In January 2012, a violent conflict broke out in northern Mali between Bamako government troops and armed insurgents. Rebellions against the region’s neglect and subordination by the south had been a recurrent feature of Malian history since the country’s independence in 1960 (Lecocq Reference Lecocq2010). This time, however, Tuareg separatists gathered in the National Movement for the Liberation of Azawad (MNLA) had joined forces with two jihadist Salafist groups: Al Qaeda in the Islamic Maghreb (AQIM), which mainly recruited internationally, and the Ansar Dine militia, which had strong local connections. After a series of quick military successes, the coalition had by April 2012 acquired control over all major urban centers in the north. The agendas of the nationalist and jihadist forces soon became incompatible, however. After a brief internal conflict, AQIM and Ansar Dine took control of the uprising.Footnote 1 In the ancient city of Timbuktu, an acclaimed center of religious scholarship and intellectual activity since the fourteenth century, the morality brigade, or Hisbah, now regulated public life. The latter oversaw the correct implementation of sharia legislation and was headed by Ahmad al Faqi al Mahdi, a locally reputed Islamic scholar recruited by Ansar Dine to marshal support for Islamist rule. Between June 30 and July 11, Hisbah members destroyed nine mausoleums of religious scholars venerated as saints in local Sufi Islam, together with the entrance door to the Sidi Yahya mosque. The mausoleums consisted of modest mud structures but played a vital role in Sufi religious practices (rejected as heretic by Salafi purists). Al Mahdi was directly involved in planning the demolitions and brought together the required men and resources. He oversaw the destructions and personally participated in them, wrote a sermon justifying the actions, and legitimated them before the international press.Footnote 2
On July 13, two days after the demolitions ended, the Bamako government referred the situation in Mali to the International Criminal Court (ICC) in The Hague. In January 2013, the Office of the Prosecutor (OTP) declared that there were sufficient indications of war crimes to open a full investigation. Around the same time, France started a military intervention, quickly taking control of Timbuktu and most northern towns. More than a year and a half later, in October 2014, al Mahdi was apprehended in Niger. On September 26, 2015, he arrived in The Hague. In December of the same year, the OTP charged him with the war crime of attacking cultural property and buildings dedicated to religion, protected under Article 8(2)(e)(iv) of the Rome Statute. The confirmation of charges hearing took place on March 1, 2016, and the trial itself started on August 22. Because al Mahdi pleaded guilty and the OTP and the defense had reached an (informal) plea agreement beforehand, the trial lasted only three days.Footnote 3 On September 27, 2016, al Mahdi was sentenced to nine years of imprisonment.Footnote 4 The case received a lot of attention. As one commentator noted, “first, Al Mahdi is the first member of an Islamist armed group to appear before the ICC. Second, it is the first ICC case in which the defendant made an admission of guilt. Third, it is the only instance to date in which the war crime of destroying cultural heritage has been the primary subject matter in a case before the ICC” (Ellis Reference Ellis2017, 24–25). The case, he concludes, “will be significant in determining how the international community should best deal with such abhorrent attacks in the future” (25).Footnote 5
International criminal law is an emergent judicial paradigm still under development, and statements like these should be read against this background. The ICC became operative as recently as 2002. The Rome Statute, the treaty that established the court and provides its constitutive legal framework, was adopted in 1998. As a relatively new institution, the ICC consequently faces multiple challenges, both internally and externally. As Wilson (Reference Wilson2016, 743) points out, “international tribunals are characterized by an uncertainty and unpredictability in fundamental law and procedure that can undermine their legitimacy. The conventional model in which a national justice system slowly accumulates legitimacy over centuries does not apply to international courts, which have had to hastily patch together an unstable amalgam of Anglo-American common law and Continental civil-law traditions.” This internal indeterminacy is matched by equally serious external challenges. The ICC lacks a coercive apparatus of its own, making it dependent on the goodwill of others for arresting suspects and seizing evidence (Wilson Reference Wilson2016, 743) and eventually forcing it to engage in opportunistic alignments with powerful actors (Branch Reference Branch2016). On the whole, the disarticulation of law and politics that successfully legitimizes consolidated domestic legal systems appears much more fragile in the ICC context. This partially relates to the court’s recent origins, but it also reflects the fact that “the politics of the ‘founding’ violence of law is … re-inscribed within the framework that the law reproduces” (Kamari Clarke and Koulen Reference Kamari Clarke2014, 302). “The drafting history of the Rome Statute,” they point out, “resulted in a considerable role for the UNSC [United Nations Security Council]” (315). Eventually, this opens up the decision to refer a case to the ICC to power-play between state-actors, who do not themselves necessarily recognize the court’s jurisdiction. Eventually, this reinscription of the political helps to undermine the court’s legitimacy. The Security Council’s referral of the situation in Sudan in 2006, which eventually resulted in the issuance of an arrest warrant for Sudanese president al Bashir (Reference Kamari Clarke2009), was for many African heads of state the sign to retract their initial support for the ICC and greatly fueled accusations of the ICC being a neocolonial court. The court’s “exclusively African” focus has repeatedly been criticized. According to Branch (Reference Branch2016), the ICC was forced to adapt the politics of its intervention to changing geopolitical circumstances (the War on Terror; see also Tallgren Reference Tallgren2014, 79), finding in Africa a weak target. This, together with opportunistic alignments with actors themselves responsible for human rights violations (see above), exacerbated structural tensions endemic to international adjudication in general. Hence, “the ICC’s interventions in Africa [are] subject to intense challenge by voices inside and outside the courtroom in the name of truth, justice and peace, opening the prosecution narratives to the constant threat of rupture” (Branch Reference Branch2016, 36).
