1. The making of: the story behind the official story

Compared to the massive body of literature on the law applied and made by international criminal tribunals, empirical research on the work of the tribunals is scarce.Footnote ² This is remarkable: after all, the job of international criminal tribunals itself is, or should be,Footnote ³ largely empirical. Criminal trials should primarily be about establishing who did what to whom, where, when, and with what justification (if any).Footnote ⁴ The investigator in international criminal trials and the empirical researcher thus appear to share important objectives: finding truth and dismissing myths.

Empirical research has been particularly scarce when it concerns the effects of the enforcement of international criminal law.Footnote ⁵ Writing on the impact of transitional justice on victims, Harvey Weinstein uses a quote from Hannah Arendt to capture the empirical weakness of much of the transitional-justice literature:

The same can be said for much of the literature on the justifications for international criminal law.Footnote ⁷

What are the conceivable reasons for the scarcity of empirical research into the effects of international criminal tribunals?Footnote ⁸ Some possible explanations relate to the character of the object of research. International criminal law is not merely a field of study, but also a project. Many scholars in this field have invested much of their lives in this project.Footnote ⁹ The question that Naomi Roht-Arriaza rhetorically poses to transitional-justice scholars is thus also pertinent for international criminal lawyers: ‘Are we too professionally invested in the very processes we are seeking to evaluate?’Footnote ¹⁰ If the answer is ‘yes’, then the study of international criminal law may in fact be very close to advocacy for international criminal law. In general terms, advocacy and research are both interested in empirical facts. However, where good empirical research is interested in the facts for the sake of evaluation of those facts (which may not be the case if the researcher is wedded to proving a predetermined theoretical framework) good advocacy selects and uses these facts strategically.Footnote ¹¹ If international criminal law is considered not merely a project, but, as David Koller has argued, a faith, fact-finding is hardly necessary.Footnote ¹²

Another characteristic of the field that discourages interest in empirical research into its effects is the prominence of the deontological rationale. Accordingly, criminal justice must be done, irrespective of its consequences. And yet, even the supporters of deontological arguments often also make grand consequentialist claims as to what values other than retribution international criminal trials promote: truth, victims’ healing, reconciliation, the rule of law, peace, and so on.Footnote ¹³ These claims do call for empirical evidence: (what) is the enforcement of international criminal law delivering?

The ‘delivery’ question leads to another possible explanation for resistance to empirical research. In a day and age in which everything has to be indexed, counted, and measured,Footnote ¹⁴ ‘empirical’ is often misread as ‘quantitative’.Footnote ¹⁵ Quantitative research requires countable data. When what matters is what is countable,Footnote ¹⁶ what is countable determines what matters: the availability of datasets rather than the importance of issues begins to set the research agenda. Empirical research that is limited to indexing, quantifying, and counting thus risks misrepresenting an inherently political concept such as ‘justice’ as a value-neutral unit that can be multiplied by the application of technical expertise.Footnote ¹⁷ Exclusively quantitative research into the effects of international criminal justice is thus rightly resisted. However, there is a long and rich history of empirical research that is not purely quantitative. Why does qualitative research on the effects of the enforcement of international criminal law also remain limited?

One explanation may lie in the wide-ranging challenges that confront the empirical socio-legal researcher on multiple registers, especially when the research takes place in conflict situations. Practically, empirical socio-legal field research requires huge amounts of resources and time.Footnote ¹⁸ Epistemologically, it suffers from the perennial identity crisis of social science as a science, given the limitations on its ability to demonstrate causality with anything like the certainty of natural sciences. Ethically, the context of research in situations of (post-)conflict continuously confronts the researcher with most difficult questions. Existentially, empirical socio-legal research can shake up the most basic assumptions, hopes, and expectations of the fieldworker, especially if the fieldworker has been trained as an international criminal lawyer. The challenges are huge, precisely because empirical socio-legal research takes place in the midst of a social world that is continuously changing and filled with contradictions, uncertainties, and inconsistencies. In conflict situations, the social world within which international criminal law mostly operates, the challenges are even more daunting.Footnote ¹⁹

And yet, the interest in, and students’ desire to do, fieldwork in the effects of international criminal courts seems to increase. How should the discipline of international criminal law, then, respond to these challenges? Accept them as insurmountable impediments to qualitative research into the effects of international criminal courts and therefore discourage such research? Accept them as insurmountable impediments that disqualify the outcome of any such research? Or accept them, confront them, and conduct the research, while publicly acknowledging the challenges?

In choosing the last option, international criminal lawyers could benefit from the rich discipline of anthropology. With its strong emphasis on qualitative empirical research, anthropology has much to offer to the field of international criminal law. Substantively, the subfields of political and legal anthropology have studied conceptions of justice and dispute resolution since at least the nineteenth century. Having shown how culturally informed such notions are at the local level, anthropology can put ideals such as ‘global justice’ in a revealing light.Footnote ²⁰ Further, since the 1980s, anthropology has enlarged its focus from specific small communities to structural phenomena such as violence. Seen through the lens of this body of literature, violence looks different than from a purely criminal-law perspective. Finally, and most pertinent to this article, the field of anthropology has worked hard to address and render explicit the challenges of fieldwork, practically and theoretically.Footnote ²¹

In the early days of anthropological fieldwork, the world would read only the ‘results’, without knowing much of the circumstances in which these results were obtained. Like the chemist who has acquired the competence to conduct experiments, the historian who knows how to analyse archives, or the lawyer who is able to ‘find’ the law, the anthropologist was supposed to have unique scientific skills to establish ‘the truth’. These skills were believed to consist mainly of, on the one hand, an ability to immerse oneself in a society and to develop an empathy that allows the anthropologist to understand how the people observed think, and on the other, an ability to detach and to observe objectively without having an impact on the object of study. The practical, epistemological, ethical, and existential challenges inherent in fieldwork were generally not publicly revealed, since it could seem to challenge the entire existence of anthropology as a social ‘science’.

Thus when Laura Bohannan published in 1954 one of the first reflexive books on the practice of fieldwork – revealing its serendipity, the lack of control over one's own life, the it's-all-happening-elsewhere syndrome, the experience of feeling like a child who needs to be taught the ropes of daily life and is ridiculed for her ignorance, the desire for aloneness and horror of loneliness, the fear of losing one's own culture and principles, and the tension between the professional requirement of being an objective observer and her human longing to be loved by the people she studied – she wrote it in the form of an anthropological novel and under a pseudonym.Footnote ²² She ‘may have feared’, according to sociologist and lawyer David Riesman in his introduction to a new edition of the now famous Return to Laughter, ‘that the book might hurt her reputation as a competent and objective ethnographer’.Footnote ²³

