International trials as dialogical events

Trials are inherently dialogical events, not least because their perceived fairness is directly linked to the opportunity afforded to the defendant to publicly defend themselves against the charges brought against them. This dialogical character is particularly evident in international criminal trials, where acts of violence and atrocities committed in a political context are adjudicated for a global audience. The trial of the Malian jihadist Ahmad Al Faqi Al Mahdi at the International Criminal Court (ICC) is a case in point. On 27 September 2016, ICC Trial Chamber VIII sentenced Al Mahdi to nine years in prison for his role in the destruction of Sufi shrines during the 2012 occupation of Timbuktu by the jihadist militia Ansar Dine. The trial, completed in just four days, was unique in the history of the ICC and has been described as “a ‘first’ of many kinds”.Footnote ¹ It was the first trial in which the war crime of “directing attacks against buildings dedicated to religion … and historic monuments” formed the core of the indictment, under article 8(2)(e)(iv) of the Rome Statute.Footnote ² Consequently, it was widely perceived as the ICC’s “response” to the destruction of cultural heritage sites such as Bamyan, Palmyra, Hatra and Nimrud.Footnote ³ It was also the first time an Islamic militant appeared before the court, and the defendant entered a guilty plea. Thus, on the first trial day, Al Mahdi “apologized” for his crimes to the inhabitants of Timbuktu, his mother country Mali and the international community, as well as to the families entrusted with the maintenance of the shrines, who were legally represented at the trial. In addition, he “warned” members of other jihadist groups not to make the same mistake.Footnote ⁴

In view of this multiplicity of distinctly “conversational” moves, the dialogical character of Prosecutor v Al Mahdi (Al Mahdi) is difficult to deny. However, dialogism, as conceived by the literary scholar Mikhail Bakhtin, does not only mean that linguistic utterances, even supposedly monological ones, are always and inevitably made in a dialogical context.Footnote ⁵ It also entails that nothing we say is truly original, and that language use essentially consists of the recycling, requoting and modifying of language used by other speakers in other contexts. As such, dialogism is closely related to what Julia Kristeva called intertextuality, or the principle that texts never exist in isolation, but are always produced and interpreted in relation to other texts.Footnote ⁶ For legal scholars, this should be intuitively obvious, since case law essentially consists of ever-extending “intertextual chains” or “text trajectories”Footnote ⁷ in which previous decisions and applicable statutes are invoked, interpreted and commented upon, their validity being reaffirmed or rejected in relation to the case at hand.Footnote ⁸ Al Mahdi represents one link in such an intertextual chain of jurisprudential construction, hailed by some as a breakthrough for setting a precedentFootnote ⁹ and incrementally developing the legal framework for the protection of cultural property,Footnote ¹⁰ and criticized by others for allegedly failing to do soFootnote ¹¹ or taking the protection framework in an unfavourable direction.Footnote ¹²

Inspired to a large extent by linguistic anthropologyFootnote ¹³ and practice-based approaches,Footnote ¹⁴ the articles collected here highlight the complex interplay of the various forms of dialogicity that underpin the legal process. Intertextual connections to earlier decisions, codes and statutes are not “facts” waiting to be “discovered”, but are dynamically constituted in and through real-time courtroom interactions between lawyers, prosecutors and judges.Footnote ¹⁵ Similarly, the various messages that the ICC purports to convey to external audiences, such as the “powerful signal that it takes cultural crimes … seriously”,Footnote ¹⁶ only exist by virtue of the myriad dialogical interactions in the courtroom in The Hague. Certainly, these exchanges that bring the trial to life are constrained by the legal framework that governs the conduct of the parties. However, without such real-time dialogical events, international criminal law would remain a dead letter and there would be no administration of justice at all. Therefore, a dialogical approach considers what happens during trial proceedings as a pivotal aspect of the process of adjudication. Drawing closely on interaction analysis, legal anthropology and socio-legal studies, it shifts attention from the outcome to the process of international criminal justice, extending legal analysis beyond the new jurisprudence established by the judgment to examine the real-time discursive practices through which the judges reached their decision.

Perhaps the best example of this approach is Elena Barrett and Fabio Ferraz de Almeida’s analysis of the discursive and rhetorical (“poetic”) procedures by which the Office of the Prosecutor (OTP) seeks to establish that the threshold of gravity has been met in this case involving “stones not bones”, in the process also bolstering the ICC’s legitimacy. In their article, they meticulously trace the recurrence of a tripartite list of affected victim constituencies ranging from the local (the Timbuktu community) to the global (“humanity” and / or “the international community”), repeated by different actors at different stages of the trial (including the defendant himself), and whose origins can be traced to UNESCO documents. The authors draw on linguistic anthropological notions of poetics, performance and ritual language to argue that the continuous repetition of this local-to-global parallelism creates a dense intertextual web that gives a self-evident character to a set of constituencies that are otherwise fundamentally unstable. These include the “Malian nation”, plagued by a history of civil war,Footnote ¹⁷ but also the “international community”, an imagined community (to use Benedict Anderson’s phrase) whose boundaries are typically (re)drawn in the process of its enunciation.Footnote ¹⁸ In light of the expressivist turn in international criminal justice,Footnote ¹⁹ their article demonstrates how linguistic anthropology can contribute to understanding the ICC’s external messaging and its role in consolidating the international criminal justice project.

