Storytelling, or the expression of one’s own narrative, is one of an artist’s most powerful tools. It can prove useful in many scenarios. For instance, it is through dance, music, drawing, photography, film-making, creative writing, or other forms of art that some chose to heal from trauma in the aftermath of crimes, injustices, and atrocities. But does art play a role in criminal justice settings? This short contribution considers the particular role of film-making in promoting the goals of criminal law and engages debates about the potential of art in general as an alternative conduit for truth in the criminal process.[ Show more ]
Student voices on the role of filmmaking in promoting the goals of international criminal law:
reflections inspired by the new documentary Fragments of Humanity (2022)
“ No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live ". – said Robert Cover in his foreword to the Supreme Court 1982 term, “Nomos and Narrative.”
Storytelling, or the expression of one’s own narrative, is one of an artist’s most powerful tools. It can prove useful in many scenarios. For instance, it is through dance, music, drawing, photography, film-making, creative writing, or other forms of art that some chose to heal from trauma in the aftermath of crimes, injustices, and atrocities. But does art play a role in criminal justice settings? This short contribution considers the particular role of film-making in promoting the goals of criminal law and engages debates about the potential of art in general as an alternative conduit for truth in the criminal process.
1. The Role of Film-Making in Promoting the Goals of Criminal Law
What are the goals of criminal law? To punish the offenders? To protect the public and reduce crimes? To denounce and condemn offending conducts? To rehabilitate offenders? Within the different rationales behind criminal justice and sentencing, visual arts such as film-making may, from a very general standpoint, play a greater role than is ordinarily attributed to them.
First off, through artistic expression in the form of cinematography, film-makers may create narratives about atrocities that not only draw attention to criminal wrongdoings but also raise awareness of their consequences and urge people to remember the victims of crimes. As such, film-making can be a utilitarian tool to support criminal law’s common goal of preventing crimes. In fact, one of the purposes of criminal law is to discourage others from committing offences of the same or a similar character (general deterrence).
Film-making processes have the potential to do so through motion pictures that inform people, create a historical record of conflicts, and transmit the significance of past crimes. Here, a distinction must be made between documentaries and feature films. There are a great number of feature films that portray the horrors of crimes against humanity such as the Holocaust in the well-known pieces of Schindler’s List (1993) or The Pianist (2002). Documentary films might hold additional value in being non-fictional, founded upon real historical records, such as the Vietnam War documentary Last Days in Vietnam (2014) or the child obduction documentary series of The Disappearance of Madeleine McCann (2019).
Fragments of Humanity , a documentary directed by Elli Rantala (2022), is another example of a non-fictional film with potential deterrent effect, by picturing some of the terrors of the Kosovo War, particularly of the Račak massacre, after which the ICTY indicted a number of senior Yugoslav officials for crimes against humanity and violations of the laws and customs of war. The movie also informs the public of the complexity of investigative work behind finding out the truths of events as implicated parties may have different motivations and produce propaganda. As such, the film not only discourages the public from committing similar crimes but also raises awareness of deception and manipulation in investigation processes.
Restorative Justice and Reconciliation
Further, film-making can promote the goals of restorative justice by shifting focus onto the victims of crimes. It may seek to repair harm by providing an opportunity for victims and for those who take responsibility for the harm to address and communicate about their needs in the aftermath of a crime. This may for instance happen in the form of documentaries in which victims, offenders, or both are interviewed, facilitating accountability, reconciliation, and making amends.
Many movies encourage to remember the victims of war terrors, crimes against humanity, or other criminal endeavours. Even popular documentaries such as Netflix’s most-watched Tinder Swindler (2022), or its docuseries The Puppet Master: Hunting the Ultimate Conman (2022) may have this restorative effect by providing a space for the victims of theft, fraud, and deception to tell their stories and be heard at international level. As such, film-making can be partially retributive by focusing on the past and dealing with the victims, and partially utilitarian by educating and deterring crimes.
Many have also discussed a different angle towards the role of film-making and art in general in promoting the criminal justice goal of rehabilitation. This approach focuses less on the product of the art but on the process of creating it. Engaging in arts and creativity can reform and rehabilitate the criminal tendencies of offenders by supporting their wellbeing, awaking interest in learning and in building new positive identities, while also helping them to develop new skills and employment opportunities.
In fact, a report of the National Criminal Justice Arts Alliance, Re-Imagining Futures , reveals a clear link between participating in arts-based activities and the movement towards a long-term, non-offending future by enabling individuals to redefine themselves, to engage with productive activities, and to cooperate with others (Art Alliance, 2013). So, while rehabilitation certainly requires addressing fundamental issues such as addiction, health, and low literacy , it is also increasingly clear that creative activities such as visual arts projects have a role to play.
So far, we have seen how film-making may be a means to prevent the recurrence of crimes and illegal practices while demonstrating its potential to support reconciliation and restorative justice. From a different angle, the process of film-making itself, as a way of creative expression, may also promote the rehabilitative goal of criminal law which urges to consider arts in criminal justice as a field of notable significance and innovation.
A final mention is to be made of the evidentiary function of film-making. One goal of criminal law is to establish the truth of the matters. In the process of criminal trials, films are sometimes shown as evidence, especially by the prosecution. Motion pictures had their first legal uses in 1929 in a court in the US and in 1938 in England. The first international criminal trials to use cinematographic techniques as evidence were at the International Military Tribunal at Nuremberg in 1945, where, amongst others, The Nazi Plan (1945), a film of Nazi propaganda, was shown at trial.
A more recent example is the Prosecutor v. Popović e al case concerning the Srebrenica genocide in front of the ICTY, during which a trial video was presented as part of the prosecution’s evidence in addition to some 300 witnesses and 5000 exhibits. As such, film-making may also promote the goal of criminal justice to ensure that “ei incumbit probatio qui dicit, non qui negat” or in other words, that an individual accused of a crime receives a fair evaluation of the situation in order to determine his or her guilt. I will discuss in the following section whether this evidentiary function of art in general can and should constitute an alternative channel for truth that supplements a criminal trial.
2. Is Art an Alternative Conduit for Truth that Supplements a Criminal Trial? The Role of Art in the Criminal Process
Trials are narrative-generating events in which evidence is used to prove or disprove certain facts. Let me introduce an example demonstrating that innovative approaches increasingly seek to admit art pieces as evidence in trials. In his book Art on Trial: Art Therapy in Capital Murder Cases (2013), David Gussak describes a man who kidnapped his two children, murdered one, and attempted to kill the other. While the prosecution sought the death penalty, the defense employed an unconventional strategy to avoid the sentence. The defendant’s attorneys hired Gussak, a forensic art therapist who served as an expert witness, to analyse more than 100 samples of the convict’s artwork that were to be presented as evidence, to determine whether he was mentally ill at the time he committed the crimes, which would mitigate his sentence.
In international criminal procedures, the nature of establishing the truth in trials shifted from unveiling the guilt or innocence of an individual to a much broader objective. It became a very complex and ample concept that goes as far as creating a historical record and thereby, as the judges of the ICTY in Prosecutor v Deronjić (2004):
…“undercut(ting) the ability of future revisionists to distort historically what happened.” According to them, truth is a prerequisite for peace as “there is no peace without justice; there is no justice without truth” (para 260).
It is no question that creative process may assist in revealing lies and the ones responsible. We have seen that historically, films have been shown as evidence in international criminal trials. Like The Nazi Plan, the documentary Nazi Concentration Camps and Prison Camps for example was also shown as evidence before the Nuremberg trial, on 29 November 1945 (the eighth day of the trial). A question that however remains deals with the implications of using expressions of art as evidence to establish truth in criminal trials.
First off, it is crucial to take into consideration that information of a biased or misleading nature, used to promote a political cause or point of view, may infiltrate the process of the creation of art. The above-mentioned documentary of the Kosovo War, Fragments of Humanity (2022), may serve as an illustration of the challenges of propaganda for fact-finding accuracy in the international criminal justice system.
The movie deals with the investigation of the Račak massacre by two separate forensic teams, a joint Yugoslav–Belarusian team and an external Finnish (EU) team accompanied by a film crew to gather evidence. The first forensic team, commissioned by the Yugoslav government, reported that those killed, who included a woman and a 12-year-old child, were all separatist guerrillas and not civilians. The Finnish team’s report sharply contradicted these findings, concluding that the victims of the killings were unarmed civilians.
Yet, the Yugoslav Government claimed that the Albanian separatist organization Kosovo Liberation Army (KLA) fabricated evidence, taking dead bodies and placing them in order to make it seem as though a massacre of civilians had taken place.
Let’s take a closer look at that claim by considering three photographs that depict the same dead body in a KLA stronghold in a gully near Račak. There are differences within these three photos that suggest that the body has been tampered with. According to the website of the "Kosova Crisis center," Photo 1 was taken by the Kosovo-Albanian newspaper KOHA Ditore on 16 January 1999, the day after the killings had allegedly taken place. It seems to have been quite early in the morning with frost on the ground and sunlight coming from a low angle. Photos 2 and 3 were taken later on the same day by members of the OSCE Kosovo Verification Mission. They show the same man but with one major difference compared to Photo 1. In Photo 1 you see the man without a cap, while Photos 2 and 3 show him wearing the traditional white Albanian cap on his head. It appears that someone had placed that hat on him after the matter, tampering with evidence, possibly to make it appear as though a massacre of civilians had taken place.
As for the two contradicting reports, the international community, especially the NATO countries, reacted to the Yugoslav–Belarusian findings by generally ignoring or dismissing them as propaganda. On the other hand, the report of the Finnish (EU) expert team was accepted as evidence of a massacre against civilians . In fact, their lead investigator, anthropology expert Dr. Helena Ranta, was a key witness testifying in the Milošević trial in 2003 that the killings were a "crime against humanity", though refusing, as a scientist who should maintain neutrality, to directly label it a massacre or assign blame to any specific party. Yet, in light of the above photos, it seems possible that the Yugoslav government was telling the truth and that the scene had been rigged.
What Elli Rintala’s documentary teaches us are the challenges of objective and accurate evidence gathering and the dangers of propaganda. The documentary returned in 2022 to the investigative work of the war years and combined old and new video footage and perspectives from different sides. The discrepancies in these perspectives exposed the challenges of solving conflicts in light of fabrications, manipulations, and propaganda that may be disguised as neutral and factual representations.
Admissibility and Reliability
Another point to be made concerns the inherent biases of artists. Even if the intention of the artist is neutrality and accuracy, and some art can serve to balance out varying accounts of events, it should be taken with suspicion. Every photographer, painter, cameraman, illustrator, and other artist has inherent preconceived notions and ideas. In international conflicts, the complex nature of most conflicts may exacerbate this dilemma. Consider the framing of shots in film-making, the cutting and lengths of scenes, the music added, or modes of enlargements and close-ups of detail. Producing an artwork requires employing certain techniques and is often aimed at emotionally moving the intended viewer. If that viewer is a judge and a jury in court, those will become the audience, the spectators to be swayed.
What these examples underline is nothing more than to vary of techniques employed and of the end goals of artists as they too may be biased by subjective forces. Art can supplement other channels of establishing truth in a criminal trial, but, as with all evidence, it must be considered in light of its relevance and admissibility, and, relatedly, the credibility and reliability of the piece itself.
In conclusion, art can be a powerful means to support the goals of criminal law. Showing to the public acceptance of responsibility for crimes and personal responsibility can contribute to rendering justice for the victims, deter others from committing similar crimes, and can provide the basis for reconciliation in sensitive and complex conflict situations.
Film-making especially may provide an opportunity for those harmed and those who take responsibility for the harm to communicate and address their needs in the aftermath of a crime. Its most noble potential for the criminal justice system may be its focus on the victims. Personally, it reminds me of the concept behind Marsy's Law, the California Victims' Bill of Rights Act of 2008, which protects and expands the legal rights of victims of crime and notably underlines law’s desire to hear victim impact statements. Giving victims a stage to express themselves in the form of art goes hand-in-hand with the idea behind Marsy’s Law and may bring about restorative justice. Seen from another angle, which may be discussed in much more detail than allows the scope of this post, art may also be a tool for rehabilitative justice in supporting offenders to build new positive identities.
As for its potential to be an alternative conduit for establishing truth in international criminal trials, historical admissions of art pieces show the power they may have to constitute valuable evidence and lead to the truth of matters. Yet, to follow the example of film-making, even if investigative work is recorded, it is vulnerable to becoming a tool for propaganda. Crime scenes may be staged and seemingly factual representations may be fabricated. When those are captured on footage with the aim of constituting evidence, it may be difficult to prove that manipulation had occurred and therefore make the process of establishing truth even more complex.
As Dr. Helena Ranta noted: “Truth is always the first victim when it comes to conflicts.” The problem is that that evidence may make or break the denomination of a crime as “massacre” or “crime against humanity,” which in turn significantly changes the outcome of a trial. The Račak massacre as perceived by the international community not only bears witness to this problem but also had more immediate consequences in ultimately playing a role in NATO's decision to intervene in Kosovo to end the military campaign of Serbian forces.
What this teaches us is that art may well supplement criminal procedures, however on the condition that relevance, credibility, and reliability are very cautiously considered before admissibility as evidence. For me, it was art itself, namely Elli Rintala’s documentary, which raised this awareness while contributing to remembering the victims and deterring from deception in criminal processes.
* Maria Hass is a fourth-year student of a Dual Bachelor of Politics, Law, and Economics (PLE) and of Laws (LL.B.) at IE University in Madrid, Spain. Maria has international background coming from Vienna, Austria, where she attended the French school Lycée Français de Vienne. Maria is passionate about discovering the goals and values of justice, fairness, and peace that exist at an international level. Studying an interdisciplinary degree and as an artist herself, Maria explores the possibilities to consider forms of artistic expression as playing a role in the context of international criminal justice.
The works of the American artist Richard Serra are typically abstract, spacious and often without any reference to concrete political events. An exception is Equal Parallel Guernica-Bengasi – a room-filling sculpture made specifically for Museo Reina Sofía in Madrid in 1986 and permanently exhibited since 2009. It is just as abstract as his other creations, yet its title evokes reflection about the nature of human suffering in the course of hostilities. However, does it make sense to connect the abstract shapes of the sculpture with concrete events occurring during military campaigns? In this short text, I will explore the abstract qualities of Serra’s work and the war connotations of the title. This exercise will elucidate possible connections between abstract art and some aspects of international justice.[ Show more ]
The works of the American artist Richard Serra are typically abstract, spacious and often without any reference to concrete political events. An exception is Equal Parallel Guernica-Bengasi – a room-filling sculpture made specifically for Museo Reina Sofía in Madrid in 1986 and permanently exhibited since 2009. It is just as abstract as his other creations, yet its title evokes reflection about the nature of human suffering in the course of hostilities. However, does it make sense to connect the abstract shapes of the sculpture with concrete events occurring during military campaigns? In this short text, I will explore the abstract qualities of Serra’s work and the war connotations of the title. This exercise will elucidate possible connections between abstract art and some aspects of international justice.
Description of the work
Emptiness is usually something we do not see. It is the space in between objects, the air surrounding us when we move. It is a void which is easily misunderstood for being nothing at all. In the work Equal Parallel Guernica-Bengasi emptiness plays a key role. The sculpture consists of two sets of large rectangular blocks of massive weathering steel – a typical material for Serra’s work – placed at both ends of the room. They are positioned in parallel, hence the title of the work – equal parallel. The eye-height size of the blocks makes it possible to look from one side of the room to the other. In between an enormous space is left empty. Yet, this space does not easily escape one’s attention. The blocks seem to foreground it and load it with meaning.
The chapel-like room for which the work is made has a rectangular form, with a high, arching ceiling and is completely plastered in white. It belongs to the 18th century part of the museum which used to be a hospital. Something of this past still seems present, but perhaps that is an effect of the work itself. The overall feeling of the space, as you walk through it, is serious and quiet. As if something tragic has just happened.
Just like his famous installation in Bilbao The Matter of Time (1994-2005) – a large maze-like installation made from enormous sheets of steel – the work invites movement. Having been many times inside Equal Parallel, I have seen the behaviour of many different visitors. Most people just cross the room, walking from one side to the other. Others hide behind one of the blocks, while playfully searching for eye-contact with their company on the other side. Very often, I see people cautiously touch the cold and rough steel, while making sure the guards do not see them. Some visitors carefully observe the colour tones of the material that change over time, noticing the rusty stains it leaves on the marble floor. Rarely anyone ever reads the title that can be found on a sign on the wall.
Analysing the title: Equal Parallel Guernica-Bengasi
In 1937, during the Spanish Civil War, the Basque town of Guernica was bombed. It was an attack on civilians, as most military men were fighting elsewhere. Hundreds of people were killed. The reports of George Steer and the black and white photographs of the ruins of the city appeared in newspapers all around the world. This is how the modernist painter Pablo Picasso found out about it. He abruptly decided to change the subject of his contribution for the World Fair in Paris. 35 days later, his painting Guernica was finished.
In 1986, the American government ordered air strikes against Libya as a reprisal attack for a terrorist attack that had occurred ten days earlier, known as the West Berlin discotheque bombing. Some of the bombs administered during the US campaign fell on the city of Benghazi in Libya killing both civilians and military personnel. Just a little over a month later, Richard Serra’s solo exhibition at Museo Reina Sofía in Madrid was inaugurated, featuring his site-specific work Equal Parallel Guernica-Bengasi.
Richard Serra denies any references to concrete military events. Yet, the title does not seem to be chosen at random. When making the work, Serra knew the sculpture would be placed in the very same building as Picasso’s world-famous Guernica. Mentioning Guernica in the title seems, therefore, a historical reference – as if his work is to be understood in the spirit of Picasso’s painting. Adding the name ‘Bengasi’ to it right after the American bombings in the very same year, unavoidably leads to searching for similarities.
This quest is reinforced by the parallel placement of the blocks and the word ‘parallel’ in the title. It is as if Serra gives his audience a quest: go and look for parallels! A student once asked me: “Which side is, then, Guernica, and which one Benghazi?”. It was an attempt to solve the puzzle and to read the sculpture as a symbolic work in which both cities were represented by another set of blocks. Yet, the work cannot be ‘read’ as if it were a medieval painting in which symbols have fixed interpretations. The difficulty with contemporary art is that it is not about straightforward representation. This is also why linking abstract art to a socio-political or legal topic, such as international justice, is so complex. There seems to be no direct correlation.
The absence of representation in contemporary art
This observation about the lack of representational connection between abstract art and socio-political causes is already true for Picasso’s Guernica. With the historical reference of the bombing in mind, it might seem as if Picasso literally painted the war scene. One could relate, for instance, the shattered perspective with the devastation of the city or the bodies screaming in pain with the victims. However, as the exhibition Pity and Terror: Picasso’s Path to Guernica in 2017 convincingly showed, most of the motives used in the painting had already appeared in Picasso’s work, years before the Spanish Civil War started. There are shattered guitars, and lovers resembling the women in Guernica that do not seem to have war-related meanings. The painting, therefore, appears not to represent the bombing of 1937, but rather it shows a carefully developed visual language with a certain expressive power. This power appears appropriate for the commemoration of the bombings in Guernica, but it would be a mistake to claim that the painting depicts the war event.
In Serra’s work, this is even more clear, because there are no figures to be seen. His work can be placed in the tradition of minimalist art. As art theorist Charlotte Hantelmann explains in her article The Experiential Turn (2014), minimal art lets go of the view that a particular idea must be expressed by the artist or an object. She writes:
The artwork is no longer seen as representing a mental, internal space or consciousness. Instead it forms part of an external space—which it shares with its viewer—in which meaning is produced in relation to a given situational reality. Internal relations of form and content retreat behind the object’s impact on this situation, an impact that throws viewers back on themselves, in a space and a situation.
Applied to Equal Parallel Guernica-Bengasi, this means that not only the weathering steel blocks, but the whole of the situation must be considered, when interpreting the work. The former hospital space, the people who move in it and the space that is left empty all seem to play a role. Yet, all of this cannot be understood in a fixed way. The fact that the creation integrates and encompasses the people who move and feel within the sculpture dictates its interpretation. Even though the atmosphere of Serra’s work might affect the mood of the visitors, their response cannot be predicted. There is no control of how the work will be experienced.
An opposite approach can be found in the installation Crying Room by the Cuban artist Tania Bruguera. In this work, that was part of her solo exhibition in Tate Modern in London in 2018, an empty room was reserved for mourning people who drowned in the Mediterranean Sea, while fleeing to Europe. In order to control the response of the audience, Bruguera infused the room with a chemical compound that made people cry. The idea was that the automatic crying response would eventually evoke feelings of sadness that she considered appropriate for the remembrance of the deaths.
Whether this approach worked, is another question. Yet, by taking the exact opposite approach, Bruguera’s Crying Room reveals, in negative, a quality of Serra’s work. Equal Parallel does not force people to feel a certain way. It does not dictate an appropriate reaction. Everyone is free to respond in their own way, in the room. One might play there, enjoy it in silence or ponder over the title.
Concluding observations: the body matters
Perhaps this freedom is what an abstract work such as Equal Parallel can add to thinking about international justice. It is the opposite of propaganda. Rather than providing the public with a particular narrative or statements about the air raid, it reserves a space for experience, in which people have the freedom to respond how they want. Learning about the title of the work, will eventually prompt some visitors to connect their experience in the sculpture with the stories of the bombings.
Doing the latter, is very different from learning about these events in a theoretical context. Since the sculpture of Serra highlights the space, it allows visitors to physically connect with the topic of the damage inflicted by military operations. Body, space and the material of the work are involved. The point is not to make sense of that in a discursive way, but to allow for a more embodied way of thinking about such topics. Serra seems to say: who you are, where you are and the moment you are experiencing it matter for how you perceive the conflicts of the past. In that sense Equal Parallel is not even that different from his seemingly ‘non-political’ works such as The Matter of Time. It is a materialisation of time, without fixing it in a certain way.
* Carmen van Bruggen is an art philosopher with experience in introducing critical reflection and art education to various academic disciplines, such as medicine, design and business. She party wrote and co-edited the volume Academische Vrijheid: Geschiedenis en Actualiteit [Academic Freedom: History and Contemporary Situation], which was published in 2020 with Uitgeverij Boom.
In this brief contribution, I will explore utility of art as a wellness
tool for those who are engaged in one of the most stressful professions -
law. I am offering this rarely explored topic from my perspective as an
artist, as a lawyer, and as an art wellness advocate.
I propose looking at art as a powerful wellbeing tool, which should be as much a part of anyone's wellness routine as proper nutrition and physical exercise. My goal is simple: reduce the prevalence and impact of mental health and substance use problems in the legal profession, improve the personal wellbeing of its members by using art, and build a stronger global legal network via cultural tools.
In this brief contribution, I will explore utility of art as a wellness tool for those who are engaged in one of the most stressful professions - law. I am offering this rarely explored topic from my perspective as an artist, as a lawyer, and as an art wellness advocate. Usually, art comes up in the context of law either as demonstrative evidence, for example a photograph of a particular event, as a visual communication designed to aid the jury in their understanding of the case, as a decorative element in either an office or a courthouse, or as a unit of cultural heritage subject to protection, ownership disputes, or intellectual property rights adjudication. I propose looking at art as a powerful wellbeing tool, which should be as much a part of anyone's wellness routine as proper nutrition and physical exercise. My goal is simple: reduce the prevalence and impact of mental health and substance use problems in the legal profession, improve the personal wellbeing of its members by using art, and build a stronger global legal network via cultural tools.