This article investigates ICC court hearings in the al Mahdi case, elucidating how actors in an international criminal trial navigate these tensions in their situated courtroom conduct. Our focus is on the confirmation of charges hearing of March 1, 2016, the first time the prosecution and the defense publicly presented their theory of the case before the court. Starting from the assumption that adjudication can only be fully understood through the everyday practices by which it is brought to life, this article joins a growing body of detailed ethnographic and discourse-analytical accounts of how people actually communicate in courtroom settings (see, e.g., Conley and O’Barr [Reference Conley1990]; Hirsch [Reference Hirsch1998]; and Matoesian [Reference Matoesian2001], among a range of others). We will trace how the participants in the confirmation of charges hearing discursively manage the equivalence between punishable conduct and applicable legal categories (Dupret Reference Dupret2016), specifically examining the role of metapragmatic devices like footing and stance-taking in this process. Previous research (D’hondt Reference D’hondt2009a, Reference D’hondt2010, Reference D’hondt2014) demonstrated these devices’ potential for anchoring trial discourse in a broader sociodiscursive field, which makes them excellent for tracking how trial participants interactionally navigate the tensions the ICC faces.
First, we examine the preamble to the prosecution submissions, a brief overview of the charges by prosecutor Fatou Bensouda, which lasted approximately nineteen minutes. She spoke immediately after the court officer had finished reading the charges document, forestalling more detailed accounts of the evidence by other members of her team. This article is arranged in three sections, each of which reviews a key episode in the prosecutor’s preamble:
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(a) a narrative summary of the destruction of the mausoleums (“Summarizing the Facts of the Case”);
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(b) an account of the mausoleums’ role in local religious practices and their significance to the community (“The Impact of the Demolitions on the Local Community”); and
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(c) a report of how the destructions affected humanity at large (“Speaking in the Name of Humanity”).
Each of these episodes involves a distinct metapragmatic framing of the discourse. In the penultimate section (“The Defense Remarks”), we briefly repeat this exercise for the defense. Al Mahdi had entered a guilty plea, and, consequently, the defense kept its remarks to a minimum, preserving its main deposition for the actual trial. Nevertheless, one can detect dialogical elements that connect it to the prosecutor’s discourse, which translates into distinct footing and stance-taking patterns. Video footage of both submissions are available on the ICC website,Footnote 6 but this analysis relies primarily on publicly accessible court records (also available on the website). Al Mahdi’s confirmation of charges hearing was a multilingual event in which English, French, and Arabic served as floor languages, with simultaneous translation available between all three of them. Official court transcripts are available only in French and English (the court’s official working languages). The analyses below are based on the transcript that reflects the actual floor language. In one excerpt where the speaker switched between French and English, the original floor language has been reconstructed from two different court records. First, however, we briefly review exactly how metapragmatic devices like footing and stance-taking anchor trial discourse in a broader sociodiscursive field.
Text Trajectories, Stance-Taking, and Footing
One way to make sense of criminal adjudication is to treat it as a text trajectory (Blommaert Reference Blommaert2005) in which “text travels” (Heffer et al. Reference Heffer2013) from one judicial context to another (see also D’hondt and van der Houwen Reference D’hondt2014). Central to this notion of trajectory is the fundamental instability of texts as they make their way through the legal system (Heffer et al. Reference Heffer2013, 8). Instability arises because what counts in a given situation as “text” is itself the outcome of a process of discursively negotiated de- and re-contextualization (Bauman and Briggs Reference Bauman1990), which may drastically alter the form and/or meaning of the traveling discourse. Formal changes in wording and footing, for example, are a recurrent feature of “talk to text” transformations in police interrogations (Komter Reference Komter2006, Reference Komter2019), where official records, produced with an eye on their later usage in court, consist of “monologized version[s] of dialogical interaction” (D’hondt and van der Houwen Reference D’hondt2014, 4). There exists, furthermore, a large body of work demonstrating how testimony acquires a new meaning (or “shifts”; Ehrlich Reference Ehrlich2007) in subsequent recontextualizations (in cross-examination: Matoesian Reference Matoesian2001; closing statements: Eades Reference Eades2016; applications for a protective order: Trinch Reference Trinch2003; trial verdicts and appellate opinions: Ehrlich Reference Ehrlich2007, Reference Ehrlich2012), which critically engages with the impact of language ideologies and tacit normative frameworks (like hegemonic masculinity or colonial hierarchy) on such recontextualizations.