Dialogicity beyond the ICC courtroom

Without calling into question the validity of doctrinal analysis and internal accounts of international criminal law, the dialogical approach adopted here avoids the pitfall of viewing the legal process as isolated or self-contained. Instead, the articles explore how Al Mahdi resonates and interacts with discourses and public debates circulating and taking place beyond the ICC courtroom. Thus, dialogism refers not only to how courtroom interactions invoke earlier trial discourse and written codes and statutes, but also to “the different kinds of conversations – taking place afar from The Hague and courtrooms – that Al Mahdi might energize, open, discourage or close”.Footnote ²⁰ Mark Drumbl previously mentioned ongoing debates over heritage, ownership and historical memory.Footnote ²¹ The current collection adds a multiplicity of other trans-local conversations, both pre-existing and newly initiated, addressing key issues such as the status of the signifier “international community” and the question of in whose name justice is being administered (Barrett and Ferraz de Almeida),Footnote ²² the ICC’s alleged colonial characterFootnote ²³ and the place of Islamic law in ICC proceedingsFootnote ²⁴ (D’hondt, Dupret and Bens), and the intriguing issue of whether victimhood and holding rights are exclusively the entitlement of human agents or could be extended to inanimate objects or nature (Pérez-León-Acevedo and Joy).Footnote ²⁵

Sigurd D’hondt, Baudouin Dupret and Jonas Bens’s article illustrates the intricacies of these conversations evoked by Al Mahdi, by reflecting on the criticism that the judgment represented a “missed opportunity” for the ICC to engage more profoundly with Islamic law. Similar to Barrett and Ferraz de Almeida, they ground their argument in a detailed analysis of the language used in the courtroom, focusing specifically on how the “legal institutions” established by the jihadists are discursively represented in the OTP’s submissions. Combining a praxeological law-in-action approach with scholarship on legal pluralism and colonial recognition, they argue that the ICC inevitably transforms and reifies the alternative normative orders it claims to engage with. In this sense, the “politics of recognition” at work in Al Mahdi inadvertently echoes colonial practice, which essentialized indigenous normative orders and invented “customary law” in line with the positivist legal framework imposed by the colonial state.

Proceeding along these lines, the article documents how the trial actors in Al Mahdi engage with the legal order established by the jihadist authorities in the only way permitted by the Rome Statute: processing it as “facts” in a manner consistent with their legal tasks in the proceedings. In this case, the ICC’s legal framework compelled trial actors to make decisions with far-reaching consequences, as the shrine destructions could only be prosecuted as a war crime, which, in turn, gave rise to a series of implicit judgments about what constitutes an acceptable expression of Islamic normativity. In doing so, the ICC effectively took a standpoint in a long-standing conflict over the role of Islam in Sahelian society, recalling Martti Koskenniemi’s argument about the inherently political nature of international criminal proceedingsFootnote ²⁶ and evoking inevitable parallels with the colonial politics of selective recognition.

Interdisciplinary dialogues

The articles collected here are the result of a webinar dedicated to Al Mahdi, originally conceived as a live event but forced to move to a virtual space due to the pandemic, hosted by the University of Jyväskylä on 28 and 29 October 2021 (as part of the project “Negotiating international criminal law: A courtroom ethnography of trial performance at the International Criminal Court”, Research Council of Finland nr 325535, 2019–2023). They are the product of an interdisciplinary dialogue among 11 scholars from different disciplinary backgrounds, not limited to international criminal law but also including (linguistic) anthropology, ethnomethodology, political science and history. Although not all participants were able to contribute an article, the present collection demonstrates that dialogicity is not only a relevant object of study but an integral part of the process of knowledge production.

The article by Juan-Pablo Pérez-León-Acevedo and Charlotte Joy, which combines anthropological and legal approaches to interrogate the status of “victims” in Al Mahdi, is the result of such an interdisciplinary dialogue established in the course of the workshop. Providing an overview of recent anthropological work on ontology and distributed agency, it rethinks the victim category by extending it beyond the tripartite list analysed by Barrett and Ferraz de Almeida to also include inanimate objects, such as the destroyed shrines. Next, they ask whether this expansion can be replicated within the framework of international criminal law. Reconsidering both the characteristics of the crime and international law sources on victimhood, they propose a legal-doctrinal approach that considers material objects as the direct victims of the jihadist attacks and expands the list of possible secondary victims. As such, their article is a rare case of a genuine dialogue across academic fields, in this case between international criminal law and anthropology. Nevertheless, the doctrinal finality of their work also distinguishes it from the other two articles in this collection, which also concern legal doctrine but rather focus on the discursive practices that facilitate and support their application in the courtroom.