And indeed, when the widow of Bronislaw Malinowski, widely considered the anthropological archetype of the modern fieldworker and ethnographer, posthumously published his fieldwork diary – A Diary in the Strict Sense of the Term – this shook, according to some colleagues, the discipline to its foundations.Footnote ²⁴ As Clifford Geertz argues: ‘The myth of the chameleon fieldworker, perfectly self-tuned to his exotic surroundings, a walking miracle of empathy, tact, patience, and cosmopolitanism, was demolished by the man who had done most to create it.’Footnote ²⁵ By revealing his boredom, despair, loneliness, exhaustion, moodiness, ‘impure’ thinking, fixation on health, longing for the familiar, preoccupation with the women in his life, and occasional ill-feelings for the people he studied, Malinowski was seen to bring into doubt not only the validity of his own work but also the credibility of anthropology as a science.Footnote ²⁶

However, what felt like a ‘crisis’ for one cohort of anthropologistsFootnote ²⁷ may have felt like a blessing to another. For no matter how unique and personal each and every fieldwork experience is, ‘in certain key ways each fieldworker does, and must’, in the words of anthropologist Sidney Mintz, ‘recapitulate the experiences of every other fieldworker’.Footnote ²⁸ The younger anthropologist who reads the diary of the discipline's giant grandfather may heave a sigh of relief, discovering that their own feelings of estrangement do not render them the odd one out. Indeed, nowadays Malinowski's diary is often taught as a necessary accompaniment to his ‘official’ anthropological account.Footnote ²⁹ No longer is one the official story and the other the unofficial story that should remain hidden. The stories are two sides of the same coin. The ‘crisis over the diary’ has probably only strengthened anthropology by bringing the discipline closer to its own identity.

Indeed, rather than presenting a ‘front of hard assurance, of findings or “results”’,Footnote ³⁰ many anthropologists nowadays discuss the practical, epistemological, ethical, and existential ‘troubles’ of doing the research, acknowledging that these have a bearing on the data collected and their interpretation.Footnote ³¹ These reflexive accounts range from introductory remarks to an otherwise almost positivist presentation of fieldwork resultsFootnote ³² to the extreme of (rather boring) hyper-reflexive narratives in which the navel-gazing fieldworker presents little else than the reality that is her own. Generally, however, anthropology's explicit recognition of the subjective element has been productive.Footnote ³³ Whether or not as the ‘most humanistic of sciences and scientific of humanities’,Footnote ³⁴ anthropology has shown that it can produce unique and valid knowledge claims.

In the field of international law such explicit reflexivity remains rare. This may be related to the object of most legal research: law. The entire practice of law is founded on the necessary fiction that law is external to the lawyer and that the lawyer ‘finds’, not ‘creates’, this law. Socio-legal research may be more open to reflexivity, but even in that branch peer reviewers often discourage the inclusion of reflexive accounts as ‘unsuitably autobiographical for a scholarly text’.Footnote ³⁵ Authors are expected to write up research by mentioning ‘the facts’, the theories, and possibly the methods. The relationship between facts, theories, methods, and the researcher, however, is rendered invisible, and so is the personal, social, and political character of research.Footnote ³⁶

But the anthropological tradition of explicit reflexivity can be reconciled with (socio-)legal research and has much to offer, both to the reader and to the researcher.Footnote ³⁷ First, as a matter of intellectual honesty, the author's reflexivity discloses to the reader the limitations of the findings, the soft side of seemingly hard data, and the inherent subjectivity of the most objective researcher. For what Heisenberg observed with respect to physics also applies to the socio-legal researcher and, indeed, the investigator of a criminal tribunal:Footnote ³⁸ the data collection instruments – in the case of interviews, the person who conducts the interviews – cannot but influence the outcome of the research.Footnote ³⁹ Similarly, analysis cannot be separated from the mind – filled with law and so much else – of the legal analyst, whether judge, advocate, or scholar. The researcher and legal analyst cannot escape the fact that the researcher is part of the studied world and that her orientations will be shaped by the socio-historical locations of the researcher, including the values and interests that these locations confer upon the researcher.Footnote ⁴⁰ Moreover, the researcher's mere presence changes the world she studies. These inevitabilities require the humility that reflexivity imposes. Reflexivity brings the author back into the story by revealing his or her frame. With frames ‘shap[ing] what is viewed and how what is viewed is interpreted’,Footnote ⁴¹ reflexivity reveals the process through which the author has come to understand the issues the way that she does. Without the author's public reflexivity, the reader sees only the scene painted by the author. The author's public reflexivity allows the reader also to see the window that frames the author's view.

Second, by telling both the ‘official’ and the seemingly ‘unofficial’ story, the researcher can give expression to the two souls that dwell in many scholars: the one that wants to clarify and explain, and the one that is confused by the complexity of the issues confronted. Fieldwork is, in the words of arch-intellectualist anthropologist Claude Lévi-Strauss, the ‘mother and nursemaid of doubt’: ‘This “anthropological doubt” consists not merely in knowing that one knows nothing but in resolutely exposing what one knows, even one's own ignorance, to the insults and denials inflicted on one's dearest ideas and habits by those ideas and habits which may contradict them to the highest degree.’Footnote ⁴² Doubt fertilizes understanding and fosters ideas.

It is in this light that I here present elements of a story behind an ‘official’ story. ‘Official’ should be read in scare quotes: the ‘official’ and the ‘unofficial’ story cannot be hermetically separated. The unofficial story is inextricably part and constitutive of the academic narrative and therefore only seems ‘unofficial’.

The official story gives an answer to the question whether and how the principle of complementarity as set forth by Article 17 of the Rome Statute of the International Criminal Court (ICC) has had a catalysing effect in Uganda and Sudan.Footnote ⁴³ It is based on seven years of process tracing: treaties, statutes, cases, statements, lectures, budgets, books, newspaper articles, files, drafts, photographs, field notes, posters, transcripts, and notes of interviews with over 400 people, including displaced persons, government ministers, prosecutors, ‘traditional’ leaders,Footnote ⁴⁴ intelligence officers, judges, civil-society actors, police, human rights activists, peace negotiators, criminal investigators, scholars, local council representatives, defence lawyers, parliamentarians, army officials, prison wardens, journalists, representatives of embassies and international organizations, and ICC suspects, were analysed with a view to assessing whether and how developments in Uganda and Sudan related to the ICC's principle of complementarity.

The ‘unofficial’ story, of a journey between 2005 and 2012 with several long periods of research in The Hague, Uganda, and Sudan, is more ambiguous. It is a story of a search for answers and the discovery of questions – about the mission of international criminal law, about the authority of types of knowledge, and about relations of power between unique individuals in and around (post-)conflict zones and a Western researcher.

Like the official story, the unofficial story draws on experiences in Uganda and Sudan. However, while quite a few references to places and people will follow, the point of this essay is not to make an argument about these two fascinating countries. For the purpose of this piece, it does not really matter what happened in which of the two states. Rather, the aim of this essay is to present some of the challenges encountered during field research into the effects of international criminal law.Footnote ⁴⁵ The argument is not that such research is characterized by challenges only. Indeed, as will be argued, the challenges themselves can be part of the reason for the huge sense of satisfaction to be found in fieldwork. In addition, an equally long essay could be written about the gratifying experiences of fieldwork that are unrelated to any challenge. The argument is neither that all the challenges encountered are universal. Nor is it that the challenges discussed are exclusive to fieldwork concerning international criminal law. The challenges presented are merely examples of those that can be encountered during field research into the effects of international criminal law and that call for further reflection.

