The Figure of the Witness in International Criminal Tribunals

Benjamin Thorne is a Lecturer in Law at the University of Kent, and he completed his ESRC funded PhD in Law at the University of Sussex in 2020. Benjamin is an interdisciplinary scholar with main themes of interest within socio-legal studies, transitional justice, and critical theory. One area of focus for him is the connections between memory, transitional justice, and legal atrocity archives. More generally, Benjamin is interested in questions around visuals, sounds, as well as the broader sensory field, in how people experience crime, law and justice, particular in the international context. Currently, Benjamin is conducting collaborative research exploring the role visuals arts can have as a form of justice for victims of sexual violence committed during conflict. Furthermore, he is working on research through artistic expression exploring themes of memory, human senses and legal archive material and which has been published with the Law and Humanities Journal (2021). Previously, Benjamin was a Visiting Researcher at University of Oxford Centre for Socio-Legal Studies.

Introduction Chapter






Introduction



Defining Transitional Justice



Context



Research Data and Method



Structuring the Argument

Chapter One: Memory, Witnesses and International Criminal Institutions






Introduction



Origins of the Practice of Transitional Justice: Nuremberg and the Exceptional use of International Law








The symbolic representation of Nuremberg and Human Rights



Eichmann: Law and the Need for Witnesses to Remember








A Discourse of Transitional Justice Scholarship: From International Justice to Local Justice Via International Norms



International Criminal Tribunals and Courts: Witnesses and Testimonial Evidence








International Criminal Tribunal for Rwanda and Defining Legal Witnesses








Conclusion - International Legal Institutions: Spaces of Memory Construction

Chapter Two: Conceptualising the way Legal Witnesses Remember Mass Human Rights Violations








Introduction



Law and the ‘Grey Zone’ of Witnessing










Bearing Witness










The Grey Zone: Law, Ethics and Legal Witnesses



The ‘Muselmann’: the lacuna of law and justice or legal witnessing as ‘Judgment’










Theoretical lens: conceptualising legal witnessing










Memory: Individual and Collective Components










Manipulated Memory










From Agamben and Ricoeur to an original conceptual framework: analysing the way legal witnesses remember at the ICTR



Discourse and Legal Archives



i The ICTR’s ‘Black Box’: Opening up the archives








The legal production of knowledge



Bringing together the theory, ‘Black Box’ and the analysis



Conclusion

Chapter Three: The Discursive Battleground of Legal Witnessing, Or, The Active Witness and Their ‘Right to Truth’








Introduction



Nowhere and Everywhere: The Discursive Reach of the Witness at the ICTR










‘Bears in a China Closet’: The discursivity of investigations and indictments










The Right to Truth: Who’s Speaking?












Mass Atrocities and the Right to Truth



Victims-Witnesses



The discursivity of the ‘witness’ vs the right to truth: universality, agency and collective legal stories










Conclusion

Chapter Four: Memories of Violence and the Limitations of Law








Introduction



Law, Genocide and Legal Memories of Mass Violence










The ICTR and the crime of Genocide



Genocidal violence: Layers and fluidity of events, actions and agents










Beyond Law: The Plurality of Violent Memories










Discursive restrictions of witness memories



The ‘Grey Zone’ of legal witnessing



The plurality of memory








Conclusion

Chapter Five: Critiquing Liberal Legality and Collective Memory








Introduction



Legal Actors as Memory Producers










Testifying in the ‘Interests of Justice’



The discursive practices of Disclosure



Producing a Legal Memory of Rape and Sexual Violence










Liberal Legality and Collective Memory: A Critique










A critique of advocacy for a legal collective memory of atrocities



Plural vs Collective memory



A Conceptual Alternative










Conclusion



Chapter Six: Fragments of Legal Memories








Introduction



Legal Archives: Plurality, Self and ‘Others’










Plural Fragments of Memory



Intergenerational Transmission of Legal Memories: Words and Images








Legal Memory: The Empirical Potential and Challenges of the ICTR Archive



Conclusion



Epilogue - An Atrocity Archive: Sensory Expression of Past-Present-Future

Conclusion






Introduction



Why Conceptual Insights Matter



Contribution to Knowledge



Framing the Books Contributions



Future Research Directions

Bibliography

Appendix






Appendix One: Case Studies



Appendix Two: List of Data