1. Tracing the noble steps: Justifying trials by invoking auto-histories
Mankind has stepped back from the brink of chaos several times in the past 59 years. In 1946, civilization gasped in horror at its capacity to cause suffering. Again, in the early 1990s, reacting to the horrors of Rwanda and Yugoslavia, the world joined in a further step away from the abyss, and now in West Africa, in Sierra Leone, another bold and noble step has been taken away from the grand jaws of the beast.Footnote 2
In this illustrative quote, David Crane, the first Chief Prosecutor of the Special Court for Sierra Leone (SCSL) introduces the court by invoking a history of international criminal tribunals. He uses his opening statement in the case against the Civil Defence Forces (CDF) not only to introduce the trial but also to defend the trial's legitimacy by calling on its origins. In portraying the International Military Tribunal (IMT), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) as previous steps in a history where international criminal tribunals break with times of chaos, he firmly places the SCSL in a ‘noble’ tradition on its way to a better future. It is not surprising that international institutions such as the SCSL explain their existence by reference to their origins.Footnote 3 Nor is it uncommon for an international criminal tribunal (ICT) to deploy narratives of justification.Footnote 4 It is surprising, however, that hardly any attention has been paid by academia to exactly this common trial practice of the invocation of the tribunal's own history by international prosecutors in an attempt to actively construct the legitimacy of the trial. Furthermore, while the connection between international criminal trials and writing history has often been drawn in terms of a trial's contribution to the history of the case or situation, this other history that is also written in trial, the history of the tribunal itself, has been largely overlooked. This type of history does not equal the historical narrative that historians or legal scholars construct about tribunals. The phenomenon this article illuminates is, as the example above shows, the appeal to history in trial, by trial participants, as justification of the tribunal's legitimacy.
International criminal trials are often framed as important historical moments. Due to the scale and gravity of the offences tried, their worldwide reach, and their assumed relevance to the international community, these trials are portrayed as ‘signposts in history’.Footnote 5 Besides the alleged historic value of the moment itself, international criminal trials are mainly associated with history by reference to their capacity for contributing to a historical record of past events.Footnote 6 While the main criticism of trials as history-writing fora relates to the selectivity and partiality of the accounts produced by an adversarial process,Footnote 7 these studies of the relation between international trials and history themselves suffer from selectivity. The discussion of whether a trial can or should contribute to an accurate version of history is limited to a specific type of history: the history of the events and the causes of conflict and mass crimes. As mentioned, there is yet another historical narrative told in trial: the history about the trial and tribunal itself. It is not only the trial that constructs a historical narrative; it is history itself that is invoked to construct and justify the trial. If historians and lawyers tell a different version of the past eventsFootnote 8 this also holds true for the story that is told about the trial. Trial participants appeal to history in order to justify a particular view on the conflict but also to justify their own role and that of the court as necessary in addressing conflicts and mass crimes. Invoking history is not only done to win a case but also to make sense of the trial itself.
The construction of the history of tribunals put forward during the trial by the prosecutor is what I call the auto-history. Stories, and for that matter histories, are crucial to our identities.Footnote 9 By structuring information, stories give their subjects substance and boundaries, a more or less fixed identity, whether it is a person, a people, an institution, or a concept. Histories structure the past to give meaning to the present and the future.Footnote 10 The stories told in the courtroom about the foundations and purposes of the trial contribute to the construction and development of the identity of ICTs, who time and again find themselves in a struggle for legitimacy. The meaning of International Criminal Law (ICL) and ICTs is constructed through the different narratives that exist about them. Glasius and Meijers already note that in a trial, the prosecutor and defence are constructing narratives about the political legitimacy of the court itself.Footnote 11 If we take seriously the claim that trials carry out a message about the value of ICTs,Footnote 12 we must consider the whole body of stories that exist about them. The auto-history that is presented in trial contributes to the construction of identity, just like, for example, academic historical accounts and legal documents. Therefore, rather than presenting another historical overview of the development of ICTs, this article studies the use of history as legitimizing act performed in trial and its contribution to the construction of ICL's historical narrative. The aim here is not to take a normative stance on the legitimacy or historical importance of ICTs but rather to scrutinize the discursive moves made by tribunals themselves in defending this legitimacy, thereby shedding a different light on the crucial interaction between history and legitimacy-building in ICL.
The opening statement of the prosecution is par excellence a vehicle for voicing expectations about the trial and addressing issues of legitimacy. Opening statements actively attempt to assure the trial's place in history and therefore display the perfect example of the construction of an auto-history. An opening statement's narrative structure and its ambivalent status as being non-argumentative and non-evidential allows the speakers to cross boundaries of the technical and unemotional character often ascribed to legal language.Footnote 13 Therefore, these statements are regarded as opportunities for freely expressing and developing ideas that go beyond the facts of the case and can carry further than the courtroom audience, reaching as far as the affected communities.Footnote 14 The awareness of a global audienceFootnote 15 and the widespread media coverage on opening daysFootnote 16 pervade international criminal courtrooms, which enhances the opportunity to use the opening statements for the communication of the history and meaning of the tribunal by trial participants. Moreover, the opening statement is a story we remember. In thinking about the trials in Nuremberg, we recall the opening lines of Justice Jackson, better even than the final judgment.Footnote 17 Looking at the opening statement enables a more comprehensive view on the multiple dimensions of history and its role in the construction of a tribunal's identity, authority, and meaning.
