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Reflections on the legal process as a commemorative act

 

Post-conflict restoration of peace and security may be served by transitional justice initiatives such as international criminal trials and litigation before human rights bodies.  

Whilst these mechanisms will often have as their primary focus the respective functions of individual retribution and deterrence, and state responsibility, they also increasingly attempt to contribute to the emotional and economic recovery of victims through reparations as well as through what may be described as a process of historical fact-finding. From the point of view of victims, this latter function may provide closure by validating the destruction and losses arising from atrocities as well as acknowledging the impact they have had on the victims.

Within the context of human rights proceedings we may conceive the notion of a human right to memory in order to combat a culture of impunity, where, for example, states have violated their procedural obligations to carry out effective investigations that are capable of determining accountability for any loss of life. 

Within the context of international criminal trials, ‘commemoration’ may be achieved through the process of gathering and testing evidence vis-à-vis competing narratives in a relatively rigorous and credible fashion, and then producing a detailed account of the organisations behind the atrocities, the individuals behind the organisations and the motivations behind the individuals. Having an authoritative account in this regard may serve to foster post-conflict reconciliation between victim and perpetrator groups as well as preventing any subsequent historical revisionism and distortions.

A consequence of the pragmatism and procedural propriety associated with the criminal trial process may be that crime-base evidence is not comprehensively established and criminal acts are not labelled to the satisfaction of all victims. For this reason, transitional justice initiatives ought to be complemented by international and domestic support for public arts and public health programmes that allow people to tell their own stories in their own ways and to find their own ways to heal and move forward.

Justice and the historical record may only see what is absolutely necessary to determine liability for specific criminal acts beyond reasonable doubt. Where questions of command responsibility for the indirect perpetrators are concerned, weight will necessarily be given to high level insider witnesses who can attest to atrocities being committed through seemingly hidden structures of power rather than eye-witness testimony of the acts committed by the direct perpetrators. In this way, rules of criminal law and procedure combined with fiscal constraints mean that the international criminal justice process may not be wholly commemorative of the wide-ranging voices of victims.

Whilst victim communities may justifiably perceive that genocide or crimes against humanity have been perpetrated against them, the evidentiary difficulties, and thus the risk of acquittal, associated with respectively proving beyond reasonable doubt genocidal intent or a widespread and systematic pattern and policy of persecution may preclude the labelling, prosecution and thus commemoration in such terms. To increase the likelihood of a conviction, and thus an authoritative judgment that establishes at least some of the facts against a broader historical backdrop, prosecuting lawyers may press charges for what may be perceived as less serious war crimes. War crimes tend to focus more narrowly on relatively isolated criminal activities such as killing or destroying protected objects. From the standpoint of victims, this approach may not reflect the perceived reality that they faced systematic annihilation or persecution on account of their particular group identity.  

Where realpolitik allows, transitional justice serves to demonstrate the power of the law to comprehend and reintroduce order into spaces evacuated of legal and moral sense. This helps victims to move forward, especially where justice is delivered to its constituencies through adequate outreach initiatives which are capable of avoiding the pitfalls of fostering of the very divisions and grievances that transitional justice seeks to reconcile and deter, and allowing the commemorative legal process to be politically hijacked or misrepresented.

 

Michael John-Hopkins

Senior Lecturer in Law, Oxford Brookes University

Mick was a participant in the Textual 1 Panel-led Workshop. You can watch the panellists’ presentations from this workshop here.