Other studies focalize the interactional procedures by which discourse from an earlier trial stage is recontextualized. Direct quotes, for example, are said to imbue evidence with greater authority (e.g., Philips Reference Philips1986) because they minimize the interactional distance between reporting and reported event (Matoesian Reference Matoesian2001, 110). Elsewhere (D’hondt Reference D’hondt2009a, Reference D’hondt2014), I argue that foregrounding/downplaying the trial’s textually mediated nature—that is, (not) making visible the existence of written records that mediate between the trial and the facts (the reported event)—can itself be exploited as an interactional resource for making/unmaking a case. In their closing arguments, prosecutors and attorneys produce discursive construals of what happened that oscillate between “letting the facts speak for themselves” (and treating them as transparent) and asserting interpretive agency over the case file. The latter makes the textually mediated nature of the charges against the defendant visible and highlights one’s own role in interpreting these texts. Presenting the facts thus entails a negotiation of trial participants’ own involvement and of the relevant “participation framework” (Goodwin and Goodwin Reference Goodwin2004). For a defense attorney, this can result in a disaffiliation toward her own client (D’hondt Reference D’hondt2010, Reference D’hondt2014). These regularly recurring “footing patterns” (Goffman Reference Goffman1981) correspond roughly to the “narrator” and “interlocutory” voices that Rosulek (Reference Rosulek2007; Reference Rosulek2015, 31) found in closing arguments. However, my analysis added that they reflexively situate the attorney’s discourse in relation to the legal text trajectory of which the hearing is part.
Intertextual practices such as these “metapragmatically regiment” (Silverstein Reference Silverstein1993) the closing argument and embed the hearing into a wider sociodiscursive field. Through subtle interplays of alignment and (dis)affiliation, they facilitate the projection into the legal space of an unspecified we that encapsulates “normality,” a screen onto which attorneys, in turn, project notions of otherness that escape clear legal definition (on cultural otherness, see D’hondt [Reference D’hondt2010]; on insanity, see Maryns [Reference Maryns2014]). As the analysis below illustrates, they also facilitate inserting the court hearing into wider dialogues that transcend the spatiotemporal boundaries of the courtroom (Irvine Reference Irvine1996). In this way, this article joins a growing body of studies that highlight other sources of intertextuality, in addition to the judicial text trajectory proper (e.g., Rock Reference Heffer2013; Chaemsaithong Reference Chaemsaithong2018; Chaemsaithong and Kim Reference Chaemsaithong2018).
Recent sociolinguistic literature on stance (Jaffe Reference Jaffe2009, Reference Jaffe2016) provides a starting point for elucidating this metapragmatic regimentation of courtroom talk. According to authors like Lempert (Reference Lempert2009), propositionally evaluating something (in this case, describing the facts of the case) also entails interactionally positioning oneself toward other stance-takers, both copresent and absent (in this case, the other trial participants). Du Bois (Reference Du Bois2007) adds a third element to what he conceives as a “stance triangle:” stance-takers must also position themselves in relation to the stance object. Criminal hearings are densely intertextually structured, and trial participants seldom have direct, unmediated access to the circumstances of the facts. Under such conditions, positioning oneself in relation to the stance object de facto assumes the character of inscribing oneself in a text trajectory.
It is useful, therefore, to consider stance-taking in conjunction with Goffman’s notion of footing, understood as “the alignment we take up to ourselves and the others present as expressed in the way we manage the production or reception of an utterance” (Reference Goffman1981, 183). A key aspect of footing is the production format of an utterance. For Goffman, the unified notion of speaker falls apart into multiple participation statuses (not necessarily taken up by the same participant), including the “animator” of the utterance (the one physically uttering it), its “author” (the one who drafted it), and its “principal” (the party whose position is represented). This nesting of participation statuses involves the projection of a wider phenomenal field in a monological stretch of discourse (Goodwin Reference Goodwin2007) and may also evoke a trajectory of unspecified prior interactions (“shadow conversations”; Irvine Reference Irvine1996). Through these evocations of prior interactions, role incumbents are aligned across new, situation-transcendent participation frameworks in ways that enable the speaker’s dialogically organized position toward his/her own discourse to achieve interactional effects upon current interlocutors and audiences.
As noted in the introduction, ICC hearings represent an emergent, often highly contested form of criminal adjudication. Examining how the trial participants metapragmatically anchor the hearing into a wider sociodiscursive field, along the lines sketched here, therefore assumes particular analytical salience. In the next section, we start with analyzing footing and stance-taking in the prosecutor’s initial summary of the charges.
Summarizing the Facts of the Case
Already in a very early stage of the submission, Fatou Bensouda produces a narrative summary of the demolitions (lines 1–16 below), immediately followed by a statement of al Mahdi’s personal involvement (lines 19–25). Here, she recycles the facts of the case in an abridged form from the charges document, which the court officer read out only a few minutes before:Footnote 7
In this excerpt, the prosecutor’s narrative frames itself (and, by extension, the charges document that it recapitulates) as “transparently relaying the facts” (D’hondt Reference D’hondt2009a, Reference D’hondt2014). She does not assert interpretive agency, there is no mention of preceding trial stages (the inquiry) in which documentary records of the facts (“evidence”) were collected, and the facts themselves are presented as perspicuous, self-evident, and not requiring interpretation. “The facts are out in the open” (line 22), and she/her office is hence exclusively acting in the capacity of neutral transmitter. (Because Bensouda is both the director and a representative of the OTP, her institutional persona and her office equally qualify as principal of the discourse. The analysis will not try to resolve this ambiguity, except when it becomes an explicit interactional concern.)
