"We Cannot Allow Ourselves to Imagine What It All Means": Documentary Practices and the International Criminal Court

By Werner, Wouter G. | Law and Contemporary Problems, Summer-Fall 2013 | Go to article overview

"We Cannot Allow Ourselves to Imagine What It All Means": Documentary Practices and the International Criminal Court


Werner, Wouter G., Law and Contemporary Problems


I

INTRODUCTION

Looking back on his years as International Criminal Court (ICC) prosecutor, Luis Moreno Ocampo recalled what the trials against the Argentine junta had meant to his mother. (2) Initially, Moreno Ocampo's mother opposed putting the former Argentine regime on trial. She wholeheartedly supported Videla and simply could not believe that he or his government was responsible for massive human-rights violations. However, at some point during the trials she changed her mind. Although she still loved Videla, she was now convinced that he deserved to be sent to prison for his role in the atrocities. (3) What made her change her mind? According to Moreno Ocampo, "It was the hearings with victim testimonies that convinced her, not her son. The judicial ritual is very important. It is a neutral ritual that gives order to society." (4)

Moreno Ocampo has not been the only one to invoke the term "ritual" to capture the nature of criminal proceedings. In the past few years, scholars have used terms such as "ceremon[yj," "rite[]," and "'service' of remembrance" (5) or "sacrificial practice[]" (6) to describe human-rights trials or international criminal proceedings. Recently, Kathryn Sikkink has argued that if human-rights prosecutions prevent future crimes this is "because [of] the ritual or symbolism of a trial, the evidence presented, and the apparent neutrality of the process." (7)

In a similar fashion, Joachim Savelsberg and Ryan King have argued that the power of international criminal trials is that they produce "images of the past" that are stored in collective memory. (8) Yet these images are "not an objective portrayal of the truth, but rather a ritualized presentation of evidence of the kind required by the legal system." (9)

International criminal justice can take a variety of ritualistic forms. In the first place, international criminal trials fit the concept of practice that Jens Meierhenrich has adopted in this issue of Law and Contemporary Problems. (10) Taking cue from Adler and Pouliot's 2011 article in International Theory, (11) Meierhenrich defines the ICC as a series of practices--consisting of patterned action, performed by competent agents--that enact and reify background knowledge and link discursive and material worlds. No doubt all these elements are present in the workings of the ICC. Insofar as the ICC is a series of practices, it is ritualistic in a broad sense.

The term "ritual," however, also refers to something more specific. At minimum one can say that rituals consist of proceduralized actions that have symbolic meaning; they stand for something other, something bigger than the corresponding practices (12) themselves. Rituals, in Rappaport's definition, are about "the construction of orders of meaning transcending the semantic." (13) In similar fashion, Bell has argued that rituals establish links between concrete practices taking place here and now and "nonimmediate sources of power, authority, and value" as well as assumptions about peoples' "place in a larger order of things." (14) Schneider adds that most researchers on ritual

   either concentrate on ritual's social aspects--as a way to assert
   power and authority or to reflect the existing social order--or on
   ritual's contact with the difficult to articulate--on chaotic
   forces in a human community, on unconscious drives and desires, or
   on the human quest for the divine. (15)

The ICC contains both aspects of rituals described above. First, ICC criminal proceedings contain factual rituals that allow the court to claim the authority to give voice to victims and to stigmatize or cleanse the accused. Second, ICC criminal proceedings contain legal rituals that evoke intangible notions of global justice, world community, and humanity.

Bikundo explains the purpose of legal rituals in international criminal proceedings. According to Bikundo, international criminal trials are

   organised around achieving universal justice on behalf of the
   international community/humanity through singular trials of
   particular individuals. … 

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