This article discusses how prosecutors contribute to the trial's own history and make sense of their present and presence by addressing both the past and the future. The auto-history in the opening statement places the trial in time and introduces a narrative about roots in tradition and the historical circumstances that preceded its establishment on the one hand and its innovative character and a perspective on the future on the other. Both roots and innovation are crucial in the presentation of the tribunal as legitimate and necessary institution. In order to unravel this temporal logic, this article presents an analysis of opening statements at three different tribunals: the founding opening statement of Robert H. Jackson before the IMT in Nuremberg; one of its ‘successor’ opening statements in the case against the CDF before the ad hoc SCSL; and the opening statements at the permanent International Criminal Court (ICC). While these tribunals represent different times and different types of tribunals, a similar invocation of auto-histories occurs. Rather than representing unique cases, these examples illustrate the ordinary. While Jackson's statement is iconic, the pursuit of auto-history telling in Sierra Leone and at the permanent ICC shows how tradition takes shape and how auto-histories rely on each other. The selection of cases does not exclude other tribunals and cases because they are different but because a similar pattern can be found in many opening statements in international criminal cases.Footnote 18
The analysis of the three tribunals shows that there is history in the opening statement but also a history of opening statements. Contemporary opening statements rely on previous opening statements; modern narratives rely on previous narratives. Addressing this multi-layered history reveals how the reliance on history in constructing a trial's identity and legitimacy takes shape across time. While the statement of Jackson marked a break with the past representing a novel practice in ICL, statements before the SCSL and ICC can rely on an established tradition. There is no doubt about the IMT and Jackson's canonical statement being a landmark event in history.Footnote 19 The value of this legendary opening statement to ICL discourse is evident and the famous opening statement of Jackson is often quoted.Footnote 20 His ideas still resonate in international law practices today and the words of his statement echo in the statements of other prosecutors before contemporary ICTs. The auto-history of ICL sketched by Jackson presents a story about the identity of international criminal trials in a time when these trials were unprecedented. His opening statement not only invokes the history of international law, it became part of it. The fact that Jackson's statement is often praised and his words are deployed repeatedly in historical accounts of ICL makes it all the more important to have a closer look at the statement as such. While the lines of Jackson will be familiar to the reader, the novel focus on the ‘auto-history’ attempts in a careful close-reading exercise to disentangle how the statement tells a historical narrative about ICL and is not only a historical moment but also contributes to the way in which the history of the tribunal is told. The comparison between the invocation of history before the IMT and the contemporary tribunals sheds light on the pursuit of history and the interdependence of auto-histories. The statement before the SCSL explicitly relies on Jackson's precedent and follows a comparable historical tracing exercise in constructing its legitimacy claim. The struggle for legitimacy at the presumably permanent ICC persists, and consequently a similar invocation of ‘tracing steps’, historical roots, and development remains part of the opening narratives.
In order to tackle this specific form of invoking history, this article appeals to the course of history itself by turning to an in-depth study of the opening statements of Justice Jackson, the SCSL, and the ICC, and the way in which the reliance on tradition as well as the break with the past characterizes the auto-history. Section 2 gives a detailed account of the construction of an auto-history in the opening statement of Jackson before the IMT. This section elaborates on the underlying logic of presenting the trial as a turning point in time. Scrutiny of Jackson's canonical example functions as a framework for the analysis of the application of a similar logic in the opening statement of in the CDF before the SCSL (section 3) and the opening statements at the ICC (section 4) which address the pursuit and possible end of the auto-history, followed by some concluding remarks (section 5).
2. Robert H. Jackson: Invoking history in a legendary opening statement
The auto-history that Robert H. Jackson invokes in his opening statement entails a characterization of what an international criminal tribunal is, what it can do, and where it comes from. He invokes the history of international law to present both the authoritative tradition in which the trial is rooted and the necessary changes that are required to deal with the current and future situation. Jackson acknowledges the historical value of the trial itself, not only with regard to the establishment of the truth about the past events but also to the quality of the legal performance of the tribunal and the value of the trial to the history of ICL for ‘[w]e must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow’.Footnote 21 His statement engages with the tribunal's history and future legacy and expresses how the IMT is a logical reaction to the events and self-evident in light of the history of international law. On the other hand Jackson emphasizes novelty and a break with the past; the trial is both the result and the cause of change.
At a first glance this novelty argument contradicts the rootedness in history argument, but exactly this dual use of history accounts for the presentation of the trial as a turning point in time; a change in the course of history. Both tradition and a break with the past are essential to the prosecutor's auto-history. This specific invocation of history follows an almost messianic logic of ICL as a saviour coming from a good tradition who intervenes in a chaotic world in order to overcome the past and ensure a better future.Footnote 22 The trial represents this authoritative transition from chaos to peace. The following section discusses both the rootedness in history and the break with the past in order to sketch how the opening statement attempts to justify the trial as historical phenomenon both relying on past and future.
