This chapter conceptualises reconciliation and unreconciliation as two spaces. The chapter analyses Véronique Tadjo’s The Shadow of Imana together with the ICTR case Prosecutor v. Bagosora et al. and Téa Obreht’s The Tiger’s Wife alongside the ICTY case Prosecutor v. Milošević. The reflective narratives depict geographical proximity, trust and shared culture or history as supportive of the space of reconciliation. Fear and mistrust, physical distance and forced forgiveness maintain unreconciliation, and fear may be symptomatic of the absence of the rule of law. Addressing fear and reconciliation simultaneously could be beneficial and a means to break the cycles of attitudes and behaviours which, for example, allow the lack of trust to prevent communication needed for establishing trust. While reconciliation takes place among and between individuals and different size groups in diverse societal spheres and contexts, the chapter positions the dead as an overlooked stakeholder group.

This chapter maps the overall picture of transitional justice in Rwanda and the former Yugoslav countries, which shapes how the future has been imagined. Since reflective narratives do not always align with the local, national and international actors’ understandings of post-atrocity realities, this chapter explores which mechanisms, policies and practices have sought to contribute to the transitional justice goals of truth, justice, healing and reconciliation. The chapter highlights that studies driven by goals of transitional justice can help identify complementary and contradictory aims and extend the wealth of research that focuses on specific transitional justice mechanisms.

This concluding chapter returns to the aim of the book to locate the conceptual contribution of reflective narratives in the field of transitional justice. It discusses the implications of the case study chapters, reiterating the ways in which the reflective narratives that imagine futures can help rethink existing conceptualisations and challenges of transitional justice. It explores the relevance of the findings to practitioners and policy makers. The chapter also identifies thematic connections of agency, silence, listening, and death or the dead that emerge as a web of spaces and touchpoints across the different chapters and goals of transitional justice. This contributes towards possible future research avenues and leads towards returning the focus on the individual human beings who live with the complex and evolving legacies of genocide and war.

This chapter argues for the need to recognise those who do not heal after atrocity. It analyses Gilbert Gatore’s The Past Ahead and Faruk Šehić’s Quiet Flows the Una and sets them alongside the ICTR case Prosecutor v. Renzaho and the ICTY case Prosecutor v. Brđanin. The chapter distinguishes narration of pain from the narration of healing, suggesting that both can play a role in (narrative) healing. It shows that momentary relief or respite is a form of healing, and that the moment of death, in particular, a suicide, emerges as the end point of successful and unsuccessful healing. Drawing on pain and healing in trauma and literary studies, the chapter reminds the reader of the longevity of pain experiences and healing processes which are dependent of the person and their physical and social environment. Since the absence of healing may isolate from collective and societal change, this chapter seeks to increase the visibility of those who do not heal in the field of transitional justice and challenge assumptions of the permanence of decrease in pain.

This chapter examines truth, foregrounding the shared characteristics of different types of truth. The chapter brings together Boris Boubacar Diop’s novel Murambi, The Book of Bones and the ICTR case Prosecutor v. Simba alongside Goran Vojnović’s Yugoslavia, My Fatherland and the ICTY case Prosecutor v. Mrkšić et al. Building on insights from narratology, this chapter traces the dialogicality of truth through analysis of the construction of truth in dialogue, the ways in which truths are obscured in dialogue, the impact of the absence of dialogue, and truth that emerges in dialogue with objects and documents. The literary texts offer certainty that remains absent in the ambiguous and open-ended accounts is the legal narratives. Revising the dominant focus on differences between personal, social, legal and forensic truth, the chapter argues that these types of truth are social and partial.

The opening chapter outlines how reflective narratives can elucidate and extend existing conceptualisations of transitional justice goals. It traces the characteristics of historical, legal and creative narratives about the war and genocide in former Yugoslavia and Rwanda and the different meanings these narratives have given to violence and its aftermath. Here reflective narratives – produced slowly in and through the arts and law – emerge as stories that imagine or help imagine futures different to the present. The chapter introduces the entanglement of the methods of ‘law as literature’ and ‘law in literature’ in this book. It also locates the arts and law in the field of transitional justice, arguing for the need to understand core goals from new perspectives that account for the interdisciplinarity of the field and for the inclusion of non-participatory arts in knowledge production. The chapter closes with an overview of the subsequent chapters.

