Category: TransitionalJustice

Benjamin Thorne

International Criminal Justice

The theatre of law, the performance of accountability, justice and peace. The aesthetic grandeur of shiny courtroom glass, the scent of polished wooden fixings and fittings, the nostalgia of legal dress: dark shades of silk, the gleaming white centrepiece of robes, and the noticeable absence of clustered horsehair. The glare of the world through high-end Sony lenses, strategically placed to capture the actors in this performance of law. Their moments of triumph, despair, authority, indifference. The abrupt but comforting material banality of security x-ray machines, the fire evacuation diagram fastened to a wall, the heavily branded hot drinks machine, which accompanies, bears witness to these seismic life events.

Parallel to the public spectacle of international criminal justice, are the behind-the-scenes activities, back passages and corridors that is the legal archive documenting, recording, categorising, constructing, producing stories of past events, actions, actors, and experiences.

The archive, the material – who is it for? Me the researcher, me the teacher, me the curious member of the public? The legal people: lawyers, clerks, the investigators, the victims’ advisers? Them, over there, the individual, community, society, the bearers of trauma, the nameless who international justice purports to put centre stage, but all too often remain distant, absent, at the margins, a hollowed out rhetorical vessel of hope?

Space, place, and material stimulate the senses and memories. The distant memory of a particular smell. A trivial touch that thrusts us back to a moment of lived potency. The low toned circular sound of machinery providing momentary soothing respite. These stimulations are particularly evident at sites such as legal archives documenting traumatic pasts.

Archives are not neutral depositories of history.1 They are interplays of social, legal, cultural, and political constructs.2 Archives are also not neutral in the way they stimulate memories and the senses, which directly interacts and shapes our experience both of them and the stories within.

A legal archive: outside

The manmade and natural environment neighbouring an archive building can act as sources of sensory and memory stimulation before one enters, but which may journey with us inside. A soft warm breeze gently resting on our skin, meandering through our nasal cavities tickles a fond memory of a day in the countryside. Ascending the few steps leading to the building’s entrance a slightly out-of-place and elevated concrete slab engages at speed with the toes of our left foot. A first jolt forward head overtakes the knees, the right foot steadies the body, a quick glance around to see if anyone has witnessed this embarrassment, followed by an attempt at normalcy. A memory of vulnerability presents itself, not a specific memory but a feeling which like the blown seeds of a dandelion, scatter and linger in the mind. We open the door and enter.

A legal archive: inside 

The bright and artificial harsh lighting makes it clear we have entered the institution. The small circular green and amber lights rhythmically flash as we pass through the metal detector. The sights and sounds of the archive reception room bring a sense of excitement and anticipation for the explorations to come. At the same time, the mood board of memory and sensory stimulation gathered during our morning remains close. The catalogue, a formidable gatekeep of the archive. It simultaneously brings a sense of order whilst being an unrelenting and impenetrable mass – numbers, labels, titles, dates. The rhythmic and authoritative ascending numbers and letters of archival coding, only partially quenches the sensory overload.

The material and post-conflict communities

Testimonies of action, the premeditated and spontaneous, the mundane. Spoken by witnesses, victims, perpetrators, foreigners. The objective storytelling of forensic reports, the matter-of-fact experience of death and suffering, the clinical imagery of x-rays showing a single neat bullet hole in the cranium of a nameless victim: ‘female, age 13-17’, a statistical accolade marking the failings of humanity. The letters and diary entries of perpetrators detailing, a ruthless plan, the functionary itinerary of a top-brass meeting, self-reflections on loneliness and fear. Imagery, the theatre of the trial, visual representations of atrocity, but also the everyday lived realities of its aftermath, and the intimate portraits of family celebrations before the violence.

These materials are memories, fragments of memories, which unlike the theatre of law whose story is singular and rigid, are plural, fluid and dynamic. These somewhat side-lined fragments can stimulate the senses, memory and dialogue, and between individuals and within communities. Words can be hard to find, particularly those that seek to describe traumatic and complex social events and relationships. The material fragments of memory through its sensory stimulation can be a gateway to articulating plural experiences of shared traumatic pasts, and connections to the present and future. The material fragments of memory in atrocity legal archives can open up understanding about how justice, peace, and social repair might look, sound and feel like to those who have experienced horrendous suffering.

Sight: the Rockstar of the senses

Sight as a tool to explore crime, law and justice, especially the ‘serious’ international versions has elevated this sense into somewhat of a socialite of the senses: wherever there is a sensory ‘gig’ sight is there at the top table of the VIP room. Before the tumbleweed crossing this blog occurs following the exiting of offended visually-orientated readers, the ocular has a lot to offer archival fragments of memory. A photograph of the post-conflict period depicting an image of a church could stimulate plural dialogue. Photographs are sites not when meaning is given but where meaning is negotiated and searched for. But, to fully seek the potential of archival fragments of memories for local communities we must consider not only the ‘look at me, look at me’ socialite of the senses but embrace the opportunities of the wider sensory field.

The sensory entourage

The sounds of atrocity, justice and attempts to navigate life in the aftermath of violence, are sources of stimulation. A stimulation of memories about difficult past events: both the internal memories of lived experiences, and external memories of narratives and trauma connected to lived realities but belonging to other people. The fragments of sound can also stimulate memories that are somewhat detached from the origins of the aural source though can equally stimulate reflection, exploration and dialogue. Touch, taste and smell are also present in archival encounters, sometimes through physical interaction with the material, and sometimes through the visuality which stimulates a past scent, a forgotten touch, a sweet taste. The senses, like memory, do not exist in an enclosed sphere, like an ornamental snow globe that when shaken the snow travels only within the boundaries of the glass wall. Instead, the senses are dynamic and fluid, pivoting from one direction to another sometimes with no warning and dashing in different directions. The lived reality of shared past experiences is plural, and the untethered nature of the senses is arguably a core component of legal archive material as well as post-conflict communities engagement with them.   

International criminal justice likes distance, it embraces it, usually insists on it. The justification for this distancing from the sites of atrocity is neutrality and objectivity, to keep it sterile from the events it is judging.3 The archives of international justice are also distant from those these courts claim to put centre stage: none of the archives are located within the territories of the affected communities. Some material of international criminal justice is digitally available. But, the distance of the physical archive undoubtedly impacts on sensory, and likely memory stimulation. Whilst digital archives can engage these, the loss of physical materiality of both the archive and the material for affected communities continues to put up hurdles for the potential of legal archives.

Legal atrocity archives are commonly understood as having utility value as evidence or sources for fact finding endeavours. However, these archives understood instead as sites of research in themselves and interplays of the social, legal, cultural and political, force us to challenge and disrupt our understanding of what a legal archive is, what is its purpose, and who is it for? Crucially it illuminates that these archives in their attempts at institutional sterility and distance act to remove the actors that these materials record. There is an urgent need to relocate atrocity affected communities to the centre of legal records documenting their lived experiences. Ultimately it requires international criminal justice to listen to these communities, and to allow them to be active participants in exploring what justice, peace and social repair looks, sounds and feels like.

1. Thorne, B., 2020. Remembering atrocities: legal archives and the discursive conditions of witnessing. The International Journal of Human Rights, 25(3), pp.467-490.
2. Redwood, H.A., 2020. Archiving (In) justice: Building Archives and Imagining Community. Millennium, 48(3), pp.271-296.
3. Clark, P., 2018. Distant Justice: The Impact of the International Criminal Court on African Politics. Cambridge University Press.