2.1. The rootedness in history
Jackson's justification of the establishment of the IMT partly relies on international law's firm roots in history and civilization. By addressing the historical roots of ICL, Jackson pictures the trial as self-evident reaction to the events; the trial is not invoking history, history is invoking the trial. He supports this argument in at least three interrelated ways: he points to a historically rooted common sense understanding of law underlying the tribunal's philosophy; he describes how the type of crimes committed demand a trial as proper response; and he shows how the development of international law provides us with the possibility of having the trial.
Firstly, a common sense understanding of law is related to the specific type of crimes that are prosecuted. Jackson notes that ‘the common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people’.Footnote 23 Here he presents a common sense understanding of criminal law and the gravity of the offences as natural and moral causal relationship; if we try small crimes, we should try excessive crimes. He argues that what we know and value about law leads to the self-evident conclusion that dealing with the Nazi crimes belongs in a courtroom.
The common sense of civilization is contrasted with the lawlessness of the Nazi leadership. By pointing to this lawlessness,Footnote 24 Jackson pushes the trial forward as proper response, reminding his audience of the Nazi's misuse of ‘any law’.Footnote 25 Although Jackson is well aware of the critique on the IMT's use of ex post facto law, he turns the argument around, relying on the audience's shared sense of law in contrast to Nazi lawlessness:
It may be said that this is new law, not authoritatively declared at the time they did the acts it condemns, and that this declaration of the law has taken them by surprise. I cannot, of course, deny that these men are surprised that this is the law; they really are surprised that there is any such thing as law.Footnote 26
In Jackson's view, these new laws only surprise the lawless. The Nazis ignored all law and thereby civilization's common sense. By asking ‘does it take these men by surprise that murder is a crime?’, Jackson insists on following the logic that if people agree on the simple assumption that murder is a crime, then it is unreasonable not to have criminalized outrageous numbers of murders.
Jackson helps his audience to draw a similar self-evident conclusion with regard to aggressive warfare in saying ‘it is not necessary among the ruins of this ancient and beautiful city . . . to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst of crimes’.Footnote 27 Jackson again expresses what he assumes to be a shared understanding of values that justify a trial, which makes arguing ‘not necessary’. Both historical scars and historical developments account for the trial's legitimacy. Jackson pushes his audience to think of the development of international law as interwoven with the moral development of civilization, which is an appeal to the historical legitimacy of international criminal trials.
After elaborating on the history of the war Jackson engages with clarifying the legal philosophy underpinning the charter and its application to the situation.Footnote 28 Here he combines his common sense argument with the invocation of the history of international law supporting the claim that the IMT is a ‘logical’ outcome of history. He says:
Of course, it was, under the law of all civilized peoples, a crime for one man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding fire arms to bare knuckles, made it a legally innocent act?Footnote 29
After this he describes how, during the age of imperialistic expansion, there arose a foul doctrine of legitimate wars immune from accountability to law. According to Jackson, civilization could not tolerate ‘such fictions and legalisms so contrary to ethical principles’,Footnote 30 so legal limits were set on warfare. Then, after the First World War, the common sense of men demanded ‘that the law's condemnation of war reach deeper, and that the law condemn not merely uncivilized ways of waging war, but also the waging in any way of uncivilized wars – wars of aggression’.Footnote 31 In subsequent paragraphs Jackson describes the re-establishment of the principle of illegal wars through the Briand-Kellogg Pact, the Geneva Protocol, The Eighth Assembly of the League of Nations, and the Sixth Pan-American Conference.
These intertwined histories of international law and civilization are presented as foreshadowing the way Nazi crimes ought to be dealt with. Common sense accounts for the logical step from applying law from a single crime to multiple crimes; this is reflected in the development of international law, which thereby provides us with a trial as proper response to the outrageous crimes of wars. By contrasting the history of a ‘foul doctrine’ of immunity to law to the history of civilization and common sense Jackson presents to his audience a favourable course of the past, leading to the favourable decision of making wars of aggression accountable to the law via international criminal trials. Jackson portrays international law as firmly rooted in our society, causal to the wishes of a developing civilization and natural in the light of our common understanding of law. The course of history makes the IMT possible, desirable, and a logical next step. The establishment of the trial is only self-evident in light of history; everyone could have seen it coming. Nazi crimes can be regarded as a wilful and conscious denial of the developments of international law. However, Jackson does not ask us to pursue history as we know it. The next section turns to his acknowledgement of the need for change.