Curiously, the summary also attributes motive and intent to the perpetrators—which is intuitively at odds with its apparent neutrality, as knowledge of the latter is, under normal circumstances, exclusively reserved for the subject-actors involved (Labov and Fanshel Reference Labov1977; Pomerantz Reference Pomerantz1980) and minimally requires a form of interpretation (D’hondt Reference D’hondt2009a). These motive attributions are, in turn, embedded in wider processes of “sentimentalization” (Bens Reference Bens2018): the various bodies featured in the prosecutor’s narrative, both human (militia members, residents) and nonhuman (the mausoleums), are charged with affect and emotion in a way that renders their interrelationships meaningful. For example, inhabitants of Timbuktu wake up noticing “with consternation” (line 3) that an attack had been launched against something they hold most dear, while the destructions themselves become an expression of “destructive furor” (line 14). In addition to this “local” sentimentalizing (involving perpetrators and victims located in Timbuktu), the summary also goes a step further. It treats militia members as actors in control of motive and intent in the global interactional arena: they “revealed to the whole world their contempt … for the rules laid down in the Rome Statute” (lines 23–24).
This move beyond the local emphasizes (makes visible) the perpetrators’ intentions, by hinting at an alternative intertextual embedding of the hearing that is independent of the prosecutor’s inquiry. Lines 22–25 overtly allude to the fact that the perpetrators allowed journalists to cover the Timbuktu demolitions, al Mahdi and other Ansar Dine leaders readily gave interviews, and footage of the mausoleums being taken down with pickaxes was circulated on the internet. As such, the summary reframes the demolitions as a communicative act designed for a global audience. In fact, the prosecutor herself played a part in this parallel text trajectory mediated by international press coverage. Immediately after the demolitions started, on July 1, 2012, she gave an interview to AFP warning the perpetrators that they might be guilty of a war crime under the Rome Statute.Footnote 8 The perspicuous “visibility” of their contempt for international law derives inter alia from their noncompliance with this caution, which objectivizes the communicative intent behind the demolitions and further downplays the prosecutor’s agency in interpreting them. In the sense, the prosecutor’s strategy resembles that of her colleague in the much more low-profile, domestic resisting arrest case documented in D’hondt (Reference D’hondt2009a), where the prosecutor cast her decision to charge the four teenagers as an automated institutional response, grounded in an “objective” attribution of intention based on their refusal to obey a police order.Footnote 9
The prosecutor’s statement that “the suspect … is appearing before you today charged for this callous attack” (lines 19–20) explicitly formulates the participation framework into which this presumed neutral transmission inserts itself. It frames the judges, entrusted with the task of evaluating the charges, as the recipients of the submission, and the defendant, the one who is actually charged, as its object. Her use of the passive voice, however, leaves opaque that either she or her office is also the author (and principal) of the charges against the defendant. Again, her own role in bringing al Mahdi to court is minimized and remains invisible. (In lines 17–18, she momentarily appears but only in her role of animator, asking permission to continue in English). Of course, leaving principalship opaque does not equal denying it, and the episode is still produced under the institutional assumption that she or her office is responsible for the discourse as its principal. The passive voice, however, illustrates how she immediately empties that principalship, presenting the decision to prosecute as an automated institutional response devoid of interpretive agency.
Occasional displays of regret, like “Unfortunately” in lines 14 and 15, further complicate principalship (and add to the various strands of emotionality woven into the neutral transmission), as they are individually attributable to the prosecutor as owner of her own emotions. Taking a lead from Tallgren (Reference Tallgren2014, 72), however, we can interpret these displays of emotion as expressing the speaker’s “[alignment] into a collective subject of ‘our’ shared emotion,” triggered by the confrontation with cruelty and suffering. The prosecutor is thus neutrally transmitting and simultaneously commenting on this process (D’hondt Reference D’hondt2009a) in the name of the shared “humanity,” which she coembodies with the court (cf. infra).
The Impact of the Demolitions on the Local Community
The inquiry’s invisibility does not last long. Immediately after sketching al Mahdi’s involvement, the prosecutor produces a lengthy account of the significance of the demolished mausoleums from a religious, historic, and identity point of view.Footnote 10 (Unlike the facts and circumstances of the case, this aspect had been dealt with only scantly in the charges document.) The account is primarily oriented to the legal task of demonstrating (a) that the mausoleums were indeed protected under Article 8(2)(e)(iv) of the Rome Statute (and their demolition effectively constituted a war crime), and (b) that the destructions meet the gravity threshold for referral to the ICC. Lostal (Reference Lostal2017) characterizes Bensouda’s approach to the historical and cultural value of the demolished monuments as “anthropocentric,” because it prioritizes their significance to the local community and the consequences of the demolitions for Timbuktu residents’ well-being and self-worth. As we shall see, this translates into a specific combination of footing patterns.