That reflection can come in several degrees:Footnote ⁴⁶ behind every unofficial story is an even more unofficial story (making the first unofficial story seem official), and so on, and so on. From this perspective this essay offers reflexivity only to the first degree; it is not ‘a diary in the strict sense of the term’.

The challenges discussed are most directly relevant for the scholar doing fieldwork. But, as will be highlighted, the practitioner in international criminal tribunals, for instance, those who try to gather evidence, may be confronted with similar challenges.

Ultimately, it is precisely the challenges that may be most meaningful, both to the researcher personally and to the understanding of the field of international criminal law more generally. The challenges can be so insurmountable that they prevent the researcher from finding answers to the original question. However, possibly more importantly, they may change the researcher's questions. The empirical researcher's journey, then, starts with one question and ends with more pertinent questions. And perhaps that is what the field of international criminal law needs most – less certainty, less conviction, and more fundamental questions, inspired by the complex social, material, and political realities of situations of conflict.

This unofficial story, however, will not end on this relatively positive note: a clarion call for more fieldwork, ‘no matter the obstacles, do it; it's worth it'. The narration of several challenges, particularly when told in the frame of Ithaka, runs the risk of confirming, unintentionally, Susan Sontag's image of the fieldworker as ‘a hero’, ‘engaged in saving his own soul, by a curious and ambitious act of intellectual catharsis’.Footnote ⁴⁷ But the modern-day fieldworker investigating the impact of the ICC's proceedings cannot escape a sense of complicity. Chasing the remains of an exotic Other before the West would have eliminated it, Sontag's hero Lévi-Strauss already observed how

Lévi-Strauss predicted that

Within half a century, anthropology has indeed changed, but rather than having become more remote, it has become closer. Today's anthropology has expanded its geographical scope to situations in its historical home, the West,Footnote ⁵⁰ where it investigates not only the Other in the Self (the asylum seeker, migrant, prisoner, minorities, refugees) but also what is considered the quintessential Self (the village community, bankers, nobility).Footnote ⁵¹ Nonetheless, a fieldworker researching the effects of the ICC's proceedings in situ cannot escape facing the ‘filth . . . thrown in the face of humanity’ during colonialism:Footnote ⁵² the ICC has opened investigations only in former colonies. Observing how these states are still being ‘investigated’ by researchers (whether scholars or ICC employees) predominantly originating from or strongly rooted in the West, the fieldworker who is a national from a former colonial power, with an affiliation with a university in a former colonial superpower and skin colour of the colonial oppressor, is not merely aware that she is a ‘daughter to this era of violence’. She cannot escape a sense of complicity in sustaining a post-colonial division of labour in the production of knowledge, even if this is one of the challenges that she, perhaps ambitiously, tries to overcome. Seen in this light, public reflexivity is not a narcissistic exercise or a performance of what Robert Meister calls ‘feel[ing] good about feeling bad’;Footnote ⁵³ rather, it is the beginning of making visible the role of the researcher in the construction of the world.Footnote ⁵⁴

2. ‘The law is lost’: challenges to obtaining data

Where does one begin with empirical research into the effects of international criminal law? The problems begin just there: at the start. Armed conflict has seriously weakened already limited national data-collection capacities. The most essential baseline data are unavailable.Footnote ⁵⁶ Disputes rage between the national government, international organizations, and foreign activists on seemingly basic facts such as the death toll of the conflict.Footnote ⁵⁷ Some data are available but inaccessible, at least to a foreign researcher, because they could be used in a manner contrary to the interests or wishes of the one who holds the data.Footnote ⁵⁸ Other data are available and accessible, but unreliable, contested, or insufficiently specific.Footnote ⁵⁹ For instance, an overview provided by prosecutors in North Darfur (Fig. 1) contains a category of ‘war crimes’. However, it is questionable whether that category corresponds with ‘war crimes’ as defined in international law: included in the domestic category of ‘war crimes’ are ‘murder’, ‘robbery’, ‘armed robbery’, ‘violence against women’, ‘vehicle kidnapping’, and ‘damage’, but no data are provided that could corroborate that these acts would also amount to war crimes in international law, for instance, information on the position of the person accused of having committed the crime, the position of the victim, or the context of the crime. An overview provided by the office of the Director of Public Prosecutions (DPP) in Gulu (Fig. 2) contains the charges of then recent cases (all treason), but again no information on the context in which the alleged crimes were committed. It is thus difficult to establish an increase or decrease in domestic prosecutions for conflict-related crimes on the basis of these documents, since it is unclear how the cases are related to the conflict and whether the charges amount to conflict-related crimes in international law.Footnote ⁶⁰ In both situations, the actual files of the cases prove always difficult and sometimes impossible to obtain.

Fig. 1

Overview of crimes prosecuted in North Darfur

Fig. 2

Cases registered with the DPP in Gulu

Data obtained through incident reporting on the basis of newspaper articles are also unreliable. Under-reporting is likely, for instance, when, as at one stage in Sudan, the government orders a ban on publishing reports on criminal cases related to Darfur.Footnote ⁶¹

This challenge in collecting reliable data on domestic investigations and prosecutions of conflict-related crimes is not merely ‘academic’ (in the meanings of both scholarly and ‘only of theoretical interest’). The Jurisdiction, Complementarity and Cooperation Division in the Office of the Prosecutor (OTP) of the ICC, which assesses whether ICC cases are or would be inadmissible on grounds of past or ongoing domestic proceedings, faces the same challenge. The OTP has provided some of its data on cases in Darfur to the Security Council, but triangulation (the application and combination of several research methodologies in the study of the same phenomenon) reveals that the OTP, too, often suffers from a lack of accurate primary data.Footnote ⁶²

The problems with qualitative methods are no less than those with quantitative. Again, the question is: where to begin? For instance, in identifying interviewees, a researcher may be easily misled by her own understanding of the names of local institutions. The conception of ‘Parliament’ is an example. When an MP is asked about the disjuncture between the support he expresses for the ICC in the course of the interview and his silence in parliamentary debates, he recounts that, although he has been an MP for three years, he has never spoken in a parliamentary debate: the Speaker, a member of the leading party in government, usually refuses to give the floor to the opposition.Footnote ⁶³ But then again, the term ‘opposition’ is ambiguous, too, given that at the time of the interview almost all parties in the national assembly are part of a Government of National Unity, formed on the basis of a power-sharing agreement. Similarly, it is difficult to identify ‘civil society’ when many ‘non-governmental organizations’ are in fact so-called GONGOs, ‘governmental non-governmental organizations’.Footnote ⁶⁴