This chapter engages with critiques about international criminal tribunals that centre on dissatisfaction with justice. It argues that reframing the debate to focus on the bearable level of injustice would invite reflection over and help revise expectations of justice. Engaging with legal and transitional justice scholarship, the chapter analyses Raoul Peck’s film Sometimes in April and Kitty Felde’s play A Patch of Earth together with the ICTR case Prosecutor v. Nahimana et al. and the ICTY case Prosecutor v. Erdemović. These reflective narratives complicate the limits of criminal accountability, and the chapter approaches them through the themes of responsibility, blame and agency. Differentiating between justice and justness, the chapter demonstrates how perceptions of just justice are subjective and dependent on who else is held accountable and how. The chapter also moves outside of the ICTY and ICTR to examine alternative pursuits of justice: impunity through silence and revenge. This reveals that some gaps in justice processes are acceptable while others are unbearable.

The chapter presents a dialogue between Sellers and Grey, exploring how "absent jurisprudence" from past international tribunals shapes contemporary international criminal law. Through a discussion of cases from Tokyo and Nuremberg to the ICC, Sellers demonstrates how opportunities for gendered analysis of crimes like enslavement were missed, creating enduring gaps in legal understanding. The conversation focuses on the overlooked cases of "comfort women" at the Tokyo Tribunal, women’s detention at the Ravensbrück camp during World War II, and the evolution of enslavement jurisprudence from the ICTY’s Kunarac case to recent ICC proceedings. Sellers argues that had early tribunals conducted deeper intersectional analyses of gender, race, and class in enslavement cases, contemporary courts would be better equipped to address similar crimes. The chapter suggests the Rome Statute’s bifurcation of "sexual slavery" from "enslavement" obscures how enslavement inherently involves control over victims’ sexuality and reproduction. The conversation reveals how jurisprudential gaps continue to constrain judges’ ability to fully recognize and address gendered dimensions of international crimes.

Chapter 2 explains how belligerent reprisals have come to be interpreted as tools to induce compliance with the laws of armed conflict. It does so by highlighting three cumulative processes. First, it looks at the role that post–World War II tribunals, the ICTY and the ICRC have played in stressing the procedural elements of belligerent reprisals, emphasizing the highly formalized set of steps to be taken before the adoption of the measure while downplaying the retaliatory act itself. Then, it claims that the main thrust of this proceduralization lies in the creation of a regulatory framework that attributes a specific legal meaning to the retaliatory conduct and, by so doing, allows for an assimilation of belligerent reprisals with the notion of countermeasures. In turn, this analogy leads to the attribution to belligerent reprisals of a sanctioning character that protects the primary norm from the risk of persistent non-compliance. The outcome of these three processes is the attribution to belligerent reprisals of a chiefly coercive purpose, interested in inducing compliance with the laws of armed conflict and markedly influenced by the enforcement paradigm.

This chapter examines the first fundamental legal concept of international criminal law, the international crime, and the ideas of persons and of social relations that it expresses. The legal category of international crime determines legally defined socially injurious conduct under international law. The chapter examines the construction of this legal category by tracing the modern criminalisation of conflict-related sexual violence under international law. It then sets out international crimes of sexual violence under customary international law and examines current definitions of sexual violence offences. It analyses how sexual violence as an international crime expresses the concept of the injured person and the ‘injured public interest’ of ‘international society’ in the new legal category of the international crime. The chapter shows that sexual violence offences criminalise injury to the bodily, personal, and sexual integrity of the individual and violation of positive law and universal values of ‘international society’. However, they also reveal a set of unresolved doctrinal and conceptual problems in the legal category. These include the grounds of criminalisation, gender-based or gender-neutral offences, the sexual or violent nature of the crime, and the connection of sexual violence to illegal international violence.

This chapter examines the second fundamental category of international criminal law, the international legal subject. This legal category constructs individuals as legal subjects who possess rights and duties at the international level. Taking gender as a relevant category of victimisation and perpetration, the chapter examines how sexual violence jurisprudence reveals the construction of the legal subject and relations in international criminal law. Reinscribing sexual violence as a gender-based crime makes visible how international criminal law constructs persons as legal subjects and attributes to them specific legal relationships of rights and duties to other persons. The chapter analyses how international criminal law attributes actions, rights, and responsibilities to individuals and collectives as victims and perpetrators of international crimes of sexual violence and constructs the person and society in the international legal order. It shows how these models of legal subjects continually oscillate between person and group, and individual and collective legal subjects, and reveals the problematic conceptualisation of the subject itself.

This chapter explores the juridical concepts of subject and society in international criminal law, the global social relationships that they express, and the historical conditions under which they emerge. It examines how international criminal law operates as a global legal form that orders categories of persons, crimes, and societies at the transnational level, focusing on sexual violence as an international crime. It draws on feminist accounts of the ‘state of exception’ to show how international criminal law structures ‘international society’ as a fraternal and ethno-nationalist social order and as hegemonic legal relations between non-state subjects. The chapter then examines the historical conditions under which global social relationships assume this legal character through an analysis of the Yugoslavian conflicts and the ICTY. Focusing on conflict-related sexual violence and its international criminalisation, the chapter shows how the global legal form emerges in the social processes of globalisation and expresses global relations of exchange. It argues that the global legal form emerges from the dominating and emancipatory social relations that globalisation produces and operates as a juridical element of global social relations.