Below, the prosecutor addresses the mausoleums’ significance from a religious point of view. First, she reviews their role in local religious practices (lines 1–6), then she sketches the impact of their destruction on the Timbuktu population (lines 7–14) and clarifies an applicable point of law (lines 15–20):Footnote 11
Each of the three parts of her argument in this excerpt is characterized by a distinct footing pattern, and the textually mediated nature of the charges only surfaces in the second one (lines 7–14). Here, the prosecutor relies on a witness statement (lines 9–10) to validate how the demolitions affected the community by obliterating religious practices. The case file itself, the material sediment of the inquiry (and the conduit through which testimony travels), is indexed by the witness identification number (P-125). Throughout the submission, the prosecutor systematically draws on such testimony to scaffold her account of how residents experienced the destructions, and the quote in lines 9–10 is typical in this respect. She does not assert interpretive agency over what it might mean or preempt possible rival interpretations. The role of the quote is solely to illustrate how Timbuktu residents suffered from the destructions. It is treated as transparently transmitting whatever it purports to report, and not framed as requiring interpretation or pitched against other evidence. Apart from the “I quote” preface (a brief personal appearance indicating that she is momentarily only animating), the prosecutor remains invisible, acting solely in the capacity of neutral transmitter of “transparent” evidence.Footnote 12 Her reliance upon quoted materials appears primarily related to the “practical epistemics” analyzed in conversation analysis (e.g., Heritage Reference Heritage2013), because the impact of the destructions represents a knowledge domain to which only those affected possess first-hand access (Labov and Fanshel Reference Labov1977; Pomerantz Reference Pomerantz1980). To be clear, such entitlements to knowledge are part of the rhetoric of case making and do not reflect actual cognitive states. This is evident, for example, from the fact that the quote in lines 9–10 scores low on information value but is nevertheless highly visible (because it retains the original language of the testimony): that a quote is used seems more important than what the quote actually says.Footnote 13
This visibility of intertextual mediation in lines 7–15 contrast markedly with lines 1–6, where the prosecutor explicates the religious usage of the mausoleums before the demolitions. Here, the case file remains hidden (although, later on, other members of the defense team extensively quote expert testimony supporting precisely this part of the submission). Of particular interest is the “anthropological detail” provided about local religious practices (“usually on Fridays,” line 4) and the occasional expression of curiosity accompanying the recounting of these practices (“Some even travel to them on pilgrimages,” lines 5–6, emphasis added). Instead of posing as a neutral transmitter, the prosecutor now adopts an expert voice. The claim to anthropological expertise aligns the prosecution with the collective we of the court, collaboratively engaged in truth-finding. The prosecutor simultaneously places herself in the role of knowledge provider (in an intercultural setting, as indicated above), satisfying the court’s thirst for understanding. The victims are thereby reduced to objects of the discourse, and their own testimony is accountably of little relevance. In spite of recurrent claims to be dispensing justice on their behalf, the prosecution is here putting up a cultural boundary and actively disaffiliates itself from its own client (much in the same way as the defense did in the domestic trial documented in D’hondt [Reference D’hondt2010]).Footnote 14
The third segment in this excerpt (lines 15–20) is one of the rare moments where the prosecutor asserts full interpretive agency, openly assuming responsibility for the opinions expressed in her discourse. She steps out of her role of neutral transmitter of the facts in order to address a point of law, anticipating a defense objection on the OTP’s interpretation of the Rome Statute. Once this parenthesis is completed, and the religious significance of the mausoleums sufficiently addressed, the prosecutor resumes her account of the impact of the destructions “from a … historic, and [an] identity point of view.”
Speaking in the Name of Humanity
A drastic shift occurs once the prosecutor addresses the significance of the destructions beyond the strictly local: their impact on Africa and humanity at large. For this, she again incorporates quotes from various sources (members of government, representatives of international bodies, experts), which are treated as transparent similarly to the statements by Timbuktu residents. The overall participation framework projected by this segment, however, also opens up the trial to court-external constituencies. The juxtaposition of multiple statements collectively lamenting the destruction of cultural heritage assumes a choral character, which reflexively epitomizes common humanity (triggered by the shared outrage over such brutality; Tallgren Reference Tallgren2014, 72). Humanity features in two guises here. It is collectively the victim of the destruction of the cultural heritage, and it also faces the responsibility of collectively responding to it. The two go hand in hand, and the prosecutor’s “transparent quotes” illustrating global consternation are systematically followed by calls for a strong response, thus evoking an ideal of retributive justice. The following excerpt illustrates how the prosecutor, in switching from the first to the second guise of humanity, leaps from reporting about humanity’s collective indignation (lines 1–2) into coenacting it (lines 4–7), joining the polyphonic choir that she has carefully orchestrated:Footnote 15
Earlier, we pointed out how the prosecutor momentarily aligned herself with the we of the court as collaboratively engaged in truth-finding. The excerpt above illustrates how this collective we (“our failure,” line 6) is in turn usurped by abstract humanity, now allied with a retributive notion of justice (“Humanity must [reject …] these crimes through concrete punitive action,” line 4). The defendant, subjected to this proposed retribution, is excluded from “we”/“the court”/“humanity.” Apart from adding to the gravity of the charges, these humanity invocations contribute little to the legal task of establishing criminal liability. Al Mahdi was charged with war crimes, not crimes against humanity.Footnote 16 It appears that from here on, the prosecutor’s metapragmatic framing appears to prioritize legitimizing the trial and vindicating the role of the ICC in promoting global justice over actual legal case making.
