1st Edition

The Figure of the Witness in International Criminal Tribunals Memory, Atrocities and Transitional Justice

By Benjamin Thorne Copyright 2023
    ISBN 9781032052809
    228 Pages
    Published October 5, 2022 by Routledge

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    This book analyses how international criminal institutions, and their actors – legal counsels, judges, investigators, registrars – construct witness identity and memory.

    Filling an important gap within transitional justice scholarship, this conceptually led and empirically grounded interdisciplinary study takes the International Criminal Tribunal for Rwanda (ICTR) as a case study. It asks: How do legal witnesses of human rights violations contribute to memory production in transitional post-conflict societies? Witnessing at tribunals entails individuals externalising memories of violations. This is commonly construed within the transitional justice legal scholarship as an opportunity for individuals to ensure their memories are entered into an historical record. Yet this predominant understanding of witness testimony fails to comprehend the nature of memory. Memory construction entails fragments of individual and collective memories within a contestable and contingent framing of the past. Accordingly, the book challenges the claim that international criminal courts and tribunals are able to produce a collective memory of atrocities; as it maintains that witnessing must be understood as a contingent and multi-layered discursive process.

    Contributing to the specific analysis of witnessing and memory, but also to the broader field of transitional justice, this book will appeal to scholars and practitioners in these areas, as well as others in legal theory, global criminology, memory studies, international relations, and international human rights.

    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

      1. The symbolic representation of Nuremberg and Human Rights
      2. 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

      1. 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

      1. Bearing Witness

      • The Grey Zone: Law, Ethics and Legal Witnesses
      • The ‘Muselmann’: the lacuna of law and justice or legal witnessing as ‘Judgment’

      1. Theoretical lens: conceptualising legal witnessing

      • Memory: Individual and Collective Components

      1. 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

      1. The legal production of knowledge
      2. Bringing together the theory, ‘Black Box’ and the analysis


    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

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

      • The Right to Truth: Who’s Speaking?

        1. Mass Atrocities and the Right to Truth
        2. Victims-Witnesses
        3. 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

      1. The ICTR and the crime of Genocide
      2. Genocidal violence: Layers and fluidity of events, actions and agents

      • Beyond Law: The Plurality of Violent Memories

      1. Discursive restrictions of witness memories
      2. The ‘Grey Zone’ of legal witnessing
      3. The plurality of memory

    • Conclusion

    Chapter Five: Critiquing Liberal Legality and Collective Memory

      • Introduction
      • Legal Actors as Memory Producers

      1. Testifying in the ‘Interests of Justice’
      2. The discursive practices of Disclosure
      3. Producing a Legal Memory of Rape and Sexual Violence

      • Liberal Legality and Collective Memory: A Critique

      1. A critique of advocacy for a legal collective memory of atrocities
      2. Plural vs Collective memory
      3. A Conceptual Alternative

      • Conclusion

    Chapter Six: Fragments of Legal Memories

      • Introduction
      • Legal Archives: Plurality, Self and ‘Others’

      1. Plural Fragments of Memory
      2. 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


    • Introduction
    • Why Conceptual Insights Matter
    • Contribution to Knowledge
    • Framing the Books Contributions
    • Future Research Directions



    • Appendix One: Case Studies
    • Appendix Two: List of Data


    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.

    ‘The Figure of the Witness in International Criminal Tribunals’ brings welcome attention to the importance of legal archives in accessing the fragmented memories of atrocity. Thorne offers a theoretically innovative and careful analysis of how individual and collective memories are shaped by criminal trials. In doing so, this book offers a crucial contribution to scholarly debates in transitional justice generally and to those concerning Rwanda in particular.

    - Nicola Palmer, Reader in Criminal Law, Dickson Poon School of Law, King’s College London

    ‘This book challenges a foundational premise that witnessing and legal procedure are capable of establishing authoritative historical truths. Developing an original conceptual framework for understanding the role and limits of memory in international courts, the book is an essential theoretical intervention which should help others to articulate questions around the form and function of transitional justice.’

    - Dr Catherine Turner, Associate Professor in Law, School of Law, Durham University

    'Exploring how legal witnesses of human rights violations contribute to memory production in transitional post-conflict societies, Benjamin Thorne’s new book is original and exciting. The book is meticulously researched, offering a conceptually driven and empirically grounded analysis and drawing from an impressive range of scholarly fields. Grappling with concepts such as the ‘grey zone’ of witnessing, legal witnessing as ‘Judgment’ and manipulated memories through to the idea of archives as sites of sensory stimulation, Thorne makes a clever and compelling case. The result - a timely and very welcome addition to transitional justice scholarship and practice.'

    - Dr Cheryl Lawther Senior Lecturer in Law, School of Law, Queens University Belfast

    'Dr Thorne is an adept scholar, capable of spanning fields and disciplines. Here, by locating the witness, the act of witnessing, and legal testimony in their discursive context, he tests the potential, and exposes the limits, of legal process as part of memory production after mass violence. An excellent addition to Transitional Justice studies.'

    - Andy Aydın-Aitchison Senior Lecturer in Criminology, University of Edinburgh School of Law

    'This richly-informed book develops an original conceptual lens to problematise witnessing and memory in international criminal tribunals. Throughout, it lays bare how the perceived need in international criminal trials for a narrow legal narrative reductively instrumentalises the memories of violence held by victims, particularly at the pre-trial stage. Arguing for a more nuanced view of memory as a dynamic phenomenon, the important contribution of this book to transitional justice lies in how it foregrounds the potential for those fragments of memory found in trial archives to shape a more holistic memory ecology in post-conflict states.'

    - Prof Padraig McAuliffe, Professor in Transitional Justice, Law School University of Liverpool

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