1. Why do we, as lawyers, need to talk about wellness?
The answer is not an easy one to digest. According to a recent US study, some of the mental traits that prompts us to pursue a legal profession, also make us more susceptible to mental health issues, depression, addiction, anxiety and stress. What's more, they make us less likely to seek much needed help. Additionally, as practicing legal professionals we are placed in the setting that exacerbates this problem. Starting with law school, legal professionals are thrust into a high-stress, high-competition environment, which sets result-driven goals, promotes performance over sustainability, stigmatizes mental health care, and leaves no time in the day for personal wellness habits. Faced with frequently low levels of personal wellbeing, and widespread, troubling levels of mental health and substance use problems, lawyers outpace medical doctors, finance specialists and other professionals when it comes to depression, anxiety, burnout and substance abuse. Despite this troubling trend, expert resources tailored specifically to the legal profession have been remarkably lacking for a number of reasons: (1) attorneys have traditionally been put in advice-giving, not advice-seeking roles; (2) there is a significant fear of being deemed incompetent and losing a hard-earned license; (3) privacy breach is a significant concern for professionals who often focus their practice on obtaining confidential evidence; and (4) functionality is often mistaken for health.
The good news is that this disturbing trend can be prevented and reversed through practice of art. If started early, and practiced regularly, art wellness and self-care can produce remarkable results and form sustainable wellbeing habits which deliver tremendous professional and personal benefits to legal professionals and their clients.
2. How do we measure results?
As legal professionals we learn to look at the end result and work our way backwards - what evidence will we need to introduce at trial? What testimony will we need for the summary judgment? What is our end goal and what actions do we take to get there? When it comes to wellness practices, this result-driven approach often handicaps us before we even start. While it may somewhat work for physical fitness-where we can loosely measure results in pounds lost, miles walked, and strength gained-mental Wellbeing is a completely different matter. Outside of MRI scans, and cognitive tests (which DO show improvement from art wellness practice, but are not always easy to access), there is no objective way to track progress. Let me give you an example, however, which offers a different definition of progress and a way to measure it.
Here is a story of a colleague and a friend, an attorney, whose busy practice and the need to care for her ailing mother have driven her to a really low place-a brink of burnout and depression-and the art that brought her back. Let's call her Jane. The stress of daily care for her mother, who could no longer recognize Jane, and was anxious about living in a nursing home, and daily care for her clients, put such a heavy burden on Jane that she could hardly cope. Her own health was deteriorating, and it didn't seem long before her family and her practice would unravel because of it. She never thought of seeking help - why would she? She was the caregiver, not a patient, plus she did not have the time for that and did not want the word to get out that her mental health was somehow compromised. But she also understood that she needed to do something before she completely fell apart. She tried meditation - focusing on some of the happy memories of her mother when she was still healthy. One of the recurrent memories Jane had involved her mother's vast and much adored collection of glass, crystal and ceramics. Jane recalled how much her mother loved one particular vase and always arranged gorgeous red rose bouquets in it. Eventually, Jane decided to make her memory into a painting - art was something she remembered doing a long time ago, something that once brought her joy. She gathered a few of her mother's favorite cups and arranged them into a still-life. She found that favorite vase and bought the red roses. It was a slow and anxious start - she had to look up what brushes to use and wait for her paint orders to arrive, but with each step, with each brush stroke, she felt stress and anxiety slowly letting go. She often lost track of time spent painting - something that's known as "flow"-and noticed a slight but definite improvement in her stress and anxiety level. She could focus better at work, and manage her day without feeling completely overwhelmed and exhausted. After her painting was finished, she did not particularly like the result, but took it to the nursing home, to hang in her mother's room. As she sat there with the painting, waiting for her mother to be brought to see her-and to likely give her the same blank stare Jane was accustomed to-something happened. As Jane's mother was wheeled into the room in her chair, she suddenly looked at the painting, thought for a moment, smiled peacefully, and said: "Oh, these are my things! I must be home." This beautiful moment will forever stay in Jane's heart, and will serve as a milestone of her individual progress on her art wellness path - to her it is more reliable than any MRIs or cognitive testing.
The story is not designed to describe what results look like in every case - quite the opposite: this is something that is so unique to Jane and her family, that it's not likely to ever be replicated even under similar circumstances. However, it is far from a coincidence or an outlier. Art wellness practice improves mental health and wellbeing, aids in recovery from psychological trauma, and delivers consistent cognitive benefits to those who practice it. The key is to look for results in a meaningful way that is tailored to a particular individual. Below explanation of wellness factors can be used as part of a comprehensive approach to cost/benefit analysis applicable to a Wellbeing routine assessment.
3. What is wellness?
Wellness is not any one thing, but is a combination of factors which may be subdivided into six separate but inter-connected categories:
Professional wellbeing is at the top of this chart for a very good reason - with most of our waking hours devoted to our professional practice, it is not surprising that our overall wellbeing is heavily dependent on the returns we realize from our investment of time, effort, and diligence in this area. Monetary dividends are not the only measure of such returns (although financial insecurity is a frequent staple of overbearing stress). Sense of meaning, professional fulfillment, marked accomplishments, proper recognition for hard work, and positive feedback (to name a few) are all contributors to the sense of satisfaction we receive from our work, which, in turn, translates into professional wellness. In case of legal professionals, intellectual wellbeing is very closely connected to professional wellbeing as agile memory, quick response mechanisms, ability to learn and analyze, logical reasoning and other cognitive functions are part and parcel of daily legal practice. Spiritual wellbeing is also bound up with the first two categories if we think of it not in terms of a religious experience, but in terms of a sense of meaningfulness, fulfillment and gratitude for the fruits of our efforts. Flow-one of life's highly enjoyable states of being, often explained as neurological regeneration with the accompanying sense of full creative engagement and energy-restorative benefits-is a significant part of spiritual wellness. While flow deserves its own article (and there are many), it should be enough to say that it is frequently recognized as one of the most simple, yet effective tools for restoring neurological connections in a human brain which were deteriorate due to trauma, age, and stress. Physical wellness is one of the most studied and well-described components of wellness, and most of us know and agree that a healthy body allows us to function at our best. However, alone it usually cannot carry us through the most challenging times. Social wellbeing is comprised of relationships that weave our social network into a safety net which we use at times of crisis. Lack of such a safety net often translates into a feeling of loneliness, isolation, and worthlessness, which in turn can lead to unfortunate results. Finally, emotional wellbeing is inseparable from the other factors and is usually a result of a person's ability to engage effective coping mechanisms at challenging times.
For professionals used to clear and concise narrative, rigid framework, bright line definitions, and, again, trackable progress, art can seem as a rather dubious wellness tool. However, a closer look at the wellness factors can offer a different perspective - one where art is a powerful and meaningful component. For example, painting, crafting or any other form of tactile creative engagement can trigger the flow state. In turn, frequent "visits" to the state of flow can significantly improve memory, focus, knowledge retention, and response time, leading to better professional performance, and greater fulfillment from work. Listening to music or drawing can lower one's cortisol-stress hormone-level as much or more than rigorous physical exercise without demanding special gym equipment or, for example, good running weather. In other words, art can help achieve physical balance and harmony. Art and music are wonderful network builders and community outreach tools, which can help build or improve coping mechanisms at the time of crisis. Of course they can also help build client and colleague networks which, in turn, expand and improve one's practice.
A few words should be said about wellness in the context of the global pandemic and remote work. As I am writing this, humanity is facing the global coronavirus pandemic, with its ever-changing restrictions on activities commonly used to relieve stress and to maintain work-life balance. Isolation, home-bound quarantine, lack of concise and accurate medical information, politicized approach to care and prevention, and lack of certainty can lead to long-lasting emotional trauma on an unprecedented global scale. Emotional dissonance alone, which is essentially the discrepancy between required and felt emotions, can have harmful effects on both individuals and the organizations that employ them. The simplest way to explain it, is to ask you to think about the juxtaposition between the way you feel about the current social, medical and economic situation, and the way you may be expected to present and conduct yourself. This dissonance is particularly present in the legal profession: anxiety, stress and tension (to say the least) are wide-spread, yet most lawyers feel they must wear a mask of calm, professionalism and stoicism because of their roles as advocates, caregivers and advisers. Such conflict can cause a variety of harmful results, including reduced job satisfaction, drug and alcohol abuse, headaches, absenteeism, burnout, poor self-esteem, depression, cynicism and alienation. Bridging the gap between what is felt and what is outwardly exhibited may, on the other hand, make the current situation easier to navigate. And, of course, art can help.
4. What does Art Wellness look like in practice?
Let's suppose you did your research, reviewed reputable resources and agreed with me that art belongs in your toolbox. The next question is likely "how do I use it"?
In part this question may be answered by your individual interests and preferences. Some of us enjoy listening or playing music, others find joy and relaxation in digital design, others knit away their worries and concerns. However, most of the answer should come from creating and maintaining organization-level and profession-wide culture of wellbeing, from implementing protocols for successful management of mental health issues in the workplace, and from interactive engagement between legal professionals and art professionals on a global level. All of this seems like a challenge, until you start looking at individual examples of successful wellness programs at major law firms, courthouses, and bar associations which artfully balance relationships between personal well-being, job performance, and career satisfaction. And, while most of my focus for this article has been on US statistics and experience, the global reach of these programs has no natural limits. On the contrary, it offers a phenomenal opportunity for creating networking and relationship-building mechanism which can transcend linguistic, geographic and cultural boundaries. After all, "a picture can speak a thousand words," and it can speak them in every language.
* Sasha Phillips is a US-based global commercial disputes attorney with Reed Smith, LLP. She holds an MFA in Painting, and actively participates in international art exhibits and competitions, including 58th Venice Biennale, Art Against Violence Vitaru, and others. Sasha is a founder of Art for Wellness program for legal professionals, which was designed as a creative wellness tool for individuals in high-stress occupations. She is currently a graduate psychology student at Harvard University.
In this brief contribution we will provide examples of the “legal monuments” that have been produced in the city of The Hague by international and domestic courts so far. Then, we will share some reflections on the significance of these legal monuments, and their (limited) role in urging us to remember and show respect for the victims of the Srebrenica genocide of 1995. Finally, we will reflect on the significance of more artistic expressions, such as statues and theatre plays, urging us to remember.[ Show more ]
Both authors of this blog participated in an event, organized by Stroom, on “A Srebrenica Monument: Reflections on the role of a new monument in the International City of Peace”. Stroom is an art center, based in The Hague, focusing on architecture and urban planning. The event was part of a more general interactive dialogue on the role of the arts in addressing peace and justice topics in the city’s public space. At the event, different aspects relating to the establishment of a monument, to remember the Srebrenica genocide of 1995, were discussed.
According to the English Dictionary, a monument is an object, built to remember and show respect for a person or group of people. Can a court judgment be considered a monument? And how can artistic “monuments”, such as statues and theatre plays, complement court judgments? Those are the questions we seek to address in this post, in relation to the genocide in Srebrenica of 1995, which took place exactly 25 years ago.
In this brief contribution we will provide examples of the “legal monuments” that have been produced in the city of The Hague by international and domestic courts so far. Then, we will share some reflections on the significance of these legal monuments, and their (limited) role in urging us to remember and show respect for the victims of the Srebrenica genocide of 1995. Finally, we will reflect on the significance of more artistic expressions, such as statues and theatre plays, urging us to remember. Otto Spijkers is the lead author of Section 1, Alma Mustafić of Section 2.
1. How court judgments may help us remember and show respect for the victims of Srebrenica (and the limitations)
Lots of “legal monuments” have been produced in the city of The Hague. One of the most significant ones came about in 2007 when the International Court of Justice (ICJ), housed in the Peace Palace, issued a judgment in the case between Bosnia and Serbia, holding that Serbia had failed to prevent the genocide in Srebrenica and punish the main perpetrators. Nearly a decade later, in 2016, the International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber found Radovan Karadžić guilty of genocide ( affirmed on appeal in 2019 ). And in 2017, the ICTY Trial Chamber found Ratko Mladić guilty of genocide (his appeal is ongoing).
There have also been domestic legal monuments arising out the same geographical and legal space. In 2013, the Netherlands Supreme Court (Hoge Raad), based in The Hague, ruled in two separate and parallel cases that the Netherlands’ responsibility was engaged when Mustafić , as well as the father and brother of Hasan Nuhanović , were sent away from the United Nations (UN) compound by Dutchbat and killed by Bosnian Serbs. And in 2019, in the Mothers of Srebrenica case, the same Court held that the Netherlands’ responsibility was engaged when the male refugees, who were seeking protection in the Potočari compound near the town of Srebrenica on 13 July 1995, were not offered the choice of remaining in that compound, thus depriving them of the 10% chance of not being exposed to inhumane treatment and execution by the Bosnian Serbs.
These court cases can certainly urge us to remember and show respect for the victims of the Srebrenica genocide. But there are many limitations. First, adjudication should not be confused with truth finding. The burden and standard of proof are different in adjudication and in efforts at discovering the truth. Also, adjudication is often, for jurisdictional reasons, limited to a specific aspect of the dispute. For example, the ICJ could only assess whether the State of Serbia had acted in breach of the Genocide Convention. It could not look at whether Serbia had acted in breach of humanitarian law, human rights law, etc. Third, some actors can not be brought before any court, again for jurisdictional reasons. The UN could not be held responsible because it successfully relied on its absolute immunity from the jurisdiction of domestic courts, and there is no alternative legal remedy available at the UN or international level. That might lead to a wrong or at least incomplete picture. Fourth, it is sometimes said that law does not provide the suitable framework to approach something as dramatic and tragic as genocide.
In line with the fourth point, the Dutch courts saw Dutchbat’s failure to protect the Bosnian refugees in the compound as a “tort”, a wrongful act under private domestic law. Most torts are relatively mundane misfortunes, like car accidents or slippery floors that make people fall down and get hurt. Can what happened in Srebrenica be approached in the same way as such accidents? The courts in Holland touched upon this difficult question engaging in somewhat awkward discussion in the case at hand regarding the probability that the Bosnian Muslim men would have survived if Dutchbat had undertaken a serious effort to protect them: the appeals court put their chance of survival at 30%, while the supreme court reduced it to 10%, which lowered the surviving relatives’ compensation accordingly. To conclude, legal judgments indeed urge us to remember and show respect for the victims of genocide, and thus they do serve as monuments in this sense. At the same time, they only provide part of the picture.
2. A Srebrenica monument and other artistic expressions as monuments to help us remember and show respect for the victims of the Srebrenica genocide
Can the picture be completed with the help of more “artistic monuments”? This is the question that is addressed in this second part of our blog post.
Significance of Srebrenica monument in the Hague
Realizing the limitations of legal redress, the relatives of victims and survivors of the Srebrenica genocide have been fighting for a Srebrenica monument to be erected in the Hague since 1996. After many failures they finally succeeded. The next challenges are “what” should the monument look like and “where” should it be erected? The relatives have expressed the wish to put up the monument opposite the former ICTY building because of its symbolic value and meaning. They emphasize that the primary function of the monument and the place itself must be to honor and to commemorate in order not to forget the victims of Srebrenica. Above all, since genocide denial is more vocal than ever before, it is ever more important for victims and survivors that the monument is about genocide. Secondly, the place of the construction should be a place where some form of peace can be found. Last but not least, this monument should unite the Dutch and the Bosnian community.
Then the question arises whether the proposed place is the right place. What will happen to the monument and desired function of it, when the ICTY building is used for other purposes? Another significant place for remembering the genocide has become the central square in the Hague, in front of the Netherlands Ministry of Defense. This square hosted annual commemoration of Srebrenica for 25 years, reminding the Dutch government of Srebrenica each and every year. This year, the square was decorated with a temporary Srebrenica monument made possible by the collective “Bosnian girl”. For the first time in all of the years of remembering this particular act of honoring the past was felt by victims and survivors as “belonging to all of us”. Without neglecting the importance of a formally designated Srebrenica monument, it appears that we are able to commemorate the victims of Srebrenica and show them respect without an official construction. It is not necessarily the “official” monument itself that reminds us of the victims, it is how we deal with it.
Theater play and education as a monument
While the subject of Srebrenica is on curriculum in Dutch educational system, it appears that many young people have never even heard of it ( see research done by Marc van Berkel ). The peace organization Pax and Boy Jonkersgouw productions took the initiative to close this knowledge gap by making a theater play about Srebrenica , called “dangerous names”. This theater play is unique because it is told from two perspectives; a survivor, Alma Mustafić shares the stage with a former Dutchbat soldier, Raymond Braat. Together with professional actors they tell their story. From 3 December 2020 to 18 March 2021, the play will tour the country. What will remain once the play is over? Srebrenica needs to be anchored in Dutch education, and educational institutions should meet this responsibility.
The walking monuments
In this blog post, we discussed different kinds of “monuments” to help us remember and show respect for the victims of the Srebrenica genocide. It is important to observe as a form of conclusion that all these monuments have been initiated in some way by humans, often survivors of genocide. Thanks to their great efforts, these monuments have been realized. Having said that, can a human, a person, be considered a monument as well? Some of the survivors fought legal battles for decades. The court judgments we talked about are their legacy for future generations. Others have shared their story countless times at schools and various media. Some wrote books about their experiences during the war, and finally some of them made more artistic performances such as films, exhibitions, theater shows, etc. A lot of people try to raise awareness about Srebrenica, to urge us to remember and show respect to the victims of the most recent occurrence of genocide in Europe. Could those people be seen as a “monuments”? The “walking monuments”? In that case, there are more than 60.000 walking monuments in the Netherlands and over 1 million of them around the world.
* Alma Mustafić (1981) is a researcher and lecturer as well as a genocide survivor.
Alma teaches various courses at the Institute for Finance and
Accounting. She is also an educational developer, a graduation and
study coach, institute council member and vice-chairman of the
examination committee. In 1995 Alma Mustafić survived Srebrenica, but
her father (who worked for the Dutchbat) and many other family members
did not survive. She holds the Dutch state responsible for the death of
her father and the Supreme Court ruled in her favor in 2013. Nowadays
she is committed to increase knowledge and awareness about genocide to
ensure that nothing like this will ever happen again. She challenges
the Dutch educational institutions to include Srebrenica in their
education. She also tries to improve the relationship between survivors
and Dutchbat veterans in particular.
** Otto Spijkers is Professor of International Law at the China Institute of Boundary and Ocean Studies (CIBOS) of Wuhan University, and permanent staff member of the International Water Law Academy (IWLA). He is also a member of the Committee on the Role of International Law in Sustainable Natural Resource Management for Development of the International Law Association.
In this blog post, we reflect on the requirements relevant for the architectural design of the premises of an ad hoc international criminal tribunal. The establishment of an ad hoc international criminal tribunal often takes place after or even during a period of unrest, when there is no time or priority for an elaborate focus on a proper design. That is why the choice is quickly made to fall back on an already existing building, such as an abandoned office. The “recycling” of existing buildings might damage the reputation of the court, and even of international criminal justice more generally.[ Show more ]
In this blog post, we reflect on the requirements relevant for the architectural design of the premises of an ad hoc international criminal tribunal. The establishment of an ad hoc international criminal tribunal often takes place after or even during a period of unrest, when there is no time or priority for an elaborate focus on a proper design. That is why the choice is quickly made to fall back on an already existing building, such as an abandoned office. The “recycling” of existing buildings might damage the reputation of the court, and even of international criminal justice more generally.
We believe the symbolic significance of the building is crucial. The Coalition for the ICC formulated it as follows:
“Organizations and institutions are often defined by the structures in which they are housed, as these can express the history, power, and virtues of the institutions that occupy them. Critically, they can give organizations an identity that can shape public opinion for the better, or in some cases, for the worse” (Source: Coalition for The International Criminal Court, ‘Architectural Design Competition for The Permanent Premises of the ICC’, Statement to the Jury, 30 October 2008).
The premises determine the institutional image of the court. They become the public face of the institution and must therefore fully reflect its character and identity. The challenge is, of course, how to translate this into concrete requirements of the premises.
There should be a blueprint, ready to assist in the design and construction of tribunals, whenever they are needed. This should be a blueprint that can be applied in - and adapted to - a great variety of local situations. In this blog, we first (section 2) look at the requirements of such a blueprint. We then (section 3) reflect on the design of an ad hoc criminal tribunal which meets these criteria. And then we end with some concluding reflections (section 4).
One might believe there is no need anymore for the design of the premises of an ad hoc criminal tribunal, now that we have a permanent international criminal court in The Hague. This is incorrect, for two reasons. First, the establishment of the International Criminal Court (ICC) in 2002 has not made ad hoc international criminal tribunals irrelevant or redundant. For various different reasons, the Special Court for Sierra Leone (2002), the Extraordinary Chambers in the Courts of Cambodia (2006), the Special Tribunal for Lebanon (2009) and the Kosovo Specialist Chambers (2015) were all set-up after the ICC began its work. And we may see the establishment of an international tribunal to try ISIS fighters for crimes they are suspected of having committed in Iraq and Syria.
Second, the ICC Statute says (Article 3) that the “seat of the [International Criminal] Court shall be established at The Hague in the Netherlands”, but that “the Court may sit elsewhere, whenever it considers it desirable”. To sit elsewhere, the ICC needs a building situated elsewhere.
What requirements must the premises of an ad hoc international criminal tribunal meet? We identified the following criteria:
1. The premises must proclaim authority. The idea is to make the building look big, and the people in it look small.
2. The premises must have an otherworldly character. It should be a majestic building - a “palace”, something out of the ordinary, having or showing impressive beauty and scale. People must be impressed and awe-stricken when they first see and enter the premises.
3. The premises must symbolize, in a dignified way, the eminence of an international criminal tribunal. There is nothing more important than international criminal trials, and the building must reflect that.
4. The premises must be an emblem of dignity. There is little room for playfulness and humor in the building of an international criminal tribunal.
5. The premises must be accessible, and visitors must feel welcome there. The building must provide adequate facilities for receiving visitors of all kinds, from heads of State to groups of schoolchildren. There should be a lecture room of some kind, and a coffee place or restaurant.
6. The premises must provide security. But all security measures should have as little obstructive impact as possible on the personnel and visitors.
7. The premises must be an emblem of fairness; the building must symbolize impartial and just treatment of all appearing before the tribunal, without favoritism or discrimination.
8. The premises must be a symbol of justice. The building must give the impression that, inside it, everybody’s rights are protected, and everybody’s wrongs are punished. This could be done by adding paintings reminding people of great events, or statues reminding people of great figures of the past, when and by whom justice was being served.
9. The premises must be a symbol of hope. People entering the building must get a feeling of reassurance. Most importantly, no aspect of the premises must pose a risk of re-traumatizing victims and witnesses, for example by imposing visible security measures, involving uniformed security guards with guns etc.
10. The premises must symbolize the universality of international criminal justice. The desire for justice is shared by all people in this world, rich or poor, powerful or powerless, and the building must reflect that.
11. The premises must be unobtrusive. The building itself must not cause controversy or attract unnecessary attention. It must not be conspicuous. What is important, is what happens inside the building, not the building itself.
12. The premises must constitute a representation of the entire international community. The building must represent the collective of all people living in this world, unified by common values or interests.
13. The premises must also symbolize the diversity of this world. There is a great deal of variety in this world, and the building must reflect this. Variety in the broadest sense of the term: cultural, ethnic, religious, linguistic, economic, and so on.
14. The premises must provide an intellectual link between the outside world and the tribunal. This could be done by having a library and a museum.
15. The Judiciary (Presidency and Chambers), the Office of the Prosecutor, and the Registry (Secretariat) require spatial separation.
16. The premises must be transparent. The structure must allow light to pass through it (transparency in literal sense) and give the impression that everything done inside is open to public scrutiny (transparency in symbolic sense).
17. The premises must symbolize independence and impartiality. The tribunal is free from outside control, and not subject to anyone’s authority; and the building should show this.
