1. Introduction
Over the course of the past two-and-a-half decades, the field of international criminal justice has experienced a degree of judicialization that few thought imaginable.Footnote 1 During this period international criminal justice has not only become normalized but also prioritized as a response to episodes of mass atrocity.Footnote 2 The vocabulary of international criminal law is now an entrenched part of the international lexicon, permeating debates in both legal and political discourse and becoming an increasingly dominant frame for defining issues of justice.Footnote 3 Accompanying and to a certain extent driving the field’s kinetic institutionalization was a sense of hope and promise in the progressive potential of international criminal courts. Whether to secure support from states to establish and sustain international criminal courts or as a result of an unbridled faith in the transformative qualities of international criminal prosecutions, international criminal justice became strongly associated with a host of ambitious objectives, including the deterrence of future atrocities, the reconciliation of local communities, and the provision of redress for victims.Footnote 4 Buoyed by these ‘exaggerated normative fantasies’,Footnote 5 a sense of romanticism surrounded both the creation and initial practices of international criminal courts. For a wide range of actors in the field – including policy-makers, practitioners, civil society groups, and scholars – the struggle to end impunity became ‘both the rallying cry and a metric of progress’.Footnote 6
Examining the evolution of the discourse as it began to emerge from the ‘messianic thinking’ that characterized this ‘honeymoon period’ for international criminal justice,Footnote 7 this article argues that the field experienced an expressive turn – an increasing reliance on expressivist strands of thought to justify, assess, and critique the practices of international criminal courts.Footnote 8 The turn to expressivism has been particularly prevalent within international criminal scholarship, which forms the focus of this article; however, a number of other actors in the field – including prosecutors, defendants, victims, judges, states and civil society groups – have also become increasingly conscious of the expressive qualities of their practices and interactions within the field.
Although expressivism encompasses a range of ideas from different disciplines,Footnote 9 the animating assumption shared by most strands of expressivist thought is simple: social practices carry meanings and transmit messages quite apart from their consequences.Footnote 10 Importantly, from an expressivist perspective, all social practices are signifying practices. As David Garland has explained, ‘even the most mundane form of conduct in the social world is also a possible source of expression, of symbolization, and of meaningful communication – every action is also a gesture’.Footnote 11 As such, rather than focusing narrowly on the effects that flow from verdicts and punishment, expressivism is concerned with the symbolic and aesthetic meanings generated by the broader range of social practices that comprise and surround international criminal proceedings.Footnote 12 Moreover, expressivism is interested not only in the construction of messages within international criminal courts, but also with their reception amongst different audiences beyond the courtroom.Footnote 13 As James Boyd White famously observed, ‘whatever it may purport to say, what a judgment shall come to mean is a matter for the parties and their audience to address and decide’.Footnote 14
Against this background, this article sets out to make two distinct contributions to the field of international criminal justice. First, the article develops a novel typology of different expressivist perspectives that have been relied upon in existing scholarship.Footnote 15 Specifically, the article distinguishes between three strands of expressivism: first, instrumental expressivism, which concerns the justification of different practices of international criminal courts in terms of the instrumental value of their expressive qualities (Section 2); second, interpretive expressivism, which concerns the identification of expressive avenues for improving the sociological legitimacy of international criminal courts (Section 3); and finally, critical expressivism, which concerns the illumination of the expressive limits of international criminal courts, as well as unveiling the configurations of power that underpin the messages and narratives constructed within such courts in different institutional contexts (Section 4). With respect to each strand of expressivism, the article identifies their central claims and illuminates their limitations. Importantly, I do not suggest that the scholars examined in this article necessarily self-identify as ‘expressivists’ or with the specific categories of expressivism that I distinguish. Instead, I read the different strands of expressivism primarily as approaches that make similar claims or exhibit shared characteristics, rather than as people. Indeed, any given individual may adopt more than one approach.Footnote 16 Additionally, it is important to emphasize that the lines between the expressivist perspectives are not strict and inevitably blur to some degree around the edges.
Second, drawing on the insights and reflecting on the limitations of these existing expressivist perspectives, this article identifies a nascent strand of expressivism – referred to as strategic expressivism (Section 5). Strategic expressivism entails examining the extent to which different actors in the field may harness the expressive power of the vocabulary and institutions of international criminal justice to advance their strategic political and social agendas – whether a state attempting to advance its long-term policy objectives, a social movement struggling for emancipatory change, or a defendant seeking to promote a particular political project. As the expressive limitations and legitimating qualities of international criminal courts become increasingly exposed, this article argues that questions concerning whether and how different types of actors may harness the expressive power of international criminal justice to advance their strategic agendas are likely to become increasingly prominent in the years ahead.
2. Instrumental expressivism
Our point of departure is instrumental expressivism, a perspective that encompasses a diversity of studies that have sought to justify the practices of international criminal courts in terms of the meanings and messages they transmit. These accounts are united by a faith in the pedagogical qualities of international criminal courts, which, it is claimed, are capable of contributing to the achievement of various emancipatory outcomes – ranging from deterring future atrocities and reconciling divided local communities to censuring the wrongdoing of defendants and rendering justice for victims of mass atrocities.