2.2. The break with history
In order to properly deal with the past and influence a better future, Jackson asks his audience to break with history. He refers to the novelty of the tribunal as a potential weakness but definitely also a strength and he presents the trial as both a revolutionary change in international law and a break with the violent past. His defence of this ‘break with history’ embraces both rootedness and innovation. Although the tribunal might be novel, the traditions of the nations that instigated it are not. Jackson firmly states that international law is not an abstract but a practical endeavour,Footnote 32 which contributes to the identity he ascribes to international criminal trials as reasonable, real, and logical in the light of history. However, despite this repetition of rootedness in history, he also acknowledges the experimental side. The need for a break with the past in order to overcome it reflects the new challenge for law imposed by the extraordinary character of the crimes, which emphasizes the need for further development of international law.
Jackson pays attention to the difference between the well-established legal culture and the ICL's new challenges. He specifically points to the scale of the crimes that is unheard of in history, speaking of ‘a campaign of arrogance, brutality, and annihilation as the world has not witnessed since the pre-Christian ages’,Footnote 33 arguing that ‘history does not record a crime ever perpetrated against so many victims or one ever carried out with such calculated cruelty’,Footnote 34 and pointing to ‘persecution and torture of a kind that has not been visited upon the world in many centuries’.Footnote 35 These crimes clearly need to be dealt with in a way that will differ from anything history has witnessed before. So while on the one hand, as mentioned above, Jackson presents the Nazi crimes as self-evidently leading to criminal prosecution, on the other hand their scale and gravity ask for a treatment other than ordinary.
While endorsing the tradition, Jackson simultaneously emphasizes that exactly the novelty of the trial represents the strength of ICL:
It is true of course, that we have no judicial precedent for the Charter. But international law is more than a scholarly collection of abstract and immutable principles. . . . Unless we are prepared to abandon every principle of growth for international law, we cannot deny that our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened international law.Footnote 36
Following this line of reasoning, the key to development of ICL lies in innovation. Jackson frames the IMT as doing justice to the history and future of international law. He explicitly endorses established legal principles while stating simultaneously that extraordinary crimes demand a different response. Exemplary is his view on state sovereignty.Footnote 37 Jackson states that a nation's internal measures are ordinarily of no concern to other nations.Footnote 38 Later he adds that:
How a government treats its own inhabitants generally is thought to be no concern of other governments or of international society. Certainly few oppressions or cruelties would warrant the intervention of foreign powers. But the German mistreatment of Germans is now known to pass in magnitude and savagery any limits of what is tolerable by modern civilization. Other nations, by silence, would take a consenting part in such crimes.Footnote 39
By referring to this historically grounded concept of state sovereignty while altering its meaning in the current context, he engages in the shaping of meaning of international law; modern civilization requires modern international law. By saying ‘if it be thought that the Charter, whose declarations concededly bind us all, does contain new law, I still do not shrink from demanding its strict application by this Tribunal’, he answers to the critique of victor's justice and ex post facto laws by pointing to the commitment to and the validity of the Charter despite it being new and being drafted by the victors; extraordinary crimes warrant such innovative measures.
In further encountering the ‘victor's justice’ critique Jackson argues that the ‘refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law’.Footnote 40 In saying this he presents the opposite; he actually doesn't believe that international law lags so far behind. Despite critiques regarding victor's justice and new law, no alternative would satisfy civilization and its moral development. In asking ‘must such wrongs either be ignored or redressed in hot blood? Is there no standard in the law for a deliberate and reasoned judgment on such conduct?’,Footnote 41 Jackson presents three possibilities: neglect, revenge, and a criminal trial. He calls upon history to authorize law as the only reasonable answer. When discussing the alternative of leaving the defeated to judge themselves, he recalls the First World War, which showed ‘the futility’ of that option.Footnote 42 History taught us to do it differently; development asks for change. The break with the past is demanded by the course of history itself.
Jackson manoeuvres between a modest and a heroic role for international criminal trials in overcoming the past and changing the course of history. According to Jackson, international trials can contribute to the prevention of war, albeit in a modest way. By saying ‘I am too well aware of the weaknesses of juridical action alone to contend that in itself your decision under this Charter can prevent future war’,Footnote 43 Jackson acknowledges that the trial is only one step in the right direction. Immediately he adds though that ‘the ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law’.Footnote 44 Having a trial is not just one step, it is an ultimate step; ‘mankind's desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world's peace’.Footnote 45
This heroic attempt to secure world peace is again tempered by saying ‘[t]he usefulness of this effort to do justice is not to be measured by considering the law or your judgment in isolation’.Footnote 46 Hereby Jackson attempts to embed the trial into a history of a globalizing world, as part of a greater effort to prevent war. He engages with the possible limits of the law but simultaneously frames the trial as a necessary step. He embeds the aspirations of ICL in a broader historical aspiration to stop war but assigns to the trial special strength. Jackson states:
Above all personalities there are anonymous and impersonal forces whose conflict makes up much of human history. It is yours to throw the strength of the law back of either the one or the other of these forces for at least another generation.Footnote 47
He makes all of us accountable to history, and ascribes to the trial the power to break with this violent past and save the next generation. We need a trial to reach a ‘never again’.
