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The Figure of the Witness in International Criminal Tribunals: Memory, Atrocities and Transitional Justice

The Figure of the Witness in International Criminal Tribunals: Memory, Atrocities and Transitional Justice

Author: Benjamin Thorne
Publisher: Routledge
ISBN: 9781032052809
Published In: October 2022
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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This book analyses how international criminal institutions, and their actors – legal counsels, judges, investigators, registrars – construct witness identity and memory.

Filling an important gap within transitional justice scholarship, this conceptually led and empirically grounded interdisciplinary study takes the International Criminal Tribunal for Rwanda (ICTR) as a case study. It asks: How do legal witnesses of human rights violations contribute to memory production in transitional post-conflict societies? Witnessing at tribunals entails individuals externalising memories of violations. This is commonly construed within the transitional justice legal scholarship as an opportunity for individuals to ensure their memories are entered into an historical record. Yet this predominant understanding of witness testimony fails to comprehend the nature of memory. Memory construction entails fragments of individual and collective memories within a contestable and contingent framing of the past. Accordingly, the book challenges the claim that international criminal courts and tribunals are able to produce a collective memory of atrocities; as it maintains that witnessing must be understood as a contingent and multi-layered discursive process.

Contributing to the specific analysis of witnessing and memory, but also to the broader field of transitional justice, this book will appeal to scholars and practitioners in these areas, as well as others in legal theory, global criminology, memory studies, international relations, and international human rights.

Introduction Chapter

Introduction

Defining Transitional Justice

Context

Research Data and Method

Structuring the Argument

Chapter One: Memory, Witnesses and International Criminal Institutions

Introduction

Origins of the Practice of Transitional Justice: Nuremberg and the Exceptional use of International Law

1. The symbolic representation of Nuremberg and Human Rights

2. Eichmann: Law and the Need for Witnesses to Remember

A Discourse of Transitional Justice Scholarship: From International Justice to Local Justice Via International Norms

International Criminal Tribunals and Courts: Witnesses and Testimonial Evidence

1. International Criminal Tribunal for Rwanda and Defining Legal Witnesses

Conclusion - International Legal Institutions: Spaces of Memory Construction

Chapter Two: Conceptualising the way Legal Witnesses Remember Mass Human Rights Violations

Introduction

Law and the ‘Grey Zone’ of Witnessing

Bearing Witness

The Grey Zone: Law, Ethics and Legal Witnesses

The ‘Muselmann’: the lacuna of law and justice or legal witnessing as ‘Judgment’

Theoretical lens: conceptualising legal witnessing

Memory: Individual and Collective Components

Manipulated Memory

From Agamben and Ricoeur to an original conceptual framework: analysing the way legal witnesses remember at the ICTR

Discourse and Legal Archives

i. The ICTR’s ‘Black Box’: Opening up the archives

1. The legal production of knowledge

2. Bringing together the theory, ‘Black Box’ and the analysis

Conclusion

Chapter Three: The Discursive Battleground of Legal Witnessing, Or, The Active Witness and Their ‘Right to Truth’

Introduction

Nowhere and Everywhere: The Discursive Reach of the Witness at the ICTR

‘Bears in a China Closet’: The discursivity of investigations and indictments

The Right to Truth: Who’s Speaking?

Mass Atrocities and the Right to Truth

Victims-Witnesses

The discursivity of the ‘witness’ vs the right to truth: universality, agency and collective legal stories

Conclusion

Chapter Four: Memories of Violence and the Limitations of Law

Introduction

Law, Genocide and Legal Memories of Mass Violence

The ICTR and the crime of Genocide

Genocidal violence: Layers and fluidity of events, actions and agents

Beyond Law: The Plurality of Violent Memories

Discursive restrictions of witness memories

The ‘Grey Zone’ of legal witnessing

The plurality of memory

Conclusion

Chapter Five: Critiquing Liberal Legality and Collective Memory

Introduction

Legal Actors as Memory Producers

Testifying in the ‘Interests of Justice’

The discursive practices of Disclosure

Producing a Legal Memory of Rape and Sexual Violence

Liberal Legality and Collective Memory: A Critique

A critique of advocacy for a legal collective memory of atrocities

Plural vs Collective memory

A Conceptual Alternative

Conclusion

Chapter Six: Fragments of Legal Memories

Introduction

Legal Archives: Plurality, Self and ‘Others’

Plural Fragments of Memory

Intergenerational Transmission of Legal Memories: Words and Images

Legal Memory: The Empirical Potential and Challenges of the ICTR Archive

Conclusion

Epilogue - An Atrocity Archive: Sensory Expression of Past-Present-Future

Conclusion

Introduction

Why Conceptual Insights Matter

Contribution to Knowledge

Framing the Books Contributions

Future Research Directions

Bibliography

Appendixes:

Appendix One: Case Studies

Appendix Two: List of Data

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