The imposition of international criminal punishment, for example, has been justified in expressive terms by a range of scholars.Footnote 17 For some,Footnote 18 international criminal punishment constitutes an expressive means to vindicate the value of the victim that has been denied by the wrongdoer’s crime.Footnote 19 For others,Footnote 20 punishment is a form of moral education, which can deter future atrocities by disavowing the transgressions of the wrongdoer and reaffirming – or even creating – societal norms and values.Footnote 21 Still others have contended that punishment can terminate or at the very least tame feelings of hatred,Footnote 22 vengeance, and revenge amongst victims of mass atrocities by symbolically restoring the moral and social equilibrium that was disturbed by the wrongdoer.Footnote 23
Beyond punishment, instrumental expressivism has also been relied upon to justify international criminal trials. For instance, an increasing number of scholars have referred to international criminal trials as ‘show trials’, not in the pejorative sense that their results are preordained, but to the extent that they may be characterized as pedagogical performances, whose messages are transmitted to various audiences both within and beyond the courtroom.Footnote 24 Lawrence Douglas, for example, has argued that ‘to call Holocaust trials show trials … is to state the obvious’ since they evidently constituted ‘dramas of didactic legality’ specifically orchestrated ‘to show the world the facts of astonishing crimes and to demonstrate the power of law to reintroduce order into a space evacuated of legal and moral sense’.Footnote 25 In a similar vein, David Luban has claimed that a curious feature of international criminal courts is that ‘the centre of gravity so often lies in the proceedings rather than in their aftermath’.Footnote 26 For Luban, international criminal trials are justified in light of their role in norm projection, understood as their expressive capacity to ‘communicate the inherent criminality of political violence against the innocent’ and ‘to assert the realm of law against the claims of politics’.Footnote 27 Antony Duff agrees that international criminal trials have a symbolic significance, but argues that they should be seen as attempts ‘not simply to identify the guilty, or to express norms, but to engage the defendant in a communicative enterprise’.Footnote 28 Drawing on his extensive work on domestic criminal trials,Footnote 29 Duff argues that international criminal trials may be justified as mechanisms for calling wrongdoers to account and making them answerable for their crimes. In performing this function, trials show victims that their wrongs are taken seriously and demonstrate respect for perpetrators by treating them as responsible agents.Footnote 30
It has also been suggested that international criminal trials may be justified as discursive phenomena that enable and facilitate ‘civil discourse’ between the antagonists within the courtroom and amongst audiences beyond it.Footnote 31 According to José Alvarez, for example, ‘legal deliberation, by forcing parties to inhabit a common legal culture, can help to reconstruct social solidarity within nonlethal bounds and generate a measure of trust’.Footnote 32 International criminal trials have also been justified in terms of the expressive opportunities they provide to victims – whether through formal participation or witness testimony.Footnote 33 By empowering victims to construct their own narratives, trials are said to dramatize what Shoshana Felman has termed ‘a conceptual revolution in the victim’, whereby victims acquire ‘historical authority, that is to say, semantic authority over themselves and over others’.Footnote 34
International criminal judgments have also been examined in terms of their expressive qualities. Larry May, for example, agrees with Luban that norm projection is a viable goal of international criminal courts, but argues that this is primarily accomplished through the ‘book-length treatises being written as the judgments from these courts’.Footnote 35 Others have pointed to the expressive value of international criminal judgments in terms of ‘the crafting of historical narratives, their authentication as truths, and their pedagogical dissemination to the public’.Footnote 36 In performing this function, it is claimed that judges can invalidate unpersuasive interpretations of the past – thereby combatting denial and attempts at revisionism – whilst at the same time promoting societal solidarity around the narratives they declare as authoritative.Footnote 37 In addition, it has also been claimed that international criminal judgments can express renewed solidarity with the victims of mass atrocities by socially acknowledging their victim status and socially condemning the perpetrator’s acts.Footnote 38
Finally, various practices and policies at the pre-trial stage of international criminal proceedings have also been justified from an instrumental expressivist perspective. At the International Criminal Court (ICC), for example, the Office of the Prosecutor (OTP) has argued that there is a certain expressive value in the conduct of preliminary examinations, irrespective of whether or not they lead to the initiation of investigations. Specifically, the OTP has pointed to two expressive rationales of preliminary examinations:Footnote 39 first, encouraging states to carry out their primary responsibility to investigate and prosecute international crimes through positive complementarity; and second, performing an early warning function through the issuance of public, preventive statements that aim to deter the escalation of violence and put perpetrators on notice. As Carsten Stahn has observed, this expressive understanding of preliminary examinations identifies the added value of the ICC ‘in its alerting function and its communicative power towards the creation of a broader “international system of justice”’.Footnote 40
As this overview indicates, while instrumental expressivist accounts are diverse – both in terms of the practices they examine and the functions of international criminal courts they promote – they share an underlying concern for explaining the instrumental value of international criminal courts. In this regard, instrumental expressivism has proven particularly attractive in the field of international criminal justice for three reasons. First, by emphasizing the symbolic significance of international criminal courts, these accounts have attempted to make sense of the high degree of selectivity that characterizes international criminal justice. According to Nimaga, for example, ‘a trial that is thoroughly prepared, sensitively executed, well publicized, and globally discussed’ may have a significant impact ‘for the reason that it is not seriously harmed by the limitations resulting from the relatively small numbers of cases that can be handled in such a manner’.Footnote 41
Second, by pointing to the global reach of international criminal courts, these accounts have attempted to make a reasonable case for such courts becoming the types of trials that are well-suited to the expressive tasks of capturing the public’s attention, promoting the value of the rule of law, and serving as ‘intergenerational “signposts” in history’.Footnote 42 Finally, given the gradual nature of the norm-nurturing process, instrumental expressivism has also invited international criminal courts to view their work as part of a longer-term process rather than to expect immediate impact.Footnote 43 As a consequence, these accounts have attempted to offer more plausible explanations of how international criminal courts can contribute to emancipatory goals such as the deterrence of future atrocities and the reconciliation of divided communities.Footnote 44
However, instrumental expressivist accounts have also been limited in three significant respects. First, these accounts have tended to cast the expressive power of international criminal courts in essentially benign terms. According to these accounts, to the extent that the expressive power of international criminal courts can be faulted, it tends to be for ‘not expressing enough’ or ‘not expressing clearly enough’, but not for ‘expressing’.Footnote 45 Second, these accounts have tended to focus on the messages constructed within international criminal courts to the neglect of examining how judicial messages have been received within different audiences beyond the courtroom. In fact, despite the intuitively appealing logic of their claims, there has been a notable dearth of empirical grounding to instrumental expressivist accounts. Finally, instrumental expressivist accounts have also tended to be inattentive to the diversity of messages constructed by different, often competing, actors as part of the daily struggles that are waged both within and outside international criminal courtrooms.Footnote 46
3. Interpretive expressivism
Whereas instrumental expressivism is concerned with illuminating the instrumental value of the messages transmitted within international criminal courts, interpretive expressivism is concerned with improving the sociological legitimacy of such messages. In this context, ‘sociological legitimacy’ refers to the acceptance of the authority of the messages and narratives constructed within international criminal courts amongst different audiences.Footnote 47 Bearing this definition in mind, two strands of interpretive expressivism may be distinguished.