18. The premises should provide suitable working conditions.
19. The premises must be low in maintenance costs. The building must not be too expensive to keep clean and functioning.
20. The construction costs of the premises should not be too high.
21. The premises must be environment friendly. The building must not be harmful to the surroundings or natural world in which it is situated.
Of importance is also the symbolic significance of hosting an ad hoc international criminal tribunal on a State’s territory. If a State decides to host such a tribunal, it puts its own human rights record under closer scrutiny. If you want to be seen as a city of justice, then you must yourself face up to that challenge.
How should an architect respond to all these requirements? To design a good ad hoc international criminal tribunal, it all begins with a good design brief. This brief lays the foundation for the architectural assignment or competition. Let us make a comparison with the ICC. The design for this building was chosen after holding a competition. If the architect would have questioned the design brief too radically, he would probably have lost the competition. Let us explain why this is so – but let us also acknowledge that the current ICC in The Hague is a fine building.
While the lawyers contributing to this brief were without doubt highly intelligent, they were lawyers. They were trained to be very creative, but also to remain within the strict borders of the law. Good architecture needs creativity that defies borders. Good architects ask questions that define the demand and shape a building. It is this creative thinking that needs to go into the brief. Too often, architects just follow the design brief without asking questions. This is a good strategy for winning the competition, but it leaves many possibilities unused.
To analyze and question the design brief, we will look at all the requirements mentioned above (in section 2 of this blog post), and categorize these in three main groups: programmatic, practical and symbolical. The goal of this exercise is to come to a rethinking of the architecture of a building for the specific assignment of an ad hoc international tribunal. And hereby redefine the design brief.
First, programmatic. Here, the fundamental question is: what is a tribunal? This defines the typology of a building. In this case, we are referring to a courthouse. The building needs courtrooms, a lot of offices, and the typical spatial separation between visitors, judges, the accused and their lawyers, witnesses and prosecutors. The requirements listed above also ask for an intellectual link. This is atypical for a courthouse. A library, conference center or even a museum might be added to fulfill this requirement, making it a unique type of building with an outreach to the outside world.
Next is the practical. So how will this courthouse fulfill the specific requirements listed above? For an international ad hoc criminal tribunal, the practical needs relate to the requirements of accessibility, security, transparency, suitable working conditions, low maintenance costs, low construction costs… and the premises must be environment friendly. What we see too often, is that these practical requirements define a building. Because they are practical, they are measurable and easy to apply. And more importantly: in most architecture competitions, these get you the most points to win the competition.
Winning on practicality should not shape a building. What does shape a building is symbolism. This refers to the impact a building has beyond facilitating its function. However, an emphasis on symbolism and the post-war Western architecture tradition do not have a good relationship. An emphasis on symbolism is nowadays considered a trait of weakness, and more appropriate for shopping malls, buildings of worship, dictatorial palaces, and theme-parks. We do not need symbolism in a courthouse anymore, or do we?
In fact, symbolism is crucial in the design of an ad hoc international criminal tribunal. According to the requirements listed above, such a tribunal building needs to proclaim authority, be majestic, symbolize eminence, show dignity, be an emblem of fairness, be a symbol of justice, be a symbol of hope, be a representation of the entire international community, symbolize universality, diversity, be transparent, show independence…. and while doing all this, it needs to be unobtrusive.
What do these characteristics of symbolism mean to accomplish? The Peace Palace in The Hague is filled with symbolism. Some would argue it is some kind of Harry Potter palace, but it is not. Being there feels like being part of this community of eminence and fairness. Having said that, building yet another Peace Palace is unthinkable in today’s times. We want a building that is recognizable, that represents us all, but also represents the cause – international criminal justice - it was built for.
4. Concluding reflections
So how to do all this? Let us look at the three main points we identified in the design brief: programmatic, practical and symbolic. And bring these back to their essence. Making a building that is minimal, compact and abstract, without ignoring all requirements.
First, we need to recognize that an ad hoc international criminal tribunal is a building with a temporary function. After the trials have ended, the premises can either remain, and serve as a lasting memorial for what happened …. or be demolished. Much can be learnt from good Olympic venues. Only when they are able to shrink or adapt after the event, can they retain their value.
The core of a tribunal is the courtroom. To make a lasting building, we need to take out as much office space and other supporting space as possible. This we can put in temporary, empty buildings or rentable office space in the surroundings.
Then we need to compress what remains into the smallest building possible. Because of this compression, it is possible to position a tribunal in the center of a community, where there are already plenty of restaurants, hotels, offices and security. Doing this opens the premises to a greater public and lets the community benefit from its presence. Also, a small building is more environmentally friendly, has lower building costs and is easier to maintain. These are free points to win the design competition!
Symbolism to the greater public in this digital age translates into two images: the building itself, and the image of the suspect, prosecutor, and the judges in the courtroom. The courtroom should provide a stage for justice, using spatial layout, materialization, light, and let us not forget the camera position. The courtroom should also have a lasting quality, so that it can be integrated into the memorial after the trials have been concluded.
The building itself should be recognizable. Making a building too abstract, in an attempt to appeal to all, will turn it into an anonymous office block. Here two ambitions appear to clash: the wish for outreach, and the wish to effectively carry out the trials. The building should not only have a public part, but it should be a public building. The entire process of doing justice must be shown to the public.
The call for an ad hoc international criminal tribunal reemerges from time to time. Recognizing that the current ICC also has a clause, that makes doing justice on location possible, only makes this call more urgent. An ad hoc international criminal tribunal can give prestige to the area where it is situated and make the process of international criminal justice more accessible to the local community. What we need, is a clearer definition – or blueprint - of what such premises ought to look like. A clear design brief that delivers the premises an ad hoc criminal tribunal deserves. A more perfect and lasting building as a tribute to international criminal justice.
* Victor Spijkers is an Amsterdam based registered architect.
His main areas of work are large scale residential and public buildings.
* Otto Spijkers is lecturer of public international law at Utrecht University and guest lecturer for Amnesty International.
Inside the Constitutional Court of South Africa hangs Judith Mason’s The Man Who Sang and the Woman Who Kept Silent, more commonly known as The Blue Dress. The Court is a unique space by international comparison because it houses a large visual art collection developed by the court, and for the court. In this post I explore what is at stake by The Blue Dress hanging in the Court and suggest three ways in which the artwork contributes to the reimagining of human rights culture in South Africa.[ Show more ]
Inside the Constitutional Court of South Africa hangs Judith Mason’s The Man Who Sang and the Woman Who Kept Silent, more commonly known as The Blue Dress. The Court is a unique space by international comparison because it houses a large visual art collection developed by the court, and for the court. In this post I explore what is at stake by The Blue Dress hanging in the Court and suggest three ways in which the artwork contributes to the reimagining of human rights culture in South Africa.
The post draws on six months of participant observation fieldwork at the Court, which I conducted in 2014 as part of my doctoral research on transitional justice and visual art, which explored how best to address violent and traumatic pasts, reconcile divided nations, and strengthen democratic institutions in the aftermath of conflict. This fieldwork involved 54 interviews with people associated with the Court, including judges, law clerks, staff members, artists and visitors, as well as visual and archival research.
In memory of Phila Ndwandwe and Harold Sefola
Mason created the artwork to commemorate Phila Ndwandwe and Harold Sefola who were members of the African National Congress (ANC) fighting for freedom from apartheid. They were murdered by security branch officers of the South African Police in the late 1980s. The stories of their deaths emerged during the amnesty hearings at the South African Truth and Reconciliation Commission (TRC). As a result of testimony provided during these hearings, Ndwandwe’s remains were located; her body was found with remnants of a blue plastic bag.
In response, Mason sewed a dress from blue plastic bags on the hem of which she wrote a letter to Ndwandwe:
Sister, a plastic bag may not be the whole armour of God, but you were wrestling with flesh and blood, and against powers, against the rulers of darkness, against spiritual wickedness in sordid places. Your weapons were your silence and a piece of rubbish. Finding that bag and wearing it until you were disinterred is such a frugal, commonsensical, house-wifely thing to do, an ordinary act... At some level you shamed your captors, and they did not compound their abuse of you by stripping you a second time. Yet they killed you. We only know your story because a sniggering man remembered how brave you were. Memorials to your courage are everywhere; they blow about in the streets and drift on the tide and cling to thorn-bushes. This dress is made from some of them. Hambe kahle. Umkhonto [Go well, Spear of the Nation].
Art as a symbolic reparation
In the same way that the judgements are really trying not just to set down the real principles, but they are also trying to take individual stories and make them accessible to people and use those stories to heal wounds of the past... you can say the same about a lot of the art pieces in the collection (Constitutional Court Law Clerk, interview with author 2014).
The bodiless dress is a haunting recognition of Ndwandwe’s absence; of the harm she experienced, of her death. The artwork is an attempt to restore the clothing of which Ndwandwe was previously deprived, a literal and symbolic redress. In doing so, The Blue Dress becomes a symbolic reparation—an acknowledgement of the harm suffered by the victims and survivors of human rights abuses.
Adding to this, the exhibition of The Blue Dress in the physical space of the Constitutional Court—arguably the most important institution to emerge in post-apartheid South Africa—imbues the artwork with a sense of national significance.
Art as an alternative record of sexual and gender-based violence
You really are allowed to enter into someone else’s life... that is what art allows you to do and when you do that in the law... it can have drastic and profound affect [sic.] on judgement (Constitutional Court Law Clerk, interview with author 2014).
The Blue Dress becomes an alternative record of women’s role in anti-apartheid struggles but also of their experiences of sexual and gender-based violence under apartheid. It’s alternative in the sense that it provides a counter-point to the TRC which has been criticised for envisaging a limited role for women in fighting against apartheid, but also for failing to address the experiences of many women, especially in relation to sexual and gender-based violence .
The Blue Dress draws attention to the suspected sexual violence experienced by Ndwandwe and comes to symbolise the many victims and survivors of sexual and gender-based violence under apartheid whose stories remain absent from the official record.
Art as a form judicial consciousness
The artworks at the Court have an impact on judges, when judges look at the works of art, feelings run through you and most of the works of art at the Court send through all kinds of amazingly different feelings and understanding and so on, which makes me in a sense softer, more human, and able to understand human beings a lot better. Whereas if there was no work of art at the Court, I would imagine that would not happen (Constitutional Court Judge, interview with author 2014).
Through The Blue Dress, Ndwandwe’s story has become a discursive memory for people who work at, and visit, the Constitutional Court. Several judges who I interviewed (during fieldwork) spoke about The Blue Dress epitomising human dignity and the type of injustices the Court is trying to protect against.
The artwork lives in judicial consciousness as a reminder of things which must be prevented—Ndwandwe’s rape and murder should never be repeated. It also contributes to a vision of human dignity—that being resistance against tyranny—which should be sustained.
At the Constitutional Court of South Africa art has become fundamental to the appearance and understanding of justice in South Africa and of South African justice at the highest judicial level:
These three dimensions facilitate a reimagining of human rights culture in South Africa. Yet, this reimagining is not only the burden of the judiciary; it is the responsibility of all who encounter The Man Who Sang and the Woman Who Kept Silent.
This post draws on ideas which are explored in greater depth in ‘South Africa’s Blue Dress: (Re)imagining Human Rights through Art’ , Angelaki 24/4 (2019) 38-51 (published here with the permission of Taylor and Francis). Fifty free copies of the article are available here .
* Eliza Garnsey is a British Academy Postdoctoral Fellow in International Relations at the University of Cambridge, email@example.com ; @Eliza_Garnsey . Her book, The Justice of Visual Art: Creative State-Building in Times of Political Transition (forthcoming with Cambridge University Press), explores how art can engage and shape ideas of justice in ways which have the capacity to address identity divisions and exclusions in nations emerging from conflict.
This blog post offers some glimpses into the ways in which contemporary artists treat questions of conflict and reconciliation. I am writing this from my perspective as an artist and an academic, and more specifically as the AHRC Artist in Residence on the project ‘Art & Reconciliation: Conflict, Culture and Community’... The over-arching concept of the project is an examination of ways in which art has been used, and can be used, to explore ideas of reconciliation, in all its myriad forms, in the context of post-conflict societies. There is no single definition of reconciliation in the project; on the contrary, it starts from the understanding of precisely how ill-defined and ambiguous the term often is. Recent research into arts in the Western Balkans has noted a tendency of regional artists towards producing artworks that focus on the past and on the memorialisation of historical conflicts.[ Show more ]
1. ‘Art and Reconciliation’: the context
This blog post offers some glimpses into the ways in which contemporary artists treat questions of conflict and reconciliation. I am writing this from my perspective as an artist and an academic, and more specifically as the AHRC Artist in Residence on the project ‘Art & Reconciliation: Conflict, Culture and Community’ ( https://artreconciliation.org ). This project began in 2016, funded by the UK Arts and Humanities Research Council, led by King’s College London and partners at the University of the Arts London and London School of Economics and Political Science. The over-arching concept of the project is an examination of ways in which art has been used, and can be used, to explore ideas of reconciliation, in all its myriad forms, in the context of post-conflict societies. There is no single definition of reconciliation in the project; on the contrary, it starts from the understanding of precisely how ill-defined and ambiguous the term often is. Recent research into arts in the Western Balkans has noted a tendency of regional artists towards producing artworks that focus on the past and on the memorialisation of historical conflicts. Our project and exhibitions were designed to look forward, and at the present, as well as at the past. In this vein, we held workshops which considered the role that art plays in creating dialogue and in making a space for alternative visions of the future. These also included practical sessions for regional artists on grant writing and working with institutions, museums and galleries. In this blog I will limit myself to presenting my personal approach, reflecting on exhibitions I have participated in over the course of the project, beginning with the ‘Reconciliations’ exhibition at the History Museum of Bosnia and Hercegovina in Sarajevo, Bosnia, and leading up to my current work on the project extension ‘The Living Museum’ with that same museum.
2. PROJECT 1: ‘REconciliations’, History Museum of Bosnia & Hercegovina, Sarajevo, 2018
One of the main project aims has been to engage regional artists in the Western Balkans, and to allow for a wide range of works, responses and discussions around the theme of art and reconciliation. The first project exhibition, ‘REconciliations’, at the History Museum of Bosnia and Herzegovina, in Sarajevo, started with a public Open Call for commissions, made through the Museum, for artists to respond to the permanent collection ‘Sarajevo Under Siege’, and also through Stacion, Centre for Contemporary Art Prishtina, Kosovo . As part of the international panel evaluating submission for the Open Call, I found it extremely exciting and rewarding to see the wealth and breadth of the ideas submitted. The final selection for the first Sarajevo exhibition comprised: Lana Čmajčanin and Adela Jušić; young people working with the Post-Conflict Research Center; Sabina Tanović and Dario Krstić; Mladen Miljanović; Vladimir Miladinović and Ziyah Gafić. In addition to these artists, Professor Paul Coldwell from Chelsea College of Arts, UAL, and I each showed work relating to the Museum and its collections, which I discuss below. A further selection of regional and UK artists, including Monica Petzal, Dejan Kaludjerović, Have It!, Melos Gashi and Nela Milić, were chosen additionally for the London exhibition.
2.1 ‘MWRL 100mm (Multiple Water Rocket Launcher)’ by Mladen Miljanović
The ‘REconciliations’ exhibition in Sarajevo took place from June to August 2018, partly in the glass-fronted gallery of the beautiful (despite needing repair), modernist History Museum, but with some exhibits also placed alongside the ‘Siege of Sarajevo’ permanent exhibition, and elsewhere throughout the Museum. One exciting moment was the installation of one of the exhibits on the Museum roof. To set the scene, I should explain that the Museum is on ‘Sniper Alley’, located opposite the U.S. Embassy. The artwork was ‘MWRL 100mm (Multiple Water Rocket Launcher)’, by Mladen Miljanović, a sculpture that looks like a rocket launcher, but that ‘fires’ water over plants and trees. It is made from pipes and other elements taken from the former military base where the artist did his military service, which subsequently became an art academy, where he studied. On the morning of the installation a crane was spontaneously summoned to raise it. The police conducting traffic on the busy road below did not bat an eyelid. The U.S. Embassy did not complain, despite the fact that a very realistic-looking weapon was aimed at their building.
It was a very different story once we tried to bring the work to the UK. We did manage to bring it to London (narrowly avoiding having to apply for a firearms import licence), but there were many ‘health and safety’ concerns, and we had to put up public information signs to explain that it was a sculpture, and why it was there. We were not allowed to install the launcher on any roof. It felt very incongruous, above all for the artist, to see such a site-specific piece transported to the beautiful, green quad of Regent’s University London, but it did serve to water the plants and attract much interest, and provided the focus for public discussions with the artist. The contradictory experiences and settings raised important questions of how and where artwork should be shown. The ultimate destination of ‘MWRL 100mm’ is Bosnia, more specifically the Botanical Gardens at Banja Luka University, the former Vrbas military base, where its constituent parts originally came from. The base was used by the Army of Republika Srpska as military barracks in the 1990s, and before that by the Yugoslav Army, and it was first established during the Austro-Hungarian Empire. It is therefore a space replete with transformation and significance, and the artwork opens up the question of whether/how reconciliation can occur in such ideologically loaded sites.
2.2 ‘With the Melting of the Snows’ and ‘Abandoned Landscape’ by Paul Coldwell
In some ways the reverse of this story applies to another set of works,
Professor Paul Coldwell’s artist’s book, ‘With the Melting of the Snows’,
and his installation of bronze objects, ‘Abandoned Landscape’. These works
were created 20 years ago, in response to Martin Bell’s BBC radio broadcast
of April 1996 during which he reflected on the tragedy of the Bosnia war.
The artist’s book took as its title a phrase used by Bell to describe how,
following the winter thaw, the full horror of the atrocities in Sarajevo
was revealed. For the installation, Coldwell imagined the siege of Sarajevo
as evidenced by skeletal objects, dropped while fleeing or simply
discarded. He wanted these objects 'to reference the everyday aspects of
life, and together begin to conjure the idea of the life of a city.
Conflict begins by disrupting the simple activities, the daily rituals of
meeting friends, shopping, working and playing’. For the artist it was
particularly poignant to see these works brought to Sarajevo at last. This
feeling was intensified by the backdrop of the Museum’s collection of old
tanks and other vehicles of war outside, visible through the gallery
windows, the old metal echoing the patinated bronze of the sculptures.
Coldwell also created deeply moving new work in direct response to the
Museum’s siege exhibition. Both Professor Coldwell and I thought a great
deal about our role as indirect, external witnesses to the war, as opposed
to the survivors with first-hand experience, and about possible
sensitivities with local artists. The exhibition, responses to it and
overall interaction between international artists and the local public,
proved that there is room for a diversity of responses, direct and
indirect, and that the conversations themselves are
important, both between people and between artworks.
2.3 ‘Bedtime Stories’ by Lana Čmajčanin & Adela Jušić
First-hand accounts of the siege of Sarajevo were provided as part of ‘Bedtime Stories’ by Lana. ‘Bedtime Stories’ is a sound installation made up of 3 enclosed ‘bed’ cubicles within which audiences lie down to listen to stories of people talking about how, during the 1425 day siege of Sarajevo, many turned the basements of their apartment blocks into makeshift, cramped ‘bedrooms’ to shelter form the attacks. These basement communities created their own survival systems and sets of rules. Čmajčanin and Jušić interviewed people who had lived this, and their testimonies were interwoven with music. The installation played on the irony of providing comfortable beds for uncomfortable listening, harrowing stories of basement war-time life, which testify to the resistance, resilience and creativity that people harnessed to survive day-to-day life in besieged Sarajevo. The installation is now part of the permanent exhibition.
2.4 ‘Memoria Bosniaca’ by Vladimir Miladinović
In contrast to this audio piece, Vladimir Miladinović’s ‘Memoria Bosniaica’ is very visual, yet it can also be read as a time-based installation. ‘Memoria Bosniaca’ consists of 40 handmade ink wash drawings based on archival materials from the History Museum. Miladinović recreated a selection of materials including newspaper covers, official documents, lists, maps, posters and other visual documents, which also testify to the everyday lives of people during the siege. At first glance the drawings look like very striking, greatly enlarged photocopies.
However, in reality Miladinović ‘s process involved a detailed study of the entire Museum archive, the creation of a digital archive and then the drawing of a selection of the archive material. He then re-drew letter by letter, entire pages of newspapers, documents, lists, maps and anything else of interest. The artist deliberately chose drawing as the medium because the careful copying of each letter requires time and engages the performative aspect of the work. This approach creates a conversation with the viewer who also needs to devote a considerable amount of time to read the text, and this too brings another performative element which forms part of the work. Miladinović views his artistic engagement as above all a learning process for himself and the viewer, which stimulates active engagement and offers a re-interpretation of archival documents that might otherwise be consigned to history.
2.5 ‘Cathode Infusion’ by Sabina Tanović & Dario Kristić
A view of domesticity under siege was provided by Sabina Tanović & Dario Kristić’s ‘Cathode Infusion’ installation, consisting of a freestanding, old school television which randomly shuffles footage of the 1994 Olympics, MTV clips, game shows and other world media coverage from 1992-96, in between which occasional news-feeds from occupied Sarajevo appear. Each clip is broadcast briefly and then suddenly interrupted or stopped often at a particularly significant moment. This is a reminder that during the siege of Sarajevo, the city’s districts were supplied with electricity for only brief periods. Alongside the household jobs that needed to get done in those short spans of time, TVs were turned on and car batteries were charged. The artists explain how images of the outside world would penetrate homes, ‘reinforcing the indifference of the world towards the besieged city, while also providing Sarajevans with glimpses of normality that were instrumental in preserving fragile notions of sanity. These infusions of “normality” and reminders of another life, prior to the siege, were key in maintaining a sense of humanity.’
2.6. My works created as part of this project: ‘Reconciliations III’ and ‘Safe Water for Sarajevo’
My own response to the Museum included research into the building itself, and one piece, ‘Reconciliations III’, which incorporates my simplified drawing of an architectural plan of the Museum, against the background of a translucent, coloured acetate collage.
This was created as a dialogue with the stained glass artwork ‘Death to fascism, freedom to the people’ by Vojo Dimitrijević, and it was placed next to the coloured glass, in the entrance hall. The piece forms part of a series of prints and collage/drawings, including ‘Reconciliations IV’, ‘V’ and ‘VI’, which were shown in London, and are based around close-up photographs of the war-damaged glass piece. Sadly, in the intervening months since the end of the exhibition, Dimitrijević’s artwork has partially collapsed, and now has temporary glass covering it until repairs can be carried out, which adds a layer of poignancy to my intervention. Once the glass is repaired, my work will return to its intended place beside the windows.
Another of my works made for the exhibition is the installation ‘Safe Water for Sarajevo’: a broken drinking glass and bottle embedded in concrete, with protruding wires. ‘Safe Water for Sarajevo’ is a line from an article in the New York Times about the provision of clean water to homes during the siege of Sarajevo, in which ‘safe’ refers to the purity of the water. In my artwork ‘safe’ also refers to not having to dodge snipers during the siege while fetching water to drink. The installation’s crumbling concrete, protruding wires and broken glass allude to Sarajevo’s architectural ruins, while at the same time the glasses and bottles suggest a domestic setting for socialising — all made impossible by the context of the siege.
PROJECT 2: EVIDENCE OF THE VISIBLE
In March of this year, Professor Paul Lowe, one of our ‘Art & Reconciliation’ project team, curated the exhibition ‘Reconciliations: The Evidence of the Visible’, at PARC (Photography and the Archive Research Centre),
These works are part of my ‘In/visible War Crimes Sites’, an ongoing series of artworks emerging from academic work on conflict and images, around the salience of visual material in transitional justice and its potential for reconciliation, and issues of memorialisation. The exhibition also included very powerful works by Paul Coldwell, Ziyah Gafić, Vladimir Miladinović and Armin Smailović. It was opened by Lord Owen, and inspired great conversations and feedback.