Other authors have pointed out how the abstract term “humanity” is elusive and easily destabilized (e.g., Mégret Reference Mégret2015). In this case, it is supplemented with an equally abstracted conception of “the victim” (cf. Kendall and Nouwen Reference Kendall2013) that alternates with humanity as the court’s ultimate constituency on whose behalf justice is done. However, the way the prosecutor here designates the victim as the beneficiary of the court’s justice is radically different from how she earlier appealed to humanity. For the latter, she carefully staged a polyphonous orchestration of voices, in which she herself (aligning with the collective we of the court) eventually joined in. The abstract victims, however, although they share with the court an acute aspiration for justice (which ultimately allows the court to do justice on their behalf, Fletcher Reference Fletcher2015), remain a separate entity throughout. Their presence is projected by reframing the hearing as part of a “dialogical network” (Leudar and Nekvapil 2004) in which trial participants collectively respond to the victims’ calls for help. To see how this happens, one should look at the submission’s openingFootnote 17 and closing:Footnote 18
In her closing remarks, the last of the two excerpts, the prosecutor first accentuates the context and participation framework of the hearing, by addressing the judges and drawing attention to the physical presence of the defendant (lines 2–3). She then reformulates the encounter as an opportunity “to tell the victims that we finally heard their cries of desperation” (lines 4–5), setting up a conspicuous parallelism with the submission’s opening. Here, in the first of the two excerpts, the prosecutor launched her opening with two quotes attributed to a nameless victim, the first framed as a “cry of despair” (line 4), the second as an expression of “desolation and powerlessness” (lines 5–6). The first of these metapragmatic qualifications is particularly effective: It frames the quote as prompted by the original speaker’s dire emotional state, emphasizes his/her incapacity to take action on his/her own behalf, and suggests that it was not directed at any recipient in particular. Following the prosecutor, we “the court” must assume the responsibility to respond to the call, retrospectively establishing a dialogical network (Leudar and Nekvapil Reference Leudar2004) that connects the hearing to the “victim’s cries” uttered four years earlier.
In this way, the recontextualization provides a particularly graphic response to Kamari Clarke’s question “What kind of victims does the ICC require Northern Uganda’s [or in this case, Mali’s] citizens to be?” (Reference Kamari Clarke2009, 121). Commenting on the tension between international criminal law and local Ugandan reconciliation initiatives, Kamari Clarke points out that
[this] articulation of justice that advocates international law over national law … reduces citizens in Uganda (and elsewhere) to victims whose very exclusion from political life is the necessary condition for political intervention by international legal regimes such as the ICC. … The result is an African population characterized by what Agamben (Reference Agamben1998) calls zoe, or “bare life”—a condition of extrapolitical, absolute victimhood in which life is reduced to the effort required to satisfy only the most basic needs of existence. (Agamben contrasts zoe with bios: politically or morally qualified life, the form of life found in a thriving community.)
(119–20)Acceptance as a victim by the ICC requires one’s “agency [to be relegated] outside of the political sphere” (143), as neither victim nor perpetrator are “expected to interpret or exercise legal power in their own right” (144). In fact, this is exactly what the prosecution accomplishes by recontextualizing the Timbuktu residents’ statements as “cries of despair”: It condemns their utterers to the status of bare life, framing them as crying out for help and lamenting their situation but also as unable to directly address the court or independently engage with the international community. Instead, they wait until an outside agency, in this case the ICC, intervenes on their behalf (see also Kendall and Nouwen Reference Kendall2013, 255).
This becomes all the more obvious if we look at what is lost in the prosecutor’s recontextualization of these victim statements. In lines 6–7, the prosecutor recycles a statement attributed to a Timbuktu resident quoted on Radio France Internationale.Footnote 19 The first quote, however, is part of a drafted proclamation, the Declaration de Tomboctou, published on the internet more than a month before the attacks, on May 21, 2014.Footnote 20 It is authored by Mohamed Diagayété, director of the renowned Ahmed Baba Institute. Addressed to the UNESCO secretary general, it purports to be speaking on behalf of a committee of Timbuktu intellectuals. On June 30, 2012, FranceTV broadcasted a sixteen-second clip of another Timbuktu resident (not Diagayété) reading out the first three lines in front of a camera (corresponding to the excerpt quoted by the prosecutor).Footnote 21 Framed by the newsreader as “a call for help … by the elders in charge of culture” (my translation), the broadcast retained the original document’s character as a public statement and implicitly designated the one reading it out as a spokesperson. The prosecutor recontextualizes exactly the same three lines, but she does so in the context of a dialogical network with an unspecified, nameless victim. In doing so, she strips the statement of what makes it recognizable as part of politically and morally qualified life: the fact that it was written by a respectable academic, raising his voice on behalf of a representative committee and determined to speak out for the community at large, with sufficient “clout”—linguistic, social and cultural capital—to have his text circulate on an international platform.
Tracing the submission’s intertextual sources also reiterates how the judicial text trajectory depends on parallel text trajectories, mediated by international press coverage. Of the ten statements quoted in the prosecutor’s submission, only two are identified with a witness identification number. Six other quotes, all except one by members of government and representatives of international bodies, are from already circulating official statements, subsequently included in the prosecution’s written conclusions in support of the charges.Footnote 22 In fact, the two quotes with which the prosecutor opened her statement (in the first excerpt above) are the only already circulating statements not mentioned in the conclusions.