A first strand of interpretive expressivism encompasses a number of accounts, which have claimed that international criminal courts can improve their sociological legitimacy by more closely aligning their narratives concerning the causes and conditions of international crimes with insights drawn from the fields of sociology and psychology.Footnote 48 Saira Mohamed, for example, has criticized the tendency of international criminal courts to artificially portray the perpetrators of international crimes as deviants from ordinary standards of behaviour despite social psychological research demonstrating that such perpetrators are often ordinary persons operating in exceptional circumstances.Footnote 49 Mohamed argues that recognizing the ordinariness of perpetrators need not preclude their being held responsible for international crimes. Ordinary perpetrators may still be held culpable, but for failing to live up to an aspirational standard of behaviour, one which recognizes that even if the average or ordinary person may have behaved just as the defendant had done, 'the criminal law may still legitimately punish, as the law does more than just reflect average behaviour: it can function as a voice of our moral imagination and move us to aspire beyond the ordinary.Footnote 50 According to Mohamed, recognizing the capacity of international criminal courts to punish deviations from aspirational standards of behaviour would improve their sociological legitimacy by enabling judges to send a powerful message about how ordinary people are drawn into mass violence.Footnote 51
Somewhat in tension with Mohamed’s conclusions, other scholars have advocated for the recognition and application of a general mistake of law defence under international criminal law, one which would excuse the criminal responsibility of defendants if it could be demonstrated that they acted without consciousness of wrongdoing and that their ignorance of the law was unavoidable or reasonable.Footnote 52 These accounts have tended to emphasize how the embeddedness of individuals within particular social and cultural contexts may sometimes have the effect of blinding them to the wrongfulness of acts that amount to international crimes. In such circumstances, rather than holding individuals culpable for failing to live up to aspirational standards of behaviour, international criminal law should excuse them provided that their mistake of law was unavoidable or reasonable.
Rather than relying on social psychological studies, a second strand of interpretive expressivism posits that, in the exercise of their discretion, prosecutors and judges should strive to align their practices with the broader norms and values of relevant communities. This perspective is premised on the notion that the practices of international criminal courts always carry a ‘social meaning’, which derives not from the intent of the authors of such practices, but from the ways in which relevant communities understand such practices against the background of existing social norms.Footnote 53 For this reason, social meaning as a constraint on the exercise of discretion has been referred to as ‘the “Humpty Dumpty” constraint’, based on the assumption that practices mean not what prosecutors or judges would have them mean but what they do in fact mean to the public.Footnote 54
With respect to international prosecutors, for example, several scholars have argued that case selection within international criminal courts should be aligned so far as possible with the norms and values of relevant communities. While selectivity is inevitable in any criminal justice system, what distinguishes international criminal courts is the sheer scale of selectivity given the large numbers of individuals typically implicated in the commission of international crimes within any given mass atrocity situation.Footnote 55 Importantly, this high degree of selectivity has tended to transform the individuals targeted for international prosecution into symbolic representatives of the groups and organizations with which they are affiliated.Footnote 56 As Frédéric Mégret has observed, individual defendants before international criminal courts ‘are almost never reduced to their “bare individuality” but always stand, in at least some symbolic manner, for broader systemic problems to which they are associated’.Footnote 57 With this in mind, the relative distribution of prosecutions within a given situation between different factions, geographical locations, and types of criminality can significantly affect how prosecutorial selection decisions are interpreted and understood by audiences beyond the courtroom. Indeed, there is evidence that international prosecutors are aware of the symbolic significance of their selectivity decisions. At the International Criminal Tribunal for the former Yugoslavia (ICTY), for example, the distribution of indictees across the different ethnic groups that participated in the conflict in the former Yugoslavia suggests that prosecutors tried to ensure individuals from different factions were prosecuted – even if the relative gravity of the crimes committed by some factions was lower than others – in an apparent attempt to promote interethnic reconciliation.Footnote 58
Against this background, the question for interpretive expressivists has been less whether prosecutors should be constrained by the social meaning of their selectivity decisions, but rather how and – more specifically – according to which community of interest. According to Margaret deGuzman, for example, an expressivist approach to the exercise of prosecutorial discretion at the ICC ‘requires not just agreeing that expression is the appropriate focus for the ICC, but also determining which norms are most appropriate for ICC expression and what the appropriate priorities should be among such norms’.Footnote 59 This is a complex task in light of the failure of the international community to provide the ICC with clear priorities among its various objectives, audiences and norms. With this in mind, deGuzman contends that the OTP should publicly explain the grounds for its selection decisions, specifically highlighting the reasons underlying the priority accorded to certain norms, rather than relying on opaque factors such as gravity or the interests of justice. It would then be up to the ICC’s different audiences – including states, victims, local communities, and civil society groups – to react with feedback on the choices made. By engaging in this ‘dialogic process’, deGuzman argues that over time it may be possible to make incremental progress towards greater consensus concerning which norms should be prioritized in selection decisions.Footnote 60 Although the OTP has become increasingly transparent in recent years regarding the criteria relied upon to select and prioritize cases,Footnote 61 deGuzman’s approach arguably goes further by advocating greater candour at the moment each individual case is selected.