PROJECT 3: BAUHAUS/BOMBERS
Taking the focus away from the Western Balkans, in April this year I created an installation, ‘Reconciliations and References’, looking at a different aspect of art and conflict, through commemoration of the centenary of the founding of the Bauhaus (April 1919). The focus was on the Dessau period, and on links between the Junkers factory and the Bauhaus school there. Architectural prints and photographs of the Bauhaus in Dessau were offset by three suspended model aircraft (including a Junkers war plane), reflecting the contrasting, but intertwined destinies of the site, and embracing the creative quest for simplicity and harmony in design, on one side, and the creative ingenuity involved in designing for destruction, as well as the darkness of the Nazi era, on the other. My prints of the Bauhaus-Archiv building in Berlin were set alongside the Dessau works, as were prints of London’s ‘Isokon’, the modernist flats in Lawn Road, to which Bauhaus founder Walter Gropius, László Moholy-Nagy and Marcel Breuer all fled from Nazi Germany. This is part of a larger project I am working on relating to the Bauhaus, and particularly Moholy-Nagy and the significant work he did during his brief exile in London.
PROJECT 4: LIVING MUSEUM
To conclude this blog by coming full circle to ‘Art & Reconciliation’, a new chapter has started with the launch of the History Museum’s Open Call for our joint follow-on project ‘Living Museum’. This is a call out to artists, art historians and researchers to respond to the Museum’s collections and archives relating to its Yugoslav, socialist legacy. The call is conceived as an intervention to re-examine the role of art from the period since 1945 until 1989, and its relevance to the contemporary situation there. The results of the selected curatorial and artistic proposals will be presented in an exhibition at the Museum in October 2019. I am going there this Summer to immerse myself in the archives and start my new works. Watch this space!
* Dr Milena Michalski is the AHRC artist in Residence, at King’s College London
The threats to cultural heritage are as many and varied as heritage itself. Amongst others they include economic development, natural disasters, degradation, tourism, illicit trade, iconoclasm and war. Like these threats, the responses are also many and varied. One response by international criminal law [ICL] is to proscribe behaviour that involves the destruction of cultural heritage.[ Show more ]
The threats to cultural heritage are as many and varied as heritage itself. Amongst others they include economic development, natural disasters, degradation, tourism, illicit trade, iconoclasm and war. Like these threats, the responses are also many and varied. One response by international criminal law [ICL] is to proscribe behaviour that involves the destruction of cultural heritage. At Art. 8(2)(e)(iv), the Rome Statute of the International Criminal Court [ICC] makes criminal “[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, [and] historic monuments … provided they are not military objectives…” Yet, what is the ICC’s understanding of culture?
In 2016 the ICC considered the destruction of cultural heritage in The Prosecutor v. Ahmad Al Faqi Al Mahdi . After making an admission of guilt, Al Mahdi was convicted of intentionally directing attacks against buildings of religious and historical character in Timbuktu, Mali , between 30 June 2012 and 11 July 2012. As the Prosecutor did not subsume these acts within any charges for crimes against humanity, this was the first freestanding charge and conviction under Article 8(2)(e)(iv) of the Rome Statute. The exploration of the Al Mahdi narrative which unfolded within the ICC reveals a dual approach to culture. Specifically, it both recognizes the importance of cultural heritage to the broader international community while acknowledging the significance of cultural heritage to local community. In effect, the Al Mahdi narrative reflects dual views of culture embodied in the theories of cultural internationalism and cultural intra-nationalism which developed within cultural heritage studies.
Cultural Internationalism and Cultural Intra-nationalism
Cultural internationalism understands that cultural objects demand protection as a result of their development of common human culture and so should not be subject to the arbitrary boundaries of the state in which the object was produced. It thus stands in contrast to cultural nationalism. At its core, cultural nationalism posits that cultural objects belong within the state of origin stressing the link between cultural objects and the cultural identity of a people. Consequently it repudiates ownership claims that would result in the (dis?)location of cultural objects outside of its state of origin. However, this focus on assigning clear cultural if not legal ownership of objects rooted in national identity can create some ‘sticky’ situations. Principally, it ignores one of the central tenants of multiculturalism; that culture does not stem from a territory but rather from peoples. Enter cultural intra-nationalism or cultural indigenism. This view retains focus on the importance of heritage to identity. However, cultural intra-nationalists inject a third possible group of people seeking control of their heritage: sub-state entities such as, amongst others, Indigenous Peoples.
The Al Mahdi Narrative
Exploring the Al Mahdi narrative reveals that it embodies an understanding of culture rooted in both cultural internationalism and cultural intra-nationalism. For instance, in its judgement the Trial Chamber relies on an internationalist logic using the UNESCO World Heritage status of almost all of the sites that were destroyed [See para. 39] as evidence of their qualification as religious buildings and historical monuments under Article 8(2)(e)(iv) of the Rome Statute [See para. 46]. Yet in explicating the gravity of the crime, the Trial Chamber also places the most weight on intra-nationalist sentiments noting the importance of Timbukutu as “an emblematic city with a mythical dimension” and “at the heart of Mali’s cultural heritage” [See para. 78]. It further explains that “destroying the mausoleums, to which the people of Timbuktu had an emotional attachment, was a war activity aimed at breaking the soul of the people of Timbuktu” [See para. 80].
Analysing the Al Mahdi Narrative: Preserving Cultural Heritage
What does this conflicted narrative in Al Mahdi regarding culture tell us about the future of the protection and preservation of cultural heritage in ICL and the relationship of the latter with human rights law? First, it tells us that ICL endorses the protection and preservation of cultural heritage as understood by UNESCO and its bestowal of World Heritage status. The judgment in Al Mahdi explicitly relies on the logic of internationalism by using the UNESCO World Heritage status of almost all of the sites that were destroyed as evidence of their qualification as religious buildings and historical monuments under Article 8(2)(e)(iv) of the ICC Statute [See para. 39].
However, the Al Mahdi narrative also demonstrates that such an understanding of heritage goes beyond endorsement and that in this instance UNESCO World Heritage status serves as the measure for determinations of gravity for the purposes of admissibility before the ICC. The Rome Statute requires that for a case to be admissible, the Office of the Prosecutor must assess the gravity of the crime and in particular it stipulates at Article 17(1)(d) that it must be of “sufficient gravity to justify further action by the Court.” Factors to be considered here in relation to gravity are scale, nature, manner of commission of the crimes, and their impact. In making her determination to bring charges against Al Mahdi for the intentional destruction of cultural heritage, Prosecutor Fatou Bensouda relied on the UNESCO World Heritage status of the sites in Mali as the basis of her finding of the gravity of the charges in relation to the scale, nature and impact of Al Mahdi’s actions [ See paras. 154-57].
The Prosecution’s approach to the charges in Al Mahdi in relying on such internationalist logic makes clear for the future that ICL understands the destruction of heritage with UNESCO World Heritage status as meeting the requirements of gravity necessary for admissibility. In and of itself this is not problematic. However, issues arise as the Al Mahdi narrative leaves open the question of whether heritage that does not have this status would make the admissibility cut? If interpreted not simply as endorsement of UNESCO World Heritage status but as a threshold requirement for gravity regarding admissibility, the internationalist logic of the Al Mahdi narrative would have devastating consequences for the protection of heritage by ICL through limiting its scope and applicability.
Specifically, I argue that such an interpretation rooted in a rigid internationalist approach must not be taken; not only on the grounds of such disastrous consequences for cultural heritage but on the grounds that such an interpretation is out of step with developments in other threads of international law, namely human rights law.
Human Rights Law and Cultural Intra-Nationalism
Human rights law increasingly embraces an approach to culture rooted in cultural intra-nationalism or cultural indigenism. Prominent among its advocates are Elazar Barkan , Ana Filipa Vrdoljak , Catherine Bell and Robert K. Paterson who both constitute and define this approach which has a better understanding of cultural diversity including indigenous and minority issues in relation to cultural heritage. As the Universal Declaration on Cultural Diversity notes, “[t]he defence [sic] of cultural diversity is an ethical imperative, inseparable from respect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples.” It is evidenced in human rights law by the development of new instruments and the interpretation of existing instruments in a fashion that increasingly privileges a concept of culture developed by social anthropologists who view culture not simply as a means of interpreting the world but as a tool for survival which aligns more closely with indigenous or other sub-state entities views.
This understanding of culture has hitherto been scarce in international law. Rather international law has offered understandings of culture that are indifferent if not contrary to this view. However, this more holistic understanding of culture is slowly being recognized under international law especially in human rights law through interpretation of existing instruments that recognize collective cultural rights for minorities and Indigenous Peoples. These include Article 27 of the International Covenant on Civil and Political Rights but also the development of new instruments in human rights law such as the U.N. Declaration on the Rights of Indigenous Peoples which provides a sui generis scheme for the protection of cultural heritage. Consequently, the Al Mahdi narrative must not be confined to its internationalist logic and so narrowly interpreted in relation to its protection of cultural heritage in ICL, as such an interpretation is out of step with developments in human rights law which are imbued increasingly with a cultural intra-nationalist ethic.
This is not to suggest that human rights law does not continue to take a fragmented approach to the protection and preservation of heritage. In fact, such fragmentation makes manifest a recalibration from an internationalist to an intra-nationalist understanding of heritage. However, the arc of human rights law bends towards an intra-nationalist approach and ICL must mirror this bend for the most complete and effective protection of cultural heritage and human rights. Indeed, like the fragmentation that human rights law is experiencing, the dual approach to culture in the Al Mahdi narrative is symptomatic of a recalibration; in this instance a recalibration of ICL to an intra- nationalist understanding of heritage.
The understanding of culture as perpetuated by cultural intra-nationalists should be infused into ICL to bring it in line with recent developments in human rights law. Ultimately, this will ensure the coherent development of the law but also most importantly the effective protection of people and their cultural heritage by more fully addressing cultural and human rights.
I suggest that the Al Mahdi narrative with its dual view of culture demonstrates that ICL has the scope for the inclusion of an intra-nationalist approach. Indeed, the dual view of culture in the Al Mahdi narrative makes manifest how ICL is grappling with such a recalibration which is being replicated across a number of areas of international law including human rights law. Time will tell if such a recalibration across a number of areas of international law represents a synergy in the approach to culture which will positively impact on the protection and preservation of cultural heritage. I hope that it is.
Crimes against cultural heritage deserve our full attention; not just on their own merit but due to their relationship with promoting and protecting cultural diversity and the cultural identity of individuals and communities.
* Shea Esterling is Senior Lecturer and Early Career Researcher at the University of Canterbury School of Law, New Zealand. Email: firstname.lastname@example.org
This post discusses the function of two international criminal courts within the pursuit of the protection of cultural property and identifies the emergence of a lacuna. I consider the material element of war crimes against cultural heritage, as required by the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and of the International Criminal Court (ICC). At present, a gap between the approaches of such courts undermines the degree of protection these judicial bodies accord to cultural goods.[ Show more ]
This post discusses the function of two international criminal courts within the pursuit of the protection of cultural property and identifies the emergence of a lacuna. I consider the material element of war crimes against cultural heritage, as required by the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and of the International Criminal Court (ICC). At present, a gap between the approaches of such courts undermines the degree of protection these judicial bodies accord to cultural goods.
As this post will further explain, cultural heritage does not only need to be safeguarded for the intrinsic value of the physical items which constitute it, but also because – in a more extensive acceptation – it preserves life in a collective and communal sense.
Before addressing the emergence of a lacuna, it is helpful to consider the origins of the phrases ‘cultural property’ and ‘cultural heritage’.
The notion of ‘heritage’ as we commonly conceive it today is linked, by etymology, to the idea of ‘inheritance’, of ‘handing down a multitude of objects, buildings and traditions from one generation to another’. International treaties also provide definitions of ‘cultural heritage’, ‘intangible cultural heritage’, and ‘cultural property’: e.g. the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (art. 1), the Convention for the Protection of the World Cultural and Natural Heritage of 1972 (art. 1) and the Convention for the Safeguarding of the Intangible Cultural Heritage of 2003 (art. 2 (1) and (2)). To date, however, there is not a universally agreed understanding of those terms, since the definitions in treaties are limited ‘for the purposes’ of those conventions and the debate on their precise meaning is still ongoing.
In this post, I use the expressions ‘cultural property’ and ‘cultural heritage’ as interchangeable phrases, given that I will tackle the topic of attacks against cultural goods from the perspective of international criminal law.
While cultural property hints at an element of ownership (its Latin root, propriĕtas, implies this idea of physical possession over something), the distinguishing feature of cultural heritage (from the Latin heredĭtas) is its quality of being passed down from one individual to another, which, in principle, might also extend beyond concrete goods and include abstract elements like knowledge and beliefs. These concepts have been combined with another macrocosm of its own, that of culture. The common employment of this term is actually a figurative use of it, since its original meaning points at the sphere of land cultivation and agriculture (the Latin noun cultura is a derivative of the verb colĕre, to cultivate). It then expanded to include the worship of Gods and Goddesses and, from there, to embrace a vast set of values, cognitions, knowledge and social behaviours at the heart of an individual’s, a people’s or a certain age’s development. Thus, the term culture carries an inherent nuance related to the action of tilling the soil, of tending and guarding it with constant care, zealous attention and lengthy dedication. Out of metaphor, this subtends a whole idea of culture as the fruit of a well-nurtured field, as a source of identity.
As it has been underpinned by the Chief Prosecutor of the UN International Residual Mechanism for Criminal Tribunals (IRMCT), Serge Brammertz, at the ‘International Conference on the 20th anniversary of the 1999 Second Protocol to the 1954 Hague Convention’ held in April 2019, the ICTY has been the first international judicial body which qualified attacks against cultural property as international crimes. The general pattern has then been to condemn those acts primarily as war crimes, as also confirmed by the judgment of the ICC in the Al-Mahdi case of 2016.
In order to protect cultural heritage to the fullest extent, international criminal courts have to strike a balance between many conflicting poles.
The first type of friction is one between the interests of a group and those of humankind as a whole: is cultural property defined with regard to the values of a local community or is it rather understood as being relevant for humanity in general? And, moving a step further, which acts substantiate an attack against cultural heritage? Are such acts supposed to impact the entire universal society or does it suffice that they affect a smaller unit of human beings? In this respect, the threshold does not seem to be particularly high, as the provisions of the Statutes of the ICTY and the ICC (respectively: art. 3 (d) and arts. 8 (2) (b) (ix) and 8 (2) (e) (4)) generally mention buildings dedicated, for instance, to the arts, sciences, religion and education. There are not additional criteria to be met, like, for example, that such constructions are ‘of great importance to the cultural heritage of every people’ (required by art. 1 (a) of the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954) or that they are ‘of outstanding universal value’ from the historical, artistic, scientific, aesthetic, ethnological or anthropological point of view (mentioned by art. 1 of the Convention for the Protection of the World Cultural and Natural Heritage of 1972).
But there is also a second type of resistance those courts have to tear down. It originates from one of the pillars of international humanitarian law: the goal to limit the effects of the hostilities which, by virtue of the principle of distinction, affords a certain degree of protection to civilians, as opposed to combatants. This principle is also applied to goods, so that only those of military nature can be the legitimate objects of attacks. Cultural objects generally fall under a specialized category of civilian objects, although they can also turn into military objectives by function (see: art. 6 (a) (i) of the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict of 1999). Pursuant to art. 4 (2) of the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 and to art. 6 of its Second Protocol of 1999, only under exceptional circumstances, a waiver to respect cultural property could be invoked on the basis of imperative military necessity.
According to these premises, all cultural goods (not only those under special/enhanced protection) should be spared from being jeopardized by warfare. Due to an overarching, natural precedence of the right to life over any other type of right, however, there seems to be a tendency to prioritize the prosecution of crimes against human beings over those targeting inanimate things. I would like to be clear on this point. Life is absolutely sacred in every single form it takes. It has to be shielded from any type of violence and its offenders must be prosecuted by justice in all instances. No human being can be deprived of or impaired in the enjoyment of their right to life under any circumstance. Nonetheless, to defend cultural heritage before international courts does not downgrade the right to life as such. In fact, the preservation of the right to life and that of cultural heritage are not necessarily alternatives but can be achieved in parallel. Of course, when a choice must be made, the prioritization of the right to life shall trump the safeguarding of cultural property. What I try to uncover here is that this choice is not always needed, that both interests can be pursued at the same time. That cultural heritage has a dignity of its own, for which it deserves to be saved from peril in the first place and for which its aggressors must be subject to trial.
The traditional approach of both courts has been to consider attacks against cultural heritage as war crimes. I will now focus on the material element required for the performance of war crimes as it emerges from the reading of the ICTY and ICC Statutes, leaving aside other important issues such as the appraisal of the mental element and the assessment of those acts as crimes against humanity.
The ICTY has now ceased to perform its functions and the IRMCT has a mandate to complete its remaining work and that of the International Criminal Tribunal for Rwanda. For this reason, I refer to the ICTY with a past tense.
Art. 3 (d) of the ICTY Statute spoke of ‘seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science’. The ICC Statute addresses similar acts under the prescriptions of arts. 8 (2) (b) (ix) and 8 (2) (e) (4), which condemn as a war crime the act of ‘intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives’, respectively, in international and non-international armed conflicts.
In brief, it looks like, by requiring the actual ‘seizure, destruction or damage’ of cultural property, the ICTY had a stricter attitude when it came to establishing the acts which imply the performance of those war crimes. On the other hand, the ICC has a more flexible posture as it is satisfied with the simple direction of attacks against those buildings.
Two conclusions can be drawn from the above discussion.
First, the Statutes of the ICTY and the ICC show some imbalances in those courts’ response to the need of protecting cultural property at the judicial stage. Admittedly, this might be partly due to the peculiarities of the historical and factual contexts those courts have been confronted with. As a result, they have applied different standards for the assessment of war crimes against cultural property (at least with regard to the material element). They (correctly) relied on their own statutes but remained strictly within those boundaries, without searching for a comprehensive approach that could eventually reconcile incompatible trends. A lacuna emerged between the stance of the ICTY and that of the ICC.
Second, international criminal law is a field governed by many and diverse forces. Different types of permanent and special courts and tribunals exercise various types of jurisdiction. While it may be deceptive to look for an identical application of many principles and norms by such bodies, a certain level of uniformity can be reasonably hoped for. This would guarantee an even protection of the rights at stake but also a fair treatment of the accused. If, in line with the above, cultural property concerns all human lives, then we have to make sure that it is granted the same kind of protection by all judicial bodies.
I like to think about cultural heritage with the Latin undertone of inheritance. I like to think about it as some treasure we are asked to look after for all of those who are going to come next. As a form of legacy, which belongs to all human beings, it should not be subject to the varying shifts of courts and tribunals and should be entitled to a universal, consistent degree of protection.
* Giulia Bernabei is a Research Assistant to Dr Philippa Webb, who is Reader of Public International Law at King's College London and Barrister at 20 Essex St. I thank Dr Philippa Webb for her kind support and comments on earlier drafts. The author of this post has a forthcoming article planned for publication in Art, Antiquity and Law Journal, which develops the present issue in greater detail and advances a possible solution in order to fill the identified lacuna.
‘Photography is truth’. This is how French-Swiss film director Jean-Luc Godard once responded to the question of photography’s essential role and function. As eye-minded individuals, we tend to instantly agree with Godard: our intuition suggests that what we can see through our own eyes must be something tangible, something present, something real. And still, true as Godard’s dictum may be, it seems as if photography is more than just a random technique to (objectively?) record incidents occurring around us. Indeed: photography is a way of documenting truth.[ Show more ]
‘Photography is truth’. This is how French-Swiss film director Jean-Luc Godard once responded to the question of photography’s essential role and function. As eye-minded individuals, we tend to instantly agree with Godard: our intuition suggests that what we can see through our own eyes must be something tangible, something present, something real. And still, true as Godard’s dictum may be, it seems as if photography is more than just a random technique to (objectively?) record incidents occurring around us. Indeed: photography is a way of documenting truth.
Photography allows us to retain and preserve glimpses of reality: it provides a unique access towards the world by opening a momentous window through which we can take a look outside and capture what we see on a film reel (or, more likely these days, a SD card). But beyond that, photographs are the documentation of time, witnesses of bygone moments and enduring proof of what has revealed itself as visible to the human eye. Thus, in a certain way, photographs are also a visualization of the manifestation of human activities in all their different forms. Therefore, taking it back to Jean-Luc Godard: photography is truth, since it enables us to capture everyday occurrences, to conserve countless impressions and, thereby, to make myriads of small and isolated cuttings of reality tangible and comprehensible for only for ourselves, but for others.
It is therefore in this context that photography fulfils another important function, one that is of particular relevance for the purposes of international (criminal) law or, even more precise, for international (criminal) lawyers and legal practitioners: considered in a legal context, photography is able to provide evidence for things we might doubt, for things we refuse to believe, but which become more probable or can even be proven by and through the efficacy of an image. As Susan Sontag masterly noted in one of her seminal essays collected in the volume On Photography,
‘Photographs furnish evidence. Something we hear about, but doubt seems proven when we are shown a photograph of it. In one version of its utility, the camera record incriminates […]. In another version of its utility, the camera record justifies. A photograph passes for incontrovertible proof that a given thing happened. The picture may distort: there is always a presumption that something exists, or did exist, which is like what’s in the picture.’
(Susan Sontag (1977), On Photography, Penguin Books: London, 5).
The potential to either incriminate or exonerate thus hints at the fundamental clout of photography. And indeed, there should be no doubt that photography is a mighty sword in the armoury of international (criminal) law and at the disposal of institutions and individuals operating within its realms: most importantly, photographs are therefore used as pieces of evidence before international criminal courts and tribunals, but beyond that they might also be utilized as visual proof that atrocities have been committed somewhere abroad in the daily eight o’clock news or on the cover of a news magazine. On a more abstract level, photographs thus have a function as ‘normative imprints’, reminding us of international criminal justice’s overall imperatives: to end impunity for the most serious international crimes. To hold alleged perpetrators individually responsible. To prevent future abomination from taking place. In all these manifestations, photography hence fulfils a crucial function towards society as it helps us to speak truth to reality by documenting what has been.
The more specific function of photography as factual evidence in court, however, warrants a closer analysis: as already mentioned above, human beings tend to be more susceptible to images as compared to other forms of communication. As Gilles Peress – a renowned photographer and member of Magnum Photos, but also a professor of human rights and (!) photography – has aptly put it: ‘I don’t trust words. I trust pictures.’ Thus, if we are to accept this dictum, various questions remain, which – in the context of these brief considerations – can only be superficially grazed: for example, we might need to inquire what the key implications of being more receptive to images effectively are, particularly in the context of photographs as evidence in proceedings before an international criminal court or tribunal. In other words: we may need to contemplate what role we effectively attribute to photographs when these are introduced as evidence, how these visual documents of reality are actually utilized and which audience(s) we thereby aim to address in the context of international (criminal) justice.
These are only some of the considerations that judicial institutions such as the International Criminal Court (ICC) have increasingly been confronted with in recent years. Thus, while the overall importance of photographic evidence in proceedings before its numerous chambers appears to be widely accepted, photography has also been used in other contexts by the Court: in this respect, the ICC’s manifold outreach activities – aiming at informing the broader public about the institution’s mission and mandate – are particularly noteworthy. Through its employment in a number of projects, the role of photography at the International Criminal Court has been substantially expanded and thus complements the use of photographic evidence in ongoing proceedings. Amongst the more visible outreach activities inaugurated by the Court – or, more precisely, the Registry – have been photographic exhibitions, such as the Justice Matters multimedia exhibit that opened in November 2012, commemorating the International Criminal Court’s 10th anniversary. Not the least since then, public exhibitions have been a recurrent form for the Court to facilitate information about its activities towards a broader audience.