This chapter examines ‘international justice’ as the fourth fundamental category of international criminal law and the models of persons and society that it produces. It analyses how ideas of justice come to have ‘juridical specificity’ in sexual violence cases and identifies their legitimating principles and justifications. The chapter examines how the organising concepts of international criminal law, that is, the international crime, international legal subject, international trial, and international justice, form the basis of the discursive structure of the legal form of international criminal law. Drawing on feminist psychoanalytic theory, it shows how this discourse has symbolic and imaginary dimensions and operates as a signifying practice that produces subjects and social relations. In the modern legal form of international criminal law, justice is imagined as the repair of the violation of its socio-symbolic order. However, sexual violence as a gender-based crime disrupts the existing legal form and the phantasy of international criminal justice that supports it. The chapter reveals that international criminal law continually confronts the violation of its socio-symbolic order, namely, the traumatic collective violence of international crime. It also shows that the socio-symbolic structure of international criminal law is not ‘closed’ or ‘fixed’ but has the potential to become dynamic and open to change.

This first chapter sketches a brief conceptual history of reparations in international criminal justice and introduces some key concepts and terms used throughout the book. Chapter 1 shows how questions of justice in response to mass atrocities have been informed by two international normative demands: the ‘fight against impunity’ and the corresponding rise of international criminal justice; and the emergence of international human rights and the increasing attention paid to victims of crimes. These two main normative responses – punishment of perpetrators and redress for victims – gradually converged over time, laying the ground for the emergence of reparations mandates at international(-ised) criminal courts. That this was not a linear development is demonstrated by interrogating the absence of reparations at the two ad hoc international criminal tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).

In this chapter, I outline how the approach I have can raise new questions, both for ICL and for general criminal law theory.

The study of extreme cases can unsettle and refine our understandings of the principles developed in everyday experience. I will show how studying ICL problems may require us to unpack the roles traditionally played by ‘the State’ in criminal law thinking, and to re-examine many familiar tools of criminal law thought (such as ‘community’, ‘citizenship’ and ‘authority’). The criminal law theory of ICL might draw on ‘cosmopolitanist’ scholarship, which contemplates forms of governance other than the state, and which is therefore particularly challenging for mainstream criminal law thinking.

I will also highlight ‘promising problems’ in ICL. Exploring such problems can help us refine ICL doctrines and also make contributions to mainstream criminal law theory. These include: legality without a legislature; a humanistic account of duress and social roles; and superior orders and state authority. I will then do an even deeper delve into a selected set of controversies in Chapters 6 to 8, in order to demonstrate the method at work and thereby clarify the method, the work it can do, and the themes it raises.

Chapter 2 dwells upon the operationalization of the reparative dimension of international criminal justice at the international level, with a focus on the historical evolution of reparations by international criminal courts and tribunals prior to the ICC, and the reparative justice model devised by the Extraordinary Chambers in the Courts of Cambodia (ECCC). The goal of this chapter is to retrace the diverse models in place in international criminal tribunals in regards to reparations, from a model that excludes reparations from criminal proceedings to one that has a role for victims and encompasses reparative dimensions of justice. Concerning the latter, this chapter analyzes in-depth the reparation regime developed at the ECCC, including the role of parties civiles, and the rich developing case law of the court regarding reparations. This chapter provides a careful analysis of all decisions on reparations and submissions of the parties, it engages with critical scholarship on the system developed at the ECCC, the impact of reparation orders for victims and discusses practical and policy considerations of the types of reparation that can be ordered (collective and moral reparations). It also analyses the partie civile system under which the ECCC operates and discusses the contribution of the evolving case law to the development of reparative justice for international crimes.

The effectiveness of transitional justice is hotly debated. We highlight a largely overlooked source of such war crimes evidence: intelligence provided by third-party states. We argue that such countries often wish to provide this information but withhold it to avoid revealing intelligence sources and methods. The adoption of confidentiality systems by war crimes tribunals can ease this tension. Courts can integrate national intelligence to gain insights into culpability for atrocities while protecting sensitive details. However, supplying states will constrain their disclosures based on their political interests. We analyze US intelligence disclosures to war crimes tribunals for the former Yugoslavia and Rwanda. Drawing on newly reviewed archival materials, elite interviews, and secondary sources, we show that confidentiality protections elicited considerable intelligence disclosures when the United States had a political interest in prosecuting the case, thus increasing arrests and indictments.