While acknowledging the strength of the legal tradition, Jackson's invocation of history dwells on the assumption that we have to do better. He presents the justice offered by the IMT as improved version of what is already valued. Jackson acknowledges the novelty of the tribunal but frames it as a logical break with the past in light of ICL's auto-history. The trial only deviates from the past legal tradition because it has never been done before in this way. However, as he argues, if we look at civilization's morality and common understanding of law and our common wishes for the future to be more peaceful, there is little alternative but an international criminal trial. It is not so much the trial itself that breaks with the past; the trial enforces a break with the past, in order to overcome it. Jackson relies on history to render the trial as self evident but he relies on the future to picture it as inevitable. In the next section, history and future come together in the presentation of the trial as turning point.
2.3. A turning point in history
The invocation of both tradition and novelty is required to come to the construction of the trial as a significant historical turning point that changes the course of history. The rootedness in history argument presents the historical developments of international law and civilization as building blocks of the trial; history foreshadows the way forward. The invocation of a break with history points to quite the opposite. History shows chaos and only intervention can change its course; a break with history is the way forward. Both invocations of histories need each other to present the trial as ultimate solution. The invocation of tradition warrants authority. The invocation of a need for change acknowledges both tradition and future; the historically rooted tradition can only hold if it develops. The history of chaos and violence, and the history of international law are interrelated. The development of international law is informed by the history of violence, and the history of violence can only be broken by the development of international law. In Jackson's story ICL can help us to deal with the sinister ghosts of the past;Footnote 48 without a trial, the history of violence will continue.
Jackson closes his statement with a characterization of what to expect of international justice:
Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have ‘leave to live by no man's leave, underneath the law.’Footnote 49
The trial follows from history, is an obligation to history, breaks with history, and opens up the future. By focusing on the reasonable, self-evident character of the trial and on presumed values about lawfulness Jackson constructs a view of how society not only holds certain norms and values but also how it should think about international law in a certain way. In the trial that Jackson presents to his audience, history meets common sense in a triumph over lawlessness. Jackson's history of international law responded to both the demands of a developing civilization and the ongoing suffering of that civilization. The trial he presents offers structure to counter chaos, for ‘civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive’.Footnote 50 He calls for detachment and intellectual integrity, a patient and temperate way of disclosing evidence. The capability of a trial to deal with grave atrocities in a reasonable way is what Jackson pushes forward as a unique strength and the favourable solution in light of the history and future of mankind. In Jackson's account, the legal tradition mirrors our common values; the break, or rather the development of the tradition accounts for an improved self that is capable of dealing with extraordinary crimes in a well-respected way. In this way, the auto-history calls the trial into existence as important historical phenomenon, which can rely on authority but can also set change in motion.
Striking is that this philosophy of international law, and its justification, is presented during the trial. While the decision of having a trial has already been made, it is apparently still desirable to explain why it is put in place. The expressive message of the opening statement attempts to strengthen the faith in the rule of law but also specifically the faith in international criminal trials. This invocation of history is a legitimizing move. The opening statement does not only show awareness of history but awareness of the place of the trial in history and an attempt to frame this place as important turning point.
A question that remains is whether this message reaches the targeted audience. While this effects-based question falls outside the scope of this article, there is no doubt that the opening statement of Jackson has marked the history of international law. Considering the many quotations of his words in accounts on the history of ICL, his statement seems an unquestionable ‘forensic masterpiece’Footnote 51 to which ‘the world listened’.Footnote 52 However, not all trials reach the same expressive level as Nuremberg.Footnote 53 This observation calls for the scrutiny of the expressive power of other trials and their opening statements. Jackson's view on history clearly invokes a view on the future of international law. This article will now take a step forward in time in order to get a glimpse of the future Jackson sketched.
3. The enactment of the future: The Special Court for Sierra Leone
Together with Joseph Kamara, David CraneFootnote 54 opened the first case of the SCSL against CDF members Kondewa, Fofana, and Norman on 3 June 2004, at the ad hoc hybrid SCSL. Similarly to the IMT, the SCSL faced difficulties and criticism from within the country as well as from the international community. The opening statement performed by Crane and Kamara unsurprisingly conveyed elements of justification. As time had passed and several other international criminal trials already paved the way, history invoked as justification for the trial expectedly differs from the history Jackson invoked. Contrary to Jackson, who needed to assemble his auto-history from a wide range of (legal) principles and practices, Crane and Kamara could refer to previous international criminal trials in constructing their auto-history and place their trial in a more established tradition of ICTs, including the IMT, ICTY, and the ICTR. Moreover, by that time Jackson's opening statement itself had become part of history, creating a precedent of opening statements and auto-histories.
While international criminal tribunals were in 2004 not as novel as in Jackson's time, Crane and Kamara nevertheless deploy a similar logic of both tradition and novelty. An obvious example is the framing of the first prosecution for child recruitment at an international war crimes court as a historic moment for jurisprudence. More interesting in the light of this article is the engagement of the prosecutors with the idea of the trial being a ‘turning point in history’ with regard to both the past and the future of ICL. Although the length of the statement and the scope of subjects covered by Crane and Kamara is considerably less elaborate than that of Jackson, one can still identify the rootedness in history, the break with the past and their mutual interdependence in the construction of a turning point.