Another challenge in identifying centres of information and decision-making is that a person's influence on decision-making can be unrelated to any official position. To some extent such influence depends on access to information. During interviews it appears that some government ministers, parliamentarians, and traditional leaders have less exposure to relevant information on, for instance, a domestic trial or the ongoing peace negotiations concerning a conflict in their country than a researcher based overseas. Other individuals, however, appear to have played key roles in matters seemingly outside their portfolio. In Uganda, a minister of internal security and previously of defence proves to have played a more decisive role in the referral of the conflict to the ICC than the minister of justice or foreign affairs. He appears to be the ‘super minister’, on account of the fact that he frequently heads several ministries at the same time and has direct access to the president. Elsewhere, in Sudan, both the government and the rebel movements use spokespersons who can, in perfect English, appease Western interlocutors, while behind the scenes other members, frequently not speaking any English, pull the strings in a different direction.Footnote ⁶⁵

The researcher's lack of command of local languages is thus another fundamental limitation. A specific complication is that words relevant to the research – justice, court – may not exist as such in some of the key local languages.Footnote ⁶⁶ Reliance on interpreters brings its own problems.Footnote ⁶⁷ In conflict zones, hardly any interpreter is not, or is not seen to be, with a party to the conflict, or with an international organization accused of taking sides. The mere presence of the interpreter can thus influence the interviewee's answers. Moreover, interpreters ‘interpret’, and they do so in accordance with what they consider relevant, emphasizing some parts of a discussion and leaving out the rest. It is thus that a fifteen-minute and passionate oration can get interpreted in one short sentence: the interpreter has dismissed the other 14 minutes and 50 seconds of the response as ‘nonsense’. Written material is not necessarily more reliable. Of one Act, the English and Arabic versions fail to correspond, in a country in which both are official languages.

One discovers the discrepancy only if one has access to the Acts – something not to be taken for granted when even national lawyers are told that they are not allowed to see the legal instruments of which they read in the newspapers.Footnote ⁶⁸ ‘Why would we give it to you, a foreigner?’ an official queries.Footnote ⁶⁹ In ministries and libraries, laws are promised, but after several visits the documents are not provided for various stated reasons, for example that ‘the archivist is still on holiday’, ‘the books are too heavy for the photocopier’, and ‘the law is lost’.Footnote ⁷⁰

Fig. 3

‘The books are too heavy for the photocopier’

Fig. 4

‘The law is lost’

Even requesting official documents can be a liability. When asked for specific legislation, officials in the legislation department of the relevant ministry suspiciously retort, ‘Why do you need this Act?’Footnote ⁷¹ Their response is a reflection less of a general unwillingness to help out than of a fear of being associated with someone who is researching politically sensitive topics. Similar difficulties arise with respect to case law that is published only when it does not embarrass the governmentFootnote ⁷² and where the records of the case are sometimes accessible . . . and sometimes not. The researcher ends up having recourse to informal copies of Acts or using interviews to ascertain the content of case law – blasphemous methods in the eyes of a formalistically trained lawyer.

Interviews carry their own problems, many of which relate to the features of the interviewer. Naturally, wherever I go and ask hundreds of questions, people also ask something about me: nationality, marital status, job, number of children. My keywords ‘law’, ‘PhD’, ‘UK’, ‘Holland’ sometimes set the scene for a buoyant interview (‘Law in the UK? Look at all my textbooks on English law!’; ‘Holland? Van Basten, Gullit, Van Nistelrooy!’).Footnote ⁷³ But at other times these few words immediately put me in a defensive position. Like the Nuer associated Evans-Pritchard with the British colonizer (‘You raid us’; ‘You overcame us with firearms and we had only spears’),Footnote ⁷⁴ today's Sudanese associate me with the reputation of today's Dutch: ‘Your football is foul play’,Footnote ⁷⁵ ‘You supported the invasion of Iraq’,Footnote ⁷⁶ ‘Your politicians demonize Islam’Footnote ⁷⁷ and ‘You burn illegal immigrants’.Footnote ⁷⁸ Also without keywords, my appearances create an association with ‘The West’ that is remembered for its colonialism and recognized in its continuing efforts to manage Africa.Footnote ⁷⁹

The political sensitivity of the research topic carries its own problems. A Sudanese friend advises: ‘The less you mention the word ICC, the better. As a Dutch person, you should not use the term at all.’Footnote ⁸⁰ While the government already has ‘a tendency to describe foreigners as spies’,Footnote ⁸¹ my nationality exacerbates the risk of expulsion. Some Sudanese officials believe that the Dutch have extra influence on the ICC because of its seat in The Hague.Footnote ⁸² For other reasons, too, it is sometimes better not to be closely associated with the research topic. A researcher on the ICC is generally believed to be a researcher of the ICC, or at least pro ICC.Footnote ⁸³ Quite some creativity is required to reconcile the advice never to utter the word ‘ICC’ with the imperative of informed consent.Footnote ⁸⁴

Research fatigue on the part of interlocutors and informants poses another challenge. One Acholi informant welcomes me, saying: ‘Are you yet another student writing a PhD on our backs?’Footnote ⁸⁵ Relatively safe since 2004, northern Uganda has attracted hordes of researchers working on post-conflict issues (not unlike how post-1994 Rwanda became the research paradise for PhDs on transitional justice). No matter how interesting the researcher's questions (on human rights violations in camps for internally displaced persons, reintegration of child soldiers, amnesty, militarization, ‘traditional-justice’ practices, levels of reconciliation, attitudes towards ‘peace’ and ‘justice’, coping mechanisms, structures of violence, or the catalysing effect of complementarity, for that matter) it is often the same people that see researchers come, ask seemingly endless questions of dubious relevance, and go again, never to come back. Northern Uganda has also been the site of a plethora of expensive workshops organized by Western organizations. These activities have not only kept people from their work and inflated the daily subsistence allowances for participation in focus groups, but also left people disillusioned with assisting in research projects given the lack of clear purpose and follow-up.Footnote ⁸⁶

Even if relevant, the research findings are seldom returned to those who participated in the research.Footnote ⁸⁷ As one Acholi explained his reluctance again to participate in a focus group:

Put this experience in the context of suffering under the rapacity of colonialism, of national elites, and of armed groups, and it is clear how the researcher might be seen as ‘pillaging’ information, which is for some people one of their few remaining possessions. Moreover, people are aware of the fact that the researcher will personally profit from the data obtained,Footnote ⁸⁹ if only in terms of professional advancement, but does not offer anything concrete in return.Footnote ⁹⁰ Offsetting this unequal exchange by paying informants creates a host of other methodological challenges,Footnote ⁹¹ including adding to perverse incentives – a phenomenon not unfamiliar to international criminal tribunals.Footnote ⁹²

A related challenge is that of ‘feedback’.Footnote ⁹³ Interviewees, whether displaced persons or government ministers, are often well versed in the discourse of the outside world on the issues under discussion.Footnote ⁹⁴ Perceiving the interviewer as part of that outside world, they use that discourse to respond to her questions. For instance, possibly associating the interviewer with donors and technical advisers, some officials repeatedly stress in discussions on complementarity the importance of meeting ‘international standards’.Footnote ⁹⁵ Similarly, traditional leaders argue that traditional-justice mechanisms are not adequate because they are not tailored to the crime of ‘genocide’.Footnote ⁹⁶ These answers do not merely reflect the phenomenon that interlocutors adopt the language and conceptions with which they associate the researcher. They can also point to socially desirable or pedagogical answers, in which the interviewer is told what the interviewee thinks the interviewer wishes to hear or what the interviewee thinks the world should be like. Moreover, particularly in situations of conflict, the researcher is constantly being ‘seduced’ to engage with some arguments, narratives, and people, and to ignore others: interlocutors are aware that we fieldworkers, in Antonius Robben's words, ‘will retell their stories and through our investiture as scientists provide these with the halo of objectivity that our academic status entails’.Footnote ⁹⁷ The ensuing reports, journal articles, or books could be used to change international perceptions, or to advance leadership claims within the group.Footnote ⁹⁸ One interviewee asks explicitly: ‘shall we write my biography together?’