Beyond prosecutorial discretion, a number of scholars have argued that the exercise of judicial discretion should also be informed by the social meaning of the categories of crimes and culpability they interpret in their decisions and judgments.Footnote 62 Diane Amann, for example, has argued that the social meaning of genocide imposes certain constraints on the interpretation that judges should give to the protected group element of the crime:Footnote 63
The requirement that a perpetrator acted with “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” sets genocide apart from all other offenses. This group mentality element has fostered understanding, shared by jurists and lay public alike, that genocide is the most awful crime. As expressivist writings demonstrate, that social meaning constrains judges to exercise care in determining whether a victim group fell within the proscription of genocide … On the one hand, too loosely declaring groups protected could undercut the understanding that genocide is unique. On the other hand, too rigidly withholding protection from deserving groups could give rise to perceptions that the law is unfairly selective, or that it fails to comprehend the true nature of today’s tragedies.
Amann’s position is complemented by Alison Danner’s proposal for the establishment of a hierarchy of international crimes for the purposes of sentencing. Specifically, Danner has argued that the crime of genocide should be subject to heavier sentences than other international crimes in order to reflect ‘the importance of this category of crimes to contemporary conditions and values, and therefore the seriousness of a defendant’s contravention of these precepts’.Footnote 64 Failure to reflect the ‘popular impressions’ of genocide at the sentencing stage would only serve to detract from the legitimacy of the international criminal courts in question.Footnote 65
Similar sentiments have also been put forward with respect to categories of culpability. Mirjan Damaška, for example, has argued that judges should be sensitive to ‘moral distinctions shared by ordinary people’ in their development of modes of participation doctrines such as superior responsibility and joint criminal enterprise.Footnote 66 According to Damaška, judicial reliance on overly-broad modes of participation doctrines ‘detracts from the moral authority of international criminal courts and impairs the readiness of the local community to accept their messages’.Footnote 67
Interpretive expressivist accounts have grown in importance in recent years in light of the contemporary crisis in faith that has emerged regarding international criminal justice in general and the ICC in particular.Footnote 68 However, despite their growing significance, interpretive expressivist accounts have been limited in two significant respects.
First, these accounts have sometimes struggled with the dilemma of determining who should be the primary target audience of the messages constructed within international criminal courts. According to Diane Amann, for example, international criminal courts will not enjoy legitimacy ‘unless they are seen to operate according to the values of the expressivist Everyone, both the society directly affected by a tragedy and the amorphous, sometimes legalistic audience known as “international society”’.Footnote 69 Yet, notably absent from many interpretive expressivist accounts is any guidance as to how prosecutors and judges should prioritize between different audiences when faced with dissensus on particular issues.Footnote 70 This is significant, since the background of social norms against which prosecutors and judges are supposed to exercise their discretion can vary considerably between the various states, cultures, and societies that comprise the international community.Footnote 71 On the one hand, this challenge seems to undermine the plausibility of interpretive expressivist accounts since cross-cultural social consensus on particular issues may simply be unachievable in practice.Footnote 72 On the other hand, while these accounts will not always be able to match their aspirations, they arguably retain intrinsic value in their promotion of transparent decision-making and open debate about the reasons behind the value choices of prosecutors and judges in practice.Footnote 73 In other words, the fact that it may not always be possible to overcome value pluralism does not detract from the benefits of public reasoning and open discussion concerning the value choices that are inescapably made by prosecutors and judges in practice.
Second, interpretive expressivism has tended to neglect the contextual factors that constrain the exercise of discretion within international criminal courts in practice. International prosecutors, for example, do not exercise their discretion in a vacuum but are confronted by a range of jurisdictional and practical constraints – including restrictions in co-operation and funding received from states – that affect which cases are selected and prioritized for investigation and prosecution in any given context.Footnote 74 By neglecting the configurations of power that underpin the exercise of discretion within international criminal courts, interpretive expressivists have sometimes provided normative accounts of how discretion should be exercised without sufficient regard for the contextual factors that inhibit how such discretion can plausibly be exercised in particular institutional contexts.
4. Critical expressivism
If instrumental and interpretive strands of expressivism have generally sought to identify and maximize the expressive potential of international criminal courts, critical expressivism has sought to illuminate their expressive limits. Drawing on methodologies as diverse as ideology critique, critical legal studies, social psychology, and anthropology, critical expressivism is concerned with unveiling the limits of the construction of messages within international criminal courts and their reception amongst audiences beyond the courtroom.
In terms of message reception, considerable energy has been devoted to illuminating the gap that tends to exist between the messages constructed within the courtroom and the messages received by different audiences beyond it. In practice, the social relay of judicial messages has generally been restricted by two sets of factors – both of which are to a large extent beyond the control of international criminal courts.