It is in in the context of the Court’s ‘ Integrated Strategy for External Relations, Public Information and Outreach ’ combined with its enhanced focus on victims and their inclusion in fostering reconciliation that the most recent public exhibit ‘ Trauma, Healing and Hope – Towards a More Just World ’ should be located. On 11 September 2018, as part of the celebrations marking the 20th anniversary of the Rome Statute – the International Criminal Court’s foundational legal document – the exhibit was inaugurated, both in a digital and in physical version: while the former was (and at the time of the present writing still is) available on the Court’s website as an interactive presentation, the latter was previously opened both at the United Nations Headquarters in New York City as well as the seat of the Court in The Hague.
Featuring an impressive series of monochrome pictures, ‘Trauma, Healing and Hope’ captures various scenes and impressions from countries currently investigated by the International Criminal Court – either as preliminary examinations (as in the case of Georgia) or active situations (as, for example, the Democratic Republic of Congo or the Central African Republic). Featuring the works of award-winning photojournalist Marcus Bleasdale , the exhibit provides a comprehensive overview of the Court’s activities in different parts of the globe.
Moving from one picture to another, what instantly strikes the observer’s eye is Bleasdale’s deep understanding of the underlying conflicts and their respective ramifications: after spending more than twenty years covering conflict and human rights violations particularly in sub-Saharan Africa and closely collaborating with organisations such as Human Rights Watch or The Enough Project, Bleasdale has an unerring eye for providing a balanced and yet authentic account of each situation. His photographs are a disturbing account of atrocities beyond imagination, impressive in their narrative depths, sometime outright cruel and disturbing, but always portraying victims in a dignified manner and sometimes even instilling a vanishing glimpse of optimism and hope.
For instance, we learn about Valentine, a young girl from the Central African Republic, who was abducted at the age of thirteen, forced to become the ‘wife’ of a militia member and raped presumably countless times. We meet Masua, a fisherman from the Democratic Republic of Congo, kidnapped from his village at young age and forced to work as a porter for a local rebel group. Or we become familiar with the story of Khadidja, a 30-year-old women, who witnessed her husband and three children being killed right in front of her eyes before she was shot in the neck. She survived.
These are only three of the stories featured in the exhibit: supplemented by explanatory remarks and background information, the observer is thus taken by the hand and guided through all three dimensions of conflict entailed in the exhibit’s eponymous title. Thereby, we become witnesses to how victims have been traumatized, but also obtain at least a little impression of how much strength must be required not only to effectively survive, but to slowly face the process of healing. But even beyond that, we are allowed to take part in what makes the exhibit so impressive: to see the victims of most heinous international crimes still holding on to a shred of hope. The exhibit forcefully challenges the far too often employed narrative of further ‘victimizing victims’ by portraying these remarkable individuals as, indeed, marked by their sufferings, but not as hopeless. In a subtle way, the photographs are documents of a limited, yet persevering optimism: there still is a life to live after the conflict has ended.
‘For reconciliation to take place and wholeness and harmony to be approached, then some degree of truth, mercy, or forgiveness, justice, and peace must be woven into the process’. This quote, which is also taken from the exhibit, aptly mirrors the versatile challenges that are inherent to the reconciliation process. Amongst those challenges, however, one aspect of paramount importance is to make sure that victims of international crimes are being heard, that their stories are being told, that they are given a voice. To host high-profile exhibits at public fora such as the International Criminal Court hence support the notion that ‘victims’ narratives’ now feature more prominently in this endeavour. It is in this context that photography can play a crucial role as not only does it lend victims a face, a ‘visual identity’, but it also provides us as bystanders with tangible evidence when we are in doubt, when we do not want to believe that atrocious crimes have indeed been committed. Bringing these brief considerations full circle, photography therefore is a manifestation of truth and as such is an inevitable component in the process of facilitating reconciliation after conflict has come to a halt.
* Raphael is a lecturer in international law at the University of Mannheim and an associated fellow at the Peace Research Institute Frankfurt (PRIF). He currently works on a project investigating the role of photography in international justice. These preliminary remarks are intended to moot some early thoughts, feedback and further comments are therefore highly appreciated and may be directed to email@example.com .
The author would also like to cordially thank Marcus Bleasdale for the permission to use the above-shown photographic materials.
What is the power of images? What do stories tell?
Who produces them? And for whom?
In this short contribution, I would like to underscore the use – or rather the misuse – of a reconciliatory mandate of international courts and tribunals in international criminal justice.[ Show more ]
What is the power of images? What do stories tell?
Who produces them? And for whom?
In this short contribution, I would like to underscore the use – or rather the misuse – of a reconciliatory mandate of international courts and tribunals in international criminal justice.
According to the International Criminal Court’s (ICC) Outreach webpage , the mandate of the Outreach program of the ICC is to interact with affected communities. The page adds: “people most affected by the crimes have the right to understand, to participate in, and to have a sense of ownership of the justice process”.
There are two rationales behind this mandate: a pragmatic one, which entails finding witnesses and ensuring cooperation in the absence of armed forces to implement arrest warrants and investigation; [i] and a transitional justice one, namely the need to inform people to fulfill the reconciliatory mandate of the ICC. This latter mandate is not explicitly included in the Rome Statute of the ICC. Yet, the Statute’s preamble emphasizes the suffering of victims of “unimaginable atrocities” in the paragraph preceding the one recognizing that crimes under its jurisdiction threaten international peace and security. This essay suggests that such strategic placement reveals the importance of transitional justice rationales at the ICC.
The sixth annual report of the International Criminal Tribunal for the former Yugoslavia (ICTY), sent to the General Assembly and the UN Security Council on 25 August 1999 , mentions in the section dedicated to the Tribunal's Outreach program that the criminal mandate of the ICTY is “to establish the legal accountability of those who committed crimes during the conflict in the former Yugoslavia” (para. 146). The report, however, goes on to underline the contribution that the Tribunal brings, "in so doing" to the restoration of international peace and security:
“In the region, therefore, the Tribunal is a means to assist in reconciliation and to prevent a recurrence of conflict. The achievement of these objectives is dependent on the victims being aware of and understanding the war and its causes. It is therefore critical to the success of the Tribunal that the populations of the region are informed about the work of the Tribunal and understand its significance ".
This intermingling of international peace with local and lasting peace as the result of successful national reconciliation is rather daring. It must also be recalled that even though the 1999 report mentions national reconciliation, transitional justice was not an objective or a mandate that was included in UN Resolution 827, founding the ICTY. In contrast, a year and a half later Resolution 955 creating the International Criminal Tribunal for Rwanda (ICTR) affirmed that “the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the process of national reconciliation and to the restoration and maintenance of peace”.
The prism of transitional justice and national reconciliation is also present in the founding texts of the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC).
Thus, the communities of conflict-affected victims are the primary targets of Outreach strategies of various international courts and tribunals. These strategies and programs target groups that are not party to the proceedings – the broader audience in general, and the victims, in particular.
Such programs were first put in place at the ICTY in 1997 by then President Gabrielle Kirk McDonald, who noticed that decisions issued by the Tribunal were not understood, even sometimes rejected, by local populations. Yet, the local communities are the ultimate recipients of these activities. Such a targeted practice undertaken by the international criminal institutions raises the question of - to put it in Frédéric Mégret’s words - the identity of the constituency of international criminal justice. [ii] Who is international justice rendered for?
Beyond a purely judicial and repressive mandate to try and punish, it seems that international criminal institutions have taken on an extra-judicial function that places the trial in a process of reconciliation and restoration of a lasting peace in the countries where violations of international humanitarian law occurred. A paradigm of transitional justice is therefore applied to internationalized justice. The Outreach programs of international tribunals underscore this shift in the way international justice contemplates its mandate(s), whilst raising the question of their effectiveness.
Artistic activities in the outreach programs and why art is being used by international tribunals
At the ICTY (see the outreach page of the tribunal ), the staff of the Tribunal prepared a long series of documentaries on specific subjects. [iii] Moreover, the Youth Outreach section refers to two projects with a clear artistic focus. The first one is entitled ‘ICTY through children’s eyes’ and is a project established in 2014. Below is how the project is presented on the dedicated page on the ICTY’s website:
“Every year, during specifically organized workshops such as the annual ‘ Sarajevo Kids festival’, hundreds of children from Bosnia and Herzegovina aged 7 to 14 interact with Outreach representatives. Children are invited to reflect on the following questions: “How do you imagine justice? What kind of work does the Tribunal do? Will war crime trials contribute to reconciliation in Bosnia and Herzegovina?” They are also shown age-appropriate photographs of wartime events and of ICTY proceedings, which serve as a catalyst for a discussion about the war and its consequences.”
The second project is an essay-writing competition for school children. Below is an abstract from Maja Graca, first prize winner of the 2013 essay-writing competition, from the Meša Selimović Gymnasium in Tuzla (Bosnia):
“Other people’s past is our present, and to have a normal future, we must go through a complete social catharsis. The past of war is like a weight tied to our legs, slowing us down in our development and on our path to a normal life. ”
Not unlike the ICTY, the ECCC also implemented outreach activities - one of these being the Tuol Sleng Museum of Genocide, located in the former prison grounds, Pol Pot’s secret prison, codenamed S-21. 114 photographs are currently displayed on its website. [iv]
The Outreach program of the SCSL is one of the most commented and praised, specifically because it was established before the start of the judicial activities of the Court, a lesson learned from the mistakes of the ICTY. The court was created locally, which has made it easier to engage with local communities. A booklet was made for the purposes of outreach: “The Residual Special Court for Sierra Leone made simple”.
As for the ICC, the celebrations of the 20 years of the Rome Statute in 2018 offered a good momentum for the outreach section to develop their projects, including artistic ones. One art project, created in partnership with the National Geographic photographer Marcus Bleasdale and in consultation with the ICC trauma expert is an exhibition entitled “Healing, Trauma and Hope” and deserves particular attention. It tackles the following issues: trauma, healing and hope, the aftermath of crimes, loss, insecurity and injustice. Details of the project are available online. The project features pictures that were physically exhibited within the ICC premises, as well as at the Atrium in The Hague, and at the UN Headquarters in New York. On 11 September 2018, it was also launched as a digital exhibition.
One of the raisons d’être of using art approaches to outreach issues is, as indicated by Outreach officers of the ICC, that it is easier to address certain subjects through art. Matters such as justice and peace that could not always be discussed frontally emerge from scenes, pictures, or paintings. Artistic representations make concepts and functioning of courts easier to understand to the broader public as well as to communities of victims. Arts and artistic representations also allow the courts to better access the target groups of the outreach: the general public is more easily targeted through photo exhibition for example. Finally, extensive literature in the fields of sociology, psychology and transitional justice, explored the fact that these initiatives may help victims in their healing processes as survivors of atrocities.
As put forward on outreach webpages of international courts and tribunals, the designed programs are meant to help in attaining a reconciliatory goal at the national level. However, do outreach sections proceed to evaluate the impact of their tools, in this instance artistic, with regard to the international tribunal’s goal to contribute to national reconciliation? Is it at all possible to proceed to such an evaluation?
Evaluation of the effectiveness of ICTs as transitional justice mechanisms, through their outreach programs
The reports of the ICC prefer a statistical approach to evaluate the impact of the various activities, workshops and exhibitions organized. Data is gathered on the number of attendees and the groups they belong to (women, NGOs, journalists…), as well as on the documents produced. However, this numerical approach does not take into account the qualitative reception of the work of the courts. That is why, according to staff members of the Outreach section of the ICC, surveys are also conducted, for example through satisfaction forms, by independent actors such as universities (Berkeley or Harvard are cases in point). These qualitative assessments have been conducted in Uganda and Central African Republic to monitor factors such as trust, understanding, and involvement. However, they are not employed in relation to artistic and creative approaches used by courts. Moreover, recent outreach reports are not available, so the public will need to wait for the results of these studies.
At the moment, there is therefore no evaluation of the artistic and creative outreach processes, and when available it is in a very limited form.
I would thus now like to raise the question of actors’ role here: who should conduct outreach activities in the context of international criminal justice? Should these programs be undertaken by the very institutions in charge of performing the judicial tasks? Due to the context in which these tribunals operate – the need for cooperation with countries for arrest and surrender, as well as investigations – how can these programs be seen as anything else than marketing strategies? [v]
It is important to note that leaving the task of branding or marketing their work to the very institutions in charge of the judicial activities produces two negative effects. First, the message communicated by the court, which tries to convey the fairness of the procedure and the independence of the judiciary, is marked for the audience as an endavour to conceal what some victims still perceive as a "victors’ justice". The risk is therefore that these initiatives do not build the confidence as expected but encourage mistrust of the institution. The very opposite of what was intended. This situation also engages the question of judicial truth versus historical truth. Secondly: there is a conflict of interest. A judicial institution – even more so a penal one – is expected to respect fair trial processes. This can be challenging if there is pressure to reach national reconciliation by ending impunity and bringing justice to victims, namely, implicitly, by condemning.
This short essay underlined the challenges stemming from a shift in the paradigm applied to international justice, which has incorporated a transitional justice rational to its mandate. Outreach programs of international tribunals, in particular through artistic approaches targeting primarily communities of victims, make this shift visible, but cannot provide for solutions yet to the challenges that it creates.
[i] Patrick VINCK and Phuong N. PHAM, Outreach Evaluation: The International Criminal Court in the Central African Republic, in The International Journal of Transitional Justice, Vol. 4, 2010, at 422.
[ii] Frédéric MÉGRET, « In Whose Name? The ICC and the Search for Constituency » in C. De VOS, S. KENDALL and C. STAHN (dir.), Contested Justice, The Politics and Practice of International Criminal Court Interventions, Cambridge, Cambridge University Press, 2015
[iii] See also Kirsten AINLEY, Stephen HUMPHREYS, and Immi TALLGREN, "International criminal justice in/on film" in the London Review of International Law, 2018.
[iv] See also Maria Elander, Figuring Victims in International Criminal justice – The Case of the Khmer Rouge Tribunal, Routledge, 2018.
[v] Fiana GANTHERET, Le grand public comme acteur de la justice pénale internationale: les enjeux de la sensibilisation à la justice pénale internationale, Revue électronique du CRDH, Université Paris II Panthéon-Assas [accessible here: https://droits-fondamentaux.u-paris2.fr/sites/default/files/droits_fondamentaux/fichiers/le_grand_public_comme_acteur_de_la_justice_penale_internationale._les_enjeux_de_la_sensibilisation_a_la_justice_penale_internationale.pdf ]; Christine SCHWOBEL-PATEL, “The Market and Marketing Culture of International Criminal Law” in Critical Approaches to International Criminal Law, Christine SCHWOBEL (ed.), Routledge, 2014.
* Fiana Gantheret is Director of Creating Rights and legal associate at the International Criminal Court.
There is new and exciting body of work emerging that interrogates different aspects of the arts and creative approaches in transitional justice and peacebuilding, including some exciting work that has begun to interrogate the aesthetics of international justice concepts and practices discussed here on the Art and International Justice blog. These new approaches apply innovative methodologies, drawing on a wide range of disciplines, to bring new insights into the theory and practice of transitional justice, from the aesthetics of the institutions and buildings, the courtroom drama, and the projection of the work of international courts to its main constituencies through artistic and creative approaches to outreach activities. Particularly interesting is the question of the extent to which the arts might be leveraged to serve two of the ostensibly most important goals of international justice – peace and reconciliation – by helping not only to communicate the work of international courts through outreach, but also more significantly by engaging people in dialogue about the issues and contexts with which it is concerned.[ Show more ]
There is new and exciting body of work emerging that interrogates different aspects of the arts and creative approaches in transitional justice and peacebuilding, including some exciting work that has begun to interrogate the aesthetics of international justice concepts and practices discussed here on the Art and International Justice blog. These new approaches apply innovative methodologies, drawing on a wide range of disciplines, to bring new insights into the theory and practice of transitional justice, from the aesthetics of the institutions and buildings, the courtroom drama, and the projection of the work of international courts to its main constituencies through artistic and creative approaches to outreach activities. Particularly interesting is the question of the extent to which the arts might be leveraged to serve two of the ostensibly most important goals of international justice – peace and reconciliation – by helping not only to communicate the work of international courts through outreach, but also more significantly by engaging people in dialogue about the issues and contexts with which it is concerned.
What can art do?
This short piece offers some thoughts on the key question of ‘What Can Art Do?’ in relation to international justice, especially in furthering goals of peace and reconciliation associated with it. It discusses the role of visual images within and outside the courtroom and the relationship between art, justice and reconciliation. It draws on research undertaken as part of two AHRC-funded projects, both conducted in collaboration with my colleagues at King’s College London, Professor James Gow and artist-in-residence, Dr Milena Michalski.
Spectacles of Justice: Visual Images and the Courtroom
‘ Pictures of Peace and Justice ’ explored the role of visual images in providing impetus for the creation of international justice institutions, how they were deployed in the courtroom and how they were used to communicate the court’s work, in outreach activities. We sought to investigate how visual methodologies might provide new and different insights into the practice and politics of international justice. In August 1992, images of the notorious Omarska concentration camp in northern Bosnia taken by ITN had enormous impact, increasing the pressure to ‘do something’, which resulted in the establishment of the first international tribunal since Nuremberg, the International Criminal Tribunal for the Former Yugoslavia (ICTY), in May 1993. What is striking about those images is the extent to which, especially when rendered in black and white, they resonate with images from the Nazi Concentration Camps film. This film, shown on Day 6 of the Nuremberg Trial to liven things up, shifted the perception of the legacy of Nuremberg from being primarily about crimes against the peace and war crimes to be most commonly identified now with crimes against humanity (Douglas, 2001)
Later on, in 2005, footage was shown in the courtroom and later broadcast on news media in Serbia of a Serbian paramilitary unit, The Scorpions, carrying out executions of unarmed Bosnian Muslim men and boys in Srebrenica in 1995 at the trial of Slobodan Milošević. Given that this footage was not in the end admitted as evidence, one could argue that it had much more impact outside the courtroom than within it, piercing the veil of denial in Serbia, at least briefly (Zverhanovski, 2007). Meanwhile, local communities in Bosnia and Herzegovina responded to visual imagery in ways that were unexpected and probably unintended. One of the most strking findings was that images of the courtroom transmitted to these communities via Court TV actually made it feel more remote and alien – the rituals and aesthetics of the ICTY were deemed alien nad somehow otherworldly. One respondent called it ‘space-capsule justice’ (Gow et al, 2013).
Visuality outside the courtroom – art and reconciliation
The potentially powerful role of visual images in international justice led us to question what the potential role might be of visual, artistic and creative approaches in fostering one of the key purported goals of international justice – reconciliation. Although reconciliation is not formally in the mandate of the ICTY, it does appear as one of the key stated goals of its sister tribunal, the International Criminal Tribunal for Rwanda (ICTR), and is often articulated as one if its missions by advocates of international justice.
We set out to investigate the potential role of the arts in reconciliation in another AHRC-funded project, ‘ Art and Reconciliation: Conflict, Culture and Community ’, together with colleagues at the London School of Economics and Political Science, Dr Denisa Kostocovica and Dr Ivor Sokolic, and University of the Arts London, Dr Paul Lowe and Dr Tiffany Fairy. Acknowledging the essentially contested nature of the term itself, both generally and specifically in the context in which we worked – the Western Balkans – where even the term reconciliation is hotly resisted, we did not seek to measure a pre-defined conceptualisation of reconciliation, but rather set out to tackle the question of what reconciliation was understood to mean in different contexts, and by different groups of people, and especially what alternative approaches in the arts might offer. We sought to do this in a few different ways – through history, discourse, and practice.
With regard to practice, we mapped reconciliation activity and honed in on the arts and creative practices as alternative approaches that had the potential to offer alternatives. What was notable was that despite resistance to the term, local actors were very much engaged with societal transformation activities that the project team identified as ‘everyday reconciliation’. In particular, such interventions seemed to provide a space in which dialogue might occur about the future as well as the past, and a space in which people might be engaged emotionally and physically as well as intellectually – which we have come to understand as being at the core of what reconciliation might be in practice. These interventions also allowed artists to play with time and space, and with order and disorder, thus reflecting some of the complexity and nuance of the construction of memory and narratives. Creative practices seemed therefore to have what we see as dialogic potential to engage people in discussions around, and reorientate reconciliation. As noted elsewhere by people like John Paul Lederach and Cynthia Cohen, the emergent, unstable and open-ended character of art has the potential to produce new and creative means of intervention that might enable the ‘moral imagination’ and open up discursive space in which paradoxes of peace and justice, truth and mercy, necessary for peacebuilding and, possibly also, for reconciliation.
Our research involved a number of different sorts of practices and actors, but was mainly focused on visual arts. In total, eleven artistic interventions were produced. Two of these were participatory – a drawing workshop and a youth media project, Balkan Diskurs Youth conducted in collaboration with the Post-Conflict Research Center in Sarajevo.
Caption: Balkan Diskurs youth correspondents photography workshop. © PCRC
Caption: Drawing workshop in Sarajevo led by Professor Paul Coldwell, University of the Arts London.
The other nine projects involved artists creating new work, either directly commissioned or in response to open calls issued in partnership with the History Museum of Bosnia and Herzegovina and the Institute of Contemporary Arts in Prishtina. These works were exhibited Sarajevo in June-August 2018 and in London in November-December (‘Reconciliations’). Our aim was emphatically not to provide a ‘toolkit’ for artistic intervention, but we did think carefully about implications for evaluation and sought to do this without pre-judging outcomes. Nor was it to pin down an overarching definition of reconciliation, but rather to open up the concept and understand how each of these interventions engaged with a version of it.
Caption: Exhibtion poster, ‘Reconciliations’, History Museum of Bosnia and Herzegovina, June-August 2018.
‘Memoria Bosniaca’ by Vladimir Miladinovic. Photo by Isabella Pierce.
Caption: Artist Adela Jušić and an audience member experiencing Bedtime Stories by Jušić and Lana Čmajčanin, now part of the permanent exhibition at the History Museum of BiH.
Caption: MRWL 100mm by Mladen Miljanovic on the roof of the History Museum of BiH, Sarajevo. Photo by Isabella Pearce.
Implications – the dialogic potential of art as reconciliation
What we found was that whilst art and creative approaches had the potential to be leveraged for peacebuilding and reconciliation in different ways, optimism about their use should be tempered with caution. There are ways in which art might contribute to healing and allow time and space for self-reflection, as a means both of representing and processing lived experience. Art is also a useful means of exploring complexity, ambiguity and contradiction and as such has dialogic potential – it is precisely the idea that the engagement is open-ended, and not pre-determined, that means that it can accommodate difference, not seek a single didactic ‘truth’. Art can also be emotive/connective or ’affective’ (Rush and Simic, 2014). The visual can connect in a way words cannot and make meaningful the suffering of others, and in some instances can bridge divides and create empathy based on shared humanity. It can also draw attention and so combat denial. Finally, there is an important role for the artist not only in dealing with the past but in reimagining the future. The dialogic potential of art is to open up a space for what John Paul Lederach calls the ‘moral imagination’ in peacebuilding, transitional justice and reconciliation (Lederach, 2005). This suggests a recasting of how we might conceptualise reconciliation as space in which paradox and contestation can be accommodated, rather than seeking agreement on a shared narrative.