The Defense Remarks
It takes the prosecution team about three hours to conclude, after which the floor returns to the defense. Al Mahdi’s main counsel, Mohamed Aouini, announces that the defense preserves its submissions to the merits for the actual trial (because of the plea arrangement), but that cocounsel Jean-Louis Gilissen will formulate a few preliminary remarks. In a statement lasting twelve minutes thirty seconds, Gilissen recognizes that the facts constitute a transgression. He then briefly contextualizes them, alternating between descriptions of:
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(a) the context of the demolitions as a political conflict over the regulatory role of religion in public life (rather than driven by interreligious hatred per se),
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(b) the destructions themselves as only affecting structures erected on top of the original graves (the former prohibited, the latter protected under Islamic law),
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(c) the defendant as a moral character, acting in accordance with a vision of purity that he presumed to best represent the interests of his community.
On two occasions, Gilissen reproduces a teleological argument, explicitly designating al Mahdi as the principal and dissociating himself from his Salafist discourse. Elsewhere, he systematically addresses the court in his own name, intermittently using the collective we to include his co-counsel Aouini (as in lines 2 and 12, below). He thus asserts interpretive agency as an attorney, either engaging with prosecution statements and misconceptions entertained by the public (the accusatorial aspect of the trial) or providing information about the defendant and the circumstances of the case (assisting the judges in their inquisitorial task of truth-finding). Gilissen strikes a delicate balance here, positioning himself as mediator between defendant and court. The information he provides about his client is cloaked in “other-descriptions” (D’hondt Reference D’hondt2010), which al Mahdi would probably never use himself. He also intersperses his talk with brief evaluative comments, evoking a common normative framework shared with the audience but not with the client. Unlike Bensouda, however, he persistently maintains his distance from the judges, emphasizing their autonomy in the decision they have to make on the confirmation of the charges.
The latter is evident, for example, from the fact that he does not use the collective we of the court, except on one occasion. To underscore the distinction between Islam, political Islam, and terrorism (which he presents as fundamental to the judges’ task of adjudication), Gilissen reframes the hearing as an encounter in which the defendant tries to communicate to the court. He now includes himself as part of the court (“is trying … is trying to tell us,” 11, emphasis added), taking up the role of facilitator of the entailed dialogue:Footnote 23
Gilissen’s temporary affiliation with the court and his self-positioning as facilitator suggest cultural distance and project a cultural boundary separating court and client. However, unlike the dialogue between court and victim evoked by the prosecution, it also affirms the defendant in his role of autonomous judicial actor, displaying a clear sense of agency in reaching out to the court. Gilissen’s remarks about al Mahdi’s involvement in the Hisbah portray his engagement during the civil war as regulated by an intellectually buttressed view of what is best for his community—thus qualifying that engagement as part of “politically-morally qualified life.” In the excerpt, the defense attorney extends this political-moral qualification of al Mahdi’s alleged conduct to his appearance before the court. Through his self-positioning as mediator, he paradoxically also underscores the defendant’s own agency in reaching out to the judges, voluntarily entering a guilty plea and setting forth his own line of argumentation.
Conclusion
Two key questions must be answered here. How does the legal discourse mediating ICC trials compare to the discursive practices associated with domestic criminal trials? To what extent do these discursive practices reflect the various internal and external challenges facing the ICC? ICC trial discourse is certainly characterized by a “lack of fit between legal categories … and a messy social reality” (Branch Reference Branch2016, 36), but then, such discrepancies already permeated Conley and O’Barr’s classic (Reference Conley1990) account of litigants’ rule- and relationship-oriented perspectives in small claims courts. Further, it appears insufficient to note the game of alignments and disaffiliations that develops between the prosecution and the defense, as comparable constellations can be found in domestic criminal trials, where they may help to conceal the sociopolitical circumstances of adjudication (D’hondt Reference D’hondt2009a, Reference D’hondt2009b). The present analysis demonstrated, however, that this dynamic interplay between footing practices, alignments with the court and other trial participants, and evoked constituencies, which is characteristic of courtroom discourse in general, acquires a very specific flavor in the context of ICC trial proceedings. In addition to the legal task of establishing possible equivalences with the Rome Statute, the ICC trial actors’ metapragmatic regimentations of the ongoing trial seem particularly concerned with asserting the court’s independence from the political realm. As discussed in the opening section, this remains a thorny issue that underlies many of the external challenges to the ICC’s legitimacy (see also Nouwen and Werner Reference Nouwen2010; Kamari Clarke and Koulen Reference Kamari Clarke2014).
The first empirical section of this article pointed out how the prosecutor’s discourse framed the OTP’s decision to prosecute as self-evident and perspicuous, by concealing the judicial text trajectory behind the case and presenting the charges as an automated judicial response to conduct that is manifestly punishable under the Rome Statute. This approach to covering up hypothetical political considerations behind a decision to prosecute is by no means unique, and D’hondt (Reference D’hondt2009a) documented the existence of a comparable phenomenon in domestic (civil law) criminal proceedings.