First, from a social psychological perspective, an individual’s perception and interpretation of judicially constructed narratives will often be influenced by a number of motivational and cognitive biases.Footnote 75 For instance, in the aftermath of episodes of mass violence, it is not uncommon for local communities to experience competitive victimhood, with different groups possessing ‘a strong wish – and thus also striv[ing] – to establish that their ingroup was subjected to more injustice and suffering at the hands of the outgroup than the other way around’.Footnote 76 As a result, members of rival local groups often interpret the messages transmitted by international criminal courts against the background of their communal attachments to particular factions to the underlying conflict.Footnote 77 The more a particular judicial message challenges or destabilizes an individual’s self-serving narrative of collective victimhood – for example, by holding a member of an individual’s faction criminally responsible – the greater the likelihood that the message will be rejected or ignored in practice.Footnote 78
Second, from a practical perspective, the geographical, cultural, and linguistic remoteness of international criminal courts from their local audiences has sometimes resulted in judicially constructed narratives failing to reach members of local communities at all.Footnote 79 In other instances, judicial narratives have only reached local audiences after first being filtered through international and/or local carrier groups.Footnote 80 In particular, national politicians and local media outlets have often proven particularly influential in shaping how judicially constructed narratives are received and understood by local audiences in post-conflict societies.Footnote 81 These carrier groups have sometimes attempted to distort the messages transmitted by international criminal courts, thereby further widening the gap between international courtrooms and local communities.
Beyond illuminating the limits of message reception, critical expressivism has also highlighted the limits of message construction. According to Larissa van den Herik, for example, international criminal law acts as a ‘spotlight’ that ‘filters realities through the use of precise definitions and categories of responsibility including concomitant rules of interpretation guiding their application, as well as through the use of the highest evidentiary standards and other strict rules of procedure’.Footnote 82 Through this process of filtration, certain voices and narratives are acknowledged and foregrounded, whilst others are marginalized and excluded from view.
The expressive capacities of international criminal courts to provide a platform for the voices of victims of mass atrocities, for example, have been highly constrained in practice. First, not all causes of victimhood fall within the scope of the ‘juridified’ conception of victimhood recognized by international criminal courts, which is generally narrowed according to jurisdictional limitations, the exercise of prosecutorial discretion, procedural requirements, and resource constraints.Footnote 83 Second, whether as witnesses or participants, the expressive interests of victims have always been to some extent subordinated to an international criminal court’s primary adjudicative function of determining the culpability of the accused.Footnote 84 Even at the ICC, which provides a formal system of victim participation, the Court has tended to prioritize direct participants that will be most beneficial to its own adjudicative interests,Footnote 85 whilst victims representatives have inevitably had to distil – and some would argue essentialize – the interests of indirect participants within a larger pool of victims.Footnote 86 Finally, international criminal courts typically constitute awkward environments for victims, with judges primarily operating pursuant to a ‘true-false discourse’ concerned with identifying ‘the facts’ in contrast to victims who typically operate within a ‘discourse of suffering’ concerned with recounting ‘their experiences’.Footnote 87
By illuminating the expressive limits of international criminal courts, critical expressivism has often sought to unveil the dynamics of power that underpin the messages and narratives that are constructed within such courts in practice. As Antony Skillen has explained in the domestic criminal law context:Footnote 88
For what [a critical conception of expressivism] does is to pose this simple question: what do these … practices actually show about people and about societies? What priorities do they manifest? … Such an objective focus, one which is prepared to go behind declared intentions to ask what laws and punishment ‘betray’, to ask of what they are symptomatic, transforms a concern with ‘expressions’ from an apologetic to a critical one.
In this vein, critical expressivism has often taken an interest in the productive power of international criminal courts,Footnote 89 encompassing the various ways in which such courts offer an important medium for the rendering of contestable distributional choices – for constructing winners and losers, friends and enemies, blamers and blamed, victims and perpetrators, and prioritizing some voices at the expense of others.Footnote 90 As Sara Kendall has explained, ‘humanity is not liberated through juridical forms, but is instead subjected to new configurations of power’.Footnote 91 In this vein, critical expressivism has tended to direct attention towards the relations of domination and exploitation that are enabled by the messages transmitted by international criminal courts in different institutional contexts.