3.1. Rootedness in history
The invocation of historical ties at the SCSL differs from that before the IMT exactly because of the existence of the IMT, which strengthens the rootedness in history argument for later courts. Crane relies firmly on an established practice of international criminal justice, as becomes clear in the quote that opened this article.Footnote 55 This prosecutor does not go as far back as Jackson to trace the footsteps of ICL. His argumentation leans on a similar notion of morality of mankind, which is historically rooted, but his history mainly relies on ‘bold and noble’ examples of other international criminal trials as successful moves away from chaos and horror. Here we see how a history of chaos and a history of ICL again cross in order to justify the self-evident solution of a trial. In Crane's story, every international criminal trial is another step away from the violent past of the world. The two histories stand almost in an inversely proportional relationship; when international criminal trials increase, chaos decreases. The SCLS is presented as just another step in the grand efforts that make up the history of international law by dwelling on its traditional roots.
This historic interrelatedness between international courts is important in Crane's statement. Nuremberg is presented as the main precedent of ICL as practised in Sierra Leone:
As declared at Nuremberg in 1945, crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.Footnote 56
Here Crane relies on the words of Jackson. Precedent proves to be a useful tool in constructing a well-established history that justifies the establishment of a new tribunal. The evaluation of previous courts as done by Crane and Kamara resembles the way in which precedents are used to support the authority of judicial decisions.Footnote 57 Presenting the trial as historical phenomenon requires a connection to both past and future, which is helped by claims of building on previous achievements. Kamara enforces this position towards previous courts at the end of his statement in saying that the ‘infrastructure of the long arm of the law has been so strengthened and so reinforced so as to reach the four corners of the world. Let that be known’.Footnote 58 He presents international law as an unquestionable force, even more firmly than Jackson. I will come back later to the implications of this claim with regard to the construction of a historical turning point. For now it is important that Crane and Kamara invoke a strong tradition of ICL to enforce their claim of legitimacy. They present this tradition as self-evidently good, almost unchallengeable.
However, as we saw with Jackson, while previous successes can be invoked to re-enforce the self-justifying narrative, previous failures can do that too. Equally self-evident is the failure of the ‘never again’, a promise already made in Nuremberg. The notion of precedent entails both the reliance on predecessor and the awareness of influencing successors. Jackson showed in his statement awareness of the meaning of his words for future generations. We will turn now to the break with the past that Crane and Kamara present to encounter this past ‘failure’ and to anticipate the legacy of the SCSL.
3.2. The break with history
The power of the trial to break with the past and to enforce a better future is introduced by Crane in the very beginning by saying:
Pain, agony, the destruction and the uncertainty are fading; the light of truth, the fresh breeze of justice moves freely about this beaten and broken land. The rule of law marches out of the camps of the downtrodden onward under the banners of never again and no more.Footnote 59
Law is presented as the saviour, ensuring a better future. The value ascribed to the trial clearly lies in its break with a history of violence. Crane engages with a characterization of ICL as fresh and free, as opposed to darkness and chaos. Here he does not only rely on the tradition of ICL but also constructs the SCSL as part of the future. By looking forward to the purposes of the SCSL as well as the then newly established ICC, he introduces a break with the past:
The Special Court for Sierra Leone, a hybrid international war crimes tribunal gives a new century, indeed a new millennia a chance to face down the beast of impunity. Inpude [sic] with this new spirit against impunity as noted in the Rome Statute which created the ICC, that during this past century millions of children, women and men have been victims of unimaginable atrocities that deeply shocked the conscience of humanity, and determined to put an end to impunity for the perpetrators of such crimes . . .Footnote 60
By invoking this ‘new chance’ and ‘new spirit’ he engages with the idea of novelty. The trial is presented as reinvention of tradition; fitting the course of history but simultaneously doing better. The SCSL is presented as the improved version of an international criminal tribunal. Nowhere in the statement is doubt uttered with regard to previous successes of international law. The failure to meet the ‘never again’ promise is remedied by more trials and a repetition of the promise instead of rethinking the possibility of trials to actually live up to this promise. The invocation of tradition endorses previous successes, but simultaneously this statement proposes a reinvention of what is already a good thing.
Kamara engages with the idea of dealing with the past and overcoming it. He says:
The savages of the war are still alive in the minds of the people. Humanity must not and will not allow these savageries to share the conscience of mankind. It is vitally important that the brutality and savagery of this war are exposed and chronicled so that we have an official record of the horrors that befell this nation.Footnote 61
Although the latter part of this quote refers more directly to the traditional understanding of writing history as the history of the events, the first part points to an understanding of history that goes beyond that. Jackson separates civilization from lawlessness; Kamara separates humanity from savagery. A break with the past is required and the trial is a necessary step in securing a better future. Again the trial is presented as not only improving its own history but also enforcing a break with the violent history of mankind. As in Jackson's statement, Crane and Kamara present law as the counterpart of chaos.Footnote 62 Where Jackson speaks of sinister forces, Crane introduces a metaphorical beast to represent the lawlessness the court is opposing. The endorsement of international law and international criminal trials here presents a heroic historic battle against evil. The tribunal is portrayed as the interference with these otherwise unstoppable forces, altering the course of history. In all examples mentioned above past and future are highly interrelated, which is crucial to the construction of the trial as the turning point.