Yet, there is no domestic equivalent to the way in which ICC trial actors, particularly the prosecutor, exploit the interactional affordances of the court’s collective we to anchor ICC trial proceedings in a wider socio-discursive field. In domestic criminal adjudication, this collective we of the court plays a prominent role in legal case making, since it provides a screen on which trial actors project commonly accepted notions of normality that render deviance and otherness visible (see above). During the al Mahdi hearing, however, this concept of we played only a minimal role in establishing the punishability of the facts. Nevertheless, the prosecutor expended significant discursive effort rendering this we that the court stands for explicit. On the one hand, the court was imbued with the transcendent we of abstract humanity, confronted with the historic task of standing up against the destruction of its common heritage. On the other hand, the prosecutor framed her discourse as being geared toward the collective task of ensuring justice on behalf of the (equally abstract) victims, whose cries she quoted during the opening part of her deposition. The central role played by this accounting work in the prosecutor’s submission illustrates the extent to which a case conducted before the ICC quasi-automatically becomes “a case for” the ICC, and it highlights how the court continually needs to reassert its own legitimacy. The paradox here, of course, is that any attempt to legitimize/depoliticize the ICC’s operation by claiming to do justice in the name of this “double abstraction” (Kendall and Nouwen Reference Kendall2013, 256) is in itself inevitably highly political. As Nouwen and Werner (Reference Nouwen2010) note, the task of sorting friends from enemies (in this case, of humanity) lies at the very heart of what constitutes politics. Additionally, the dialogue that the prosecutor projects between the court and the victims effectively deprives the latter of any political agency, thereby symbolically reinforcing the center-periphery asymmetry between the ICC in The Hague, as the source of jurisprudence, and the various local sites where its justice is received (Kendall Reference Kendall2014, 62).
ICC trial participants must not only assert their independence from politics, but also navigate the perceptions of cultural distance that might threaten the ICC’s attempts to adjudicate crimes committed in foreign cultural settings. Hence, the present analysis highlighted how at one point, the prosecutor slipped into a discourse of anthropological expertise, with the victim being assigned the position of the object of that discourse. The defense attorney, in contrast, positioned himself as a cultural mediator, assisting al Mahdi in his attempt to bridge the evident cultural gap. Both footing patterns are reminiscent of Wilson’s (Reference Wilson2016) observation that judges on international tribunals readily incorporate social scientific evidence, provided that it does not “[imperil] the authority of judges as finders of fact” (Reference Wilson2016, 737). Previous studies (D’hondt Reference D’hondt2010; Braunmühl Reference Braunmühl2012) have demonstrated that discursively framing the defendant as a cultural other does not necessarily require (and hence de facto trumps) actual ethnographic documentation. The current case does not support such a strong assertion, although it nonetheless illustrates the importance of framing conduct as requiring mediation and cultural translation. Furthermore, it is revealing that these framings are not solely geared toward exculpating the punishable behavior of offenders who qualify as cultural others (“cultural defense,” Foblets and Renteln Reference Foblets2009). Instead, the prosecutor also provides cultural information about the victims to help determine whether the defendant’s conduct meets the criteria for punishability specified within the Rome Statute. Domestic legal systems are routinely associated with one particular cultural environment, and articulations of cultural otherness are thus typically reserved for deviant “outsiders” who do not share the court’s cultural background. The fact that the prosecutor in this case used cultural evidence to render the victims’ conduct intelligible indicates that the ICC somehow considers itself to be “elevated above” cultural diversity.
In tracing these various metapragmatic framings, this article joins a wide range of recent studies drawing attention to the practices of victim representation in international criminal trials (Kamari Clarke Reference Kamari Clarke2009; Kendall and Nouwen Reference Kendall2013; Fletcher Reference Fletcher2015) as well as to the constituencies in whose name justice is served (Tallgren Reference Tallgren2014; Mégret Reference Mégret2015). The article, however, explicitly prioritizes the interactional forum in which such representations and constituencies are articulated (the so-called black box of courtroom talk), thereby underscoring both their role in the discursive accomplishment of legal tasks and the way in which they are negotiated during the course of actual trials. In this way, the present analysis may also shed new light on the following statement by Mégret (Reference Mégret2015). Having exposed the intrinsic destabilizability of just about every constituency in whose name the ICC might seek justice, he concludes that “if the ICC can only have its way by successively mobilising a series of constituencies that are inherently in tension with each other, what remains is the feeling that the Court’s ultimate constituency is nothing but itself. The ‘absent sovereign,’ then, is not any of international criminal justice’s many constituencies (not even victims), but the agent that is capable of articulating the successive prominence and effacement of these constituencies” (Mégret Reference Mégret2015, 45). This article’s focus on the interactional arena in which these constituencies are articulated indicates that there may be multiple agents involved in the process of formulating the ICC’s “absent sovereign” (Kendall and Nouwen Reference Kendall2013, 254). Instead of positing a single agentive subject producing the discourse, the present analysis invites us to look at ICC trial discourse as the medium for projecting images of the court and to conceptualize the interactional here-and-now of the hearing (as epitomized by the court’s collective we) as the “screen” onto which these images are projected. The various metapragmatic devices that ICC trial actors resort to so as to anchor ongoing courtroom events in a broader dialogical field are hence essentially “fantasmatic” projections (Glynos and Howarth Reference Glynos2007, 145–52). Their role involves instilling a momentary impression of wholeness in light of the fundamental impossibility, noted by Mégret in the quote above, of unequivocally assigning an “absent sovereign” to the court. The present analysis demonstrated that the various parties to the trial engage in this task with a high degree of explicitness, and this in itself illustrates the tensions and frictions that the project of global criminal justice, as embodied by the ICC, faces.