If not given for social desirability, pedagogy, or an attempt to win the historical account, answers may also be part of a survival strategy.Footnote ⁹⁹ In areas of the world where visits by Westerners often come with the potential or promise of some type of funding, the Western researcher, too, no matter how explicitly she says she is coming with questions only, is likely to be seen as a key to access to services, financial resources (in particular scholarships), and visas. This applies not only when she jumps out of a Land Cruiser – the vehicle of aid agencies – in areas of poverty;Footnote ¹⁰⁰ it equally applies when she enters the centres of power. On the basis of her privileged appearance and business card – ‘anyone who is anyone has a business card’Footnote ¹⁰¹ – the researcher is presumed to be part of a political, economic, and scholarly elite, able to engage in political trades.

If, in an attempt to avoid purely extractive research, the researcher engages in a dialogue and also answers the interviewee's questions, she increases the potential for reactivity. On a few occasions, ministers and judges echo the researcher's answers to their own previous questions.Footnote ¹⁰² During a one-on-one interview, a key player in the Ugandan Justice, Law and Order Sector argues that if Uganda wishes to make use of complementarity, its proceedings must result in punishments similar to the ones meted out by the ICC. After the interview, I direct the interviewee to the Colombian Peace and Justice Act, which does provide for domestic proceedings, but with shorter punishments than the ones likely to be imposed by the ICC.Footnote ¹⁰³ The next week, attending a meeting of the Ugandan Justice, Law and Order Sector, I hear the same person argue the precise opposite of what he said in the interview, now referring to the Colombian Peace and Justice Act. Indeed, he then asks me, although present only as an observer, to explain the Colombian Peace and Justice Act to the audience. My commitment to avoid purely extractive research – or possibly, my response to what psychologist Ronald Wintrob has called fieldworkers’ ‘conflict over reciprocity’Footnote ¹⁰⁴ – has exacerbated the methodological problem of reactivity.

Moreover, as Wikileaks brought home, reactivity is beyond the researcher's control – the information that she provides (not unlike the information she is provided with) may begin to live the life of a rumour spread in the children's game ‘Telephone’ or ‘Gossip’. The leaked code cable reflects how a US official interpreted our discussion on complementarity. While I recognize some of my sentences on the ‘same-case’ requirement in the ICC's case law on Article 17 and the interpretation of ‘the interests of justice’ in Article 53 of the Statute, the legal reasoning in the code cable seems to conflate the two issues and makes little sense to me.Footnote ¹⁰⁵

Most problematic is the danger that the research might pose to persons assisting in it. When the issuing of an ICC arrest warrant for President Bashir was imminent, Sudanese human rights activists were being detained and tortured by the National Intelligence and Security Service on allegations of co-operation with the ICC.Footnote ¹⁰⁶ Because of the pervasive conflation between researchers on the ICC with researchers of the ICC, any public association with me could thus be dangerous to some of my interlocutors, in particular human rights activists. Not only the substance of any discussion, but also the mere fact of an encounter, should therefore be confidential. Arranging confidential meetings becomes complicated, however, when it appears that human rights activists’ phones are tapped.Footnote ¹⁰⁷ Moreover, in Sudan, national security officers are ubiquitous, including in the university.Footnote ¹⁰⁸ A three-day chase for the recovery of a bicycle parked at the university revealed that the authorities were so well aware of my whereabouts in the university that they knew who stole the beloved means of transportation (unfortunately, this intelligence was not put to use for the recovery of the bike).

With some remarkable exceptions, officials of the United Nations peacekeeping missions in Sudan are more reluctant than most Sudanese to discuss anything related to the ICC. Their fear is that the government will interpret discussions between the UN and a researcher on the ICC as UN support for the ICC, potentially leading the government to withdraw its consent to their missions. ICC officials will recognize the same duality in the UN's support for the ICC, which fluctuates between strong normative enthusiasm and at times practical distance, inspired by the need for peacekeeping missions not to be closely associated with the ICC. The ambiguity came to the fore in Lubanga, where the UN had handed over large amounts of evidence to the OTP, but on the condition of confidentiality.Footnote ¹⁰⁹

Equally familiar to the ICC will be the armies of gatekeepers, health issues, and mundane practicalities such as power cuts and broken generators that can bring one's research, at least the research one came to do, to a standstill.Footnote ¹¹⁰ Stuck for half a day in a traffic jam that seems escapable only by helicopter, returning for the umpteenth time to a department to wait for an official whose name might as well have been Godot, sleeping next to the lavatory in order to allow the body to relieve itself from its combat with last night's street food, the researcher's mind wanders off to Lévi-Strauss:

After spending entire weeks on navigating multiple tiers of officialdom to obtain research authorization or a permit to travel to a different part of the country, where one is subsequently encountered by intelligence officers with whom one still has to negotiate access, the fieldworker sometimes longs for the efficiency of doing research in the world of LexisNexis.

Glimmering through the description of many of these challenges is the gauntlet constituted by the risk of (perceived) ‘culture talk’, in Mahmood Mamdani's words, and, to paraphrase Edward Said, ‘Meridionalism’. As coined by Mamdani, ‘culture talk’ seeks explanations for a deed in the culture of the doer (as opposed to ‘political talk’, which tends to explain the deed as a response to a political context of unaddressed grievances).Footnote ¹¹² ‘Orientalism’, as explored by Said, is a Western style for dominating, restructuring, and having authority over the Orient by making statements about it, authorizing views of it, describing it, teaching it, settling it, and ruling over it.Footnote ¹¹³ A research project that focuses on the responses of two states in Africa to an international legal principle risks suggesting a radical distinction between the worlds of the observer and of the observed, of the author and of the ‘other’. The danger is that the analysis of complementarity's effect in Uganda and Sudan is read not as an overview of findings, but, as in much of the literature on complementarity, as a contrast to an ideal that only hypothetically exists elsewhere in the world.Footnote ¹¹⁴ The reading of the ‘official’ story would, however, become rather cumbersome if with each observation it highlighted that Western states appear equally reluctant to prosecute nationals for conflict-related crimes if this could divide their societies.Footnote ¹¹⁵

The risk of perceived ‘Meridionalism’ also applies to the writing of this ‘unofficial’ story. This story seems to continue the colonial tradition of writing about the exploration of Africa as one long obstacle race. But this piece does not argue that the challenges are inherent in Africa; to some extent they are inherent in fieldwork; to another, they are inherent in the fieldwork of a European in Africa in a present shaped by the colonial encounter. I cannot wait for the day when an African researcher doing fieldwork on complementarity's catalysing effect in the Netherlands writes her ‘unofficial’ story of challenges.