3.3. A turning point in history
The SCSL as turning point in history is summoned into existence by both tradition and change. An ambivalent use of causality in the opening statement shows how the history of the violent events can be either separated from or integrated with the history of international criminal trials depending on how it will serve the justifying narrative. The committing of grave atrocities is detached from the performance of international law when it comes to history. The reoccurrence of violence is not due to a failure of the development of ICL. However, the prevention of grave atrocities and the performance of international law are attached to each other when discussing the future. The reoccurrence of violence will come to an end due to a successful development of ICL. The presentation of the trial as turning point resides in the intersection of the history of violence and the history of international law.
Crane opens his statement with saying: ‘On this solemn occasion mankind is once again assembled before an international tribunal to begin the sober and steady climb upwards toward the towering summit of justice’.Footnote 63 In this, he already acknowledges that this is not the first trial, we have to ‘climb upwards’ again, and the trial is the way up. This introduction both covers the acknowledgment of a tradition and an acknowledgement that we have to do better and the special and solemn abilities of a trial to do both. Crane pities that history provides us with another case of chaos, but assures, by way of relief, that the history of international law provides us with a way of dealing with it.
The turning point is qualified by invoking the present time as a new opportunity to fulfil the never again promise. The SCSL is presented as the chance to finally do what the history of international law already foreshadowed. They present this trial as decisive moment, as did Jackson. Kamara engages in this discussion by saying:
as prosecutors, we are determined that such grave offences against the people of Sierra Leone and the conscience of humanity do not go unpunished. This is the time that people in leadership positions all over the world realize that they can be held accountable for human rights violations and breaches of international humanitarian law.Footnote 64
This claim follows the line of Jackson saying that making statesmen responsible to the law was ‘the ultimate step’ in avoiding wars. By emphasizing ‘this is the time’, Kamara combines past and future into the present. It implies a history of making leaders accountable while invoking this specific trial in this specific time frame as the turning point; from now on people actually realize that they are accountable.Footnote 65
While this realization equals change, it is informed by history. A literal quote from the opening statement of Jackson reveals how the prosecutors of the SCSL rely on the use of history initiated by Jackson. Towards the end of the statement Kamara says:
We must never forget that the record on which we judge these Accused persons today, Your Honours, will be the record on which history will judge us tomorrow. It is now time to climb the summit of justice for the people, the victims of Sierra Leone's tragedy.Footnote 66
Kamara expresses his faith in the well-established capacities of international law. Moreover, he re-invokes the relation between history and ICL as constructed by Jackson. The historical record Kamara refers to does not represent the history of the case; it is the auto-history of international law that is created while simultaneously shaping its own future. The recitation of Jackson's words by Kamara is crucial to the understanding of the deeper layer of history in the opening statements. On the one hand, it shows a similarity between the two statements, namely the use of the same words that account for a similar commitment to both past and future subscribed to the trial; both statements acknowledge the value of the trial for the future and an awareness of its precedential role. However the very fact that Kamara can use the same words as Jackson also point to a crucial difference. Jackson provided future trials with words; he was not only invoking tradition, he was creating it. The auto-history of Jackson sang into existence the IMT as historical phenomenon while itself becoming part of the auto-history of later tribunals.
4. A permanent International Criminal Court: The end of the auto-history?
With the establishment of the ICC, international criminal justice found a permanent home. When the foundations of the ICC are discussed, no one can or will omit a historical narrative of the tribunals that preceded, inspired, and informed the drafting of the Rome Statute and its actual execution in The Hague. Like the IMT and the SCLS, the ICC faces heavy criticism and, since its struggle for legitimacy continues,Footnote 67 or as some will say exacerbates, there remains a constant need for the institution to defend itself and to justify its existence based on historical successes as well as promises for the future. In light of the previous analysis one expects a prominent place of auto-histories at the ICC as well. On the other hand, the presumed permanent character of the ICC questions the need for a fully-fledged narrative of justification every time the court swings into action. The following sections scrutinize whether and how a similar logic of rootedness, breaks, and turning points applies. This short section will not repeat the by now familiar structure of auto-histories but rather flag where it can be found in ICC discourse in order to illustrate the ubiquitous nature of the phenomenon.
