990s (henceforth: ICTY and ICTR, respectively) and more so since the inauguration of the International Criminal Court (henceforth: ICC) a decade and a half ago, international criminal law (henceforth: ICL) has experienced a surge in the voices it accommodates. Recent years have seen a shift in the nature of evidence presented to the courts, with less documents and other material evidence and more eyewitnesses testimony, leading to a sharp rise in the number of witnesses participating in international criminal tribunals (May and Wierda 1999). In addition, under article 68(3) of the Rome Statute (1998), the founding document of the ICC (henceforth: RS), a high volume of victims apply to participate in the legal process, adding a new dimension of quantity to the proceedings (Haslam and Edmunds 2013).

Despite these profound changes, the quantitative turn, its functions and impact on the different actors in the legal process, have not been sufficiently researched, theorized or addressed in scholarship and practice. To date, the quantity of witnesses and victims in the legal process has been perceived mainly as a contingent predicament that threatens institutional efficiency. Accordingly, the pressures of quantity have thus far been answered with proposals to broaden the courts' reliance on prerecorded and written statements and video-link testimonies (Fairlie 2017; Wald 2001), in efforts to curtail quantity and plurality in favor of efficiency.

This article argues for a different approach. Instead of treating the large number of actors and voices in ICL mechanisms as a contingent condition that could be mitigated by more effective evidentiary procedures, the article considers quantity as an integral, and substantively beneficial, component of the international justice system's response to crimes of mass atrocity. Because the efficiency paradigm in the field of ICL is so dominant, and directly impacts the quantitative turn, it is particularly important to develop a theorized understanding of the functions of quantity.

The article first identifies and describes the current quantitative turn in ICL. …

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