3. The ‘challenge’ of ‘too much’ information

At first sight perhaps unproblematic, the scenario in which one is given access too easily and too much raises its own challenges. While local colleagues are refused the most basic information,Footnote ¹¹⁷ a government official provides me with original handwritten government records for photocopying outside the building – ‘please return them tomorrow’.Footnote ¹¹⁸ A Supreme Court judge shares his cell phone number – ‘you can call me anytime’.Footnote ¹¹⁹ This privilege of the exotic outsider, more specifically, it seems, that of the white woman from a well-known Western university, is the opposite of the why-would-we-give-it-to-you-a-foreigner treatment. But it strikes an embarrassing ring with the days in which British, French, and Dutch anthropologists worked under the wings of colonial powers. As Talal Asad has argued, anthropology was ‘a feasible and effective enterprise’ as a result of ‘the power relationship between dominating (European) and dominated (non-European) cultures’.Footnote ¹²⁰ Sovereignty may have changed hands, but the dominance reverberates. This privileged handling also raises ethical questions, specifically when it is based on the expectation that the researcher understands the principle of quid pro quo that undergirds the political economy.

‘Too much’ information has another dimension. People in camps for displaced persons take hours to come, meet, and talk. I have my questions, they theirs: ‘why is that ICC of yours investigating only the LRA [Lord's Resistance Army] and not the government; is the government's failure to protect us not a crime under international law?’; ‘who is going to execute the arrest warrants?’; ‘who is going to pay reparations, when?’ I hear myself repeat the OTP's arguments, about gravity, temporal jurisdiction, and legal justifications for forced displacement. I hear myself explain the difference between international crimes and human rights violations, and between state responsibility and individual criminal responsibility. I hear myself echo arguments about the ICC's dependence on states for executive action – indeed, largely on the same states that have failed to arrest the LRA over the last twenty-something years. I hear myself mention the Victims’ Trust Fund, its huge discretion and little money, and the possibility of obtaining money from rich convicted defendants . . . Kony? The lesser problem is that I, as a researcher, am sounding like an ICC outreach officer; perhaps the researcher always remains a teacher, albeit ideally not practising these two roles at the same moment. The real problem is that I hear myself fail to convince my interlocutors and myself: So what? I cannot suppress the question that challenges the entire frame within which I operate: do these legal answers provide any sense of justice?

Indeed, many interviewees are not interested in the research questions about the ICC. They want to tell a different story: about how an entire generation is growing up in camps for displaced persons, about their own views on how the conflict should be resolved, about requests for tiny amounts of money, to cover the costs of the transport to the interview or more substantial amounts, to send one grandchild to school. In between the lines is the overwhelming message of destruction – of lives, generations, and cultures – and the surviving desire to regain control and rebuild. What does the researcher looking into the effects of Article 17 of the Rome Statute do with this information? Treat it as ‘irrelevant’?

4. Challenges as findings

The most rewarding way to cope with some of these challenges is to see them as findings in themselves. For instance, in the context of stonewalling of attempts to identify the positive law, the response that ‘the law is lost’ is usefully indicative of the access to, and role of, positive law in the country more generally. Even if the researcher were to find the particular legal instrument, how much meaning does the instrument have if national lawyers do not have access to it and do not invoke it? By the same token, learning case law through interviews is not the standard legal method, but one can at least be sure that this is not merely the case law in the books, but the case law that (some) lawyers know.

Similarly, the political sensitivity of the topic ‘ICC’ may reveal something about how the ICC is understood, and used, in conflict situations. No matter how insistently lawyers present it as a judicial bastion, in conflict situations the ICC is also inherently political. In a state targeted by various international sanctions, ICC arrest warrants for incumbent officials are seen as the latest political instrument to punish a state, government, and people that have internationally been classified as ‘rogue’. Indeed, an arrest warrant for a sitting head of state is an order for de facto regime change. Arrest warrants for rebel movements, by contrast, are interpreted as international legitimation of the government's military counteroffensive.Footnote ¹²²

Apart from saying something about the world observed, the challenges say much about the researcher. First, they say something about how the researcher is perceived, and thus about how the world that has produced her is perceived. Even when the researcher tries to act entirely in accordance with the objectivity that the role of academic requires her to perform, she cannot ditch the body that she inhabits, a body that is raced and gendered and happens to have a particular nationality. That body carries a set of associations that make her appear rich, well connected, and partisan (‘She has a business card from Cambridge so she can provide a scholarship’; ‘She is white, hence rich’, ‘She is Dutch, thus supports the ICC’).

Second, the challenges reveal the researcher's own unlimited limitations. One of them is the extent to which her words can do justice to the world observed. Joris Luyendijk has powerfully described how journalists face the same challenge, writing as he does:

This limitation is not only the researcher's or the journalist's, grappling with concepts such as ‘parliament’, ‘opposition’, or ‘civil society’, but also the lawyer's. Legal definitions notwithstanding, in the courtroom, people from different backgrounds have different understandings of concepts such as ‘occupation’, ‘terrorism’, ‘responsibility’, and even ‘truth’.Footnote ¹²⁴

The methodological, epistemological, and practical challenges even reveal something about the topic I came to study: the catalysing effect of complementarity. Take the methodological challenge of feedback and reactivity. The openness of some officials to my discourse, ideas, and views appears indicative of Ugandan responsiveness to ‘norm entrepreneurship’Footnote ¹²⁵ – in this context, the work conducted by activists promoting international norms for adoption at the domestic level – and the permeability of the system to ‘norm infiltration’. I encounter many Ugandan government officials citing from reports of international NGOs on what the Rome Statute says, rather than from the Rome Statute itself. In one ministry donors have ‘embedded’ transitional-justice experts who publish their reports under the name of the Ugandan Justice, Law and Order Sector, suggesting that the Ugandan government has bought into the donor-sponsored experts’ ideas. However, the norm ‘infiltration’ does not occur without redefinition and subversion: neatly fitting within Sally Engle Merry's continuum of vernacularization,Footnote ¹²⁶ the name and transnational referent of foreign ideas – ‘transitional justice’ – are adopted, but with a dramatically different understanding of the content of the idea. For instance, the chairman of the ‘Transitional Justice Working Group’ understands transitional justice to refer to justice involving short punishments.Footnote ¹²⁷

More fundamentally, the practical, methodological, and epistemological challenges taken together begin to reveal one of the key paradoxes of the entire complementarity regime if one takes into account that ICC investigators may face similar challenges.Footnote ¹²⁸ The Court's admissibility regime is built on the realistic assumption that states are sometimes unwilling or unable to investigate and prosecute international crimes.Footnote ¹²⁹ However, the many instances so far in which ICC judges have refused to confirm charges or decided to acquit the accused suggest that the OTP, too, has faced many challenges in obtaining reliable data or is for other reasons unable or unwilling genuinely to investigate and prosecute. Indeed, in some instances the ICC may be less able or less willing than the state, in which case the international court is even more inadequate to address impunity than the state. The Statute, however, does not provide for this scenario; it establishes a Court that evaluates states from the perspective of Verantwortungsethik, an ethic of responsibility, while the Court itself is based on a politics inspired by Gesinnungsethik, an ethic of conviction.Footnote ¹³⁰ Not acknowledging the reality of the challenges that the Court, too, faces, the Statute fails to create a mechanism for comparing the capabilities and willingness of the state and that of the ICC.