For instance, by fastening their gaze on the responsibility of individuals, international criminal courts have risked masking the collective dimensions of responsibility for international crimes behind the depoliticized veil of the individuals on trial.Footnote 92 By relying upon a legal form directed towards the specific over the structural, international criminal courts have risked focusing the attention of their audiences on ‘the abnormality of conjunctural violence, rather than with the normality of the forces – including economic and legal structures – that lurk beneath’.Footnote 93 By examining incidences of spectacular political and military violence, international criminal courts have also risked contributing to the normalization of structural violence.Footnote 94 And by depicting individual defendants, together with the groups and organizations with which they are affiliated, in uniform terms as the causes of mass violence, international criminal courts have risked diverting attention away from and even legitimating how they are also the symptoms of systemic inequalities within the existing international order.Footnote 95
In addition, critical expressivists have also revealed the capacity for certain states to co-opt the vocabulary and institutions of international criminal justice for their own political agendas. The situational focus of international criminal courts, for example, has consistently reflected inequalities between states within the international community.Footnote 96 In particular, international criminal courts have predominantly been established as ad hoc responses to specific crisis situations in accordance with the interests of powerful states – whether as a means of punishing the vanquished and legitimating new structures of global governance (the International Military Tribunal at Nuremberg and International Military Tribunal for the Far East at Tokyo) or assuaging public opinion by giving an impression of ‘doing something’ in response to a particular crisis situation (the ICTY and International Criminal Tribunal for Rwanda). Moreover, the inescapable dependency of international criminal courts on state co-operation and funding has enabled some states to instrumentalize international criminal courts to stigmatize and delegitimize domestic opposition groups in circumstances where incumbent governments are able to minimize the risk of accountability for themselves.Footnote 97Asad Kiyani, for example, has revealed how the ICC Prosecutor’s tendency to target only one side of the conflicts it investigates ‘positions the impartial and neutral mechanisms of the Court in service of an oppressive regime, and implicates it in the ahistorical continuation of colonial policies and ethnic strife in the contemporary post-colonial state’.Footnote 98
By identifying the expressive limits of message construction and reception, critical expressivism has also challenged the extent to which international criminal courts are capable of contributing towards the deterrence of future atrocities, the reconciliation of divided communities, or the provision of justice to victims. For example, by highlighting the judicial tendency to neglect the structural conditions of possibility of episodes of mass violence, critical expressivists have argued that international criminal courts can only offer at best a partial deterrent against future atrocities.Footnote 99 In addition, where prosecutorial targets are selected according to their relative political power, international criminal courts risk sending the message that the consolidation of political power constitutes a legitimate means of self-preservation against the clutches of international criminal justice.Footnote 100 One-sided prosecutions may also be viewed by victims of non-prosecuted crimes as ‘a provocation, a denial of justice, and … a cause of grievance’.Footnote 101 Indeed, prosecutorial selectivity along factional lines may even intensify conflict by enabling states to use the intervention of an international criminal court as a pretext to legitimize military interventions in other states, as well as domestic law enforcement activity against political opponents.Footnote 102 Finally, even where international criminal courts is able to put members from different factions to a conflict on trial, the influence of local elites, in conjunction with cognitive and motivational biases amongst members of rival groups within local populations, may hinder the capacity of judicial narratives to reconcile divided communities in practice.Footnote 103
As this overview suggests, critical expressivism has often been characterized by a sense of anxiety and discomfort.Footnote 104 In fact, a central concern for critical expressivist accounts has been the suspicion that international criminal justice tends to displace other emancipatory vocabularies, siphoning attention away from alternative justice modalities and marginalizing other ways of thinking about mass violence.Footnote 105 Yet, despite seeking to give expression to the excluded, silenced and suppressed,Footnote 106 critical expressivism has generally been limited in two important respects.Footnote 107 First, critical expressivism has typically neglected to explore in any significant detail the ways in which the language of international criminal justice may be relied upon in tandem with, rather than to the exclusion of, other emancipatory vocabularies. And second, while critical expressivism has often illuminated how particular states have been able to co-opt the language and institutions of international criminal courts to further their strategic agendas, they have generally neglected to explore more broadly how other types of actors may engage strategically in the field – for example, the extent to which social movements might strategically utilize international criminal justice as part of their struggles for social and political change. As such, while typically offering compelling critiques of the over-exuberant expectations that have been placed on international criminal courts, critical expressivism has sometimes neglected or undervalued the diversity of ways that international criminal courts and the language of international criminal law might be mobilized by different types actors in the context of concrete struggles for emancipatory change.Footnote 108
5. Strategic expressivism
Building on the insights and reflecting on the limitations of existing expressivist perspectives, this article identifies a nascent strand of expressivist inquiry – strategic expressivism – which concerns examining whether and how different types of actors might mobilize the expressive power of the vocabulary and institutions of international criminal justice to advance their strategic agendas. Deconstructing this overarching definition, strategic expressivism may be understood to consist of three components.
First, similar to instrumental expressivism, strategic expressivism is concerned with illuminating the instrumental value of the expressive power of international criminal courts. However, rather than casting the expressive power of such courts in essentially benign terms, strategic expressivism recognizes that international criminal justice is a field of struggle in which different actors compete for the legitimation of their preferred messages and narratives. Similar to the language of international human rights, strategic expressivism contends that international criminal law constitutes ‘a language of both power and resistance … of hegemony and counter-hegemony … and the fact that it is a terrain of contestation … for multiple deployments of both power and resistance’.Footnote 109 As such, strategic expressivism recognizes that actors participating in the field of international criminal justice face the constant risk that the vocabulary of international criminal law may prove redundant for their agendas and may even legitimate interests to which they are opposed. In other words, strategic expressivism situates the instrumental expressive potential of international criminal law in the context of concrete struggles for social and political change.
Second, similar to interpretive expressivism, strategic expressivism is concerned with improving the sociological legitimacy of the messages and narratives transmitted within international criminal courts. However, rather than examining how prosecutors and judges might improve the legitimacy of their practices within multiple – sometimes conflicting – audiences, strategic expressivism is concerned with identifying how different actors may rely on the language and institutions of international criminal justice to achieve specific expressive benefits for their particular communities of interest.
Finally, similar to critical expressivism, strategic expressivism is conscious of the expressive limits of international criminal courts and their legitimating qualities. However, rather than focusing on how those limits may undermine the emancipatory objectives that are often attributed to international criminal courts, strategic expressivism is interested in examining whether and how different actors may harness the expressive power of international criminal courts to advance their strategic political and social agendas.