But we should also understand that open-ended connection can also be difficult and counter-productive. And that just as art might push for positive change, it can also serve to reinforce the status quo and consolidate divisive narratives. Moreover, we should avoid instrumentalising art as a ‘tool’ of transitional justice or peacebuilding. Catherine Cole points out that transitional justice and arts practitioners may be fundamentally at odds, with artists valuing opacity, ambiguity, irony and instability and transitional justice seeking normatively driven outcomes (Cole, 2014). We must also be careful not to fetishise or lionise ‘art’, but rather apply critical evaluation as we would to any other form of activity. This can be problematic where art is employed as a research method, rather than as research data, and involves navigating relationships between artists and researchers based on mutual respect and robust critical engagement.
Nevertheless, we should acknowledge and explore the power of art to resist overarching reconciliation discourse and narratives and to provide alternative sites and spaces in which reconciliation might occur. Rather than see it as a goal to be evaluated, we might then reconceptualise reconciliation as a space in which dialogue occurs and see how it both creates space for engagement with and complements or contradicts international justice narratives.
Cynthia Cohen, ‘Creative Approches to Reconciliation’, Working Paper online at https://www.brandeis.edu/ethics/pdfs/publications/Creative_Approaches.pdf .
Catherine M. Cole, At the Convergence of Transitional Justice and Art, International Journal of Transitional Justice, Volume 8, Issue 2, July 2014, Pages 314–322, https://doi.org/10.1093/ijtj/iju005 .
Lawrence Douglas , The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale University Press, 2001).
James Gow, Milena Michalski, and Rachel Kerr. "Space Capsule Justice: The ICTY and Bosnia — Image, Distance and Disconnection." The Slavonic and East European Review 91, no. 4 (2013): 818-46. doi:10.5699/slaveasteurorev2.91.4.0818.
John Paul Lederach, The Moral Imagination: The Art and Soul of Building Peace (Oxford University Press, 2005).
Peter D. Rush and Olivera Simić (eds.), The Arts of Transitional Justice: Culture, Activism, and Memory after Atrocity (Springer, 2014).
Ivan Zveržhanovski (2007) Watching War Crimes: The Srebrenica Video and the Serbian Attitudes to the 1995 Srebrenica Massacre, Southeast European and Black Sea Studies, 7:3, 417-430, DOI: 10.1080/14683850701566377 .
* Dr Rachel Kerr is a Reader in International Relations and Contemporary War in the Department of War Studies at King’s College London. Her research is in the area of law and war, in particular war crimes and transitional/post-conflict justice, and she co-directs the War Crimes Research Group at King’s. She is the author of The International Criminal Tribunal for the Former Yugoslavia: Law, Diplomacy and Politics (OUP, 2004), Peace and Justice: Seeking Accountability after War (Polity, 2007), with Eirin Mobekk, and The Military on Trial: The British Army in Iraq (Wolf Legal Publishers, 2008).
Six white cubes stand in a row along the costal landscape of the Hague. Their opaque trapezoid windows with their angled panes, interspersed with glass-free panels, give the appearance of a checkerboard. High fences are absent, rather it is a large concrete mote and the surrounding sand dunes that protect the structure. Apart from the conspicuous video cameras, and guard patrols directly outside the entrance, approaching the structure, there is little to set the building apart from any other corporate headquarters or multi-national institution. Despite its somewhat discreet appearance, the building houses the International Criminal Court (ICC), arguably one of the most significant international design projects since the construction of the United Nations Headquarters in 1951. Built nearly 100 years after the first purpose-built structure for an international organization – the Peace Palace, also located in the Hague, built in 1907 to house the International Court of Justice (ICJ) – the visual language of the two buildings could not be more different.[ Show more ]
Six white cubes stand in a row along the costal landscape of the Hague. Their opaque trapezoid windows with their angled panes, interspersed with glass-free panels, give the appearance of a checkerboard. High fences are absent, rather it is a large concrete mote and the surrounding sand dunes that protect the structure. Apart from the conspicuous video cameras, and guard patrols directly outside the entrance, approaching the structure, there is little to set the building apart from any other corporate headquarters or multi-national institution. Despite its somewhat discreet appearance, the building houses the International Criminal Court (ICC), arguably one of the most significant international design projects since the construction of the United Nations Headquarters in 1951. Built nearly 100 years after the first purpose-built structure for an international organization – the Peace Palace, also located in the Hague, built in 1907 to house the International Court of Justice (ICJ) – the visual language of the two buildings could not be more different.
The ICC Building, the Hague
In this post I reflect upon the aesthetic and material dimensions of the ICC premises, particularly as it seeks to represent the project of international criminal law in supposedly universal terms. It forms part of a wider project I have been developing which explores international law’s relationship to architecture. [i] It is my claim that the sites and spaces of international law (courts, organization buildings, offices etc.) create law’s physical presence, generating the material space in which international law is practiced, and in which ideas about international law and order can be expressed and, more importantly, experienced. [ii] This is true, I argue, not only of their functional aspects (the spatial elements that support the operation of international law) but also their aesthetic qualities which project certain institutional ideals and imageries to the outside. [iii] In this short piece, I draw particular attention to the tensions inherent in efforts to develop an architectural expression of international justice, translated beyond the specifics of culture and history.
Expressing International Justice beyond the Nation
While the design of domestic courthouses and spaces of justice have long played a highly symbolic role in manifestations of national legal and political authority (for example through the tropes and figures of courtroom design– the “scales of Justice” or the personification of the Virtue Justice, coats of arms, flags, state emblems), [iv] the contingent nature of these localized forms of expression have posed a challenge when seeking to embody the role and function of international courts (as well as international organizations more generally). With the move towards the institutionalization and bureaucratrization of international law in the late 19th century, [v] architectural expression was to assume a central role in lending a newly imagined presence to the international legal community through the design of its organisational and administrative spaces. Yet, as soon became apparent the question of how to symbolize internationalism and ideas of a global community beyond the nation-state and its cultural values proved problematic.
Peace Palace, the Hague
We can see the tension between nationalism and internationalism in the design of the first permanent international legal structure - the Peace Palace. Inspired by the Nieuw-Vlaamse movement, the elaborate building with its picturesque towers and dormered roofs, drew extensively from the local Dutch architecture and its inherited renaissance tradition. [vi] Evoking the aesthetic of the Amsterdam Town Hall of 1652, the jury praised Louis Cordonnier’s design for its ‘following the local traditions of XCI Century architecture’ in the Hague, while architect Arthur Eyffinger described the structure as loyal to ‘the pillars of the Dutch Golden Age: Christian faith, the wealth of the merchant class and classical learning’. [vii] Internationalism here was anchored in the national aesthetic, in a visibly grand and historicist style, reflecting the design preferences of a selective elite composed of mainly Western diplomats and academics (much like the supposedly universal ideals the Palace was said to embody). [viii] This can also be seen in the visualizations of the story of universal justice in the Palace’s decorations and gifts, which were ‘littered with symbols of Christian and humanist virtue’ as well as the standard of civilization which underpinned the rights of membership to the community of nations. [ix] Critics disparaged its ‘lack of world harmony’, calling the design ‘wholly imitative of the architecture of another era, without the slightest effort at large symbolism of modern life’. [x] By contrast the Headquarters of the Pan American Union, built the following year in Washington DC, was praised for its harmonious combination of various national design elements representing both North and South American states, such as the terracotta roof, ornamental bronze work, Aztec and Mayan artwork and tiled central courtyard that featured flora from across the Americas, along with a more contemporary Beaux-Arts aesthetic.
Universal Justice at the International Criminal Court
Ideas of internationalism have since undergone a radical transformation, which is also reflected in the architectural expression of international law’s newest flagship structure: the ICC. When the worldwide competition to design the space was launched in 2008, the brief called for a building that not only satisfied the ICC’s functional requirements, including striking a balance between security and accessibility, but that also provided a ‘well-balanced representation of the entire international community’ . From the outset there was a tremendous emphasis on architectural representation, and the expectation that the building physically embody the values of the ICC. Out of 171 submissions, German firm Ingenhoven Architects was declared the winner for a design evoking the circular design of the ECJ, which the jury oddly praised as a ‘happy building’ . In the accompanying brief, the architects explained that they had sought to create a building that was ‘light, careful, elegant’ and ‘detached from any specific cultural context’.
In 2010, the ICC decided to grant the commission to the second-prize winning design by Schmidt Hammer Lasssen . Completed in 2016, the solitary structure stands amongst the costal dunes, its six towers are connected at podium level, yet appear from a distance to be separated from one another. The central tower, which houses the courtrooms, was designed to be clad in black timber, but ultimately changed due to its aesthetic similarity to the Kaaba at Mecca. [xi] The rest of the building, which houses offices, is constructed using neutral colours – beige, grey and white, and a mix of metal, glass and concrete. There is a distinctly ostere, authoritarian expression inherent in the design, and despite the extensive use of windows, one cannot look inside. The ICC President at that time, Judge Silvia Fernández, noted that the building ´helps us safeguard the independence of the Court, its credibility, and, ultimately, its legitimacy’ .
The ICC Building, the Hague
Commenting on the aesthetic choices behind the design Bjarne Hammer noted, that the firm had decided early on ‘not to be specific regarding all these nationalities, cultures, and religions, as it’s just not feasible for all of them to be reflected in a coherent architectural design’ , instead international unity was to be expressed through the surrounding gardens, which includes plants, flowers and substrates from all State Parties. Hammer noted that ‘[n]o matter where they are, each culture always has a garden. It is the very smallest fundamental thing that we share’. [xii]
Despite professing the aesthetic neutrality of the buildings, however, in another interview Denis Olette, director of Schmidt Hammer Lassen also spoke of the parallels between Nordic architecture and the professed values of the ICC:
‘We were happy to hear that our design perfectly reflected the ICC’s criteria of transparency, fairness, trust, respect, and democracy. It was a match made in heaven, as these same values are anchored in Danish architectural design as well as in our firm’s philosophy. We recognized ourselves in the ICC’s briefing, and vice versa.’ [xiii]
And indeed, the ICC’s overall aesthetic is reminiscent of the sleek, glass structures that have become the dominant form of expression of commercial and political power and prestige in Northern Europe. It is, for example, extremely close in design to both the Europol building and the Dutch Supreme Court, located in close proximity within The Hague’s ‘International Zone’, and in stark contrast to say the design of the African Court of Human and Peoples Rights, the ECOWAS court building, or the Inter-American Court of Human Rights building.
The Inter-American Court of Human Rights, San Jose and The African Court of Human and Peoples’ Rights, Arusha
Concerns have already been raised upon the message the building sends to non-European actors and visitors to the court, particularly given the prevalent discourse of political bias against African states that already clouds the ICC’s work. One of the court’s first detainees, Germain Katanga, described it as ‘a place of business, like a bank’, according to his lawyer David Hooper, whose own description of the building was that it might as well be ‘Google’s headquarters in the Netherlands’. [xiv] A similar criticism comes from the disparity between the white, open waiting rooms where the witnesses and victims wait before they take their place in court, is contrast to the dark grey holding cells, where the accused spend time in between courtroom sessions. As Christine Murray notes, contrary to the notion of presumed innocence, ‘the architecture has already chosen sides’. [xv] One can’t really imagine a Western leader being held here, Murray notes.
What this brief sketch seeks to underline, is that the aesthetic and functional frames for international justice communicated by the new ICC building are - consciously or not - far from neutral, and should prompt us to consider how it and other structures affect our understanding about international law and the identity of the international community. The Peace Palace still retains an iconic status for international justice, despite its visibly nationalist and colonial origins and aesthetics. What does this say about the way we continue to view international law? Similarly, despite its contemporary aesthetic, the ICC’s new home, located firmly in the Global North, with its modern Nordic expression, tells a very clear and powerful story about the contemporary project of international justice. One that may not, in fact, be so far removed from the legacy of the Peace Palace.
* Miriam Bak McKenna is a postdoctoral researcher at Lund University, where she researches the history and theory of international law, with a particular focus on the history of self-determination and decolonisation, law and aesthetics and materialist and feminist approaches to international law. She received her PhD in International Law from the University of Copenhagen. She also holds degrees in art history and law from the University of Western Australia, as well as an LLM in Legal Theory from the University of Copenhagen.
[i] See M Bak McKenna, ‘Designing for International Law: The Architecture of International Organisations 1922-1952’, London Review of International Law (forthcoming)
[ii] See S Stolk and R Vos 'International Legal Sightseeing' Journal of the Oxford Centre for Socio-Legal Studies, issue 2 (2018); ); Hyo Yoon Kang, ‘Law’s Materiality: Between Concrete Matters and Abstract Forms, or How Matter Becomes Material’, Routledge Handbook of Law and Theory (Routledge, 2018), 453-474.
[iii] On the significance of visual narratives and image-making to international law, see also D Joyce, ‘Photography and the image-making of international justice’, Law and Humanities 4.2 (2010): 229-249.
[iv] J Resnik and Dennis E. Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms , (Yale UP, 2011)
[v] See A Peters, ‘International Organizations and International Law’ in J Cogan, I Hurd and I Johnstone (eds) Oxford Handbook of International Organisations (OUP, 2016)
[vi] J Bank, W Frijhoff, M Spies (eds) Dutch Culture in a European Perspective: 1900, the age of bourgeois culture , (Van Buuren, 2005) 75.
[vii] ACGM Eyffinger, The Peace Palace: Residence for Justice, Domicile of Learning (Carnegie Foundations, 1988)
[viii] See M Duranti, The Conservative Human Rights Revolution. European Identity,
Transnational Politics, and the Origins of the European Convention (Oxford 2017) 31.
[ix] Duranti 2017, 39; see also D Litwin, 'Stained Glass Windows, the Great Hall of Justice of the Peace Palace', in International Law's Objects Hohmann and Joyce (eds) (OUP, 2019) 463-477.
[x] Resnik, 2011, 251.
[xi] Christine Murray, ´ Transparency, democracy, high-security: Schmidt Hammer Lassen's International Criminal Court´, The Architectural Review, 5 February 2016, online at https://www.architectural-review.com/buildings/transparency-democracy-high-security-schmidt-hammer-lassens-international-criminal-court/10001999.article
[xii] Murray, 2016.
[xiii] Mosa, ‘A Design That Has It All’ https://www.mosa.com/en-us/inspiration/case-studies/a-design-that-has-it-all
[xiv] Stéphanie Maupas, ‘The International Criminal Court get a new home’, Justice Info, 15 December 2015, online at https://www.justiceinfo.net/en/justice-reconciliation/25221-international-criminal-court-gets-a-new-home.html
[xv] Murray, 2016. See also Mulcahy, Linda. "Architects of justice: The politics of courtroom design." Social & Legal Studies 16.3 (2007): 383-403. See also Maass, Anne, et al. "Intimidating buildings: can courthouse architecture affect perceived likelihood of conviction?." Environment and behavior 32.5 (2000): 674-683
In a world dominated by iconography and circulating imageries, the proximity of the medium and its political ramifications cannot be overstated. Iconography related to international justice – whether an emblem, logo, painting or building - not only enacts an event but also encodes a message. Images are both the subject and object, simultaneously representing and creating realities about specific ideas and practices of international justice. Such iconography becomes a part of the representation and recollection of given ideas and informs the practice of justice. Hence, the deployment of an image is as significant as its encoded meaning.[ Show more ]
In a world dominated by iconography and circulating imageries, the proximity of the medium and its political ramifications cannot be overstated. Iconography related to international justice – whether an emblem, logo, painting or building - not only enacts an event but also encodes a message. Images are both the subject and object, simultaneously representing and creating realities about specific ideas and practices of international justice. Such iconography becomes a part of the representation and recollection of given ideas and informs the practice of justice. Hence, the deployment of an image is as significant as its encoded meaning.
The official and public iconography of justice at different international courts and tribunals uses multiple symbols to stamp the authority of law. These symbols - sometimes evolving, sometime ossifying, also indicate a gap between the symbolisms and substance of justice.
This post reads meaning into the idea of international justice through a translation of the official iconography of international justice encapsulated in logos, images, artwork and the architecture of the International Criminal Court (ICC), which constitutes one of the important registers of international justice. In doing so, it also addresses the gap between the ideal and practice of international justice.
Iconography of ICC Building: Transparency & Trust
The iconography of the ICC symbolises the 21st century’s vision and articulation of international justice, which arguably encapsulates an ambitious formulation of justice as it seeks to break with the long-established principle of non-interference in the domestic jurisdiction of member countries. It aims at eradicating impunity for the gravest of crimes: genocide, war crimes and crimes against humanity  referred to it either by a state party or by the UN Security Council, or, initiated by the Prosecutor acting in a proprio motu (on his own impulse), as per the Rome Statute. The ICC places justice at the heart of peace by stipulating that “justice is a key prerequisite for lasting peace. International justice can contribute to long‐term peace, stability and equitable development in post‐conflict societies. These elements are foundational for building a future free of violence.” 
Situated in the city of peace and justice  - the Hague,  the building was meant to reflect the transparency of the institution and its innovativeness. The design of the Danish firm, Schmidt Hammer Lassen, was selected “for its understanding of the concept of transparency…The design also shows how democratic values upon which the Danish tradition for architecture rests reflect in an international institution that is subject to some of the strictest security requirements in the world.”  The statement by Bjarne Hammer, Co-Founding Partner and Creative Director of Schmidt Hammer Lassen Architects,  captures the spirit of that vision:
To the victims, to their families and to the world, the ICC building must communicate respect, trust and hope. This building cannot be anonymous; it must have the courage to express the values and the credibility of the ICC.
The building is designed as an abstract and informal sculpture in the landscape. This way, it becomes a backdrop for the ICC to communicate trust, hope, and most importantly, faith in justice and fairness. 
The court building is situated close to the North Sea. At the time of its conception, the design of the building was thought to both inscribe ICC’s authority and showcase its intent of transparency, trust and respect - hence, the use of glass cladding system to cerate a chessboard effect that creates shifting patterns of light and shadow. 
ICC Wall Panel
The courtroom itself is devoid of any traditional iconography and is a modern and professional room, perhaps meant to convey a functional approach to international justice. Although ICC is bereft of any embellishment, it houses a few select motifs. For example, on the far side of the ICC compound there is a sculpture of Inukshuk which was used as an ancient stone landmark representing a human figure in Arctic regions of North America to denote food cache or a point of reference for travel routes amongst people in the region. Today, it has become a symbol of friendship and cooperation, especially after having been used as a symbol of the 2010 Vancouver Olympic games. Its location on the ICC compound denotes friendly overtures and spirit of human cooperation. The spirit of cooperation is further symbolised in parterre gardens, which houses flowers and plants from the member countries of the ICC. The water channel inside the building is meant to represent tranquillity, symbol of life and eternal quest for peace.
Inside the building is a multimedia exhibit - Justice Matters - documenting the personal testimonies of suffering and torture, which are a living monument to denial of justice and the continued struggle for justice through the agency of ICC.
Water Channels inside ICC 
(meaning to act in the capacity of a human)
Court Room 
Detention Centre 
The ICC detention centre is meant for custody of people detained by the ICC. It is only a temporary arrangement till the convicted person is sent to one of the state parties, which have entered into an agreement with the ICC for enforcement of such a sentence. 
The ICC Logo
The logo of the ICC that marks its visual identity is simple, free of any embellishments: a white graphic against the blue background with scales of justice encircled by olive branches, depicting peace.  The logo portrays the message of peace through justice.
The Contrast Between Symbolism and Substance
The mandate of ICC constitutes an ambitious formulation on international justice by breaching the protective shell of sovereignty and tries people for genocide, war crimes and crimes against humanity. However, despite the ambitious aspirations of justice, the ICC falls short of a global reach. In all, 122 countries make up the ICC membership, which includes 33 from Africa, 18 from Asia-Pacific, 18 East Europeans, 28 Latin American and Caribbean, and 25 Western European and other States.  Many important countries are still not part of the ICC such as the US, India, China, Iraq, Libya, Saudi Arabia, Qatar, to name a few. Russia and Israel too have withdrawn their commitment to the Rome Statute. 
More substantially, the International Criminal Court produces an image of targeting smaller and weaker countries given its record of cases predominantly against the African leaders/countries. The presence of the two imperial languages —English and French—as working languages further stresses hierarchy of power.  Thus, even though the scale of justice in the logo carries the promise of being the leveller, the working of ICC has been mired in controversy and has largely been seen as biased.
In 2016, out of ten ongoing investigations at the ICC, nine involved African countries – leading to allegations of bias against African countries. Sudan, Kenya and Burundi (the first country to do so) have withdrawn from the ICC and so have the Philippines and South Africa, finding “its obligations with respect to the peaceful resolution of conflicts at times incompatible with the interpretation given by the International Criminal Court.  Gambia’s Information Minister went on to underline the discriminatory treatment by the ICC to say that it had failed to indict Western war crimes, such as those by the former British Prime Minister, Tony Blair during Iraq war and by the US and allied forces in Afghanistan. This reasserted the notion that the ICC is “an International Caucasian Court for the persecution and humiliation of people of colour; especially Africans.” 
The institutional weaknesses of the ICC in the face of powerful countries’ recalcitrance became more pronounced after the U.S. Secretary of State, Mike Pompeo, in March 2019, threatened to withdraw and deny visas to ICC investigators involved in alleged war crimes investigations by the US and allied forces in Afghanistan.  After a formal revocation of visa for Fatou Bensouda, the ICC Pre-Trial Chamber in April of the same year, decided not to proceed with investigations into this situation, citing practical considerations; thereby inviting condemnations by the human rights groups for its weak resolve.
Speaking of the iconography of the court building meant to personify transparency; it has evolved its own security procedure, partly because of the cases it deals with. Visitors need to go through a security check after showing proof of identity and can also attend open sessions of the court under strict rules of decorum. Court chambers appear to silence people into submission to the power of law and as mute spectators, especially when the proceedings are seen via video streaming. The very glass panes, which were meant to exemplify transparency, create an aura of intimidation as the light reflects back through the glass panes, creating an impression of opacity.
Clearly, important trust gaps exist between the symbols and the substantive practice of justice, which point to both the limitations of the ICC and its modest record of delivering justice.
The official iconography of justice uses multiple symbols to represent and operationalize justice and endorse the rule of law. These symbols serve important functions but are also a reminder of the gap between the promises encoded in the symbols and substantive outcomes.
The iconography at the ICC is geared towards displaying a modern and transparent approach to justice, devoid of any embellishment and yet it is adopting unique symbolism, as it pushes the wheels of international justice. At the ICC, there appears to be a fracture between the symbolisms and substance of justice. Justice as a virtue as codified in official iconography and justice as practice are two different things and point to the gap in the form of unfulfilled promises of justice. It is in this very gap that one sees the possibilities of imagining a comprehensive and meaningful idea(l) of international justice.
 The study is a part of a large research project titled ‘Insignia and Images of Justice: Politics, Law and Visual Culture in the Age of Globalisation’, in collaboration with Dr. Pratiksh Baxi (who is focussing on the courts in India), under the grant extended by the University Grants Commission, India to the Jawaharlal Nehru University, New Delhi, India under its University with Potential for Excellence (UPOE) scheme. A longer version of findings were presented at the Workshop on Art and International Courts, organised by iCourts, the Danish National Research Foundation's Centre of Excellence for International Courts, University of Copenhagen, 25-26 April 2019. Comments received at the workshop, especially from Prof. Marina Aksenova and Dr. Maja Spanu are gratefully acknowledged. All photographs, unless otherwise stated, are taken by the author. The author would also like to acknowledge the staff at the ICC who facilitated access to the building. Photography is not permitted inside ICC but a visit to the building gave some ideas about the mechanics and symbolisms of international justice marshalled at the ICC.
 Amendments made in 2010 – the crime of aggression (for these amendments to enter into force, they must be ratified by at least 30 States and then voted upon by States Parties in 2017.