4.1. Historical roots and self-improvement
In comparison to the SCSL, opening statements at the ICC show fewer references to previous tribunals. More emphasis is put on the Rome Statute and the fact that there is a legal basis in the form of a treaty that supports the legitimacy of the trial.Footnote 68 To enforce the claim on the ICC's legitimacy however, prosecutors rely again on historical roots and a narrative of progress. The opening statement of Moreno-Ocampo in the Bemba case explicitly sets out the long history of ICL from Sun Tzu and Grotius to the Geneva Conventions to the ICTY and ICTR jurisprudence.Footnote 69 While this exposition of history supports a claim on the novelty of trying command responsibility specifically, it simultaneously places the trial in general in a historical tradition. Again both the rootedness as well as the novel aspect of the trial account for the characterization of the trial as ‘an opportunity’.Footnote 70 As in Nuremberg, international criminal law is presented as the opposite of violence and lawlessness,Footnote 71 and thus the best option to counter violence.Footnote 72 ICC trials embrace history and future by portraying the trials as finally bringing the tradition to full fruition, securing the future.
The Second World War remains an important point of reference when the gravity of the offences and the need for a trial are emphasized. By referencing to this war in the Lubanga and Katanga opening statements, the prosecution invokes an idea about the gravity of the Congo conflict and the appropriate legal response required in line with that of the Second World War and the IMT.Footnote 73 As at other tribunals, the ‘never again’ promise is one of the central underpinnings of the tribunal's legitimacy.Footnote 74 In this respect, references to history support a narrative of progress, the trial as the way forward. Key in the auto-history at the ICC is the focus on prevention and the ending of impunity.Footnote 75 The orientation on the future seems essential for moving a tribunal from the status of being a historical occasion to being a permanent necessity.
4.2. From novelty to turning point
A specific ‘novelty’ characteristic of the ICC is the victim-centred approach, which entails the right for victims to be represented at court.Footnote 76 Victim representatives are entitled to make an opening statement,Footnote 77 and it is in the statements of these representatives more than that of the prosecution that the auto-history takes the dramatic turn. Again there is a claim on the historicity of the trial but also an appeal on novelty for the trial is a historical, unprecedented moment for the victims.Footnote 78 In Katanga, the victim representative says:
We can write a page in an important – an important story, an important page in history of the history of law, and this will strengthen an international framework of law. We will take part in the building of a true common system of law, common to all humanity, because these – this Prosecution leads to a principle, an essential principle; namely, the dignity, the dignity that is due to human beings.Footnote 79
This particular claim exemplifies the portrayal of the trial as turning point in history that relies on both historical roots as well as change. The reference to strengthening leans on an already existing framework whilst it simultaneously signals improvement. The idea of ‘building’ the system resembles the argument of step-by-step progression in the SCSL statements while the call on the ‘essential principle’ of human dignity fits Jackson's idea of shared understanding of common values. The argument here takes an interesting loop: while dignity is due to all human beings, and thus a pre-existing ahistorical essential principle, it can only be such a principle when it is built as such through prosecutions at international criminal trials. It needs to exist as foundation for trials while it needs the trials for its existence. Common sense and shared values are the origin as well as the effect of ICL; its past and its future.
Following Jackson, novelty can be both strength and weakness of a tribunal. While Jackson eloquently engaged with critique on the IMT, contemporary opening statements largely refuse to directly address the critique they face. As with the SCSL, the very existence of the IMT partly takes away the need for the ICC to defend their legitimate origins; contemporary tribunals can rely on the IMT precedent. However, the opening statements at the ICC are still vehicles for justification. The discussion on roots and novelty above illustrates the ongoing invocations of auto-history; the end of invoking auto-histories is not yet in sight.
5. Conclusion
The auto-history presented in international criminal trials, which in this case refers to the prosecutor's invocation of a tribunal's own history in order to justify its existence, relies on both the rootedness in history and a break with the past; on tradition and novelty. Trials are portrayed as steps to a more peaceful world that are simultaneously linear steps in history as well as historical turning points. The invocation of moral and judicial histories serves a narrative that presents trials as unique yet not isolated historical phenomena.
The future that is sketched is utopian and the promise of a break with the past and a steady way up is not free from contestation. However, as we see in the pursuit of the never again promise, the break with history can be re-invoked in order to make a new promise without challenging the qualities of the tradition and its unfulfilled aspirations. The auto-history is selective too. Although Jackson attempts to build in modesty by the reference to the futility of law when applied in isolation, he still firmly engages with a narrative with redemptive characteristics. Crane and Kamara even more prominently emphasize the strength and successes of international criminal trials, while the permanent ICC is presented as the very embodiment of never again.
The self-justifying logic that underpins the auto-history resembles the classic invocation of a messiah. The intersection of two parallel histories makes up this logic: one of outrageous violence and one of ICL. The first represents chaos arising from evil forces and lawlessness; the latter represents peace, civility, and reason, and is informed by the common values of mankind. Opening statements position the tribunal as pivotal in the transition from chaos to peace and present their audience a saviour. The call on origins through the invocation of history of international law lends authority to this saviour; it is not an insignificant nobody. The invocation of a history of chaos and its detachment from the development of civilization or humanity evokes the actual need for a saviour. Together authority and need provide the justification of the historically rooted yet novel trial; the tribunal represents the improved self of ICL. This is the essence of a presentation of international criminal trials as self-evident in the light of history and inevitable in securing a better future.