In this context, it is important to specify the meaning of ‘strategic’. A useful point of departure is the use of the term ‘strategic’ in the field of international human rights where ‘strategic human rights litigation’ has generally been relied upon to refer to ‘litigation that pursue goals – or which concerns interests – that are broader than … the particular victims or applicants at the centre of the particular case’.Footnote 110 Importantly, strategic human rights litigation generally constitutes only one change agent deployed in concert with other processes and forms of advocacy.Footnote 111 The term ‘strategic’ has also been deployed in the field of international criminal justice. Megan Fairlie, in particular, has recently examined the emergence of so-called ‘strategic communications’ before the ICC, a term used to refer to ‘highly publicized investigation requests aimed not at securing any ICC-related activity, but at obtaining some non-Court related advantage’.Footnote 112 Although not identical in meaning, these conceptions of ‘strategic’ are united by the idea of using litigation or particular aspects of legal processes to generate political and social change that extend beyond the immediate goals of an individual case or request.Footnote 113
Further unravelling the meaning of ‘strategic’, recent Marxist international legal scholarship draws a distinction between ‘strategy’ and ‘tactics’. As Robert Knox explains, in this context ‘strategy refers to the achievement of long term, structural (or organic) goals, whereas tactics refers to the achievement of short term, conjunctural ones’.Footnote 114 Relying on this distinction, John Reynolds emphasizes the importance of strategy and tactics being considered in tandem so that tactics become ‘pragmatic and opportunistic interventions aimed at more immediate results that can contribute towards attainment of the larger strategic outcome’.Footnote 115 According to this view, while litigation is often purely tactical in nature because it is concerned with achieving a more immediate short-term end, what matters is the extent to which a tactical legal intervention has been dictated by and contributes towards a broader strategic objective.Footnote 116
Drawing on these perspectives, ‘strategic’ in the present context may be understood to refer to the ways in which the expressive power of the language and institutions of international criminal justice may be invoked and mobilized by different actors in line with their longer-term political and social agendas.Footnote 117
A clear illustration of a strategic expressivist intervention in the field of international criminal justice is the recent communication to the ICC OTP jointly submitted by the Global Legal Action Network (GLAN) and the Stanford International Human Rights Clinic.Footnote 118 The communication calls for the OTP to open an investigation into alleged crimes against humanity committed by Australian officials and private companies against refugees and asylum seekers held offshore in Nauru and Manus Island. The communication satisfies each of the criteria to be characterized as a strategic expressivist intervention.
First, the communication aims to instrumentalize the expressive power of the ICC. In particular, one of the reasons motivating the communication is to expressively counter the potential of the Australian immigration system ‘to set a precedent, and to normalise subjecting vulnerable refugee populations to inhumane detention practices in order to deter future refugee flows’.Footnote 119 By relying on the vocabulary of international criminal law, the communication seeks to label the actions of Australia as ‘crimes against humanity’ in an effort to expressively counter the possibility of Australian policies ‘being influential and being replicated elsewhere, specifically in other states that are receiving refugee flow’.Footnote 120
Second, the communication aims to improve the sociological legitimacy of the ICC, but with a particular emphasis on ensuring international criminal justice does not become ‘a mode of domination of the rich and powerful against the poor and weak’.Footnote 121 Specifically, the communication aims to recalibrate the prosecutorial policy of the ICC away from an exclusive expressive focus on ‘spectacular violence, occurring in some of the poorer and less developed states in the world’, towards a broader vision that includes the investigation and prosecution of ‘banal’ violence, encompassing acts that are ‘potentially replicated, normalised and perceived as an acceptable, or at least inevitable, consequence of the current international system’.Footnote 122 As Kalpouzos and Mann have argued, to ignore the latter category of crimes would be to construct international criminal law ‘as a law that, from the entire universe of prohibited acts falling under its doctrinal mandate, only criminalises those not committed by “Western” states’.Footnote 123
Finally, the communication was submitted to the ICC as just one tactical contribution towards a broader strategy for socio-political change, together with an awareness of the expressive limitations of the institution.Footnote 124 At the launch event of the communication,Footnote 125 Kevin Jon Heller – one of the signatories to the communication – acknowledged that his expectations for the communication are self-consciously ‘very modest’.Footnote 126 In particular, Heller accepted that there are obstacles to the ICC Prosecutor opening an investigation into the situation, not least the damage it might cause to the relationship between the ICC and Australia, which has traditionally been a strong supporter of the Court.Footnote 127 However, Heller added that the communication need not lead to a formal investigation to have an expressive impact: ‘Just a statement from Fatou Bensouda taking it seriously and the media coverage … this has a real significant effect on the behaviour of the Australia government’.Footnote 128 In addition, rather than crowding-out other justice modalities or displacing other emancipatory languages, Diala Shamas – another signatory to the communication – emphasized that one of the aims of the communication is to support social movements in Australia who are campaigning at the domestic level for changes in Australian immigration and asylum practices.Footnote 129 As such, the communication offers an example of what Paul O’Connell has recently termed ‘emancipatory multilingualism’, namely the ability of social movements to utilize a particular emancipatory vocabulary – in this case, international criminal law – as part of a broader mobilization of multiple, complementary (and sometimes contradictory) discourses in their struggles for strategic political and social change.Footnote 130