 The city is branded as the city of peace and justice in promotional literature as it also houses International Court of Justice (ICJ), International Criminal Tribunal for the former Yugoslavia and the Appeals Chamber of the International Criminal Tribunal for Rwanda, amongst others.
 With Field offices in Kinshasa and Bunia (Democratic Republic of the Congo); Kampala (Uganda); Bangui (Central African Republic); Nairobi (Kenya), Abidjan (Côte d'Ivoire).
 The project was executed by Courtys, which was the consortium of the VolkerWessels subsidiaries Visser & Smit Bouw and Boele & van Eesteren.
 Judith Resnik and Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms , Yale: Yale University Press, 2011, p 287.
 The US signed the Rome statute under the Clinton administration but it was not ratified by the Congress and later withdrew under George W Bush. In 2016 Russia decided to withdraw its process of joining the ICC after its ruling that Russia's action in Crimea amounted to an "ongoing occupation.”
 Other official languages in addition to English and French (which are also the working language) include Arabic, Chinese, Russian and Spanish.
 Statement by the South Africa’s Minister of International Relations and Cooperation, Mr. Maite Nkoana-Mashabane quoted in ‘South Africa to Quit International Criminal Court’ The Guardian, 21 October 2016,
 Statement by the Information Minister of Gambia, Mr. Sheriff Bojang on Gambia’s withdrawal from the ICC quoted in ‘Gambia Withdraws From ICC, Accuses World Body of Bias Against Africans’, The Wire, 26 October 2016,
 The ICC began reviewing material related to the case initiated by prosecutor, Fatou Bensouda, in November 2017 against alleged war crimes and crimes against humanity committed by the security forces in Afghanistan since May 2003.
* Jayati Srivastava is Professor of International Politics, Centre for International Politics, Organization and Disarmament, School of International Studies, Jawaharlal Nehru University, New Delhi – 110067, India. Email:firstname.lastname@example.org, email@example.com.
Commemoration, remembrance, tribute: these rituals, which richly resonate within the world of art and architecture, are presumed to be positive ways to honor victims of atrocity. Visuality is assumptively taken as intrinsically benign, respectful, and in harmony with the arc of justice. Is this correlation axiomatic, however, or even usually the case? Art, after all, may be a vehicle for multiple normativities, contested truths, and variable veracities. Art may challenge. Art frustrates. It perturbs. It conspires as it inspires. Art, too, may soothe. It may calm and balm. Hence, in order to really speak about the relationships between the aesthetic and international criminal law, one must uncork the full range of initiatives – whether pop-up ventures, street art, or grassroots public histories – prompted by international criminal trials.[ Show more ]
Commemoration, remembrance, tribute: these rituals, which richly resonate within the world of art and architecture, are presumed to be positive ways to honor victims of atrocity. Visuality is assumptively taken as intrinsically benign, respectful, and in harmony with the arc of justice. Is this correlation axiomatic, however, or even usually the case? Art, after all, may be a vehicle for multiple normativities, contested truths, and variable veracities. Art may challenge. Art frustrates. It perturbs. It conspires as it inspires. Art, too, may soothe. It may calm and balm. Hence, in order to really speak about the relationships between the aesthetic and international criminal law, one must uncork the full range of initiatives – whether pop-up ventures, street art, or grassroots public histories – prompted by international criminal trials.
Very few international judges have ever been memorialized in brick, imagery, and mortar. One international judge, however, has seen two memorials arise in his honor. This judge is Radhabinod Pal of India. Justice Pal authored a vehement dissent at the International Military Tribunal for the Far East (IMTFE), established in 1946 to prosecute Japan’s leadership. He would have acquitted all the defendants. Pal was the only judge to reach this particular result.
Justice Pal’s Dissent
While Pal determined that all sides had committed atrocities in the Pacific Rim, he would not have convicted because of retroactivity for some charges and lack of individuated evidence for other charges. It vexed Pal that international law suddenly could sanction the Japanese leadership for having mimicked the colonial imperialism of the West. The time was not right; things were not yet ripe; the rite of law was inopportune. According to Pal, international law could only legitimately punish if it organically emerged through and from a genuinely equal consensus of all states. For Pal: ‘The colonized cannot be made to submit to external domination only in the name of peace.’ It greatly disconcerted Pal that the deployment of atomic weaponry in Hiroshima and Nagasaki, along with the suffering(s) of Japanese civilians, never was adjudicated.
Pal’s dissent has been controversial. It has been lauded and feted; it has also been witheringly critiqued and derisively shunned.
Although Pal’s dissent certainly fractured the IMTFE, it may have bolstered that tribunal’s overall credibility. More tangibly: had Pal not dissented he never would have been lionized as he was. No memorials would have been built or maintained, let alone cherished.
Two sites commemorate Pal. One is in Tokyo (completed in 2005), the other in Kyoto (completed in 1997).
The Tokyo site sits between the Yasukuni Shrine and Yushukan, a museum committed to the Japanese military. The Yasukuni Shrine is dedicated to war dead. Both the shrine and the museum have attracted fulmination for venerating the Japanese war effort, in a sense aligning this effort with the crushed romanticism of a ‘lost cause’.
Here is the Pal memorial, towards the middle ground, in the morning sun:
Author’s photo, July 2, 2018
This memorial reclines in a courtyard of statuary. On Pal’s immediate left (shown above) is a statue commemorating a Japanese mother, widowed, who clutches three children (‘Statue of War Widow with Children’), which was erected in 1975. To her (their) left is a glass-enclosed space containing tattered shoes, military garb, and two maps that I think show parts of Burma. On Pal’s right is a monument commemorating a patrol boat and sailors; to the further right of that is an old bronze cannon. More or less across from Pal, though at a slight diagonal, from left to right when one turns one’s back to Pal are three sequential statues that commemorate animals for their service in war: a dog, a horse, and a carrier pigeon. To the right of the carrier pigeon lies a smoking enclosure. There are lots of benches all around. It is a tranquil, pretty place. Vending machines sell cold coffee in cans, which refresh in the heat and humidity.
I have written elsewhere about what struck me, first and foremost, when I sat with Justice Pal in Tokyo. These are the vestiges, in words, of the slaver Jefferson Davis, the only President of the Confederate States of America, quoted in Pal’s dissent and plaqued on the memorial.
Here, now, I would like to write more than before about what struck me after I had sat with Pal. These are the traces of Pal’s footprints elsewhere in today’s Tokyo. Had Pal not dissented, my sense is that sites of recollection in Tokyo would be of a different tenor, choreography, and composition. Pal’s dissent pluralized how to remember the atrocities, pain, and hardship of the Pacific War. Pal thereby nudged, nurtured, and negated spaces and places for war memory.
Tokyo’s War Museums
Tokyo hosts six museums that involve World War II. Each differs in tone, cadence, and curatorial perspective. Pal’s shadow lingers in different hues throughout each of them. In most of these six, Pal’s shadow is spectral – a whisper – since he is not referenced, but still I felt his presence and his touch. Some amid these museums feature a few glimmers and glimpses of post-conflict accountability, and one – the Yushukan – has a section that does overtly include Pal.
The Memorial Museum for Soldiers and Detainees in Siberia and Postwar Repatriates reclines on the 33rd floor of a generic office building amid the business and ramen of Shinjuku. This museum helps ‘ensure that the memory of the suffering of Japan’s World War II soldiers, detainees in Siberia, and postwar repatriates is passed down to future generations who have never experienced war’. It includes a ‘diorama [that] reproduces life in a Russian concentration camp, where the inmates survived forced labor, terrible cold, and a near starvation diet’. It is here that the thread of the suffering of Japanese civilians, including those who had emigrated to Manchuria to occupy conquered lands, is narrated along with the fates of those combatants who fought there. This museum also evokes the last-minute – and convenient – declaration of war the USSR made against Japan, and the resultant territorial shifts in the region.
Manchuria is also the place where the first brothels, which later became cruelly institutionalized as comfort women stations, were established. Tokyo’s Women’s Active Museum on War and Peace focuses on comfort women while doubling as an archive for the Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery (2000). This museum sharply criticizes the Japanese government. It recounts the victimization, and survival, of many women of many nationalities. Justice Pal was even less charitable than the IMTFE majority when it came to the sexual torture and enforced prostitution of thousands of women. He was a skeptic, wincingly so; he was curtly dismissive. In his own words, pulled from his dissent: ‘I might mention in this connection that even the published accounts of Nanking “rape” could not be accepted by the world without some suspicion of exaggeration.’ Pal’s sarcastic air-quotes around the word rape, intentionally introduced, speak volumes. Milinda Banerjee puts it well : ‘Pal did (in hindsight, irresponsibly, and perhaps unforgivably) express doubts about the extent of Japanese war crimes; thus he suggested that reports of the Rape of Nanking (Nanjing) might have been exaggerated.’
Woman’s Active Museum on War and Peace, portraits of comfort women, flowers in memoriam. Tokyo, July 4 2018 (author’s photograph).
A third museum is the Center of the Tokyo Raids and War Damage . This museum documents the U.S.’s indiscriminate Great Tokyo Air Raid on the Shitamachi (downtown) district of Tokyo on March 10, 1945. This attack targeted civilians – the district was densely populated and inhabitants lived in wood frame houses nicknamed yakeya (‘fire houses’) because of their susceptibility to flames. The Great Tokyo Air Raid killed 100,000 persons, injured a far larger number, and rendered 1 million others as internally displaced persons. American planners carefully selected the date of the raid because of the strong winds that day which accelerated the burning. This museum strives ‘to teach the value of life and peace to the next generation’ while also reflecting events in that ‘[a]fter the war, while Hiroshima and Nagasaki became symbols of Japan’s suffering and the peace movement, the Great Tokyo Air Raid was virtually excluded from public discourse.’ This museum questions the ‘public amnesia’ regarding the Tokyo air raids, similar to Pal’s questioning of the IMTFE’s amnesia regarding the use of atomic bombs. Paintings, themselves incendiary, illustrate the hellscape.
The Umaya Bridge on the Night of March 10
, Fukushima Yasusuke (age 6 at the time of the air raid)
My Child , Miyamoto Kenzo (aged 12 at the time of the air raid)
The National Showa Memorial Museum (Showa-kan) unfurls the Japanese home front during the war and ‘commemorates Japanese suffering during and after World War II’. This is not a museum of why (or why not) but simply of how, namely how it was and how it went during the war, narrated from the perspective of Tokyo’s powerless. Showa-kan paradoxically opens up the agency of ordinary residents and unspools the limited ways in which they managed some of their little spaces. Visiting is a bittersweet experience: mention is not made of the glory of causes won or lost, but rather the pain of war, occasional streaks of joy, and the struggle to rebuild. One theme in this museum is the indoctrination process of Japanese children – the ‘rising sun lunchbox’, featuring a plum in the middle of the rice, for the ‘little nationals’. Here, too, the date of the very first air raid – April 18, 1942 – tags as the beginning of a terrible time for Tokyo residents, leading to massive levels of internal migration from the cities to the countryside. In one exhibit, a child growing up during the war who visits with the spirit of his father (killed) at Yasukuni Shrine remembers it all as ‘nightmarish but heartwarming’.
Carried my mother
I stopped dead, and cried.
She’s so light
-- Ishikawa Takuboku (1908)
Toshio Miyawaki, First Grade Class Five number 30, included this poem in an essay (‘Together with mother’) that appears in exhibits on Japanese civilian life during World War II. Toshio recites the poem while reminiscing about his time with his mother in Tokyo during the War, including pedaling her about on his bicycle.
Author’s Photo, July 2, 2018, Showa-Kan Museum Tokyo: internal refugees in Japan, sloped and shouldered and staggering with belongings, hunched, their backs like Edvard Munch’s ‘The Scream’
The Edo Museum , somewhat like Showa-kan, has some rooms given over to civilian life in Tokyo during World War II. This is a museum of the full history of Tokyo (formerly known as Edo). This museum chides the Japanese war government for the inadequate policies it put in place to protect the people against air raids. It points out that distribution of buckets, mops (hitataki ), and sand bags only could go so far. The exhibits on the firebombing are powerful. In one, an American B29 pilot reports that ‘under the bright flames, he could read his watch from the height of 20,000 feet’. This museum (along with others) showcases the increasingly anemic nature of Japanese military capacities and defensive tactics as the war dragged on: kamikaze, bamboo spearers, the kaiten (human torpedo), balloon bombs made by children to be buffeted by wind across the Pacific to reach the US.
And finally, Yushukan , where a small section near the end of the museum’s tour path dedicates to Pal. This section riffs off the messaging of the Pal memorial, which sits perhaps 100 meters away from the museum’s entrance. The Yushukan Museum has been criticized for a revisionist portrayal of history, in particular, Japanese aggression in China (the ‘Manchurian Incident’). The museum is large, chronological, and detailed – it narrates a story of Japan dragged against its will into a war after having been ‘othered’ by the international community and strangled by trade embargoes. It presents international law and international treaties as cleansing and legalizing Japan’s unequal status – a point Pal advances in his dissent, referencing similar instruments. The museum directly connects Japan’s initial victories in the ‘Great East Asia War’, and the earlier conflict with Russia, with the emergence of third-world liberation movements including in Asia. The theme of Japan as an Asian liberator, of Japan having the spine to take on the West, lurks throughout. Pal incidentally also picks up this theme, albeit is rebutted by the two other Asian judges on the IMTFE who point out that Asian peoples were the overwhelming victims of this putative Asian liberation movement. On the day of my visit to Yushukan, a group of German high-schoolers drifted in. A monk who worked for the museum gave them an official tour. I confess I eavesdropped. The pedagogy of the tour matched the pedagogy of the placards. Some students listened intently and nodded, others chortled, several laughed, some stood bored, while a few asked many questions. The tour and I eventually parted ways. We split into separate rooms. I surmised that the tour had ended when I heard applause and thanks from afar. While pointing out Japan’s unfair position in the world, and how the war was forced upon Japan, Yushukan differs from other museums by emphasizing the martial pride, dedication, and victorious moments that Japan savored – fleetingly – in a cause, long lost, that was (and still is, there at least) depicted as necessary and just. That said, Yushukan never asks: what would have been had Japan won that war? Nor does it expose the pain, all the torment, inflicted on peoples on the lands Japan had occupied.
In sum, then, Pal’s Tokyo memorial inspires as it rankles. It consoles, confronts, and confounds. Yet, it too is an example of how art, from below, responds to international criminal trials, from above. Pal’s memorial may render (certain) visitors squeamish, to be sure, but it generates room about how and what to remember. The dissent triggers the memorial and in turn quietly splices with and sluices into Tokyo’s museums. Along that path, to be sure, the visuality of Pal’s dissent also triggers what Shannon Fyfe has adroitly described as ‘epistemic harm’ . By this Fyfe means that those who suffer pain become doubly hurt when their narratives must hang together as equally valued with the falsity of denialist narratives. These victims – for example, the comfort women doubted by Justice Pal – suffer epistemic harm because they are no longer seen as ‘knowers’ or as credible sources of information. In addition, they have to endure other harms, such as gaslighting. This searing loneliness, too, lies among the remnants of Justice Pal’s legacies in Tokyo.
To end where I began: Courts may be able to stage their own outreach, to be sure, but they cannot micromanage the outreach of others. As for the outreach of others, well, these responsive efforts may take the form of art, commemoration, and tribute. These efforts, moreover, may veer off the ‘official script’ and deviate from ‘appropriate’ transnational views. They may be raw and unvarnished. They may unsettle while they upend. Such is the case with the memorials to Justice Pal.
Bullet holes on a bridge under an ugly highway overpass. Yet another remnant of WWII in Tokyo. Author’s photo, July 4, 2018
* Mark A Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University, School of Law, where he also serves as Director of the Transnational Law Institute. He has authored Atrocity, Punishment, and International Law (CUP 2007) and Reimagining Child Soldiers in International Law and Policy (OUP 2012), and is co-editor of the Research Handbook of Child Soldiers (Elgar 2019).[ Show less ]
International law can be thought of in a number of ways. Most evidently, international law is a wide set of norms, rules, and standards that define and regulate relations among states and at times within them. The domains covered by international law are multiple: from diplomacy to economics, from warfare to human rights. But international law is not just concepts and norms. To exist, international law is practiced, performed, conceptualized but also contested by agents across the globe in multiple ways.[ Show more ]
International law can be thought of in a number of ways. Most evidently, international law is a wide set of norms, rules, and standards that define and regulate relations among states and at times within them. The domains covered by international law are multiple: from diplomacy to economics, from warfare to human rights. But international law is not just concepts and norms. To exist, international law is practiced, performed, conceptualized but also contested by agents across the globe in multiple ways. The actors involved with international law include policy makers, parties to a conflict, members of the civil society, intellectuals as well as the wider public. International law can therefore also be seen as a constantly changing social phenomenon that not only accommodates opposing views and narratives, but which actively encourages conflict (see Hakimi ). It is through these social interactions that international law is shaped. Over the years, numerous authors have therefore focused on law as a social practice creating and created by individuals and groups, whether in the field of international law or in other disciplines such as International Relations, sociology, psychoanalysis, ethics and communication. Looking at international law as sets of practices rather than just normative outcomes has therefore opened up a multitude of approaches and understandings to international law.
Our first ARTIJ workshop on ‘Art and International Courts’ co-organized with iCourts at the University of Copenhagen on 25-26 April 2019 aimed to open up a discussion on what we deem is an overlooked aspect of the practice of international law, namely the relationship between art and international courts, as the loci where and through which international law is most obviously performed. What is the role that art plays in the discourse and practice of international law? How do aesthetics – whether understood as the study of visual, sensorial or rhetorical expressions - shape perceptions of law and courts? To what extent do they matter, across time and space, in the law’s actualization? How have different forms of art been used by courts, and for what purpose? How do international law and international courts deal with cultural heritage and protection of art? Bringing together a number of scholars working across law, International Relations, sociology, history and philosophy as well as artists this two-day workshop thus aimed to initiate a new and interdisciplinary conversation directly tackling these questions.
At ARTIJ, we engage with different forms of ‘art’, including visual art, fine art, performative art, moving art and applied art. In the context of this workshop we thus wanted to operate with a similar understanding of the concept to allow for the widest possible conversation. The challenge of defining art for the purposes of an academic discussion (no matter how transdisciplinary this conversation may be) is that in its widest possible sense, art lies beyond concept and therefore beyond description and categorization. Yet, we do believe that it is possible to distill and discuss art in a number of ways: art as experience, art as emotion, art as a form of representation of reality, art as a set of practices, as well as art’s functions across time and space. Moreover, a focus on art allows connecting all the actors involved in the processes of conceiving, making and receiving the artwork. The objects of art - whether explicitly called as such, as in the context of an exhibition, or in the form of a decorative item placed in a building hosting a legal institution- are the carriers of meaning both intended by the creator and attributed to them by the person experiencing the object in question.
We suggest that three core reasons define the need for exploring the role of art in the practice of international courts, directly connecting with the various contributions to our workshop and ensuing symposium.
Firstly, art is an inalienable feature of any social practice, international law included. Some art theory is helpful in explaining this point. John Dewey in particular eloquently argued that in the course of history art became artificially separated from the conditions of its creation. Dewey points out that art traditionally was a manifestation of the processes and tasks of everyday life, such as worship, war or hunting – “all the rhythmic crises that punctuate the stream of living”. Later on, and especially in Europe, art became increasingly confined to closed spaces only accessible to some such as museums, opera houses and so on. Yet, it is undeniable that there is an obvious continuity between artworks and everyday events and practices. For instance, the Greek Parthenon in Athens’ acropolis is regarded today as an art masterpiece. However, it was originally designed and built as a temple dedicated to civic commemoration. In a way not dissimilar to the past, the Peace Palace in the Hague was built at the beginning of the 20th century with the intention of transforming it into the ‘temple of peace and justice’. The building though also presents an incredibly rich décor, including manifold artworks, making of it not just the temple but also the museum of peace and justice, at a given point in time.
International law is a social practice concerned with issues of interest to the multitude of states and actors operating within them. If one accepts Dewey’s position that art is inherent in social life, then it is easy to see how artistic practices accompany the administration of international law. Art is inherently part of the process of international justice through architecture of the courthouses, through judicial rhetoric, through iconography and other forms of expression. A number of contributions at the workshop thus sought to shed light onto this ‘hidden’, or unspoken, aspect of international justice and examine what questions and contradictions it may hold. Mark Drumbl’s contribution speaks directly to this latter point. The author investigates the rituals of commemoration, remembrance and tribute stemming from the activity of international courts. In particular, Drumbl draws attention to the celebration in Japan of Judge Pal, an enthusiastic dissenter at the post-World War II Tokyo War Crimes Tribunal organized by the Allies, winners of the war. In his contribution, Drumbl argues that visuality brings with it unintended consequences, it opens up the space for a multitude of interpretations.
Jayati Srivastava’s contribution explores, in turn, international justice’s iconography. She points out that its emblems and symbols serve representational purposes whilst carrying specific meanings. This, the author claims, is visible for instance in the simple architecture and in the logo of the International Criminal Court (ICC), both seeking to convey notions of trust and transparency. Yet, Srivastava tells us, these aspirational messages are in clear opposition to current international criminal justice, which in practice is both hierarchical and imbalanced. The tension between ethics and aesthetics that the author uncovers stresses the discord between symbolic and substantive justice. Miriam Bak McKenna further explores the dichotomy between the aspirations and the actual reality of international justice reflected through aesthetics. More specifically, McKenna investigates the architectural design of international courthouses, drawing particular attention to the ICC structure: while the ICC was created with the ideas of internationalism in mind, the architectural aesthetic of the building is reminiscent of the sleek, glass structures common in Northern Europe.
In his piece on international justice and photography, Raphael Oidtmann ponders about the role of photography in eliciting truth. He argues that photography opens a unique window to reality. In the context of international criminal justice, photography therefore constitutes evidence that certain actors or even the wider public may doubt or refuse to believe. In the form of public exhibitions, photography can also participate to reconciliation processes, including all the actors involved in a given conflict as well as external observers, in a unique conversation. Finally, Oidtmann invites us to stop and think about the ethical implication of using photography for the purposes of international criminal justice.
Secondly, a number of contributions to the workshop and symposium stress how art can be thought of as experience. This approach is fundamental to seeing international justice as a process and not only as an outcome-driven activity. Art may offer a different lens through which to see the activities of international courts. This alternative lens can yield positive results when it comes to attaining broader social legitimacy of international law. Simon O’Sullivan argues that art has two functions: to represent reality and to create an affective state in the person or parties experiencing art. This latter function is an instrument of transformation. The experience of art creates an opening where the person is taken outside the familiar frame of referencing, or as Sullivan calls it, outside of the habitual time and space register. The function of art lies therefore in creating a possibility for making visible the invisible, placing attention to where it has not been placed before. The experiential function of art and its ability to focus on the process rather than the outcome is particularly useful in understanding broader outreach efforts of international courts and their attempts to foster a dialogue with various communities.
More specifically, art may be helpful in talking about the goal of reconciliation of international (criminal) justice. Although not expressly mentioned in the statutes of international tribunals, reconciliation became one of the objectives sought by international justice. Can international justice contribute to healing of the communities affected by violence? Can the deployment of outreach instruments with artistic value lead to a meaningful transformation? Contributions by Rachel Kerr and Fiana Gantheret explore these questions in depth. Rachel Kerr claims that artistic interventions may create space for a dialogue in which people can engage emotionally physically, and intellectually. Yet, she goes on, one should resist the temptation to fully instrumentalize art as a ‘tool’ of transitional justice. For it is a more complex practice that creates room for opposing views whilst allowing their co-existence. In turn, in her contribution, Fiana Gantheret maps out reconciliation efforts by the International Criminal Tribunal for the Former Yugoslavia and by the ICC. She argues that because reconciliation as a goal lies outside of the mandate of international courts and tribunals, express legal work towards its attainment, especially when embracing an artistic component, should be modest.