The most valuable finding to the researcher perhaps stems from the seemingly ‘irrelevant’ information.Footnote ¹³¹ During a day-long focus group in Gulu on access to justice, I hear a lot about concepts, needs, and expectations of ‘justice’, practices, institutions, obstacles, and procedures, but nobody of the 15 participants, ranging from officials to cultural leaders, even utters the word ‘ICC.’Footnote ¹³² When asked during the evaluation why the ICC was not mentioned, people explain that the ICC has nothing to do with ‘justice’. The explanations say both little and much about my research question on the catalysing effect of the complementarity principle in the Statute of the International Criminal Court. They say very little about the catalysing effect of the ICC. They say much about the origins of my research question, which is rooted in the writings and discussions within the international criminal-law epistemic community,Footnote ¹³³ not in northern Uganda. I have asked a question that tends to reinforce the practices and experiences of my own fieldFootnote ¹³⁴ by assuming that the discipline is an appropriate lens for studying the world and somehow always relevant in crises.Footnote ¹³⁵ For a more locally relevant question, I should have used ‘participatory action research’ methods not merely for obtaining data, as I did, but also for identifying the research question.Footnote ¹³⁶ But this type of identification of research questions fits uneasily in PhD programmes, or grant schemes for that matter, where the opportunity to begin research depends on a proposal that is assessed for the project's possible contribution to the literature.

Soon I discover that it is not just me focusing on international criminal justice. Once calling for an appointment with a Ugandan expert, the response is: ‘Sarah? From Holland? On international criminal law? But I just made an appointment with Sarah from Holland to talk about international criminal law!’ Arriving for a repeat interview with a key official in the Ugandan International Crimes Division, I join an entire queue of Western researchers, human rights activists, and capacity-building experts, all waiting to ask the official about developments in the Ugandan International Crimes Division. Our project proposals, research questions, and theoretical frameworks differ, but with almost identical questions we must look and sound remarkably similar to the interviewee. A few hours later, we run into each other again, at the office of another key actor in the field of international criminal law in Uganda, and then again, at one of the few places in town where Ugandan coffee is transformed into Western-style lattes. Like a magnet, international criminal justice has attracted human and financial resources of donors, policymakers, and researchers.

This concentration is consequential. Many of the researchers who focus on the ICC ask questions in the frame of international criminal law. The adoption of that frame also determines what is seen. Choosing the international criminal-law perspective means zooming in on the type of violence that international criminal justice itself focuses on: violence that is relatively fast, relatively direct – chains of agency can still be reconstructed – and ‘spectacular’, in the sense of impressive on the eye.

Many interviewees in northern Uganda, by contrast, try to redirect the interviewer's attention to a different type of violence which, following Ron Nixon, could be called ‘slow violence’, ‘a violence of delayed destruction that is dispersed across time and space, an attritional violence that is typically not viewed as violence at all’.Footnote ¹³⁷ Slow violence is indirect: the complex causality that spans time and space seems to decouple the violence from human agency. This covert, slow, structural violence, directed by hidden agency, is not merely a breeding ground for the overt, instant, individual violence that international criminal law does focus on:Footnote ¹³⁸ many people experience it on a daily basis as a fundamental injustice in itself.

The eye of international criminal law, with its focus on individual attribution, does not see slow violence (other than, perhaps, as ‘context’ for the ‘real’ violence).Footnote ¹³⁹ In northern Uganda, it sees killings by the LRA; it does not see a thousand people a week dying in camps for internally displaced persons.Footnote ¹⁴⁰ International criminal law sees LRA leader Joseph Kony,Footnote ¹⁴¹ but not the black fly-borne parasite or vitamin B6 deficiency that may be the cause of children dying of a ‘mysterious disease’ without scientific name that has victimized more than 3,000 children in northern Uganda.Footnote ¹⁴² International criminal law sees the torture that is ‘the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused’.Footnote ¹⁴³ It does not see what Chris Dolan has identified as ‘social torture’: a form of torture in which the methods and impacts are not immediately visible (in the words of one Ugandan, ‘This insecurity is a greater threat than the abductions. It is present every day but nobody sees it') but that affects society as a whole and that is spurred by causal contexts rather than a single causal incident, of which there is no clear place (‘the whole world has become the torture chamber’), beginning, or end (‘daily life is your torture’).Footnote ¹⁴⁴ ‘Social torture’ is committed by multiple actors and is self-perpetuating, so that methods and impacts become the same (as Primo Levi observed: ‘Anyone who has been tortured, remains tortured’), and become self-administered (people risking HIV tomorrow by selling sex in order to eat today).Footnote ¹⁴⁵

This is not to say that international criminal law should see slow violence; there are more ways to see the world than through the lens of international criminal law. And while it is common for those who do research in conflict zones to question the relevance of their research compared to engaging in humanitarian support or political activism,Footnote ¹⁴⁶ there is a role for specialization and the long-term picture – not everybody needs to be a Médicins sans frontières doctor. The problem, however, lies in the monopolizing tendencies of a fashionable topic: the foregrounding of international criminal justice backgrounds something else. The more people study northern Uganda from the perspective of international criminal law, the more international criminal law becomes the frame through which the situation in northern Uganda is seen. The sharper this focus, the more blurred becomes the perspective of slow violence. What Arundhati Roy says about globalization also holds for the rise of international criminal law:

The overexposure of international criminal law blinds the world to slow violence and other injustices.Footnote ¹⁴⁸

Against this backdrop, the researcher's practical issues seem to sink in an ocean of triviality, but even they contain important findings.Footnote ¹⁴⁹ It is precisely the personal experience of having to wait, plead, and push for a travel permit and then still having to negotiate with intelligence officers to be granted access that allows the fieldworker to feel the personal and social states of emergency that hide behind the legal one.Footnote ¹⁵⁰ Sometimes it is only once one has left that state, enjoying a freedom that suddenly appears abnormal, that fear and its numbing effect relent and one realizes how much it had both mind and body in its grasp. The difficulties in obtaining electricity, the dangers of roads, and the vulnerability to diseases also allow the researcher to begin to experience how questions concerning health, security, resources, and opportunities can be more burning than her obsession with the catalysing effect of a principle in the Rome Statute. Indeed, such experiences widen one's understanding of the concept of injustice way beyond the concept that underpins the project of international criminal law. Nonetheless, the ‘shared’ experience, and thus the understanding, is limited by decisive asymmetries. Whatever happens, ultimately, the researcher, like a tourist, can usually rely on a bank account, an insurance policy, and, if worse comes to worst, a ticket out.Footnote ¹⁵¹

Even a run in what later appears to be a minefield; a confrontation with armed, aggressive, and drunk ‘soldiers’; and a gas explosion that makes one land in hospital can provide insights. Apart from a sense of the dangers to which one's interlocutors are exposed, these events may leave the researcher with what Carolyn Nordstrom and Antonius Robben call an ‘existential shock’ – a personal experience of the paradox that human lives can be constituted as much around their destruction as around their reconstruction.Footnote ¹⁵² Besides trauma, the experience can provide a feeling of catharsis, as if the (imminence of the) explosion has blown away one's own life's irrelevancies, leaving only the pillars. An existential shock prompts strengthening of foundations.