While the GLAN-Stanford communication to the ICC offers an example of a proactive intervention in the field of international criminal justice,Footnote 131 strategic expressivism also encompasses defensive interventions. Adam Branch, for example, has argued that Dominic Ongwen – the former child soldier and adult commander of the Lord’s Resistance Army, currently on trial at the ICC – might consider a ‘trial of rupture’ in which his defence is conducted in the form of an attack on the system represented by the prosecution’s case.Footnote 132 The aim would be to place Ongwen’s alleged crimes ‘in the context of the violence committed by those putting on and benefitting from the trial – the Ugandan government, its western supporters, even the ICC itself ’.Footnote 133 In this context, rather than relying on the expressive power of legal arguments, the legal situation would be instrumentalized to directly promote the defendant’s political goals.Footnote 134 As Jaques Vergès famously put it, the trial would be used ‘less to acquit the accused than to illuminate his ideas’.Footnote 135 In addition, defensive interventions might include ‘strategies against cooperation’ on the part of states.Footnote 136 Geoffrey Lugano, for example, has recently illuminated how the Jubilee Alliance in Kenya was able to expressively reframe the ICC’s intervention in the country as a form of neo-colonialism as one component of ‘a calculated mix of both cooperation and non-cooperation, centred on balancing their commitment risks and their noncompliance risks’.Footnote 137
Beyond these institutional interventions, strategic expressivism might also encompass reformist agendas. For instance, a number of scholars have recently reflected on how the personal and material jurisdictions of international criminal courts might be reformed in accordance with the strategic interests of Third World Approaches to International Law (TWAIL).Footnote 138 Joanna Kyriakakis, for example, has examined the expressive benefits, particularly among ‘Southern audiences’, of expanding the competence of international criminal courts to include corporate defendants.Footnote 139 Similarly, Reynolds and Xavier have explored how the types of violence criminalized under international criminal law might be reconceptualized to address ‘many of the collective interests of global South peoples that are impacted by the structural violence of economic coercion, resource extraction, global wealth distribution and enforced impoverishment’.Footnote 140 What distinguishes these accounts is their strategic mindset, each weighing the risk that the reforms put forward may end up legitimating political agendas that are in opposition to the strategic interests of TWAIL perspectives.Footnote 141
Finally, strategic expressivism also encompasses arguments against utilizing the vocabulary and institutions of international criminal justice in particular contexts. Mahmood Mamdani, for example, has argued that inclusive political processes – similar to the transitional process in South Africa known as Convention for a Democratic South Africa– that prioritize political justice over criminal justice constitute more strategically appropriate responses for rival groups emerging from the kinds of intra-state civil wars that typify contemporary episodes of mass violence in various states in Africa.Footnote 142 According to Mamdani, international criminal justice ill fits these contexts, which tend to be characterized by cycles of violence in which victims and perpetrators trade places.Footnote 143 In such circumstances, international criminal law’s tendency to demonize the agency of the perpetrator and diminish the agency of the victim can result in expressively freezing their identities, ‘leading to the assumption that the perpetrator is always the perpetrator and the victim is always the victim’.Footnote 144 By contrast, by focusing on cycles of violence and the underlying issues that threaten the foundation of the political community, political justice dares to reimagine a new community ‘in which yesterday’s victims, perpetrators, bystanders, and beneficiaries may participate as today’s survivors’.Footnote 145
In practice, whether a particular intervention in the field of international criminal justice is likely to support the broader strategic objectives of a particular actor will often depend on the context and may itself become a matter of contestation – potentially generating a degree of dissensus amongst members of particular social movements, officers within particular prosecution or defence teams, and officials within particular states and non-state actors. Importantly, however, an intervention in the field of international criminal justice need not harbour overly-ambitious objectives for this purpose. For example, a social movement might utilize the vocabulary and institutions of international criminal justice to garner media attention around a particular conflict or type of criminality as one limited tactical component of a broader strategic struggle for emancipatory change. At the same time, as Helen Duffy cautions, it is important to remember that a legal intervention ‘is not a neutral enterprise that at worst does little good, while not doing any harm’.Footnote 146 Any legal intervention, even if intended to positively contribute towards a strategic objective, has the potential to be counter-productive and generate negative repercussions – whether by over-inflating victim and community expectations, establishing regressive jurisprudence, or providing a veneer of legal legitimacy around the practices under scrutiny.Footnote 147
Ultimately, determining whether a particular intervention in the field of international criminal justice has a reasonable prospect of advancing an actor’s broader strategic agenda will require assessing a range of factors, including weighing the potential positive and negative effects that different stages of international criminal processes may generate, as well as the extent to which a particular intervention is likely to facilitate or frustrate other forms of advocacy that are attempting to contribute towards the attainment of the same strategic objective.Footnote 148 Going forward, as actors become savvier to the limitations and legitimating qualities of international criminal courts, it is suggested that questions of how and when different types of actors may harness the expressive power of international criminal justice in support of their strategic agendas are likely to become increasingly prevalent.Footnote 149
6. Conclusion
As the gap between the over-exuberant aspirations and modest achievements of international criminal courts has become increasingly apparent, the glow that initially accompanied the field’s judicialization has faded. Utopian ambitions have receded in favour of a humbler perspective that is increasingly concerned with managing unrealistic expectations. In this more critical climate, this article has identified an expressive turn in the field of international criminal justice. Each strand of expressivism offers a distinct way of seeing the field of international criminal justice, foregrounding and recognizing particular aspects of the operation of international criminal courts, whilst marginalizing and excluding others from view. With the recent closure of the UN ad hoc tribunals and the institutional focus of the field now centred more narrowly on the ICC – an unavoidably selective court with limited resources – together with a range of hybrid and domestic courts conducting international criminal trials,Footnote 150 the turn to expressivist strands of thinking is likely to become more entrenched in the years ahead. Looking to the future, therefore, this article suggests that a strategic expressivist perspective offers a useful vantage point from which to examine the field – one that continues the critical work of illuminating the limits and legitimating qualities of international criminal courts but with an eye to identifying how different types of actors may rely on the vocabulary and institutions of international criminal justice to further their strategic agendas.