Thirdly, art can be seen as a protected value in its own right. It is clear that international justice is moving in the direction of increased recognition of culture, including but not limited to artworks, as internationally protected objects. The constitutive role of arts and culture in building and keeping the communities together is finding increasing support both in the academic literature and in the work of international courts and commissions of inquiry. For instance, the recent report of the Canadian National Inquiry into Missing and Murdered Indigenous Women and Girls found that Canadian policies of assimilation, which included the imposition of laws, institutions and cultures on indigenous peoples resulted in racial colonial attitudes and may well amount to genocide in both social and legal understandings of this term. This finding is a clear recognition of the central role of art and culture in forming and sustaining the existence of indigenous communities. The attack on language, rituals and cultural practices, amounted to an attack on the people(s) themselves.
In line with the logic of the report by the Canadian National Inquiry, Giulia Bernabei draws attention to the legal lacunae in the protection of cultural heritage when it comes to the specific field of international criminal justice. She insists that cultural heritage has value that goes beyond the physical objects that constitute it; it extends to their role in preserving life in a collective and communal sense. In her contribution, Shea Esterling explores the same topic in depth by focusing more specifically on the Al Mahdi case decided by the ICC. She argues for the importance of incorporating the narrative of cultural intra-nationalism in international criminal adjudication. This means that the court is to acknowledge the significance of cultural heritage to the local communities. Law is there to underscore arts’ vital role for the survival of such constituencies. This view of culture as significant locally should complement the dominant view of cultural internationalism that treats the works of art as a legacy of humanity as a whole.
To conclude, we hope that the symposium provides insightful takes on the interaction between art and international justice on all the different levels mentioned in this short introduction. As co-founders of ARTIJ and editors of this symposium, we therefore hope that this is just the beginning of a new yet essential conversation.
*Marina Aksenova and Maja Spanu are the co-founders of ARTIJ.[ Show less ]
In our work with conflict textiles, we have been impressed with the way that these textiles tell difficult truths, naming perpetrators and representing specific massacres and torture prisons. It is this directness, together with the materiality of the cloth and thread and the embodied process of making, that makes conflict textiles a particularly strong force for justice.[ Show more ]
“No to impunity”: conflict textiles calling for justice
“No to impunity”, a protest banner exclaims. “Truth, justice and reconciliation”, reads another. These demands, made by Chileans resisting the Pinochet regime, have a familiar ring to us – all the world over, peoples’ struggles against the violence of military dictatorships and armed conflicts have been accompanied by urgent demands for justice. Yet the form these demands take here is an unexpected one: for the banners are stitched onto an arpillera, a three-dimensional textile picture composed of colourful scraps of cloth sewn onto hessian, complete with an embroidered frame.
In this post we introduce arpilleras and other conflict textiles and share some of our experiences of working with these textiles in the context of a dedicated exhibition. In keeping with ARTIJ’s themes, we also reflect on conflict textiles’ status as art, as well as on their potential, indeed their force, in pressing for (international) justice. As to the former question, we point out how conflict textiles complicate the very category of “art” – how they straddle divides between art, craft and activism, and how the medium of textile and the practice of needlework continue to be associated with femininity, domesticity and “mere” decorative purposes. With regard to the latter point, we describe the role that conflict textiles can play in trials and truth and reconciliation commissions, yet we also argue that their greatest value lies in the powerful work they do outside such formal justice processes.
Conflict Textiles and the Stitched Voices exhibition
As a group of researchers with overlapping interests in violence, conflict, memory, and post-conflict politics, we came to work with conflict textiles through Stitched Voices, an exhibition we commissioned and co-curated. Dedicated to textile narratives of struggles against violence, injustice, and forgetting in different world regions, Stitched Voices was first displayed in the main gallery space of Aberystwyth Arts Centre in the spring of 2017. Since then it was shown – in slightly different compositions – in Birmingham and Uppsala. Stitched Voices consisted of a selection of textiles that were on loan from the international Conflict Textiles collection assembled and curated by Roberta Bacic, a Chilean professor of philosophy who has also worked for the Chilean Truth and Reconciliation Commission and for War Resister’s International, and with whom one of us had previously collaborated on another exhibition. Alongside the pieces loaned from Roberta, Stitched Voices also displayed textiles sourced from collectors, museums, artists and activists based in Wales, London, and Mexico. Accompanying the exhibition in all three locations was a programme of activities and events including textile-making workshops, embroidery sessions, film screenings, song and poetry events, roundtable discussions and academic workshops.
In our work for Stitched Voices as well as in research, exhibitions, and textile practice we have engaged in since, we have come to use the term ‘conflict textiles’ to refer to a wide range of textiles struggling for justice, memory and truth in the context of different kinds of political violence. Stitched Voices demonstrates the breadth of ‘conflict textiles’: besides arpilleras such as “No a la impunidad/No to impunity”, it also featured a Chilean quilt (“Hilvanando la busqueda/Stitching the search”), an installation of textile dolls from Colombia (“Long wait of the mourning women”), handkerchiefs produced by the Mexican movement Bordando por la Paz y la Memoria (Embroidering for Peace and Memory), sewn protest banners from Wales such as ”It’s No ******* Computer Game!” and the Aberystwyth Anti-Apartheid banner, parts of an international peace ribbon, as well as textile and mixed-media artworks such as “Disappeared” by Irene MacWilliam, a textile artist focused on themes of conflict and violence, and “Continuum” by Eileen Harrisson, a mixed-media artist who is currently pursuing a practice-based PhD at Aberystwyth School of Arts and whose work often deals with her experiences of the Troubles. The term ‘conflict textiles’ is applicable beyond the textiles featured in our exhibition. Since we first began our work on Stitched Voices, we have been encountering textiles protesting against violence and injustice in multiple global contexts, from the Palestinian History Tapestry to Afghan war rugs and from the Hmong’s embroidered story cloths to guerrilla knitting .
Conflict textiles communicate on several levels. In one sense they are documentary. Arpilleras, for instance, describe and depict instances of protest, torture and forced disappearance that really took place, with each textile doll sewn onto them representing an actual person. In a similar vein, arpilleras might function as another kind of what Nishma Jethwa has called “story documentation” – they document peoples’ lived experiences, memories and stories. Yet conflict textiles are more than just documentary. For in the slow act of textile making – in the threading, the cutting, the stitching, the weaving – stories are not merely recorded, but actively developed or, quite literally, “spun”. This process can be emotionally, socially, and politically transformative for those who have experienced violence against themselves or members of their family. Likewise, viewing, touching, and participating in the making of conflict textiles can be transformative for those who have not lived through such experiences. In visitor feedback and at our events, for instance, many of our exhibition’s visitors spoke of their feelings of empathy and solidarity.
Complicating what “art” is
Conflict textiles occupy a difficult relationship with the category of art. On the one hand, they are made with a creative desire characteristic of art, as Robert Golden has argued, “to change the material in front of you and the world around you.” Yet on the other hand, they complicate attempts to define what ‘art’ is, how and by whom it is produced, and how art can ‘work’ for justice.
Only few of the makers whose pieces we exhibited have a background in fine art and see themselves first and foremost as artists. By contrast, the majority of our textile-makers are relatives of the disappeared, political activists, or understand themselves as craftspeople. Many of these textile-makers even reject the label ‘art’ outright.
These differing views on whether conflict textiles constitute art map onto broader debates in the art world about gendered understandings of aesthetic and form. Though textile work has increasingly been incorporated into what might be considered high art, it is still a devalued form of expression because of its associations with women’s domestic labour and decoration. Yet, practices of stitch have long been employed, often by women, to speak about their everyday experiences and the politics implied therein.
When used to protest injustice and violence, textile practices are sometimes successful precisely because they fall outside the category of ‘art’ as traditionally understood. The Chilean arpilleras are a good example of this: during the early years of the Pinochet dictatorship, the medium of stitch enabled people to denounce the regime’s human rights violations in a form which, because of its association with femininity and domesticity, was seemingly inconspicuous and therefore more easily concealed, hidden, and smuggled out of the country.
In other instances, conflict textiles are politically effective because they unsettle or even subvert gendered expectations according to which textile crafts, in contradistinction to art, are made by women to speak about ‘women’s’ issues. “It’s No ******* Computer Game”, for instance, was co-created by Thalia and Ian Campbell, a couple who have been jointly designing and sewing protest banners since the 1980s. Originating from a very different context, while some of the embroidered handkerchiefs from Mexico record victims of femicide, the majority of them commemorate victims of the ‘war on drugs’ of all genders. These different examples demonstrate how war, conflict, and political violence are fundamentally imbued with gender – and show that needle and thread can be a powerful medium for people of all genders to protest these injustices.
Conflict textiles as a force for justice
Conflict textiles speaking of human rights violations and other experiences of violence are sometimes incorporated into formal post-conflict processes for justice, truth and reconciliation. For instance, during the proceedings of the Peruvian Truth and Reconciliation Commission (TRC), the indigenous women’s collective Asociación Kuyanuka provided testimony through an arpillera entitled “Ayer - Hoy” (“Yesterday - Today”). In this case, the arpillera’s makers wanted to contribute to the TRC’s proceedings, but were, as Elsie Doolan explains, “intimidated by the prospect of providing [testimony] in such a formal venue and in Spanish”. They therefore decided on textile as an alternative medium of expression. The example of “Ayer – Hoy” shows the potential of conflict textiles to facilitate wider participation in formal justice processes in the aftermath of violence.
The vast majority of conflict textiles, however, are made and used by people outside of formal procedures to voice their desire for justice and to document and further their struggles for justice’s realization. In this broader sense, the ways in which conflict textiles work as a force of justice vary depending on the positionality of their maker(s). Among the pieces featured in the Stitched Voices exhibition, we can distinguish two kinds of textiles based on their proximity to or distance from the events they speak of.
First, there are conflict textiles speaking directly of and from the personal experience of their makers. Made by people living many different kinds of violence, conflict, and human rights violations, these textiles are an immediate response to their makers’ harrowing experiences. These kinds of conflict textiles serve multiple functions. They record and evidence what is happening to their makers. They help to forge new connections, to create and sustain communities and social movements, and to construct alternative political imaginaries. Sold transnationally to solidarity groups, some of these conflict textiles also become a means of communicating with global audiences and of generating a modest income for their makers.
“No a la impunidad/No to impunity”, the arpillera depicted at the top of this blog post, is a good example of this first kind of conflict textile featured in the Stitched Voices exhibition. Produced during the final years of the Pinochet regime in Chile and made for export, “No a la impunidad/No to impunity” depicts women’s protests against Law 2191, also called the Amnesty Law. In 1978, the Pinochet regime passed Law 2191 to protect the suspected perpetrators of grave human rights violations during the regime’s first five years from being brought before the court. Twenty years later, Chile’s Supreme Court ruled the law inapplicable to the kinds of crimes it sought to exempt from prosecution. This opened up the possibility of bringing cases of enforced disappearances, extrajudicial executions, torture, and systematic arbitrary detention to trial before civilian courts. While far more than 1,000 cases have been tried since then, Law 2191 itself remains valid – thus exemplifying the continued significance of arpilleras such as “No a la impunidad/No to impunity” and the stand they take in struggles for justice.
Another example of a conflict textile speaking directly from the personal experiences of their makers comes from present-day Mexico, where various groups of relatives and activists embroider cotton handkerchiefs to render visible the deaths and disappearances perpetrated by the different parties to the so-called ‘war on drugs’. The handkerchiefs featured in Stitched Voices were lent to us by Fuentes Rojas Collective, FUNDENL Bordamos por la Paz Nuevo León and Bordados por la Paz Puebla. Regularly meeting in public spaces such as squares and parks, these groups stitch one handkerchief per victim. Besides documenting and denouncing, the act of making also serves these embroiderers to reconnect with their killed or disappeared loved ones and to demand justice for these crimes.
Second, our exhibition also featured pieces made by artists and activists situated at a distance to the events that their textiles resist and speak out about. Individually and collectively, these makers use stitch as a means for expressing their solidarity and for drawing attention to human rights violations in global contexts. Highlighting the misuse of drones in the ‘war on terror’, Deborah Stockdale’s “Digital Death” is an example of a conflict textile made by an individual artist at a distance to the events it depicts. The textile references “#NotaBugSplat” – an artwork which features a large portrait of a child who is reported by the Foundation for Fundamental Rights to have lost both parents and two younger siblings in a drone attack. This artwork was installed in a field in the heavily-bombed community of Khyber Pukhtoonkhwa in Pakistan and was big enough to be visible to a drone operator. Speaking out against the dehumanizing effects of drone warfare, which it perceives to be a problem at a global scale, “#NotaBugSplat” seeks to bring to our attention “the innocent civilians killed by mistake in drone strikes.”
Inspired by these examples, we decided to also offer our exhibition’s visitors a chance to embroider in solidarity. In a corner of our gallery, next to a clothes line carrying the handkerchiefs from Mexico, we installed a second clothes line onto which further handkerchiefs embroidered by our visitors could be hung, as well as two armchairs and a wicker basket filled with already-marked handkerchiefs, red thread, needles and scissors. In addition, we ran weekly embroidery sessions in the gallery (or, weather permitting, just outside the Arts Centre). One of our visitors recounts: “I am soon lost in a task that is only a few letters long. How much more then must this act of devotion, of willful remembrance, mean to the people who have experienced the appalling violence, bereavements and unknowingness?”
In our work with conflict textiles, we have been impressed with the way that these textiles tell difficult truths, naming perpetrators and representing specific massacres and torture prisons. It is this directness, together with the materiality of the cloth and thread and the embodied process of making, that makes conflict textiles a particularly strong force for justice. The majority of conflict textiles are not elicited by or produced in response to institutionalized justice processes such as trials and truth and reconciliation commissions. We believe that conflict textiles’ greatest value lies not in their potential to become tools in such formal processes. Rather, it lies in the different starting point that conflict textiles offer to those of us who seek to think about international justice in new ways: a starting point that rests with people and their concrete struggles for justice in a global context which consists not only of states and institutions, but also of transnational solidarities.
* Christine Andrä is a Post-Doctoral Research Assistant on the project “(Un-)Stitching the Subjects of Colombia’s Reconciliation Process”, based jointly at Aberystwyth University (Wales) and the University of Antioquia (Colombia). Berit Bliesemann de Guevara is a Reader in International Politics at Aberystwyth University. Lydia Cole is currently an Associate Lecturer at University of St Andrews where she was lead commissioner of the exhibition “Threads, War and Conflict”; she will soon be joining University of Durham as Post-Doctoral Research Associate on the project “The Art of Peace: Interrogating Community Devised Arts-Based Peacebuilding”. Danielle House is a Post-Doctoral Research Assistant on the project “Cemeteries and crematoria as public spaces of belonging in Europe: a study of migrant and minority cultural inclusion, exclusion, and integration”, at the University of Reading.[ Show less ]
Creativity is a process of observing, seeing and then doing – capturing a fragment of the world/life and revealing it to others. Observing, as we may realize, is not only a matter of our eyes or ears but what we take in from these perceptions, that is: what we see and therefore how we attempt to fill the box of culture with meaningful ideas and emotions.
Bureaucracy is about not observing but rather serving a narrow set of demands. In these days of computers, it is about’ yes’ and ‘no’, black and white.[ Show more ]
Robert Golden began his career as a photographer in the American civil right movement. When he moved to England he continued his work as a photographer, driven by his concern for social justice. He later created the Association of Photographer Awards, one of the most well-known photography awards in Britain. He also pioneered a new style of advertising and food photography, winning numerous prizes. Robert has directed two feature films and forty documentaries, including his Candles Against the Night about teenagers struggling to make a life in Srebrenica in the shadow of the war. Robert has just published a collection of essays called A Role for Artists in Troubled Times, proposing ways to think about the role of art.
Law is about structure, rules and ‘yes’ and ‘no’ answers. However, it cannot be reduced to a mere ‘bureaucratic machinery’ of applying rules and principles to the infinite number of life situations. It is precisely the connection to the real world that opens the door to creativity: legal certainty is balanced by the need to account for uniqueness of each case. Without such balancing act, law loses its human face and one risks running into a bureaucratic and soulless legal phantasmagory that Franz Kafka eloquently described in his famous novel The Trial. International justice embodies the rules of conduct with universal or quasi-universal application. It reflects shared consensus about certain areas of human activity that is of global or transnational concern. International justice is indeed a structure made of rules and customs. Does it require creativity to evolve? The answer to this question is ‘yes’. The advent of populism and divisive rhetoric ensures a growing demand for continuous reaffirmation of the universal legitimacy of international justice. All too often it becomes instrumentalised, discredited or ignored all together.
The following essay on creativity and bureaucracy offers some room for reflection as to how these two modes can mutually feed each other. These observations are particularly pertinent if applied to international justice that currently seeks for inspiration outside of itself.
CREATIVITY AND BUREAUCRACY
Creativity is a process of observing, seeing and then doing – capturing a fragment of the world/life and revealing it to others. Observing, as we may realize, is not only a matter of our eyes or ears but what we take in from these perceptions, that is: what we see and therefore how we attempt to fill the box of culture with meaningful ideas and emotions.
Bureaucracy is about not observing but rather serving a narrow set of demands. In these days of computers, it is about’ yes’ and ‘no’, black and white.
To begin the creative process one needs two characteristics: one of the mind and the other of the body. The first is curiosity. Without the intellectual interest in asking why there is no inclination to see the world clearly and to make something of it…to take the trouble to transform it (to mediate it) into something else: a photograph, a poem, a painting…one stays asleep.
The second is a fervent emotional disposition which demands, indeed drives you to want to change the material in front of you and the world around you in a transformative way that offers to others knowledge, beauty and perhaps a kind of love. Creativity is a mission.
Bureaucracy in most cases is about fulfilling a narrow task and passing it on in a hierarchical system to the next office. According to Max Weber, all bureaucratic systems discourage individual thought, including curiosity and emotional responses. Bureaucracies are soul destroyers.
To continue the creative process, there must be an intellectual, psychic and poetic opening of the ‘self’. The opposite, closure or status quo, makes the connections that are necessary to create something new and fresh impossible. Closure leads to a reliance on what one already knows and has encountered. This results in a form of copying what is already known rather than inventing something new and original. Originality is important because, in each period of human development, artists are in the vanguard of humanizing our culture. They bring new stories with new sensibilities to the public, helping them to understand the human world around them and ways to develop an empathy for others.
The opposite, status quo, offers a dependence on the dominant ideological cultural canon of the period leading to decoration, entertainment and propaganda.
Bureaucracy is firmly rooted in the past – a past devoted to maintaining the status quo. For these reasons, creativity is anathema to its procedures.
Next the creative person must make choices towards the refinement of an idea and a finished work. I imagine a huge conical form in which, at the beginning of the process, many things are thrown in – those things one filters from one’s memory, experiences, perceptions, from the knowledge and facts of one’s life and from contemporary experiences and conditions in the outer social world. By inventive cross connections in the brain, the artist creates a synthesis – something new; the result of a dialectical fusion of what has been with what one wishes/imagines to foster a new thing. This culminates in the artist being able to imagine that which does not already exist. As the work proceeds and as choices are made, things are rejected until the piece itself begins to take on a life of its own.
In a bureaucracy, with its dead hand of convention and its insistence upon regularity, normality, consistency and quantitative results, there are no choices to be made, nor dialectical fusions; there is only ‘yes’ or ‘no’.
Inventive and appropriate structure becomes important as an organizational tool to reveal the content of the artist’s piece. Harmonies, discord and rhythms begin to make their own demands and the work takes on greater from, depth and meaning.
In a bureaucracy there is no question of changing a structure unless it can become, in the hands of the establishment, more efficient, faster, cheaper, and if it can employ fewer people with their emotional baggage and more machines with their computerized reliability. Ultimately, structure in a bureaucracy is about simplifying jobs, isolating decisions and individuals from each other and themselves, and finally, after reducing them to the greatest level of deskilling, firing them.
Late Rembrandt’s self portraits and Michelangelo’s slaves showed me how cultural creation may be universal and transgress the limits of time (epoch) and how culture provides illumination, that is to say, to the enlightened within us; how it’s profundity and beauty motivate our desire for justice, honour, love and the sense of becoming a Mensch … in the Yiddish rather than the German meaning of ‘filling us with humanity.
Brancusi’s sleeping muse assured me of two things: that the elemental in art leads us to embrace the eternal of nature and therefore of our own destiny; and the undying memory of the beauty and the love it expressed, assured me that the deepest most profound love of a woman was possible and achievable.
Finally, seeking the message and becoming the messenger was reaffirmed by John Berger when I read ‘the role of the artist is to make the invisible visible’.
When artistic creation finds the beautiful and surprising unity of form and content that allows many strangers to feel solace from it, the art has been transformed from the humble, quotidian to the universal. The work crosses the bridges of time, place, culture, language and generations, embracing those who are in need of the message and thus who embrace, respect and perhaps even come to love the messenger.
How does it feel to return to the country that you were forced to leave as a child? How can you stand up to your corrupted boss, or even president? How can you defend yourself in a case where the media has already convicted you? And what do you do if your dog crosses a border and is not allowed to return? Difficult questions, with no easy answers. But one important common theme stands out: a fight for justice. The eight films in the Camera Justitia programme show that law can bring about justice, but equally so, it can be the root of injustice. Moreover, justice can mean different things to different people.[ Show more ]
How does it feel to return to the country that you were forced to leave as a child? How can you stand up to your corrupted boss, or even president? How can you defend yourself in a case where the media has already convicted you? And what do you do if your dog crosses a border and is not allowed to return? Difficult questions, with no easy answers. But one important common theme stands out: a fight for justice. The eight films in the Camera Justitia programme show that law can bring about justice, but equally so, it can be the root of injustice. Moreover, justice can mean different things to different people.
Camera Justitia is one of the main programmes at the Movies that Matter Festival. From 22-30 March, the Festival once again takes over The Hague. For nine days, the ‘International City of Peace and Justice’ stages over 70 films, debates and exhibitions about human rights and social justice.
The Camera Justitia programme encompasses four documentaries, four fiction films, a Masterclass, a 2-day workshop and many Q&A’s about judicial dilemmas and the challenges of (international) legal systems. A running theme of this year is the way in which law is instrumental in the making or breaking of different types of borders. These borders can be political, social, judicial, legal, moral or physical. They demarcate separation; between states, between guilt and innocence, between the powerful and the powerless, between us and them. But when people start contesting these borders, they become fuzzy or porous. In eight films and over 20 Q&As with filmmakers, lawyers and other experts, we discuss these border cases that evolve around international law and the fight for justice. You can find the full programme here.
In the Camera Justitia Masterclass, international defence attorney Colleen Rohan is interviewed by Lousewies van der Laan. She will tell the audience about her work, illustrated by short clips from films in this year's Camera Justitia programme e.g. The Trial of Ratko Mladic and Acusada. Colleen Rohan has been a practicing criminal defence attorney for over 30 years, specialising in her domestic practice in serious felony and death penalty cases. Since 2005 she has served as counsel at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court. Rohan is a founding member of the International Criminal Law Bureau. She is the former president and current vice-president of the Association of Defence Counsel-Practicing before International Courts and Tribunals (ADC-ICT). The Masterclass is open for everyone and free of charge.
In sum: nine days, over seventy films, numerous Q&As, a Masterclasses, and a workshop. A space to meet, see, talk, dance, listen, think, and to feel free to OPEN YOUR MIND at the Movies that Matter Festival 2019![ Show less ]