Great challenges could thus lead to important findings, mostly in the form of new questions. Researchers working on international criminal tribunals have the freedom to decide that important questions are elsewhere, for instance in poverty, trade relations, and inequality. Officials working in international criminal tribunals are free to change their working assumptions, for instance, as to whom and what to investigate, but will continue to be limited by statutory boundaries. Most will thus continue to give their best within the parameters of their job. Some, however, captured by the other burning questions, stay ‘in the field’Footnote ¹⁵³ but change their employer, mission, and lines.

5. Beyond challenges as findings: the researcher's complicity

If the conclusion was merely that challenges must be seen as findings and that the journey of empirical research is more important than its destination, the unofficial story could end here. It would read like a Bildungsroman, setting out the tests that the researcher has defied and end on the happy note of a call for more fieldwork. The final note could be very optimistic indeed: the queue of researchers at the official's door suggests that more and more researchers go through this experience.

But the unofficial story does not end here. Lavished with knowledge obtained in encounters with most impressive people and enriched thanks to their generosity in time, insights, and trust, the researcher brings home not only treasured data, but also a dose of ‘moral confusion’.Footnote ¹⁵⁵ The echo of the greeting ‘Are you yet another student writing a PhD on our backs?’ continues to resonate. I may not have ‘looted’ information in the sense of removing it – the sources of information still have the information – but the experience of having been a parasite on a spree remains.

The problem is not so much a question of my taking others’ data or trying to ‘represent’ others’ views in my work. The real issue is the inequality in opportunities to set the research agenda, analyse the data, and tell the story. Only very few are in a position to make the journey that is empirical socio-legal research, to get to experience the challenges, and to transform them into findings. Only very few can take the boat to Ithaka. And while anthropological research as such may have become more open to people from all over the world,Footnote ¹⁵⁶ as far as field research into the effects of the ICC is concerned, the boat, following the ICC, still goes in the same direction as the former colonial powers.

The unequal access to opportunities taints the production of knowledge – only a particular set of people, in a particular set of circumstances, is able to shape the research agenda which in turn informs policies that shape the world. These limitations on knowledge production are exacerbated by the discipline's own assessment of who counts as ‘authority’.Footnote ¹⁵⁷ Take, for example, the authority of former Principal Judge in Uganda, Justice James Ogoola. Patiently and poetically, he has answered the questions of many a researcher regarding the Ugandan International Crimes Division (ICD, also known as UWCC), for which he laid the foundations. He is the authority on the topic. But when his speech on the ICD was published in a US law journal, the editors complemented it with footnotes. The result is two stories, one above the footnote line and one below, which are largely disjointed. For instance, above the line, Justice Ogoola writes:

Below the line, the footnotes read:

Directly obvious problems are that the footnotes concern the work of the ICC, whereas the main text is about the UWCC, and that traditional justice is not the same thing as amnesty. The more fundamental question is why the editors considered it necessary to provide the work of a respected US scholar as ‘authority’ for, or background information to, the Ugandan judge's story on the establishment of a court in which he played a key role.

These are challenges that go beyond findings. The researcher may learn from these challenges and, indeed, consider them findings. However, by focusing on international criminal justice, by appearing as a privileged researcher with access to financial and epistemological resources and a ticket out, the Western researcher investigating complementarity in Uganda and Sudan is also complicit in some of the very challenges that she tries to overcome,Footnote ¹⁵⁸ in particular fundamental political, material, and epistemological inequality. These challenges cannot be overcome merely through the conduct of more socio-legal empirical research; they require socio-legal empirical research, and publication of that research, by different people.

6. Instead of concluding: opening up

‘You always return confused’, a professor comments on my summing up of almost a year's wandering. ‘Is it the sand and the dust of the desert that has blurred your vision? . . . Don't worry, one day, you'll read our books on what really happened.’ History, his discipline, and law, mine, seem to have no time or space for the realities of chaos and confusion.Footnote ¹⁶⁰ At law conferences, it strikes me how those who have spent considerable time in situations of conflict often take less absolutist positions than those who have not. Presenting some of my findings, I am occasionally accused of ‘nihilism’, as if universality in condemnation of international crimes should come with universal agreement on how to deal with the mess afterwards.

Alternatively, it is implied that I have ‘gone native’, the process in which the researcher comes to identify more with the local area of research than with the profession of anthropology,Footnote ¹⁶¹ or, in my case, international law. But in my multi-sited research it is difficult to identify the one ‘local area of research’ with which I have come to identify:Footnote ¹⁶² the displaced in northern Uganda, intelligence officers in Khartoum, ICC judges in The Hague, government officials in Kampala, human rights activists in Darfur? And yet, perhaps the fieldworker in international law is more exposed to accusations of going native than the modern-day (and post-positivist) anthropologist. ‘To an ethnographer sorting through the machinery of distant ideas’, in Clifford Geertz's ideal of fieldwork, ‘the shapes of knowledge are always ineluctably local, indivisible from their instruments and their encasements’.Footnote ¹⁶³ In contrast, international criminal law, not unlike old-fashioned anthropology, usually seeks that which is universal – global knowledge. The most difficult challenge may reside not ‘in the field’ but ‘at home’, not in doing the research, but in revisiting my assumptions, in reaching nuanced conclusions and in presenting these to the centres of power of international criminal law and beyond.Footnote ¹⁶⁴

While the ‘official’ story may seem to have ended with the publication of a book, the personal fieldwork story continues to raise questions. Should international criminal law remain the focus of study? As Arundhati Roy asks with respect to ‘those who make a professional living off their expertise in poverty and despair’, ‘at what point does a scholar stop being a scholar and become a parasite who feeds off despair and dispossession’?Footnote ¹⁶⁵ Perhaps every person working on genocide, crimes against humanity, or war crimes wonders this at times, particularly at those moments when one doubts that one's article, book, or judgement does anything to address the causes of the phenomena studied or adjudicated. Fieldwork, however, throws this question in one's face. The ultimate challenge, then, is to find a way to turn ‘expertise’ into something that reverses systems of destitution, oppression, and inequality. ‘What permanent commitments does [this fieldwork] demand of you?’Footnote ¹⁶⁶

Ithaka is not yet in sight.